Underwood, In re

• Decision Date: 18 April 1973
• Docket Number: Cr. 16504
• Citation: 508 P.2d 721,9 Cal.3d 345,107 Cal.Rptr. 401
• Court: California Supreme Court
• Parties: , 508 P.2d 721 In re Albert B. UNDERWOOD III, on Habeas Corpus. In Bank

Page 401

107 Cal.Rptr. 401

9 Cal.3d 345, 508 P.2d 721

In re Albert B. UNDERWOOD III, on Habeas Corpus.

Cr. 16504.

Supreme Court of California,

In Bank.

April 18, 1973.

Richard S. Buckley, Public Defender, Philip L. Miller, Richard Plotin, and Albert M. Meister, Deputy Public Defenders, for petitioner.

Joseph P. Busch, Dist. Atty., Harry Wood, Daniel L. Lieberman, and Donald J. Kaplan, Deputy Dist. Attys., for respondent.

WRIGHT, Chief Justice.

We issued an order to show cause in response to an application for a writ of habeas corpus on allegations that the respondent court committed error in denying petitioner bail in violation of Penal Code section 1271 and article I, section 6, of the Constitution. We conclude that the respondent court did indeed err in disallowing petitioner an opportunity to post a reasonable bail.

At approximately 4:15 a.m. on June 20 1972, petitioner, a senior student at the University of California at Santa Barbara, was seen in Tarzana as he ran from a residence. He was subsequently arrested in Los Angeles while in possession of two homemade sawed-off shotguns and two live shotgun shells, and was booked at the Los Angeles Police Department's West Valley Station. On June 22, 1972, petitioner was released on $500 bail.

During the evening of June 23, 1972, or early morning of June 24, 1972, a package addressed to the West Valley Station was placed in a postal deposit box in Tarzana. An examination of the package revealed that it contained a 'live' pipe bomb which was subsequently defused.

On allegations of probable cause not here challenged a warrant was issued for the search of petitioner's apartment and automobile. Police officers, in executing the searches authorized by the warrant, discovered numerous articles which were similar to or identifiable with the components used in the alteration of the shotguns and the construction of the pipe bomb. Thereafter petitioner was charged with violations of Penal Code sections 12020 (possession of a sawed-off shotgun), 664 (attempted murder (see § 187)), 12308 (attempt to explode a destructive device with intent to commit murder), 12303.3 (attempt to explode a destructive device with intent to injure people or property) and 12303 (possession of a destructive device).

At the time of petitioner's arraignment on the charges relating to the pipe bomb a motion to be released on bail was denied. Petitioner later renewed the motion and the court stated, in again rejecting the application: 'Due to the fact that there is a dearth of legal opinion in the matter it is usually up to the judge to make a decision. If the judge doesn't make a decision we never have any new law. If I am reversed I have been reversed before and I believe will be again. But I am not afraid to make a decision if I believe in that one. I believe as Justice Douglas stated where the safety of the community would be jeopardized it would be irresponsible judicial action to grant bail. . . . The time has come where we must restrain violence and death as much as pollible. If it is necessary to resolve it by denying bail to those who can or are able to perpetrate murders and violence and crimes of that nature, then the court at this time will not be reluctant to deny bail, and bail is denied. Let the District Court of Appeal make their ruling.' ¹

The People, in arguing the propriety of the denial in the instant circumstances, are confronted with Penal Code section 1271, which provides: 'If the charge is for any other (than a capital) offense, (the defendant) may be admitted to bail before conviction, as a matter of right.' ² Further, article I, section 6, of the Constitution states in pertinent part: 'All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required. . . .' ³

Notwithstanding these constitutional and statutory commands some appellate courts have 'read into' the bail provisions a 'public safety' exception. (Bean v. County of Los Angeles (1967), 252 Cal.App.2d 754, 60 Cal.Rptr. 804; see also, Evans v. Municipal Court (1962), 207 Cal.App.2d 636, 24 Cal.Rptr. 633; In re Gentry (1962), 206 Cal.App.2d 723, 24 Cal.Rptr. 208; In re Henley (1912), 18 Cal.App. 1, 121 P. 933.) Typical of such judicial construction is the following language in Bean: 'A defendant in a criminal action is entitled to be released on bail as a matter of right except for a capital offense when the proof is evident or the presumption great (Cal.Const., art. I, § 6) or Where for the safety of the individual or for the protection of society it would be proper to deny bail. (Citations.)' (252 Cal.App.2d at p. 757, 60 Cal.Rptr. at p. 807; italics added.)

The reading of the law enunciated in Bean and similar cases misconceives the purpose of our bail system and they are disapproved to the extent that they hold that there is a 'public safety' exception. The purpose of bail is to assure the defendant's attendance in court when his presence is required, whether before or after conviction. (People v. United Bonding Ins. Co. (1971), 5 Cal.3d 898, 98 Cal.Rptr. 57, 489 P.2d 1385; In re Newbern (1961), 55 Cal.2d 500, 11 Cal.Rptr. 547, 360 P.2d 43; see also In re Brumback (1956), 46 Cal.2d 810, 299 P.2d 217.) Bail is not a means for punishing defendants (Sawyer v. Barbour (1956), 142 Cal.App.2d 827, 300 P.2d 187) nor for protecting the public safety. Such objectives are provided for otherwise.

The Eighth Amendment to the United States Constitution, unlike our state Constitution, guarantees only that '(e)xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' Relying on the common law, the Supreme Court in Carlson v. Landon (1952), 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 ⁴ held that because the amendment does not grant the Right to bail it can be construed to mean only that bail shall not be excessive in those cases in which it is proper and that the denial of bail in certain cases is permissible. ⁵ (See Mitchell, Bail Reform and the Constitutionality of Pretrial Detention (1969) 55 Va.L.Rev. 1223.)

Our constitutional language expressly providing that all persons shall be bailable except for a capital offense was consciously Added to the 'no excessive bail' language adopted from the Eighth Amendment in order to make clear that, unlike the federal rule, all except the one class of defendants were to be bailable. ⁶ As pertinent statutory provisions may not be read to impose greater limits on the right to bail as guaranteed by the California Constitution, there is no validity in the argument that there is an implied 'public safety' exception in statutory or other provisions guaranteeing the right to bail and we hold that such an exception does not exist in view of the clear direction of article I, section 6. 'If the constitutional guaranties are wrong, let the people change them--not judges or legislators.' (In re Keddy (1951), 105 Cal.App.2d 215, 220, 233 P.2d 159, 162.) ⁷

We are compelled to the conclusion that the detention of persons dangerous to themselves or others is not contemplated within our criminal bail system, and if it becomes necessary to detain such persons, authorization therefor must be found elsewhere, either in existing or future provisions of the law. ⁸ No such provision had been invoked in the instant case at the time the motion for release on bail was denied. ⁹

In view of the foregoing it is clear that the Constitution of California prohibits the denial of bail solely because of petitioner's dangerous propensities. However, other circumstances not of record may preclude petitioner's release at this time and we cannot now order his discharge on the posting of reasonable bail to be fixed by the court.

Let the writ issue ordering that, while petitioner remains in custody pending a determination of the charges against him and upon his application therefor, he be afforded a hearing at which a reasonable bail be fixed, and that he be released upon the posting of such bail if he is then not subject to any other lawful restraints.

McCOMB, TOBRINER, MOSK and SULLIVAN, JJ., and ROTH, ^* J., Pro Tem., concur.

BURKE, Justice (dissenting).

I dissent. The words of our Constitution (art I, § 6) are reasonably susceptible to the interpretation that, although there exists a general right to bail in noncapital cases, nevertheless our courts possess the inherent power to deny bail, or to impose reasonable conditions upon the grant thereof, in any case wherein defendant poses a substantial risk of harm to others or to himself. The instant case presents a striking example of the propriety and necessity of the foregoing interpretation of the bail provisions of our state Constitution.

Defendant was originally arrested for possessing two sawed-off shotguns and live shotgun shells. He exercised his constitutional right to bail and was released on bail of $500. Immediately thereafter, according to the People, defendant set about to kill the police officers who had arrested and booked him by mailing to those officers a package containing a live pipe bomb capable of causing severe injury or death. Defendant is presently charged with various offenses, including attempted murder. Must he be released on bail once more? I believe not.

First I would hold that defendant (regardless of his present dangerousness), by committing a serious crime while enjoying the freedom secured by bail, thereby forfeited any further right to bail, at least with respect to the crime (or crimes) so committed. Certainly the California Constitution was not intended to render the courts powerless to control and punish the misuse or abuse of their own process. Any other rule would seemingly permit a defendant, bent on obstructing justice, harassing witnesses, or causing mischief or mayhem, to make repeated applications for, and receive, bail following...