In re Harris

Filed 11/29/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re JOHN HARRIS JR., A162891
on Habeas Corpus.
(San Mateo County
Super. Ct. No. 21-NF-002568-A)

Petitioner John Harris Jr. filed this petition for writ of habeas corpus
challenging the trial court’s decision denying him bail. He argues that (1) the
court failed to comply with various standards articulated in In re Humphrey
(2021) 11 Cal.5th 135 (Humphrey); (2) insufficient evidence supported the
denial of bail under the standards articulated in Humphrey and article I,
section 12, subdivision (b) of the California Constitution; and (3) the court
abused its discretion in denying bail. He also requests attorney fees and
costs pursuant to Code of Civil Procedure section 1021.5. We conclude a
remand is necessary because the court erred in failing to set out reasons on
the record why less restrictive alternatives to detention could not reasonably
protect the government’s interests in public or victim safety, and in failing to
include those reasons in the minutes.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner, now in his mid-fifties, is implicated as the perpetrator of a
violent rape that occurred in March 1989. The underlying facts are detailed
below.

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 The victim woke up in her apartment with scarves tied around her
ankles. The perpetrator had scarves tied around his own forehead and
mouth, and he tied bandanas tightly around the victim’s eyes and neck. The
perpetrator raped the victim, after which he strangled her and sawed and
slashed at her neck with a serrated knife. As the perpetrator struggled with
the victim he threatened to cut out her eye and tried to stab her repeatedly in
the back but was unsuccessful due to the bluntness of the knife. The victim
pleaded with the perpetrator to leave, saying that she would count to 100
before calling the police, but defendant responded that he could not trust her
not to call police. She then told him he could unplug the phone to slow her
down. Ultimately, the victim managed to convince him to leave. The
perpetrator left several scarves behind at the crime scene, including one with
a floral design and border. The perpetrator’s deoxyribonucleic acid (DNA)—
obtained from one of the scarves at the crime scene and a vaginal swab from
the victim—was found to match petitioner’s.
In February 2021, the People filed a complaint charging petitioner with
attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664,
subd. (a), 187, subd. (a), 189) 1, and aggravated mayhem (§ 205). As to both
counts, the People alleged petitioner used a deadly or dangerous weapon, a
knife. As to the attempted murder count alone, the People alleged petitioner
inflicted great bodily injury.
The same day the complaint was filed, the trial court appointed counsel
and set bail at $5 million. Bail was set despite the fact the probation
department submitted a “pretrial services court report” indicating that

1 All further statutory references are to the Penal Code unless otherwise
indicated.

2
petitioner appeared to be an appropriate candidate for release on his own
recognizance with enhanced monitoring. 2
On April 16, 2021, petitioner filed a bail motion. Relying on Humphrey,
supra, 11 Cal.5th 135, petitioner argued he should be released on his own
recognizance because he is indigent, and there is no indication he is a flight
or safety risk. Petitioner also contended he was not a risk to public safety
because the alleged crimes occurred over 32 years ago; he had not threatened
or tried to contact the victim since the alleged crime; and he had a limited
criminal history in the interim years. Moreover, he noted, he had community
ties and the pretrial services court report indicated he should be released
with nonfinancial conditions. Petitioner’s attorney filed a declaration in
support of the motion stating, on information and belief, that petitioner is
indigent and unable to afford bail, as set.
The People opposed the motion and made the following proffers of
evidence. In addition to the aforementioned circumstances underlying the
offenses, which were recounted by the victim, the doctor who treated the
victim after the incident observed that the laceration to her throat was four
to five inches long and four to six millimeters deep. Had the cut been “ ‘a hair
more’ ” it would have severed the victim’s jugular and likely caused her
death.

2 According to the report, petitioner could not be interviewed due to
Covid-19 restrictions but petitioner received a favorable pretrial assessment
score based on a calculation of eight factors, i.e., whether he: (1) was on
active community criminal justice supervision; (2) had been charged with
“felony drug, theft or fraud”; (3) had pending charges; (4) had a criminal
history; (5) had two or more failures to appear; (6) had two or more violent
convictions; (7) was unemployed at the time of arrest; and (8) had a history of
drug abuse. Of these factors, petitioner responded affirmatively only to
having a criminal history, and so he scored 2 out of a potential 14 points.

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 Furthermore, one of petitioner’s ex-wives told a prosecution
investigator that petitioner kept a collection of scarves in their garage, and
that he told her he used them “for tying arms and legs on the posts.” One ex-
girlfriend told an investigator that petitioner liked to tie her up with scarves
and blindfold her, and that their role-playing during sex included his
pretending to be a rapist breaking into her home. She said this type of
behavior occurred two to three times a month over the course of their 10-year
relationship.
Another ex-girlfriend—who met petitioner in September 2019—
reported that when they started dating he told her of his sexual fetish
associated with scarves and asked her to buy scarves with a border and floral
pattern in the middle. Once when she purchased a scarf, he said it was the
wrong kind and told her to buy the “correct one.” Petitioner then used the
scarves to tie her to the bed and gag her, and he requested that she send him
photos of herself bound to the bed with scarves.
Another woman who married petitioner in mid-2020 reported that
within their first year of marriage, petitioner was drunk and told her that a
“ ‘girl crawled into my bed naked and you’re not going to lay in my bed naked
and not give me any. So she tried to say I raped her.’ ” She also reported
that petitioner placed a scarf over her mouth and eyes on several occasions.
Yet another woman who met petitioner on an online dating website in late
2020 received several scarves from him in the mail; although she was
uninterested in him, she kept one scarf that had a floral design with a border.
The People noted that although petitioner’s criminal history consisted
of relatively minor convictions—one in 1998 for misdemeanor driving without
a license (Veh. Code, § 12500, subd. (a)), and another in 1991 for
misdemeanor theft (§ 484)—the theft conviction involved petitioner snatching

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a scarf from the neck of a female stranger and then running away. Petitioner
claimed he grabbed the scarf to satisfy his anger and frustration because he
was having emotional and personal problems.
Based on the above proffers, the People argued petitioner posed a
danger to the alleged crime victim and public safety if released, as well as a
flight risk since he is facing life terms. Emphasizing the gravity of the
charged offenses and petitioner’s ongoing scarf fetish, the People argued
there were no nonfinancial conditions of release that could protect the victim
or ensure petitioner’s presence at trial. Consequently, the People urged the
trial court to retain bail in the $5 million amount set or, in the alternative,
deny bail pursuant to article I, section 12, of the California Constitution
(hereafter section 12).
On April 20, 2021, the trial court held a hearing on the bail motion.
Through counsel, petitioner argued he could not afford bail as set and asked
for release on his own recognizance with various nonfinancial conditions, e.g.,
a no contact order with the victim, limitation of his use of dating websites,
and Global Positioning System (GPS) tracking. Petitioner also argued that
bail could not be denied because the People’s mere “proffers” of evidence were
insufficient to meet the “clear and convincing evidence” standard. The People
disagreed, countering that proffers of evidence are sufficient to support a bail
determination and that, per Humphrey, the court had to assume the truth of
the charges. The victim appeared during the hearing and expressed great
fear for her safety and the safety of those close to her should petitioner be
released.
Ultimately, the trial court denied petitioner bail under section 12. The
court found that Humphrey did not require live testimony and concluded:
(1) the charged felony offenses involved acts of violence on another person;

5
and (2) based on the People’s proffer, there is clear and convincing evidence of
a substantial likelihood that petitioner’s release would result in great bodily
harm to others.
DISCUSSION
“Habeas corpus is an appropriate vehicle by which to raise questions
concerning the legality of bail grants or deprivations. [Citations.] In
evaluating petitioner’s contentions, this court may grant relief without an
evidentiary hearing if the return admits allegations in the petition that, if
true, justify relief. [Citations.] On the other hand, we may deny the petition,
without an evidentiary hearing, if we are persuaded the contentions in the
petition are without merit.” (In re McSherry (2003) 112 Cal.App.4th 856,
859–860.)
We proceed by “applying the substantial evidence test to pure questions
of fact and de novo review to questions of law. [Citation.] ‘[W]hen the
application of law to fact is predominantly legal, such as when it implicates
constitutional rights and the exercise of judgment about the values
underlying legal principles, [the appellate] court’s review is de novo.’ ” (In re
Taylor (2015) 60 Cal.4th 1019, 1035; In re Collins (2001) 86 Cal.App.4th
1176, 1181.)
A. General Legal Standards
The court in this case denied bail under section 12(b), which provides a
constitutionally based exception to the general rule that a defendant charged
with a noncapital offense is entitled to bail. (In re White (2020) 9 Cal.5th 455,
462 (White).) Section 12(b) provides: “A person shall be released on bail by
sufficient sureties, except for: [¶] . . . [¶] (b) Felony offenses involving acts of
violence on another person, or felony sexual assault offenses on another
person, when the facts are evident or the presumption great and the court

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finds based upon clear and convincing evidence that there is a substantial
likelihood the person’s release would result in great bodily harm to others.”
In Humphrey, supra, 11 Cal.5th 135, the California Supreme Court
“sketch[ed] the general framework governing bail determinations.” (Id. at
p. 152.) There, the petitioner had been charged with first degree residential
robbery and burglary, infliction of injury on an elder adult, and misdemeanor
theft from an elder adult. (Id. at pp. 143–144.) At his arraignment, the
petitioner requested release on his own recognizance, citing his advanced age,
his community ties, and his unemployment and financial condition. (Id. at
p. 144.) Without inquiring into the petitioner’s ability to pay, the trial court
ultimately set bail at sums the petitioner could not afford. (Id. at p. 148.)
The Court of Appeal reversed the trial court’s bail order and remanded for a
new hearing with consideration of the petitioner’s ability to post bail and
consideration of less restrictive alternatives in the event he could not afford
bail. (Id. at p. 156.) The Supreme Court affirmed. As relevant here,
Humphrey held: “An arrestee may not be held in custody pending trial unless
the court has made an individualized determination that . . . detention is
necessary to protect victim or public safety, or ensure the defendant’s
appearance, and there is clear and convincing evidence that no less
restrictive alternative will reasonably vindicate those interests.” (Id. at pp.
139–140.) Put another way, “detention is impermissible unless no less
restrictive conditions of release can adequately vindicate the state’s
compelling interests.” (Id. at pp. 151–152.)
Petitioner argues that before denying bail, the trial court was required
under Humphrey to find clear and convincing evidence that no nonfinancial
condition—i.e., no less restrictive alternative than detention—would protect
the state’s interests in victim or public safety or ensuring his appearance, and

7
that the court erroneously failed to do so. Neither the San Mateo County
District Attorney, appearing as respondent, nor the Attorney General,
appearing as amicus curiae, disputes this. To the contrary, both acknowledge
the court was required to make a finding on this point.
We likewise agree. Although Humphrey involved a claim of excessive
bail and not a denial of bail under section 12(b) as here, the generality with
which Humphrey laid out the foregoing requirement—without resolving
whether section 12 and section 28, subdivision (f)(3) of article I of the
California Constitution “can or should be reconciled” 3 (Humphrey, at p. 155,

3 In brief, the facts underlying this unresolved issue are as follows. In
1982, the voters enacted Proposition 4, which amended section 12 regarding
bail. (People v. Barrow (1991) 233 Cal.App.3d 721, 722.) The same year, the
voters also passed Proposition 8, which contained competing provisions
regarding bail. (People v. Standish (2006) 38 Cal.4th 858, 877.) Specifically,
“Proposition 8 proposed to repeal . . . section 12 and substitute article I,
section 28, subdivision (e). The proposed subdivision was entitled ‘Public
Safety Bail.’ ” (Standish, at p. 874; Ballot Pamp., Primary Elec. (June 8,
1982) text of Prop. 8, §§ 2–3, p. 33.) The California Supreme Court
subsequently held that “the amendments to . . . section 12 proposed by
Proposition 4 took effect, and that the provisions of article I, section 28,
subdivision (e) proposed by Proposition 8 did not take effect” because
Proposition 4 garnered more votes than Proposition 8. (Standish, at p. 875,
877–878; In re York (1995) 9 Cal.4th 1133, 1140, fn. 4, citing Cal. Const.,
art. II, § 10, subd. (b).) Then, in 2008, voters passed Proposition 9, which
enacted as article I, section 28, subdivision (f)(3), provisions nearly identical
to Proposition 8’s Public Safety Bail provisions. (Compare Voter Information
Guide, Gen. Elec. (Nov. 4, 2008) text of Prop. 9, § 4.1, p. 130, with Ballot
Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, § 3, p. 33.) Proposition 9,
however, did not propose to repeal section 12. (Voter Information Guide,
Gen. Elec. (Nov. 4, 2008) text of Prop. 9.)
Here “we need not decide what role, if any, [article I, section 28,
subdivision (f)(3)] has in the decision to deny bail under article I,
section 12(b)” because, as in the White decision, the trial court below relied on
section 12 and any “concerns about victim safety would only reinforce the
trial court’s decision to deny bail.” (White, supra, 9 Cal.5th at p. 470.)

8
fn. 7)—reasonably indicates the Supreme Court’s contemplation that its
holding applies to all orders for pretrial detention under section 12(b). (See
Humphrey, at pp. 152, 154, 156.)
B. Application of the Standards
Having identified the legal standards applicable to the trial court’s
decision to deny bail, we proceed to examine petitioner’s arguments about
how such standards may be satisfied, and whether they were satisfied here.
1. Proffered Evidence
Petitioner first claims the applicable clear and convincing evidence
standard cannot be met based on proffers of evidence. Citing the statutory
definitions of “evidence,” “preliminary fact,” and “proffered evidence,” (Evid.
Code, §§ 140, 400, 401, respectively), petitioner contends section 12 and
Humphrey require that the People present “actual evidence” to support a bail
denial. In other words, only evidence that would be admissible at a formal
trial can support pretrial detention. Petitioner also suggests that pretrial
detention based on proffered evidence violates due process. We are not
persuaded.
Evidence Code section 140 generally defines the term “ ‘[e]vidence’ ” as
“testimony, writings, material objects, or other things presented to the senses
that are offered to prove the existence or nonexistence of a fact.” Evidence
Code section 400 defines “ ‘preliminary fact’ ” as “a fact upon the existence or
nonexistence of which depends the admissibility or inadmissibility of
evidence.” Evidence Code section 401 defines “ ‘proffered evidence’ ” as
“evidence, the admissibility or inadmissibility of which is dependent upon the
existence or nonexistence of a preliminary fact.” (Italics added.) Nothing in
these statutes indicates that the word “evidence”—as used in section 12—
denotes only evidence that is admissible at a formal trial. Notably, section 12

9
itself makes no mention of a requirement that evidence be presented in
accord with all the formal rules of evidence for admissibility at a trial. 4
Significantly, in the analogous context of the federal Bail Reform Act
(18 U.S.C. § 3141 et seq.), a proffer of evidence that does not meet the rules
for admissibility at trial can satisfy the clear and convincing evidence
standard, and federal decisions hold or otherwise recognize that proceeding
by proffer does not violate due process. As relevant here, the federal act
provides: “The rules concerning admissibility of evidence in criminal trials do
not apply to the presentation and consideration of information at the [pretrial
detention] hearing. The facts the judicial officer uses to support a finding . . .
that no condition or combination of conditions will reasonably assure the
safety of any other person and the community shall be supported by clear and
convincing evidence.” (18 U.S.C. § 3142(f).) The United States Supreme
Court has upheld the facial validity of the act’s detention procedures (United
States v. Salerno (1987) 481 U.S. 739, 746–747, 751–752 (Salerno)), and other
federal decisions have specifically upheld the propriety and validity of
permitting the government to proceed by proffer (e.g., United States v. Smith
(D.C. Cir. 1996) 79 F.3d 1208, 1210; United States v. Gaviria (11th Cir. 1987)
828 F.2d 667, 669; United States v. Cardenas (9th Cir. 1986) 784 F.2d 937,
938; United States v. Delker (3d. Cir. 1985) 757 F.2d 1390, 1395–1396; United
States v. Acevedo-Ramos (1st Cir. 1985) 755 F.2d 203, 207–208.)
In rejecting the contention that the procedures of the Bail Reform Act
violate due process, Salerno explained: “Detainees have a right to counsel at
the detention hearing. [Citation.] They may testify in their own behalf,

4 Petitioner’s seeming reliance on Humphrey is also unavailing. The
question of whether proffered evidence can support a denial of bail was
neither presented nor discussed in Humphrey.

10
present information by proffer or otherwise, and cross-examine witnesses
who appear at the hearing. [Citation.] The judicial officer charged with the
responsibility of determining the appropriateness of detention is guided by
statutorily enumerated factors, which include the nature and the
circumstances of the charges, the weight of the evidence, the history and
characteristics of the putative offender, and the danger to the community.
[Citation.] The Government must prove its case by clear and convincing
evidence. [Citation.] Finally, the judicial officer must include written
findings of fact and a written statement of reasons for a decision to detain.
[Citation.] The Act’s review provisions . . . provide for immediate appellate
review of the detention decision. [¶] We think these extensive safeguards
suffice to repel a facial challenge.” (Salerno, supra, 481 U.S. at pp. 751–752,
italics added.)
Salerno and the foregoing federal cases would seem to foreclose a
federal constitutional due process challenge to the sufficiency of proffers in
bail hearings, at least where, as here, procedural safeguards are provided
similar to those provided in the federal context. In line with the procedural
safeguards discussed in Salerno, here petitioner had counsel at his bail
hearing. Additionally, there is no indication in the record that the trial court
disallowed defendant from testifying or presenting evidence (by proffer or
otherwise); to the contrary, the court allowed defense counsel to present
information by way of her own statements and representations, such as about
petitioner’s indigency, employment, appearance history, and performance on
probation. The trial court was guided by similarly enumerated factors, and
the burden of proof was by clear and convincing evidence. (See Cal. Const.,
art. I, § 12; Pen. Code, § 1275, subd. (a); Humphrey, supra, 11 Cal.5th at
p. 152.) The court was obligated to provide a statement of reasons for the

11
detention, included in writing in the court’s minutes (Humphrey, at pp. 155–
156; see part B.3(b), post), and the decision was subject to immediate review
(§§ 1270.2, 1490). Accordingly, we cannot agree with petitioner’s suggestion
that reliance on proffers of evidence categorically renders a bail decision
invalid under federal due process principles. 5
Moreover, petitioner provides no legal authority or argument
supporting the notion that a state due process analysis would yield a
different result. 6 The language of the federal and state due process
guarantees are “virtually identical,” and so California courts look “to the
United States Supreme Court’s precedents for guidance in interpreting the
contours of our own due process clause and have treated the state clause’s
prescriptions as substantially overlapping those of the federal Constitution.”
(Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57
Cal.4th 197, 212.) “With a minor modification, we have adopted the Mathews
[v. Eldridge (1976) 424 U.S. 319] balancing test as the default framework for
analyzing challenges to the sufficiency of proceedings under our own due
process clause. The first three factors—the private interest affected, the risk
of erroneous deprivation, and the government's interest—are the same.

5 As indicated, Salerno referred to the procedural safeguards in the Bail
Reform Act as “extensive.” (Salerno, supra, 481 U.S. at p. 752.) Given the
lack of adequate briefing on this issue, we do not consider or decide whether
and which of those federal safeguards may be necessary to defeat a due
process challenge. Nor do we suggest that all such safeguards are required to
repel a due process challenge.
6 Petitioner attempts to distinguish Salerno on the ground that the
federal Bail Reform Act specifically allows for the use of proffers at bail
proceedings, but fails to explain why the source of the practice of using
proffers is relevant. Petitioner also points out that section 12 requires clear
and convincing evidence, but the same is true in the federal act. (18 U.S.C.
§ 3142(f); Salerno, supra, 481 U.S. at p. 750.)

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[Citations.] In addition, we may also consider a fourth factor, ‘ “the dignitary
interest in informing individuals of the nature, grounds, and consequences of
the action and in enabling them to present their side of the story before a
responsible government official.” ’ ” (Ibid.) “[C]ogent reasons must exist
before a state court in construing a provision of the state Constitution will
depart from the construction placed by the Supreme Court of the United
States on a similar provision in the federal Constitution.” (Gabrielli v.
Knickerbocker (1938) 12 Cal.2d 85, 89; see, e.g., Mohilef v. Janovici (1996) 51
Cal.App.4th 267, 285, fn. 16.) Petitioner offers no such cogent reasons here,
and we perceive no legal or logical reason why state due process principles
require such a departure in this context.
Contrary to petitioner’s contention, Naidu v. Superior Court (2018) 20
Cal.App.5th 300 (Naidu) does not compel a different result. There, the
petitioners were criminally charged with fraudulent use of a contractor’s
license and released on their own recognizance (O.R.), but the trial court
ordered a suspension of their licenses from the California Contractors State
License Board (Board) as a condition of O.R. release. (Naidu, at p. 305.)
Analyzing the petitioners’ challenge to that condition using due process
balancing inquiries, Naidu concluded both federal and state due process
clauses required that “at least some evidence of danger to the public support
an order suspending a business license as part of a bail order.” (Id. at
pp. 305, 311–313, italics added.) Naidu then concluded no such evidence was
presented, indicating the Board “submitted very little that might even be
construed as evidence that the public would be in danger if petitioners
retained use of their business license.” (Ibid.) As Naidu recounted, the
Board’s legal brief asserted that the petitioners exhibited a profound lack of
judgment, a flagrant disrespect for the health and safety of others, and a

13
violation of trust accorded to contractors, but the court concluded such
statements by counsel were not evidence sufficient to support license
suspension. (Ibid.) The court observed the only “admissible” evidence
presented in support of the Board’s assertion was a declaration of counsel
that amounted to “no more” than a restatement of the Board’s litigation
position and “its belief that it would be beneficial if the trial court suspended
petitioners’ license.” (Ibid.) But this “[did] not constitute evidence that
petitioners pose[d] such a danger to the public that suspending their business
licenses was necessary.” (Ibid.)
True, Naidu expressly spoke of the need for “actual evidence regarding
the danger petitioners allegedly pose to the public” before a court can order
suspension of a business license as part of a bail order (Naidu, supra, 20
Cal.App.5th at p. 312.) But Naidu did not involve a section 12(b) offense, and
there is no indication the trial court there was prepared to require pretrial
detention in the absence of a license suspension condition. Moreover, Naidu
did not address the federal case law upholding the federal constitutional
validity of relying on proffers in the pretrial detention context; nor did it
consider whether due process principles would preclude pretrial detention
based on a reliable proffer of evidence.
In discussing Naidu, petitioner does not analyze whether the
competing interests in a due process analysis regarding a decision to suspend
a business license as a condition of release on bail (or O.R. release) are
comparable to the interests involved in a pretrial detention decision under
section 12(b)—particularly the state’s interests—including administrative
and fiscal burdens. For example, he does not address whether cases
involving the potential suspension of a business license as a condition of
pretrial release are as common as those wherein pretrial detention decisions

14
implicate substantial harm to public or victim safety, or whether the burdens
of categorically requiring admissible evidence would be the same or similar
when license suspensions are not at issue. Indeed, we note such burdens
would fall not just on the People, but also on criminal defendants and defense
attorneys when presenting information at a bail hearing. Moreover,
detention orders—which are interim rulings—can be undone relatively
quickly upon a showing of changed circumstances. (In re Alberto (2002) 102
Cal.App.4th 421, 426–427, 430–431; cf. §§ 1273, 1289.) It is not clear,
however, whether a professional license suspension is easily reversed and
whether reversal of a suspension can cure other reputational business
interests at play. As it is not our role to make arguments for petitioner or to
consider arguments not raised or meaningfully addressed below or in the
habeas corpus petition, we decline to do so. 7 (In re Seaton (2004) 34 Cal.4th
193, 200; see People v. Duvall (1995) 9 Cal.4th 464, 475.)
Finally, petitioner contended at oral argument that pursuant to
Evidence Code section 300, evidence presented at any bail or pretrial
detention hearing must comply with all the formal rules for admissibility of
evidence at a trial. Petitioner, however, neither previously raised nor
properly briefed this statute-based issue. Petitioner does not, for example,
address the proper interpretation of Evidence Code section 300 or any bail-
related statutes (e.g., Pen. Code, § 1319 8). Nor does petitioner address case

7 Petitioner—who is represented by counsel—is required to present
arguments under specific headings and to support arguments with authority
when possible. (Cal. Rules of Court, rules 8.204(a)(1)(B) & 8.384(a)(1)–(2).)
8 Section 1319 provides in relevant part that in cases where a defendant
is charged with a violent felony as described in section 667.5, subdivision (c),
the trial court “shall consider” the following in determining whether or not to
grant release of the defendant: “(1) The existence of any outstanding felony
warrants on the defendant. [¶] (2) Any other information presented in the

15
law that allows use of technically inadmissible evidence at hearings that
implicate other liberty interests, such as sentencing and probation violation
hearings. (See, e.g., People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066
[“ ‘As long as hearsay testimony bears a substantial degree of trustworthiness
it may legitimately be used at a probation revocation proceeding.’ ”]; People v.
Lamb (1999) 76 Cal.App.4th 664, 683 [“A sentencing judge may consider
responsible unsworn or out-of-court statements concerning the convicted
person’s life and characteristics.”].) Ultimately, given the untimeliness of
petitioner’s argument and lack of briefing (Cal. Rules of Court,
rules 8.204(a)(1)(B) & 8.384(a)(1)–(2)), we decline to address the argument.
(People v. Crow (1993) 6 Cal.4th 952, 960, fn. 7.)
In sum, we conclude, as a general matter, that proffers of evidence may
satisfy section 12(b)’s clear and convincing evidence standard without
offending federal or state due process principles. In so concluding, we
emphasize that it remains within the discretion of the trial court to decide
whether particular instances of proffered evidence may be insufficient, and
whether to insist on the production of live testimony or other evidence in
compliance with more stringent procedural requirements. (Cf. United States
v. Delker, supra, 757 F.2d at p. 1395; United States v. Acevedo-Ramos, supra,
755 F.2d at pp. 206–208.)
2. Application of Section 12(b)
In reviewing the trial court’s decision to deny bail under section 12(b),
we assess two elements: (1) “whether the record contains substantial

report prepared pursuant to Section 1318.1. The fact that the court has not
received the report required by Section 1318.1, at the time of the hearing to
decide whether to release the defendant on his or her own recognizance, shall
not preclude that release. [¶] (3) Any other information presented by the
prosecuting attorney.” (Italics added.)

16
evidence of a qualifying offense” and if so, then (2) “whether any reasonable
fact finder could have found, by clear and convincing evidence, a substantial
likelihood that the defendant’s release would result in great bodily harm to
one or more members of the public.” (White, supra, 9 Cal.5th at p. 471.) If
both elements are satisfied, we evaluate whether the trial court’s denial was
an abuse of discretion. (Ibid.) “An abuse of discretion occurs when the trial
court, for example, is unaware of its discretion, fails to consider a relevant
factor that deserves significant weight, gives significant weight to an
irrelevant or impermissible factor, or makes a decision so arbitrary or
irrational that no reasonable person could agree with it.” (Id. at p. 470.)
First, does the record contain substantial evidence of a qualifying
offense? The answer is yes. Petitioner does not dispute that he was charged
with one or more qualifying felonies involving acts of violence and sexual
assault or that “the facts are evident or the presumption great” as required
by section 12(b). Indeed, had petitioner challenged the trial court’s finding on
this point, we would easily reject it based on the qualifying nature of the
charges and the substantial evidence tending to show his guilt as the
perpetrator, including the DNA evidence and the evidence of petitioner’s
idiosyncratic scarf fetish, as well as the specific design of the scarves he used,
i.e., floral with a border.
Second, could any reasonable fact finder have found, by clear and
convincing evidence, a substantial likelihood that the defendant’s release
would result in great bodily harm to one or more members of the public?
Again, the answer is yes.
Petitioner was charged with attempted willful, deliberate, and
premeditated murder and aggravated mayhem, and it was alleged that he
personally used a deadly weapon—a knife—to inflict great bodily injury on

17
the victim. Both of the charged crimes are “serious” and “violent” felonies
(§ 1192.7, subd. (c)(2), (7), (9), (23); § 667.5, subd. (c)(2), (7), (8), (12)) that
carry the severe sentence of life in prison, albeit with the possibility of parole
(§§ 205, 664, subd. (a)), and the court was required to assume the truth of
these charges (Humphrey, supra, 11 Cal.5th at p. 153).
Significantly, the People’s proffer of evidence concerning the
circumstances of the underlying offenses was extensive and detailed and
included the following. Petitioner bound and raped the victim, then tried to
kill her. He tried to stab her in the back several times but was unsuccessful
only because the knife was dull. He strangled her, and he sawed at her neck
to within a hair’s breadth of her jugular. Within about two years of the 1989
offenses, petitioner was convicted of theft after he targeted a female stranger
and grabbed a scarf tied around her neck “to satisfy his anger and
frustration” because he “had been having emotional and personal problems.”
And as recounted earlier, multiple women romantically or otherwise involved
with petitioner between 1997 and late 2020 provided statements to
prosecution investigators showing that petitioner continues to act on a sexual
fetish involving scarves and binding. While the proffered evidence indicated
these women were willing partners, it also showed that petitioner
consistently sought to exert sexual control over women involving fantasized
violence and non-consent.
Based on the record, we conclude a reasonable fact finder could have
found clear and convincing evidence that petitioner’s release on bail would
pose a substantial likelihood of great bodily harm to others. The proffered
evidence amply supports the conclusion that petitioner is an extremely
dangerous person. Petitioner is charged with grave offenses, the
circumstances of which show he is capable of tremendous violence. His

18
relationships with women after 1989 and through at least 2019 indicate he
continues to be compelled by sexually aggressive impulses. And for most of
his life, petitioner has escaped detection and accountability for the vicious
crimes he committed in 1989. Indeed, during the offense, defendant
indicated he was trying to kill the victim to ensure he would escape
undetected. Now, in his mid-fifties, he is facing what will potentially be
confinement in prison until the end of his life. While the probation
department’s pretrial risk assessment suggested petitioner was an
appropriate candidate for release on his own recognizance with enhanced
monitoring, the trial court was neither bound to follow that recommendation
nor constrained to forgo its own individualized consideration of factors for
making a bail determination. 9 (Humphrey, supra, 11 Cal.5th at p. 152.)
Petitioner contends the trial court’s risk-of-harm finding is
unsupported or unreasonable given the number of years that elapsed
between the alleged 1989 offenses and the present and the absence of any
allegation that he committed any criminally violent act in the interim. We
cannot agree. The trial court was not compelled to find that petitioner’s past
violent behavior was an unusual one-off situation unlikely to recur, or to
accept his benign self-presentation. (See White, supra, 9 Cal.5th at pp. 468–
469 [upholding pretrial detention under section 12(b) where charged crimes
were more recent but involved factual allegations far less egregious than
those here].) Here, the court’s decision finds substantial support in the
record and was plainly within the bounds of reason. No abuse of discretion
appears.

9 Again, that risk assessment was completed simply by considering the
eight factors noted in footnote 2, ante, without interviewing petitioner, or
mentioning the circumstances underlying his offense.

19
 Relying on reports reflecting pretrial release data in other jurisdictions,
petitioner next appears to contend that as a statistical matter, it is unlikely
he will reoffend if released. We are not persuaded. Setting aside the
questionable relevance of such data to our review on appeal, giving weight to
petitioner’s statistical reports seems at odds with Humphrey’s holding that
bail decisions require “an individualized consideration of the relevant factors”
(11 Cal.5th at p. 152) and “careful consideration of the individual arrestee’s
circumstances.” (Id. at p. 156.)
Petitioner further argues that the trial court detained him based solely
on the charges in the complaint and that the court created an additional non-
constitutionally based “category of offenses ineligible for pretrial release . . .
by judicial fiat.” We cannot agree. The record plainly demonstrates the court
based its decision on the proffered evidence, as well as the charges
enumerated in the complaint.
3. Application of the Humphrey Requirements
As discussed, Humphrey determined that principles of due process
require the trial court to find, by clear and convincing evidence, that no less
restrictive condition than detention can reasonably protect the interests in
public or victim safety, and the arrestee’s appearance in court. (Humphrey,
supra, 11 Cal.5th at p. 154.) Petitioner argues the court “failed to address
this prong of Humphrey’s analysis entirely.”
Although the record does not reflect an express trial court finding on
this point, respondent cites portions of the record where the court
acknowledged that petitioner lacked financial resources to make bail and
where the parties discussed nonmonetary alternatives. Accordingly,
respondent contends the court did, in fact, consider less restrictive

20
nonmonetary alternatives to detention and implicitly made the required
finding.
We are in limited agreement with respondent that, as a jurisprudential
matter, such a finding could be implicit and inferred from the record.
Ordinarily, trial court judgments and orders are presumed correct. (Jameson
v. Desta (2018) 5 Cal.5th 594, 608–609; Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) Ambiguities in the record are resolved in favor of
affirmance (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th
624, 631), and an appellate court ordinarily presumes “the [trial] court knows
and applies the correct statutory and case law.” (People v. Coddington (2000)
23 Cal.4th 529, 644, overruled on other grounds by Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13.) Where, as here, nonfinancial conditions
of release were discussed directly before the court’s denial of the bail motion,
one would have to assume the worst to conclude the court ignored both the
issue and the law in making its decision.
Nonetheless, even though the general presumptions in favor of a
judgment or order might otherwise support a finding made sub silentio,
Humphrey specifically requires, as a matter of procedural due process, that a
court entering a pretrial detention order set forth “the reasons for its decision
on the record and to include them in the court’s minutes.” (Humphrey, supra,
11 Cal.5th at p. 155.) Thus, the reasons supporting a denial of bail cannot be
implied.
In this regard, Humphrey explains that the requirement of explicit
articulation will “facilitate review of the detention order, guard against
careless or rote decisionmaking, and promote public confidence in the judicial
process.” (Humphrey, supra, 11 Cal.5th at pp. 155–156.) And generally, an
adequate statement of reasons is one that furthers these purposes and

21
“apprise[s] [the reviewing court] of the analytical process by which the trial
court arrived at its conclusions.” (In re Pipinos (1982) 33 Cal.3d 189, 198, 202
(Pipinos); see Kent v. United States (1966) 383 U.S. 541, 561 (Kent)
[“Meaningful review requires that the reviewing court should review. It
should not be remitted to assumptions.”].) Thus, trial courts choosing to deny
bail must separately state and identify their reasons for finding that less
restrictive alternatives to detention could not reasonably protect the interests
in public or victim safety or ensuring the defendant’s appearance.
Here, the trial court found, by clear and convincing evidence, a
substantial likelihood that petitioner’s release would result in great bodily
harm to others, and it identified its reasons supporting that finding. But the
court did not actually address any less restrictive alternatives to pretrial
detention and did not articulate its analytical process as to why such
alternatives could not reasonably protect the government’s interests. And
while overlapping reasons may exist for making the applicable findings under
section 12(b) and Humphrey, the court’s failure to articulate its evaluative
process requires that we speculate as to why the court believed that no
nonfinancial conditions could reasonably protect the interests in public or
victim safety. As such, the record here does not permit meaningful appellate
review. 10 (In re Podesto (1976) 15 Cal.3d 921, 937 [“meaningful judicial

10 We do not suggest that a trial court’s statement must be formal or that
there are “magic words” that a court must recite. (Kent, supra, 383 U.S. at
p. 561 [statement of reasons need not be formal nor necessarily include
“conventional findings of fact”]; In re Podesto, supra, 15 Cal.3d at p. 938
[statement of reasons in support of an order denying a motion for bail on
appeal “need not include conventional findings of fact”].) But the statement
should “clearly articulate the court’s evaluative process” and “set forth the
basis for the order with sufficient specificity to permit meaningful review.”
(Pipinos, supra, 33 Cal.3d at p. 205; Kent, supra, at p. 561.)

22
review is often impossible unless the reviewing court is apprised of the
reasons behind a given decision”].)
We now address the consequence of this shortcoming. In Pipinos,
supra, 33 Cal.3d 189, the trial court’s failure to adequately articulate its
reasons for denying bail on appeal ultimately resulted in reversal because the
trial court’s conclusory comments were insufficient to enable meaningful
review of the defendant’s abuse of discretion contention. (Id. at pp. 203–205.)
Yet, there are other cases indicating the failure to provide an adequate
statement of reasons does not necessarily require reversal but is subject to a
harmless error analysis. (C.S. v. Superior Court (2018) 29 Cal.App.5th 1009,
1036; see People v. Scott (1994) 9 Cal.4th 331, 355 (Scott).) Error of this type
may be harmless in cases where there is “ ‘overwhelming evidence’ ”
supporting the court’s decision. (C.S., at p. 1036.) This may be so even if the
failure to make a statement of reasons amounts to an error of constitutional
dimensions. (E.g., People v. Chi Ko Wong (1976) 18 Cal.3d 698, 722–723
[applying harmless error analysis to affirm order denying juvenile court
retention that was supported by overwhelming evidence]; see generally Cal.
Const., art. VI, § 13; Pen. Code, § 1404.)
Given the record before us, we need not resolve this apparent tension in
the case law. Here, the parties discussed nonfinancial conditions, but the
discussion was not extensive. In short, defense counsel argued that any
concern about flight could be addressed if the court were to order GPS
tracking or other conditions for release as set out in the pretrial release
report. The prosecutor responded that no less restrictive conditions could
protect the community, and that electronic home monitoring would not
protect women whom petitioner might meet online or out and about. Defense
counsel then countered that any concern about petitioner dating or being on

23
dating websites could be addressed if the court were to limit or monitor his
internet usage; order GPS monitoring; issue no contact orders as to the
victim; or impose other conditions suggested by pretrial services. The parties
made similar arguments in their motion and opposition papers, but beyond
this, the record reflects no other discussion and no evaluation by the court
about nonmonetary or other conditions.
In sum, the record does not permit meaningful appellate review, and
we cannot say there was overwhelming evidence supporting a conclusion that
less restrictive alternatives to detention could not reasonably protect the
interests in public or victim safety. (See C.S., supra, 29 Cal.App.5th at
p. 1036.) As such, we will remand this matter to the trial court for further
findings. We express no opinion as to the result the court should reach on
remand.
(a) Forfeiture
Before concluding, we address two further issues—the first being
whether claimed error concerning the inadequacy of a statement of reasons
can be forfeited. We examine this issue because the record does not show
that petitioner objected to the adequacy of the trial court’s statement of
reasons at the bail hearing.
The Attorney General, as amicus curiae, takes the position that error
concerning the omission or inadequacy of a statement of reasons regarding
less restrictive alternatives to detention is “exhausted” because petitioner
argued below that such alternatives could protect the government’s interests,
and failure to lodge a timely objection does not result in forfeiture.
We tend to agree that a petitioner who urges the availability of less
restrictive alternatives to detention exhausts his or her superior court
remedies as to that issue, and generally will be entitled to review of that

24
issue. And implicitly, such a petitioner also requests that the court provide
an adequate statement of reasons to allow for meaningful judicial review. (In
re Podesto, supra, 15 Cal.3d at p. 937.)
But we do not foreclose the possibility of a situation where a claim
concerning inadequacy of a statement of reasons can be forfeited. “ ‘ “No
procedural principle is more familiar to this Court than that a constitutional
right,” or a right of any other sort, “may be forfeited in criminal as well as
civil cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it.” ’ ” (People v. Saunders (1993) 5
Cal.4th 580, 590.) In Scott, supra, 9 Cal.4th 331, for example, the court
explained that the doctrine of waiver (or forfeiture, as it is now commonly
referred to) applied “to claims involving the trial court’s failure to properly
make or articulate its discretionary sentencing choices.” (Scott, at p. 353.)
This was “fair and reasonable given the nature of the sentencing decisions at
issue and the procedural backdrop against which they are made,” such as
that “[t]he parties have ample opportunity to influence the court’s sentencing
choices” insofar as “[b]oth sides often know before the hearing what sentence
is likely to be imposed and the reasons therefor. Such information is
contained in the probation report, which is required in every felony case and
generally provided to the court and parties before sentencing.” (Id. at
pp. 348–351.)
If the doctrine of forfeiture can apply to a court’s failure to properly
articulate its discretionary sentencing decisions, a fortiori it can apply to
decisions to deny bail. Of course, depending on the timing of the bail hearing,
a defendant may not have any idea what to expect in terms of the court’s
decision and what might support it. Thus, in many cases, it may not be “fair
or reasonable” to apply the doctrine of forfeiture.

25
 In this case, the bail hearing took place before the preliminary
examination, and nothing in the record indicates the parties were “clearly
apprised” of what the bail decision would be and the reasons for it in advance
of the hearing. Indeed, the pretrial services court report recommended
release on various conditions, and even the prosecutor asked for no-bail as an
alternative to the imposition of a $5 million bail condition. Under these
circumstances, we decline to deem petitioner’s claim about the inadequacy of
the statement of reasons forfeited.
(b) Reasons in the Minutes
The second subsidiary issue we address is petitioner’s argument that
the trial court failed to comply with Humphrey’s mandate that courts include
the reasons for denying bail in the minutes. As stated, Humphrey requires,
as a matter of procedural due process, that courts entering an order resulting
in pretrial detention “set forth the reasons for its decision on the record and
. . . include them in the court’s minutes.” (Humphrey, supra, 11 Cal.5th at
p. 155, italics added.)
Nothing in the record indicates this issue was ever brought to the trial
court’s attention, though as the Attorney General notes in his amicus brief,
People v. Bonnetta (2009) 46 Cal.4th 143 suggests the failure to object should
not result in forfeiture in this context because a minute order is entered only
after the hearing and errors in the minutes are not ones the parties can
easily detect or ensure are avoided. (Bonnetta, at p. 152 [addressing failure
to comply with statutory requirement for inclusion of a statement of reasons
in court minutes in context of discretionary dismissals under section 1385].)
In any case, we need not decide applicability of the forfeiture doctrine here or
whether the issue should be considered “exhausted” because a remand is
necessary to allow the trial court to state the reasons why nonfinancial or

26
other less restrictive alternatives to detention could not reasonably protect
the interests in public or victim safety. We will simply direct trial court
correction of this error as well.
4. Attorney Fees and Costs
Finally, we decline petitioner’s request for attorney fees and costs
pursuant to Code of Civil Procedure section 1021.5. (In re Head (1986) 42
Cal.3d 223, 228 [“A decision which has as its primary effect the vindication of
the litigant’s personal rights is not one which brings into play the attorney
fees provisions of section 1021.5.”].)
DISPOSITION
The order denying bail is conditionally vacated. We remand the matter
for further findings as to whether clear and convincing evidence would
support a conclusion that no less restrictive alternatives to detention could
reasonably protect the government’s interests in pretrial detention.
(Humphrey, supra, 11 Cal.5th at pp. 154–155.) The trial court shall provide
an adequate statement of reasons and a corrected minute order, in
accordance with the views expressed herein. For the sake of efficiency, the
court may, but need not, vacate its prior order denying bail and hold a new
bail hearing in order to take new evidence or any other action it deems
necessary.
We decline petitioner’s other requests for relief, including his request
for release on his own recognizance with appropriate conditions or with an
affordable amount of bail, and his request for attorney fees.

27
 _________________________
Fujisaki, J.

WE CONCUR:

_________________________
Tucher, P. J.

_________________________
Rodriguez, J.

A162891/In re John Harris Jr.

28
In re John Harris Jr.
(A162891)

Trial Court: San Mateo County

Trial Judge: Hon. Amarra A. Lee

Attorneys: Law Offices of Marsanne Weese, Marsanne Weese and Rose
Mishaan, under appointment by the First District Court of Appeal, for
Petitioner.
Stephen M. Wagstaffe, District Attorney, Alpana Samant,
Deputy District Attorney, for Respondent.

Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney
General, Katie L. Stowe, Deputy Attorney General, for Attorney General Rob
Bonta as Amicus Curiae upon the request of the Court of Appeal.

29