Filed 3/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re B313533
KERNELL BROWN, (Los Angeles County
Super. Ct. No. BA480693)
on Habeas Corpus.
ORIGINAL PROCEEDINGS on petition for writ of habeas
corpus. Lynne M. Hobbs, Judge. Petition granted.
Kernell Brown, in pro. per.; and John P. Dwyer, under
appointment by the Court of Appeal, for Petitioner.
George Gascón, District Attorney, Tracey Whitney, Grace
Shin and Elizabeth Marks, Deputy District Attorneys, for the
People.
__________________________
In In re Humphrey (2021) 11 Cal.5th 135 (Humphrey) the
Supreme Court held conditioning pretrial release from custody
solely on whether an arrestee can afford bail is unconstitutional.
When nonmonetary conditions of release would be inadequate to
protect public and victim safety and to ensure an arrestee’s
appearance at trial and a financial condition is necessary, the
trial court “must consider the arrestee’s ability to pay the stated
amount of bail—and may not effectively detain the arrestee
‘solely because’ the arrestee ‘lacked the resources’ to post bail.”
(Id. at p. 143.) When no option other than refusing pretrial
release can reasonably protect the State’s compelling interest in
victim and community safety, the Humphrey Court continued, “a
court must first find by clear and convincing evidence that no
condition short of detention could suffice and then ensure the
detention otherwise complies with statutory and constitutional
requirements.” (Ibid.) What the trial court may not do is make
continued detention depend on the arrestee’s financial condition.
Yet that is precisely the effect of the superior court’s order
denying Kernell Brown’s motion, filed after the decision in
Humphrey, to reduce his $2.45 million bail to an amount he could
afford.
Brown remains in custody awaiting trial on charges he
sexually assaulted two children. We deem his petition for writ of
mandate challenging the order denying his motion to reduce bail
a petition for writ of habeas corpus; grant the petition; and order
the trial court to hold a new hearing at which it is to consider
nonmonetary alternatives to money bail, determine Brown’s
ability to afford the amount of money bail if it is to be set, and
follow the procedures and make the findings necessary for a valid
order of detention if no conditions for pretrial release will
2
adequately protect the government’s interests in the safety of
potential victims and the public generally or the integrity of the
criminal proceedings. (See Humphrey, supra, 11 Cal.5th at
p. 146.)
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial Bail Proceedings
Brown was charged in a felony complaint on August 28,
2019 with one count of oral copulation or sexual penetration of a
child 10 years of age or younger (Pen. Code, § 288.7, subd. (b)) 1
and two counts of committing a lewd act on a child under age 14
(§ 288, subd. (a)). It was specially alleged that Brown had
committed an offense against more than one victim within the
meaning of California’s one strike law. (§ 667.61, subds. (b)
& (e).) At his initial arraignment Brown’s bail was set at
$1.45 million. An amended felony complaint containing the same
three charges and one strike allegation was filed October 30,
2019. Brown’s bail was increased to $3.45 million.
An information was filed June 8, 2020, again containing
three counts of sexual abuse involving two children with the
special one strike allegation. Brown was arraigned on June 18,
2020, pleaded not guilty to the charges and denied the special
allegation. On August 20, 2020 Brown’s counsel orally moved to
reduce bail. After consultation with the prosecutor, the trial
court reduced Brown’s bail to $2.45 million.
1 Statutory references are to this code.
3
2. Brown’s Post-Humphrey Motion To Reduce Bail
On May 13, 2021, several weeks after the Supreme Court’s
decision in Humphrey, supra, 11 Cal.5th 135, Brown, now
representing himself, moved for release on his own recognizance
or, alternatively, to have his bail reduced to no more than $1,000.
In his motion Brown admitted “the crimes he is being accused of
are serious and violent,” but argued he was indigent and would
accept nonfinancial conditions of release, including electronic
monitoring, community housing, home detention, treatment and
education programs, a pretrial case manager and a protective
order. Brown also acknowledged he had a criminal record but
insisted his prior convictions were for nonviolent or nonserious
offenses. “[T]he last conviction was in 2013,” he explained,
“which was a call to answer warrant from 2005.” Brown attached
a declaration attesting to his indigency and lack of current
employment and averred he had no future prospects of income.
The trial court heard argument on Brown’s motion on
June 17, 2021. At the outset of the hearing the court stated
Humphrey was inapplicable to Brown’s case because Humphrey
did not apply to a case where the defendant was charged with a
serious and violent felony. Further explaining its understanding
of the Supreme Court’s decision, the trial court said, even when
Humphrey applied, it required consideration of an arrestee’s
financial condition only if the court first determined there existed
unusual circumstances justifying a deviation from the approved
bail schedule.
The prosecutor agreed with the court that Humphrey “did
not overrule [section] 1275,” which authorizes setting bail below
the amount established by the county bail schedule for serious or
violent felonies only upon a finding of unusual circumstances
4
(§ 1275, subd. (c)), and argued there were no such unusual
circumstances in this case. After detailing the factual allegations
supporting the charges against Brown, the prosecutor continued,
“Mr. Brown has quite a criminal history, including criminal
history in other states. He mentioned in the motion that he just
filed that the last time he was brought into the criminal justice
system it was because of a warrant from years before that he had
not responded to or taken care of.” The prosecutor also observed
that a life sentence, as Brown faced, “tend[s] to make people more
likely to flee those consequences” and noted the Los Angeles
County Department of Children and Family Services had
removed a number of young children from Brown’s home because
the Department did not believe it was safe for them to reside
there.
Asked to identify any unusual circumstances that would
justify deviation from the bail schedule, Brown insisted he had
strong ties to the Los Angeles area and was not a flight risk. He
asked the court to consider a nonfinancial conditional release,
including electronic monitoring with GPS tracking and a pretrial
case manager. He explained he had established long-term
residential housing in the area through a local community
housing facility for veterans and had that organization’s support
pending trial of his case. He also stated his willingness to submit
to home detention, to enroll in a court-ordered treatment or
education program and to obey all protective orders of the court
to keep away from either of the two victims in this case.
The trial court ultimately concluded no unusual
circumstances justified a deviation from the bail schedule and
denied Brown’s motion. Explaining its ruling the court stated,
“Even if Humphrey applies to abrogate [section] 1275, the court
5
finds that there are no lesser means of protecting the public, in
that this seemed to be done in the home with family members,
which the court can’t stop family members from seeing the
defendant. The court is also mindful of the warrant that was
outstanding where the defendant did not obey court orders. The
court is mindful of the licensing of Mr. Brown [as a truck driver],
as well as the seriousness of the crime.”
3. Brown’s Petition for Writ of Mandate
On July 12, 2021 Brown petitioned this court for a writ of
mandate to overturn the trial court’s order denying his motion to
reduce bail. Brown argued the court had failed to follow
Humphrey and “did not rely on ‘clear and convincing’ evidence . . .
in denying petitioner’s formal request.” After receiving an
informal response from the Los Angeles County District Attorney
on behalf of the People, as real party in interest, we issued an
order to show cause and appointed counsel for Brown. The
district attorney filed a return, and Brown through counsel filed a
reply.
We have elected to treat Brown’s petition for writ of
mandate as a petition for writ of habeas corpus (see Berman v.
Cate (2010) 187 Cal.App.4th 885, 892 [“courts have inherent
power to treat a petition for writ of mandate as one for habeas
corpus”]; see also Escamilla v. Department of Corrections &
Rehabilitation (2006) 141 Cal.App.4th 498, 511 [“[t]he label given
a petition, action or other pleading is not determinative; rather,
the true nature of a petition or cause of action is based on the
facts alleged and remedy sought in that pleading”]), which is the
appropriate vehicle for raising questions concerning the legality
of a grant or denial of bail. (See In re Harris (2021)
6
71 Cal.App.5th 1085, 1094, review granted Mar. 9, 2022,
S272632; In re McSherry (2003) 112 Cal.App.4th 856, 859-860.)
DISCUSSION
1. Standard of Review
“[W]e review a trial court’s ultimate decision to deny bail
for abuse of discretion. [Citations.] Under this standard, a trial
court’s factual findings are reviewed for substantial evidence, and
its conclusions of law are reviewed de novo. [Citation.] 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.”
(In re White (2020) 9 Cal.5th 455, 469-470.) We apply the same
abuse of discretion standard to review the superior court’s
decision to increase or reduce bail. (In re Avignone (2018)
26 Cal.App.5th 195, 204; In re Christie (2001)
92 Cal.App.4th 1105, 1106.)
2. Governing Law
a. Pertinent constitutional and statutory provisions
Article I, section 12 of the California Constitution provides,
“A person shall be released on bail by sufficient sureties,” except
for “(a) Capital crimes when the facts are evident or the
presumption great; [¶] (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 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; or [¶]
(c) Felony offenses when the facts are evident or the presumption
7
great and the court finds based on clear and convincing evidence
that the person has threatened another with great bodily harm
and that there is a substantial likelihood that the person would
carry out the threat if released.” (See In re York (1995)
9 Cal.4th 1133, 1139-1140 [“Article I, section 12, of the California
Constitution establishes a person’s right to obtain release on bail
from pretrial custody, identifies certain categories of crime in
which such bail is unavailable, prohibits the imposition of
excessive bail as to other crimes, sets forth the factors a court
shall take into consideration in fixing the amount of the required
bail, and recognizes that a person ‘may be released on his or her
own recognizance in the court’s discretion’”].)
Article I, section 28, subdivision (f)(3), of the Constitution,
part of the Victims’ Bill of Rights, provides in somewhat different
language, “A person may be released on bail by sufficient
sureties, except for capital crimes when the facts are evident or
the presumption great. Excessive bail may not be required. In
setting, reducing or denying bail, the judge or magistrate shall
take into consideration the protection of the public, the safety of
the victim, the seriousness of the offense charged, the previous
criminal record of the defendant, and the probability of his or her
appearing at the trial or hearing of the case. Public safety and
the safety of the victim shall be the primary considerations.
[¶] . . . [¶] Before any person arrested for a serious felony may be
released on bail, a hearing may be held before the magistrate or
judge, and the prosecuting attorney and the victim shall be given
notice and reasonable opportunity to be heard on the matter.” 2
2 Because the case before it did not involve an order denying
bail, the Supreme Court in Humphrey did not consider “the
question of how two constitutional provisions addressing the
8
These constitutional provisions are implemented, in part,
by section 1275, which provides in subdivision (a)(1) that, “in
setting, reducing, or denying bail, a judge or magistrate shall
take into consideration the protection of the public, the
seriousness of the offense charged, the previous criminal record of
the defendant, and the probability of his or her appearing at trial
or at a hearing of the case. The public safety shall be the primary
consideration.” Section 1275, subdivision (c), states, “Before a
court reduces bail to below the amount established by the bail
schedule approved for the county, . . . for a person charged with a
serious felony, as defined in subdivision (c) of Section 1192.7, or a
violent felony, as defined in subdivision (c) of Section 667.5, the
court shall make a finding of unusual circumstances and shall set
forth those facts on the record.”
b. In re Humphrey
In the opening paragraphs of its opinion in Humphrey, the
Supreme Court stated, in principle, “pretrial detention should be
reserved for those who otherwise cannot be relied upon to make
court appearances or who pose a risk to public or victim safety.”
But, the Court explained, “it’s a different story in practice:
Whether an accused person is detained pending trial often does
not depend on a careful, individualized determination of the need
to protect public safety, but merely—as one judge observes—on
the accused’s ability to post the sum provided in a county’s
uniform bail schedule.” (Humphrey, supra, 11 Cal.5th at p. 142.)
denial of bail . . . can or should be reconciled, including whether
these provisions authorize or prohibit pretrial detention of
noncapital arrestees outside the circumstances specified in
section 12, subdivisions (b) and (c).” (Humphrey, supra,
11 Cal.5th at p. 155, fn. 7.)
9
With that practical observation as keynote, the Supreme Court
undertook a fundamental reexamination of the use of money bail
as a means of pretrial detention.
Humphrey, who had four prior serious felony (strike)
convictions for robbery or attempted robbery, was charged with
first degree residential robbery and burglary against an elderly
victim, inflicting injury on an elder adult and misdemeanor theft
from an elder adult. (Humphrey, supra, 11 Cal.5th at pp. 143-
144.) At the time of the offenses Humphrey was 66 years old. At
his arraignment the trial court denied Humphrey’s request for
release on his own recognizance and set bail at $600,000 in
accordance with the governing bail schedule as recommended by
the prosecutor. (Id. at p. 144.) The court, although
acknowledging Humphrey’s ties to the community and the age of
his prior convictions, cited the seriousness of the crime and the
vulnerability of the 79-year-old victim. (Ibid.)
Humphrey challenged the ruling setting bail by filing a
motion for a formal bail hearing under section 1270.2 with an
accompanying request for release on his own recognizance.
(Humphrey, supra, 11 Cal.5th at p. 144.) Denying the motion for
own-recognizance or supervised release, the court found unusual
circumstances to warrant a deviation from the bail schedule
based on Humphrey’s willingness to participate in a residential
treatment program and reduced bail to $350,000. (Id. at p. 145.)
Humphrey’s public defender cautioned that Humphrey was too
poor “‘to make even $350,000 bail’” and would therefore be unable
to participate in the required residential treatment program.
(Ibid.) The trial court did not comment on Humphrey’s inability
to afford bail or consider whether nonfinancial conditions of
10
release could meaningfully address public safety concerns or
flight risk. (Ibid.)
Humphrey filed a petition for a writ of habeas corpus in the
court of appeal, contending that requiring money bail as a
condition of release at an amount the accused cannot pay was the
functional equivalent of a pretrial detention order, which could
only be justified if the state established detention was necessary
to further a compelling state interest. (Humphrey, supra,
11 Cal.5th at pp. 145-146.) The court of appeal granted habeas
corpus relief, reversed the bail determination and directed the
trial court to conduct a new bail hearing. In ordering the new
hearing the court of appeal held, “‘[A] court may not order
pretrial detention unless it finds either that the defendant has
the financial ability but failed to pay the amount of bail the court
finds reasonably necessary to ensure his or her appearance at
future court proceedings; or that the defendant is unable to pay
that amount and no less restrictive conditions of release would be
sufficient to reasonably assure such appearance; or that no less
restrictive nonfinancial conditions of release would be sufficient
to protect the victim and the community.’” (Id. at p. 146.)
Although no party had petitioned for review, the Supreme
Court granted review on its own motion “to address the
constitutionality of money bail as currently used in California as
well as the proper role of public and victim safety in making bail
determinations.” (Humphrey, supra, 11 Cal.5th at pp. 146-147.)
Speaking directly to that issue, the Humphrey Court held, “[I]f a
court does not consider an arrestee’s ability to pay, it cannot
know whether requiring money bail in a particular amount is
likely to operate as the functional equivalent of a pretrial
detention order. Detaining an arrestee in such circumstances
11
accords insufficient respect to the arrestee’s crucial state and
federal equal protection rights against wealth-based detention as
well as the arrestee’s state and federal substantive due process
rights to pretrial liberty.” (Id. at p. 151.) Such pretrial detention,
the Court continued, “is impermissible unless no less restrictive
conditions of release can adequately vindicate the state’s
compelling interest.” (Id. at pp. 151-152.)
To safeguard the constitutional rights it had identified and
to effectuate its holding that courts must consider an arrestee’s
ability to pay and the efficacy of less restrictive alternatives when
setting bail, the Humphrey Court outlined a required “general
framework” for bail determinations. (Humphrey, supra,
11 Cal.5th at p. 152.) While the Court declined to “lay out
comprehensive descriptions of every procedure by which bail
determinations must be made,” it emphasized that trial courts
“must undertake an individualized consideration of the relevant
factors. These factors include the protection of the public as well
as the victim, the seriousness of the charged offense, the
arrestee’s previous criminal record and history of compliance
with court orders, and the likelihood that the arrestee will appear
at future court proceedings.” (Id. at pp. 156, 152.)
The Humphrey Court explained a trial court must first
determine whether an arrestee is a flight risk or a danger to
public or victim safety. If the arrestee does pose one or both of
these risks, then the court should consider whether “nonfinancial
conditions of release may reasonably protect the public and the
victim or reasonably assure the arrestee’s presence at trial.”
(Id. at p. 154.) Although “no condition of release can entirely
eliminate the risk that an arrestee may harm some member of
the public,” the Court observed, “[t]he experiences of those
12
jurisdictions that have reduced or eliminated financial conditions
of release suggest that releasing arrestees under appropriate
nonfinancial conditions—such as electronic monitoring,
supervision by pretrial services, community housing or shelter,
stay-away orders, and drug and alcohol testing and treatment
[citations]—may often prove sufficient to protect the community.”
(Ibid.)
Having considered potential nonfinancial conditions, if the
trial court nonetheless concludes money bail is “reasonably
necessary” to protect the public and ensure the arrestee’s
presence at trial, then bail must be “set at a level the arrestee
can reasonably afford” unless the court concludes, by clear and
convincing evidence, that no nonfinancial condition in
conjunction with affordable money bail can reasonably protect
public safety or arrestee appearance. (Humphrey, supra,
11 Cal.5th at p. 154.) Quoting from the United States Supreme
Court’s decision in United States v. Salerno (1987) 481 U.S. 739,
755, the Humphrey Court emphasized, “While due process does
not categorically prohibit the government from ordering pretrial
detention, it remains true that ‘[i]n our society liberty is the
norm, and detention prior to trial or without trial is the carefully
limited exception.’” (Humphrey, at p. 155.)
3. Brown Is Entitled to a New Bail Hearing That Complies
with Humphrey
Although aware of Humphrey, the trial court
misunderstood its scope and, accordingly, deprived Brown of his
right to a bail determination that complied with the Supreme
Court’s decision.
First, the court incorrectly stated Humphrey was
inapplicable in cases in which the defendant had been charged
13
with a serious or violent felony. Nothing in Humphrey’s
discussion of the constitutional constraints on the use of money
bail suggests that limitation. To the contrary, Humphrey himself
was charged with first degree robbery, a serious felony within the
meaning of section 1192.7, subdivision (c)(19), and a violent
felony within the meaning of section 667.5, subdivision (c)(5).
(See Humphrey, supra, 11 Cal.5th at p. 145 [“[a]t the hearing, the
prosecutor pointed out the trial court would need to find unusual
circumstances to justify a deviation from the bail schedule
because Humphrey was charged with robbery, a serious and
violent felony”]; see also In re Harris, supra, 71 Cal.App.5th at
p. 1102, review granted [analyzing case under Humphrey where
defendant was charged with a serious and violent felony].)
Second, apparently recognizing that Brown could not afford
to post bail in the sum of $2.45 million, the court ruled, “Even if
Humphrey applies to abrogate [section] 1275, the court finds that
there are no lesser means of protecting the public” and alleged
victims because “the court can’t stop family members from seeing
the defendant.” The trial court’s use of an unreasonably high,
unaffordable bail to protect the public and past victims from the
defendant—that is, setting bail knowing full well that it was the
equivalent of a pretrial detention order—is directly at odds with
the requirements for a constitutionally valid bail determination
as articulated in Humphrey.
As Humphrey makes clear, once an arrestee is deemed a
flight risk or a danger to public or victim safety, the court is to
consider whether nonfinancial conditions of release may
reasonably protect the public and the victim or reasonably assure
the arrestee’s presence at trial. (Humphrey, supra,
11 Cal.5th at p. 154; see In re Harris, supra,
14
71 Cal.App.5th at p. 1104, review granted [“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”].)
Here, Brown stated his willingness to submit to home detention
with GPS monitoring and to obey all protective orders requiring
him to stay away from the two victims.
The district attorney argues those nonfinancial conditions
“cannot significantly alleviate the public safety concerns at issue
because even if parameters are set that a defendant is not
supposed to go beyond, they cannot be stopped in real time.” As
discussed, the Humphrey Court acknowledged that conditions
upon release could not entirely eliminate any risk to public
safety. However, rather than deny release in all cases, the Court
instructed trial courts to “focus instead on risks to public or
victim safety or to the integrity of the judicial process that are
reasonably likely to occur.” (Humphrey, supra, 11 Cal.5th at
p. 154.) Here, there was no evidence proffered in the trial court
to support the contention that harm to the public was reasonably
likely to occur if Brown were released. The trial court failed to
address any of the specific nonfinancial conditions proposed by
Brown or to indicate, even in general, why nonfinancial
conditions of release (such as a stay away or no contact order,
home detention, electronic monitoring or surrender of Brown’s
Class A driver’s license) would be insufficient to protect the
victims or the public or obviate the risk of flight. On this record
we cannot conclude there was sufficient evidence to support a
finding by clear and convincing evidence that less restrictive
15
alternatives to detention could not reasonably protect the public
or victim safety.
Third, compounding its misreading of Humphrey, after
deciding nonfinancial conditions of release were inadequate and
bail was reasonably necessary, the trial court stated Humphrey
did not require it to consider Brown’s financial condition and
ability to pay unless it first determined there was reason to
deviate from the approved bail schedule. 3 Accordingly, although
Brown presented evidence of his limited financial resources, the
trial court made no effort to evaluate his ability to secure his
release from pretrial custody by posting bail at $2.45 million.
The court had it backwards: Under Humphrey the amount
specified in the bail schedule (or any other amount of bail, for
that matter) is appropriate only if the court first determines the
arrestee can afford to post it. Otherwise, the Supreme Court
explained, “requiring money bail in a particular amount is likely
to operate as the functional equivalent of a pretrial detention
order.” (Humphrey, supra, 11 Cal.5th at p. 151.)
Far from limiting the requirement the court evaluate a
defendant’s financial status to situations in which it had already
determined a downward departure from the bail schedule was
warranted, the Humphrey Court broadly held the common
practice of conditioning an arrestee’s release from custody
pending trial solely on whether an arrestee can afford bail is
3 The court explained its understanding of Humphrey: “In
Humphrey, the court did find unusual circumstances to deviate
from the bail schedule, and because the court deviated from the
bail schedule, it was decided in Humphrey that the court has to
take into account the defendant’s financial wherewithal to post
bail.”
16
unconstitutional. (Humphrey, supra, 11 Cal.5th at p. 143.)
That is, under Humphrey, if the court properly determines
nonfinancial conditions are insufficient to protect the state’s
interests, but that imposing a money bail condition (alone or in
combination with nonfinancial conditions) would adequately
protect the public and the victims and ensure the arrestee’s
presence in court, the court must consider the individual
arrestee’s ability to pay and “set bail at a level the arrestee can
reasonably afford.” (Id. at p. 151.) If money bail set at that level
is not sufficient to protect the state’s compelling interests, then
the trial court’s only option is to order pretrial detention,
assuming the evidentiary record is sufficient to support the
findings necessary to justify such an order.
Finally, in defense of the trial court’s decision not to reduce
Brown’s bail, the district attorney in the return argues there was
clear and convincing evidence presented to the trial court “that
there is a substantial likelihood that [Brown]’s release would
result in great bodily harm to others,” as well as clear and
convincing evidence that Brown “could be a potential flight risk
given that he was in warrant status for 8 years from 2005 to 2013
and did not comply with the court orders in that matter for such
a long period of time.” That evidence, the district attorney
contends, “made a sufficient record to justify keeping [Brown]’s
bail as previously set at $2,450,000.00.” In other words, the
district attorney advocates for precisely the result the Humphrey
Court held to be unconstitutional—setting bail at an amount that
is impossible for the defendant to post given his financial
condition in order to keep him in custody pending trial.
It may well be, as the district attorney argues, that “there
was no alternative to cash bail” and “nothing short of detention
17
can suffice” in this case. The Supreme Court in Humphrey
recognized such cases exist. (See Humphrey, supra,
11 Cal.5th at p. 156.) Although it declined to address in detail
the constitutional requirements for such a no-bail order, the
fundamental constitutional principles the Court enunciated
clearly mean that setting bail at an amount the court knows
cannot be met, as here, is not the appropriate response in those
situations. Rather, the trial court must be explicit that it is
ordering pretrial detention and base its order on findings 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.” (Ibid.)
Moreover, as the Supreme Court cautioned, the trial court’s
procedures for entering such an order for pretrial detention must
comport “with other traditional notions of due process to ensure
that when necessary, the arrestee is detained ‘in a fair
manner.’ . . . Among those fair procedures is the court’s
obligation to set forth the reasons for its decision on the record
and to include them in the court’s minutes. . . . Such findings
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;
accord, In re Harris, supra, 71 Cal.App.5th at p. 1098, review
granted [“[t]he court was obligated to provide a statement of
reasons for the detention, included in writing in the court’s
minutes”].) Here, the trial court’s minute order only reflects that
Brown’s motion was “filed, heard, argued and denied by the
court.”
18
In sum, because the trial court failed to comply with the
requirements of Humphrey by modifying bail to an amount
consistent with Brown’s financial ability or adequately
addressing the need for a pretrial detention order, Brown is
entitled to a new hearing on his motion at which the court
considers his financial resources and other relevant
circumstances, as well as nonfinancial conditions as alternatives
or in addition to money bail. If the court finds money bail is
reasonably necessary to ensure Brown’s future court appearances
and the safety of the public and the victims, then bail must be set
for an amount Brown can afford. Alternatively, if the court finds
by clear and convincing evidence that there are no less restrictive
means to satisfy those purposes, then it may enter a no-bail
order. The court’s findings and reasons for any such order must
be stated on the record and included in a written order. (See
Humphrey, supra, 11 Cal.5th at p. 146.)
DISPOSITION
The petition is granted. The Los Angeles Superior Court is
directed to vacate its order of June 17, 2021 denying Brown’s
motion for release on his own recognizance, nonfinancial
conditions for release or reduction in bail and thereafter hold a
new hearing at which the court considers Brown’s motion in a
manner that is consistent with the Supreme Court’s decision in
Humphrey, supra, 11 Cal.5th 135 and this court’s opinion.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
19