In re Kowalczyk

Filed 11/21/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re GERALD JOHN A162977
KOWALCZYK
(San Mateo County
on Habeas Corpus. Super. Ct. No. 21SF003700A)

Gerald John Kowalczyk filed a petition for writ of habeas corpus
challenging the trial court’s decision denying him bail. We issued an order to
show cause and later asked the parties to brief a number of issues, including
whether pretrial detention is authorized outside of the circumstances
specified in article I, section 12 of the California Constitution. We ultimately
dismissed the habeas petition as moot on the motion of the People, the real
party in interest, who informed us that petitioner had pled and been
sentenced in the underlying criminal matter.
The California Supreme Court granted review and transferred the
matter back to this court with directions to vacate our dismissal order and to
“issue an opinion that addresses which constitutional provision governs the
denial of bail in noncapital cases—article I, section 12, subdivisions (b) and
(c), or article I, section 28, subdivision (f)(3), of the California Constitution —
or, in the alternative, whether these provisions can be reconciled.” At this
juncture, we have received additional briefing from the parties and held oral
argument on the question posed.
 Adhering to settled principles governing the construction of
constitutional provisions, we conclude that the bail provisions of article I,
section 28, subdivision (f)(3) can be reconciled with those of article I,
section 12 (hereafter section 12 and section 28(f)(3)) and that both sections
govern bail determinations in noncapital cases. This means that section 12’s
general right to bail in noncapital cases remains intact, while full effect must
be given to section 28(f)(3)’s mandate that the rights of crime victims be
respected in all bail and OR release determinations. In so concluding, we
reject any suggestion that section 12 guarantees an unqualified right to
pretrial release or that it necessarily requires courts to set bail at an amount
a defendant can afford.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged petitioner by complaint with one felony count of
vandalism (Pen. Code, § 594, subd. (b)(1)), three felony counts of identity
theft (id. § 530.5, subd. (a)), one misdemeanor count of petty theft of lost
property (id. § 485), and one misdemeanor count of identity theft (id. § 530.5,
subd. (c)(1)). Petitioner waived arraignment on the complaint, and the court
set bail at $75,000. Prior to his preliminary hearing, petitioner filed a motion
seeking release on his own recognizance (OR) with drug conditions and
electronic monitoring, arguing that he posed no danger to the alleged victims
or the community and was a minimal risk for nonappearance at future court
proceedings.
At a hearing in May 2021, the prosecutor opposed the bail motion and
requested that bail remain set at $75,000. According to the prosecutor, the
judge who initially set bail determined that petitioner posed a danger to the
public based on the recommendation of a pretrial services report and on
petitioner’s extensive RAP sheet. Given petitioner’s ongoing commission of

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crimes, including while on probation, the prosecutor argued that no less
restrictive nonfinancial conditions could protect the public from him.
Petitioner contended otherwise, noting there was no showing of flight risk or
a risk of “harm to others” insofar as the charged offenses were property
crimes and the majority of his prior offenses were merely theft or drug
related. Petitioner also urged consideration of his inability to pay the bail
amount and the imposition of alternative conditions, such as drug testing.
The court denied bail altogether and ordered petitioner detained.
Although the court indicated it was not worried for the safety of the victims of
the charged offenses, it emphasized protection of the public as the primary
concern and viewed petitioner’s property crimes as a significant public safety
issue. The court observed that petitioner was a chronic reoffender whose
RAP sheet documented 64 prior convictions and was over 100 pages long.
Among those prior convictions were at least four convictions for driving under
the influence. Petitioner received the maximum score of 14 on the Virginia
Pretrial Risk Assessment Instrument, and the pretrial services report
indicated petitioner failed to abide by supervised OR conditions in the last
five years. The court also indicated its concern that petitioner might
abscond, noting his convictions spanned multiple states and multiple
counties in California. Furthermore, petitioner—who was unhoused and
unemployed—made no showing of any incentive to remain and attend future
court appearances. Highlighting petitioner’s unprecedented “level of
recidivism,” the court found that no nonfinancial or financial conditions could
accomplish the goals of protecting the public or ensuring petitioner’s
appearance at future court proceedings.
At the preliminary hearing in mid-May 2021, the court (a different
judicial officer than the two who considered the issue of bail before) held

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petitioner to answer to the felony identity theft counts, but not the felony
vandalism count, and “ ‘certified’ ” the misdemeanor counts to the superior
court. The court considered and denied the defense’s oral motion to reduce
bail, explaining that the prior judge already considered the issue of bail and
that the circumstances had not sufficiently changed to warrant disturbing
that order.
In mid-June 2021, petitioner again moved to reduce bail or for OR
release, contending that he posed no risk to specific victims or the public and
that nonfinancial terms could be used to secure his appearance. He also
noted he was not held to answer on the felony vandalism charge, which he
claimed was a changed circumstance warranting reconsideration of bail. At
one point during the hearing, but before the prosecutor raised the issue of
petitioner’s extensive criminal history and recidivism, the court (a different
judicial officer than those before) indicated she did not see a public safety
issue in the case. Ultimately, the court denied the motion and declined to
disturb the no bail order due to the absence of changed circumstances.
In July 2021, petitioner filed his habeas petition challenging the denial
of bail on various grounds. As indicated, we issued an order to show cause
but ultimately dismissed the petition as moot. The California Supreme Court
granted review, and transferred the matter back to this court with directions
to vacate our order dismissing the petition as moot, to conduct further
proceedings as appropriate, and to “issue an opinion that addresses which
constitutional provision governs the denial of bail in noncapital cases—article
I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3),
of the California Constitution—or, in the alternative, whether these
provisions can be reconciled.”

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 DISCUSSION
A. California Constitutional Provisions Relating to Bail
1. Early History
In 1849, article I, section 7 of the California Constitution provided: “All
persons shall be bailable, by sufficient sureties, unless for capital offenses,
when the proof is evident or the presumption great.” (Cal. Const. of 1849,
art. I, § 7.) Article I, section 6 of the 1849 Constitution also provided:
“Excessive bail shall not be required . . . .” These provisions were
subsequently joined and set forth in article I, section 6 of the California
Constitution of 1879, and in 1974 they were relocated to section 12 with an
added provision explicitly permitting OR release at the court’s discretion.1
(Standish, supra, 38 Cal.4th at p. 874.)
2. Propositions 4 and 8 in 1982
In 1982, Proposition 4 proposed to amend section 12 by adding two
subdivisions that would “broaden the circumstances under which the courts
may deny bail.” (Ballot Pamp., Primary Elec. (June 8, 1982) analysis of
Prop. 4 by the Legislative Analyst, p. 16.)2 According to the Legislative
Analyst, under new subdivision (b), bail “could be denied in felony cases
involving acts of violence against another person when . . . the proof of guilt is

1 In full, this former version of section 12 read: “A person shall 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. [¶] A person may be released on his or her own recognizance in the
court’s discretion.” (Former Cal. Const., art. I, § 12; People v. Standish (2006)
38 Cal.4th 858, 874 (Standish) [prior to 1974, there was a “ ‘ “well-established
practice of releasing persons accused of crimes on their own recognizance” ’ in
appropriate circumstances as an alternative to requiring the posting of
bail”].)
2 Petitioner’s unopposed request for judicial notice of various documents,
including voter information guides, is granted.

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evident or the presumption of guilt is great and . . . there is a substantial
likelihood that the accused’s release would result in great bodily harm to
others.” (Id., analysis of Prop. 4 by the Legislative Analyst, p. 16; see id., text
of Prop. 4, p. 17.) And under new subdivision (c), bail “could be denied in
felony cases when . . . the proof of guilt is evident or the presumption of guilt
is great and . . . the accused has threatened another with great bodily harm
and there is a substantial likelihood that the threat would be carried out if
the person were released.” (Id., analysis of Prop. 4, p. 16.) Proposition 4 also
proposed to add a constitutional “requirement that the courts, in fixing the
amount of bail, consider . . . the seriousness of the offense, the person’s
previous criminal record, and the likelihood that the person will appear to
stand trial[].” (Ibid.)
On the same ballot was Proposition 8—known as “ ‘The Victims’ Bill of
Rights’ ”—which would accord a number of constitutional rights to crime
victims in areas ranging from bail to restitution. (Ballot Pamp., Primary
Elec. (June 8, 1982) text of Prop. 8, p. 33.) In particular, Proposition 8 would
acknowledge that “[t]he rights of victims pervade the criminal justice system,
encompassing not only the right to restitution . . . , but also the more basic
expectation that persons who commit felonious acts causing injury to
innocent victims will be appropriately detained in custody.” (Ibid., italics
omitted.) To accomplish these goals, the proposition explained, “broad
reforms in the procedural treatment of accused persons and the disposition
and sentencing of convicted persons are necessary and proper as deterrents to
criminal behavior and to serious disruption of people’s lives.” (Ibid., italics
omitted.)
With regard to bail, Proposition 8 proposed to repeal section 12 and to
substitute section 28, subdivision (e) (“section 28(e)”) in its place. (Standish,

6
supra, 38 Cal.4th at p. 874; Ballot Pamp., Primary Elec., supra, text of
Prop. 8, §§ 2–3, p. 33.) Section 28(e), entitled “Public Safety Bail,” provided
as follows: “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 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 shall be the primary consideration. [¶] A person
may be released on his or her own recognizance in the court’s discretion,
subject to the same factors considered in setting bail. However, no person
charged with the commission of any serious felony shall be released on his or
her own recognizance.” (Ballot Pamp., Primary Elec., supra, text of Prop. 8,
§ 3, p. 33, italics omitted.)
Ultimately, Proposition 4 and Proposition 8 both passed, but
Proposition 4 received more votes than Proposition 8. Over a decade later,
the California Supreme Court commented that the bail and OR provisions in
Proposition 4 prevailed over those in Proposition 8 because the former
received more votes than the latter. (In re York (1995) 9 Cal.4th 1133, 1140,
fn. 4 (York).) However, the York court did not analyze at length whether the
two propositions might be harmonized so that both of their bail and OR
provisions could be given effect. (Standish, supra, 38 Cal.4th at pp. 876–877.)
In 2006, the California Supreme Court performed such an analysis in
Standish, supra, 38 Cal.4th 858. In conducting a “section-by-section
comparison of Propositions 4 and 8,” the Standish court observed their bail
and OR provisions were in “direct conflict”: “Proposition 8 would have
repealed . . . section 12 [citation], while Proposition 4 amended that provision.

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[Citation.] Proposition 8 would have rescinded the court’s discretion to grant
OR release for any serious felony[3] [citation], while Proposition 4 left the
court’s preexisting discretion intact without any restriction. [Citation.]
Proposition 4 stated that all accused persons ‘shall’ be admitted to bail,
subject to certain limitations [citation], while Proposition 8 would have
rendered bail discretionary in all cases and would have extended the
restrictions it imposed upon bail to OR release.” (Id. at pp. 877–878.) In view
of this analysis and the greater number of votes Proposition 4 received, the
court determined that Proposition 4’s bail and OR amendments to section 12
took effect, and that Proposition 8’s conflicting provisions in section 28(e) did
not. (Id. at p. 878.)
As relevant here, the voters approved two subsequent amendments.
First, in 1994 the voters passed Proposition 189, which expanded the
exception in subdivision (b) of section 12 to include persons who have
committed “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.” (Supp. Ballot Pamp.,
Gen. Elec., (Nov. 8, 1994) text of Prop. 189, p. 18, italics omitted.) Second,
and as will be discussed below, the voters approved Proposition 9 in 2008.
3. Proposition 9 in 2008
Proposition 9—entitled the “ ‘Victims’ Bill of Rights Act of 2008:
Marsy’s Law’ ”—proposed to amend section 28 as added to the Constitution in
1982, including the bail provisions previously held inoperative. (Voter

3 As noted, post, this specific provision rescinding a court’s discretion to
grant OR release for serious felonies was expressly stricken from section 28
by the passage of Proposition 9 in 2008.

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Information Guide, Gen. Elec. (Nov. 4, 2008) text of Prop. 9, §§ 1 & 4.1,
pp. 128–130.) Proposition 9 contained a finding that crime victims are
entitled to “justice and due process” and that its provisions are necessary “to
remedy a justice system that fails to fully recognize and adequately enforce”
such rights. (Id., text of Prop. 9, § 2, p. 128.) Specifically, Proposition 9
declared: “The People of the State of California find that the ‘broad reform’ of
the criminal justice system intended to grant these basic rights mandated in
the Victims’ Bill of Rights initiative measure passed by the electorate as
Proposition 8 in 1982 has not occurred as envisioned by the people. Victims
of crime continue to be denied rights to justice and due process.” (Ibid.)
Importantly, Proposition 9 included the following declaration of its
purposes and intent: “The rights of victims also include broader shared
collective rights that are held in common with all of the People of the State of
California and that are enforceable through the enactment of laws and
through good-faith efforts and actions of California’s elected, appointed, and
publicly employed officials. These rights encompass the expectation shared
with all of the people of California that persons who commit felonious acts
causing injury to innocent victims will be appropriately and thoroughly
investigated, [and] appropriately detained in custody . . . so that the public
safety is protected and encouraged as a goal of highest importance.”4 (Voter
Information Guide, Gen. Elec., supra, text of Prop. 9, § 4.1, p. 129.)

4 The italics in this and in the following quoted text from Proposition 9
reflect the original italicized language appearing in the ballot materials,
which informed the reader: “This initiative measure amends a section of the
California Constitution and amends and adds sections to the Penal Code;
therefore, existing provisions proposed to be deleted are printed in strikeout
type and new provisions proposed to be added are printed in italic type to
indicate that they are new.” (Voter Information Guide, Gen. Elec., supra,
introductory paragraph to text of Prop. 9, p. 128.)

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 Upon its passage, Proposition 9 amended section 28, subdivision (a), to
provide that crime victims had the personally enforceable rights described in
subdivision (b)(1) through (17). (Voter Information Guide, Gen. Elec., supra,
text of Prop. 9, § 4.1, p. 129.) In particular, subdivision (b)(3) of section 28
guaranteed the right of crime victims “[t]o have the safety of the victim and
the victim’s family considered in fixing the amount of bail and release
conditions for the defendant.” (Text of Prop. 9, § 4.1, p. 129.)
Proposition 9 also added subdivision (f)(3) to section 28, which reflected
the same title (“Public Safety Bail”) and contained language nearly identical
to the language that appeared in Proposition 8’s version of section 28(e).
(Compare Voter Information Guide, Gen. Elec., supra, text of Prop. 9, § 4.1,
p. 130 with Ballot Pamp., Primary Elec., supra, text of Prop. 8, p. 33.) Given
its significance to petitioner’s contentions, we set forth the following relevant
text of proposed section 28(f)(3), as it appeared in the ballot materials:
(f) In addition to the enumerated rights provided in
subdivision (b) that are personally enforceable by victims as
provided in subdivision (c), victims of crime have additional
rights that are shared with all of the People of the State of
California. These collectively held rights include, but are not
limited to, the following:
[¶] . . . [¶]
(e) (3) Public Safety Bail. 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 consideration considerations.
A person may be released on his or her own recognizance in
the court’s discretion, subject to the same factors considered in

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 setting bail. However, no person charged with the commission of
any serious felony shall be released on his or her own
recognizance.
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.
When a judge or magistrate grants or denies bail or release
on a person’s own recognizance, the reasons for that decision
shall be stated in the record and included in the court’s minutes.
(Voter Information Guide, Gen. Elec., supra, text of Prop. 9, § 4.1, p. 130.)
Unlike the situation earlier with Proposition 8, Proposition 9 did not
propose to repeal section 12. Proposition 9 did, however, include a provision
entitled “Conflicts with Existing Law” which specifically stated: “It is the
intent of the People of the State of California in enacting this act that if any
provision in this act conflicts with an existing provision of law which provides
for greater rights of victims of crime, the latter provision shall apply.” (Voter
Information Guide, Gen. Elec., supra, text of Prop. 9, § 7, p. 132, block
capitalization omitted.)
B. The Humphrey Decision
To round out the constitutional landscape pertaining to bail, we discuss
the California Supreme Court’s decision in In re Humphrey (2021) 11 Cal.5th
135 (Humphrey).
In Humphrey, the charges against the 66-year-old petitioner included
first degree residential robbery and burglary, infliction of injury on an elderly
victim, and four prior strike allegations. (Humphrey, supra, 11 Cal.5th at
pp. 143–144.) In seeking OR release without any condition of money bail, the
petitioner cited his age, community ties, financial condition, history of
appearing in court, remoteness of his prior offenses, as well as the fact that
the charged offenses involved the alleged taking of $7 and a bottle of cologne

11
from the victim. (Id. at p. 144.) The court set bail at $600,000, then later at
$350,000, despite the petitioner’s protestations that he could not afford these
bail amounts. (Id. at pp. 144–145.) After the Court of Appeal granted habeas
relief, the California Supreme Court granted review “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.” (Id. at
p. 147.)
Ultimately, the Supreme Court held it unconstitutional to detain
arrestees solely because they lack financial resources. (Humphrey, supra, 11
Cal.5th at p. 156.) In so holding, the court emphasized that bail
determinations require “an individualized consideration of the relevant
factors,” including “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.” (Humphrey, supra, 11
Cal.5th at p. 152, citing §§ 12, 28(b)(3), (f)(3); Pen. Code, § 1275, subd. (a)(1).)
The Humphrey court underscored the following general framework for
pretrial release and detention determinations: “Where the record reflects the
risk of flight or a risk to public or victim safety, 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. If the
court concludes that money bail is reasonably necessary, then the court must
consider the individual arrestee’s ability to pay, along with the seriousness of
the charged offense and the arrestee’s criminal record, and—unless there is a
valid basis for detention—set bail at a level the arrestee can reasonably
afford. And if a court concludes that public or victim safety, or the arrestee’s
appearance in court, cannot be reasonably assured if the arrestee is released,

12
it may detain the arrestee only if it first finds, by clear and convincing
evidence, that no nonfinancial condition of release can reasonably protect
those interests.” (Humphrey, supra, 11 Cal.5th at p. 154.) In sum, “detention
is impermissible unless no less restrictive conditions of release can
adequately vindicate the state’s compelling interests.” (Id. at pp. 151–152.)
As relevant here, the Humphrey court expressly noted that “[e]ven
when a bail determination complies with the above prerequisites, the court
must still consider whether the deprivation of liberty caused by an order of
pretrial detention is consistent with state statutory and constitutional law
specifically addressing bail—a question not resolved [in Humphrey]—and
with due process.” (Humphrey, supra, 11 Cal.5th at p. 155, fn. omitted.) In a
footnote accompanying this statement, the court noted it was leaving
unresolved the question of whether section 12 and section 28(f)(3) “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, at p. 155, fn. 7; In re
White (2020) 9 Cal.5th 455, 470.) As indicated, the California Supreme Court
has directed us to resolve that open issue in this case.
C. Analysis
Before turning to the question presented, we address petitioner’s claim
that section 28(f)(3) is completely inoperative because Proposition 8 never
took effect in 1982. We review this issue de novo. (Taxpayers for Accountable
School Bond Spending v. San Diego Unified School Dist. (2013) 215
Cal.App.4th 1013, 1026 (Taxpayers for Accountable School Bond Spending).)
1. Section 28(f)(3) is fully operative
In contending section 28(f)(3) is inoperative, petitioner emphasizes that
the ballot materials accompanying Proposition 9 made no mention of the

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Supreme Court’s decision holding that Proposition 8’s similar bail provisions
were inoperative; nor did the materials otherwise indicate the voters were
being asked to “re-enact” or effectuate the inoperative bail provisions of
section 28(e). Thus, petitioner claims, the voters’ 2008 approval of
Proposition 9 did not reflect an intent to resuscitate the inoperative bail and
OR provisions of Proposition 8, and section 28(f)(3) must be deemed
inoperative. Alternatively, petitioner posits that effect should be given only
to the “genuinely new material” of section 28(f)(3), i.e., only those portions of
the constitutional text that were italicized in the ballot materials.5
“Under the California Constitution, ‘[t]he legislative power of this State
is vested in the California Legislature . . . but the people reserve to
themselves the powers of initiative and referendum.’ (Cal. Const., art. IV,
§ 1.)” (Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105, 1111.) The initiative
power is “ ‘one of the most precious rights of our democratic process’ ”
(Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582,
591), and “courts have consistently declared it their duty to ‘ “jealously
guard” ’ and liberally construe the right so that it ‘ “be not improperly
annulled” ’ ” (California Cannabis Coalition v. City of Upland (2017)
3 Cal.5th 924, 934). “ ‘If doubts can reasonably be resolved in favor of the use
of this reserve power, courts will preserve it.’ ” (Associated Home Builders, at
p. 591.) In analyzing challenges to the exercise of the initiative power, courts
generally assume that, when voters are provided the whole text of a proposed
constitutional amendment, they have considered each aspect of the law and

5 In their joint amicus brief in support of petitioner, the American Civil
Liberties Union of Northern and Southern California, the California Public
Defenders Association, Crime Survivors for Safety and Justice, and the
Public Defender of Ventura County (hereafter amici) essentially advance this
the same argument, as well as a few other of petitioner’s arguments.

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voted intelligently. (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 252
(Brosnahan).)
Here, there is no dispute that the voters were provided the entire text
of Proposition 9. Thus, when the voters cast their ballots, they presumably
considered each aspect of the law and voted intelligently to approve all of its
terms, including the whole of section 28(f)(3). (Brosnahan, supra, 32 Cal.3d
at p. 252.) That the ballot materials omitted to mention section 28(f)(3)’s
similarity to bail provisions previously deemed inoperative despite voter
approval in 1982 provides no basis for its annulment.
In arguing to the contrary, petitioner directs our attention to Elections
Code section 9086, subdivision (f), which provides: “The provisions of the
proposed measure differing from the existing laws affected shall be
distinguished in print, so as to facilitate comparison.” (Italics added.)
Pointing to a paragraph in the 2008 ballot materials that explains “new
provisions proposed to be added are printed in italic type to indicate that they
are new” (see ante, fn. 4), petitioner argues that, at best, the voters intended
to enact only those few italicized words and phrases within section 28(f)(3) of
Proposition 9, i.e., “the safety of the victim,” “and the safety of the victim,”
“considerations,” and “and the victim.”
We express no view as to whether Elections Code section 9086,
subdivision (f), would have required the entirety of section 28(f)(3) to be
italicized, had a timely challenge to the typeface in the Voter Pamphlet been
filed. Elections Code section 9086 is silent as to whether italicization is
appropriate for laws that technically exist but have been deemed inoperative,
such as the bail provisions at issue. Here, petitioner cites no authority for
the view that, despite section 28(f)(3)’s approval by the voters, only its
italicized portions should be given effect. Indeed, when excised from the

15
sentences they appear in, the words and phrases that were italicized in
section 28(f)(3) did not convey a complete idea and had no real meaning
beyond their conceptual references. Contrary to petitioner’s contention, there
simply is no basis for believing that the voters intended to enact certain
select words and phrases divorced from the contextual language that gave
them meaning.
2. Section 12 and section 28(f)(3) can be reconciled and each given
full effect
We now address whether section 12(b) and (c) or section 28(f)(3)
governs the denial of bail in noncapital cases, or alternatively, whether these
provisions can be reconciled. This is a matter of constitutional interpretation,
which we undertake de novo. (Taxpayers for Accountable School Bond
Spending, supra, 215 Cal.App.4th at p. 1026.)
We focus first on the meaning of these constitutional provisions. For
this task, we adhere to well established principles similar to those governing
statutory construction. (Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara
County Open Space Authority (2008) 44 Cal.4th 431, 444.) Our goal is to
ascertain the intent of the lawmakers “so as to effectuate the purpose of the
law.” (People v. Canty (2004) 32 Cal.4th 1266, 1276 (Canty).) We start by
examining the language of the constitutional provisions, “ ‘ “giving the words
their usual, ordinary meaning.” ’ ” (Ibid.) If the language is clear and
unambiguous, we follow its plain meaning. (Ibid.) We construe the language
in the context of the measures as a whole and the overall legislative scheme,
according significance to every word, phrase, and sentence in order to achieve
the legislative purpose. (Ibid.) “The intent of the law prevails over the letter
of the law, and ‘ “the letter will, if possible, be so read as to conform to the
spirit of the act.” ’ ” (Id. at pp. 1276–1277.) Once we ascertain the meaning
of each constitutional provision, we will be positioned to determine which

16
provision governs the denial of bail in noncapital cases or whether the two
provisions can be reconciled.
To reiterate, section 12 provides in relevant part: “A person shall be
released on bail by sufficient sureties, except for: [¶] (a) Capital crimes . . . ;
[¶] (b) Felony offenses involving acts of violence on another person, or felony
sexual assault offenses on another person . . . and the court finds . . . that
there is a substantial likelihood the person’s release would result in great
bodily harm to others; or [¶] (c) Felony offenses . . . and the court finds
. . . 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.” Section 12 further provides: “Excessive bail may not be required.
In fixing the amount of bail, the court shall take into consideration 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. [¶] A person may be released on his or her own recognizance in
the court’s discretion.”
Section 28(f)(3) provides in full: “Public Safety Bail. 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. [¶] A person may be released on his or her own recognizance
in the court’s discretion, subject to the same factors considered in setting bail.
[¶] Before any person arrested for a serious felony may be released on bail, a

17
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. [¶] When a judge or magistrate grants or denies bail
or release on a person’s own recognizance, the reasons for that decision shall
be stated in the record and included in the court’s minutes.”
The principal dispute centers around the language in the first sentence
of each of these constitutional provisions. Specifically, the lead clauses are
virtually identical except that section 12 states that a person “shall be
released on bail by sufficient sureties,” while section 28(f)(3) says that a
person “may be released on bail by sufficient sureties.” (Italics added.) The
precise inquiry is this: What is the meaning of the seemingly permissive
language in section 28(f)(3), and can it be reconciled with the mandatory
language in section 12, which embodies a longstanding “constitutional right
to be released on bail pending trial” in noncapital cases subject to two
exceptions? (Standish, supra, 38 Cal.4th at p. 878; see Cal. Const. of 1849,
art. I, § 7; In re Law (1973) 10 Cal.3d 21, 25.)
Turning to section 28(f)(3)’s use of the term “may,” we observe that,
ordinarily and presumptively, “may” is permissive. (Standish, supra, 38
Cal.4th at p. 869.) “May” is a term that also refers to an expression of
possibility. (Black’s Law Dictionary (11th ed. 2019) p. 1172, col. 2.) Given
that section 12 was fully operative when Proposition 9 was presented to the
voters and approved, the most natural reading of section 28(f)(3)’s phrase “[a]
person may be released on bail by sufficient sureties” is that the phrase is a
declarative statement of existing law. (Italics added.) That is, the phrase
acknowledges that a person may or may not be released on bail, consistent
with the dictates in section 12 that a person is generally entitled to bail
release in noncapital cases except under the circumstances articulated in

18
section 12(b) and (c), or (as will be discussed below) when a person may not
be able to post bail as set.
Construing section 28(f)(3) in this manner fully promotes the voters’
intent to “preserve and protect” the right of crime victims “to justice and due
process” by having “the safety of the victim and the victim’s family considered
in fixing the amount of bail and release conditions for the defendant.” (Voter
Information Guide, Gen. Elec. (Nov. 4, 2008), text of Prop. 9, § 4.1, p. 129; id.,
arguments in favor of Prop. 9, p. 62.) Section 28(f)(3) accomplishes this by
requiring that (1) all bail determinations take into consideration and give
primacy to protection of the public and victim safety6; (2) all OR
determinations be subject to the same factors considered in setting bail; and
(3) victims be notified and provided a reasonable opportunity to be heard
“[b]efore any person arrested for a serious felony may be released on bail.” At
the same time, these victim safety provisions do not conflict with section 12
or otherwise impede its operation; they simply mandate additional
considerations in bail and OR determinations in noncapital cases.
Accordingly, construing the first sentence of section 28(f)(3) as declarative of
the general right to bail allows for complete reconciliation of section 28(f)(3)
and section 12.
The People advance a different construction of section 28(f)(3),
essentially contending the phrase “[a] person may be released on bail by
sufficient sureties” must be interpreted as a grant of judicial discretion to
deny bail release in all noncapital cases. (Italics added.) Such construction,
of course, would mean that section 28(f)(3) is in direct conflict with section 12

6 Sections 28(f)(3) and 12 both additionally require consideration of “the
seriousness of the offense charged, the previous criminal record of the
defendant, and the probability of [the defendant] appearing at the trial or
hearing of the case.”

19
and its limited exceptions for denying bail release in certain noncapital cases.
Setting aside for a moment the strong presumption against implied repeal,
the People’s construction finds no support in the text of section 28 or in the
ballot materials accompanying Proposition 9.
Apart from the People’s proffered interpretation of section 28(f)(3)’s
first sentence, the text of section 28 contains no language indicating an intent
to broaden the authority of judges and magistrates to deny bail. Indeed,
when the measure mentions the topic of bail, it does so in a manner that is
fully consistent with the terms of section 12. For instance, section 28’s
prefatory declarations include a finding that the rights of crime victims
“encompass the expectation” shared by all Californians that, prior to trial,
“persons who commit felonious acts causing injury to innocent victims will be
. . . appropriately detained in custody.” (§ 28, subd. (a)(4), italics added.) Not
only does this finding align with section 12’s contemplation that pretrial bail
release may be denied in certain serious felony cases, but the specificity of the
italicized language counters any suggestion that judges were being given
discretion to deny bail to any person accused of committing a noncapital
offense.
Similarly, the ballot materials accompanying Proposition 9 featured an
impartial analysis by the Legislative Analyst that specifically informed the
voters: “The Constitution would be changed to specify that the safety of a
crime victim must be taken into consideration by judges in setting bail for
persons arrested for crimes.” (Voter Information Guide, Gen. Elec., supra,
analysis of Prop. 9 by the Legislative Analyst, p. 59.) While that analysis
accurately conveyed the measure’s intent to add victim safety as a new
mandatory consideration for bail determinations, the Legislative Analyst
offered no view that the measure would completely eliminate the historic

20
right to bail which has existed in the California Constitution since 1849. Nor
did the arguments for and against Proposition 9 suggest that the measure
would expand judicial discretion to deny bail release beyond the exceptions in
section 12(b) and (c). (Voter Information Guide, Gen. Elec., supra, arguments
in favor of Prop. 9 and rebuttal to argument in favor of Prop. 9, pp. 62–63.)
Moreover, where, as here, a later law contains no terms explicitly
providing for repeal of existing law, we must contend with the strong
presumption against repeal by implication. (Western Oil & Gas Assn. v.
Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419–
420.) To overcome this presumption, the bail provisions of sections 12 and
28(f)(3) “ ‘must be irreconcilable, clearly repugnant, and so inconsistent that
the two cannot have concurrent operation.’ ” (Western Oil & Gas, at pp. 419–
420.) Put another way, “ ‘[t]here must be ‘no possibility of concurrent
operation.’ ” (Ibid., italics added.)
As discussed, sections 28(f)(3) and 12 are easily reconciled by giving a
natural reading to the first sentence of section 28(f)(3) and understanding its
meaning as a declarative statement of existing law. Such construction
respects the longstanding constitutional right to bail as embodied in
section 12, while also fully effectuating Proposition 9’s constitutionally
mandated considerations of public and victim safety in all bail and OR
release determinations. Consequently, there appears no basis for finding a
repeal by implication.
In reaching this conclusion, we acknowledge that in Standish, supra,
38 Cal.4th 858, our Supreme Court determined that the bail provisions
previously approved in Proposition 8—which were nearly identical to those in
section 28(f)(3)—were in direct conflict with the bail provisions approved in
Proposition 4—which amended section 12 with the language existing today.

21
(Standish, at pp. 877–878.) That finding of conflict, however, is neither
dispositive nor persuasive in the present matter.
Significantly, the Standish court was faced with the circumstance that
section 28(e), as proposed in Proposition 8, explicitly called for the repeal and
substitution of section 12. (Standish, supra, 38 Cal.4th at p. 877.) Because
the repeal clause would eliminate the constitutional right to bail enshrined in
section 12, then by necessity section 28(e) had to articulate its own
constitutional parameters for the availability of bail. Thus, section 28(e)’s
use of the permissive term “may” was properly understood as rendering “bail
discretionary in all cases.” (Standish, at p. 877.) In stark contrast,
Proposition 9 had no repeal clause and thus presented the voters with bail
release provisions that, presumably, would have to operate concurrently with
the existing constitutional provision recognizing the right to bail in most
noncapital cases. For the reasons discussed, our reading of section 28(f)(3) is
the most natural one given the operative provisions of section 12.
In sum, we interpret the first sentence of section 28(f)(3) as a
declarative statement recognizing that bail may or may not be denied under
existing law. Under this construction, section 12’s general right to bail
remains intact, while full effect is accorded to section 28(f)(3)’s mandate that
the rights of crime victims be respected in bail and OR release
determinations.
3. Bail and OR release after Humphrey
As indicated, section 12 provides that a person “shall be released on
bail by sufficient sureties” except for capital crimes and specific felony
offenses. Having concluded that sections 12 and 28(f)(3) must be given
concurrent effect, we turn to petitioner’s contention that section 12
guarantees an “absolute right to pretrial release” and requires courts to set

22
bail at an amount a defendant can afford. For the reasons below, we reject
petitioner’s expansive and novel reading of section 12.
First, petitioner’s contention finds no support in the plain language of
section 12. The phrase “released on bail by sufficient sureties” as used in
both sections 12 and 28(f)(3) generally refers to the state of being released
from custody after the posting of some sufficient security such as “cash,
property, or (more often) a commercial bail bond—which is forfeited if the
arrestee later fails to appear in court.” (Humphrey, supra, 11 Cal.5th at
p. 142; Pen. Code, §§ 1268, 1269; accord Stack v. Boyle (1951) 342 U.S. 1, 5.)
A “surety” is: “1. Someone who is primarily liable for paying another’s debt
or performing another’s obligation” or “2. A formal assurance; esp., a pledge,
bond, guarantee, or security given for the fulfillment of an undertaking.”
(Black’s Law Dict. (11th ed. 2019) p. 1742, col. 2; Civ. Code, § 2787 [enacted
in 1872 and defining a surety as “one who promises to answer for the debt,
default, or miscarriage of another, or hypothecates property as security
therefor”].)
Although we have found no California case expressly interpreting the
phrase “sufficient sureties,” the phrase must be construed in conjunction with
section 12’s requirement that trial courts fix the amount of bail upon
consideration of “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.” When viewed as a whole, and with reference to
section 28(f)(3)’s additional considerations of public and victim safety, the
most natural reading of section 12 is that a person has a right to be released
upon the posting of a sufficient security which a court, in its discretion,
determines is adequate to accomplish the purposes of bail, i.e., to protect
public and victim safety and to ensure a defendant’s presence in court.

23
(§§ 12; 28(b)(3), (f)(3).) This construction clearly promotes the
constitutionally-based policy purposes of bail, while a contrary construction
that categorically requires release on affordable bail does not.
Indeed, our construction comports with the long history of section 12,
which has never been understood as mandating affordable bail. At the time
our state Constitution was drafted in 1879, people were routinely confined in
jail for want of bail. (1 Willis & Stockton, Debates and Proceedings, Cal.
Const. Convention 1878–1879 (1880), p. 310 [“the vast majority of those who
are committed for various offenses under felonies are persons who are unable
to give bail”]; id. at p. 317 [“if [a man] [is] poor and unable to give bail, he
must go to jail, there to remain perhaps for months to await the meeting of
the Grand Jury”]; 3 Willis & Stockton, supra, at p. 1188 [“Sometimes we lock
men up because they cannot give bail”].) Section 12 and its predecessors
sought to curtail this all-too-common situation by expressly recognizing a
right to bail in most cases, and by prohibiting the imposition of excessive bail.
But neither of these constitutional provisions has ever been construed as
imposing an absolute requirement that bail be affordable.7

7 The language of section 12 is materially identical to clauses in the
Constitutions of our sister states. (E.g., Iowa Const., art. I, § 12 [“All persons
shall, before conviction, be bailable, by sufficient sureties, except for capital
offences where the proof is evident, or the presumption great.”]; N.M. Const.,
art. II, § 13 [“All persons shall, before conviction, be bailable by sufficient
sureties, except for capital offenses when the proof is evident or the
presumption great and in situations in which bail is specifically prohibited by
this section”]; Ariz. Const., art. II, § 22 [“All persons charged with crime shall
be bailable by sufficient sureties, except . . .”]; Ill. Const., art. I, § 9 [“All
persons shall be bailable by sufficient sureties, except for the following
offenses where the proof is evident or the presumption great . . .”].)
Our interpretation of section 12 is in line with the case law interpreting
these sister state Constitutions. (E.g., State v. Briggs (Iowa 2003) 666

24
 Notably, petitioner’s position that bail must be affordable was
essentially rejected well over a century ago in the cases of Ex parte Duncan
(1879) 53 Cal. 410 (Duncan I) and Ex parte Duncan (1879) 54 Cal. 75
(Duncan II), in which a prisoner twice sought relief by habeas corpus to have
his bail amount lowered, and twice the high court denied relief. (Duncan I, at
pp. 411–412; Duncan II, at pp. 76, 80.) In Duncan I, the court indicated that
the setting of the amount of bail was a matter of judicial discretion, to be
interfered with on review only when the amount was excessive, i.e., “ ‘per se
unreasonably great and clearly disproportionate to the offense involved,’ etc.”
(Duncan I, at p. 411.)
More significantly, in Duncan II, the court confronted and rejected the
argument that a bail amount is excessive simply because a prisoner is unable
to procure it. (Duncan II, supra, 54 Cal. at pp. 77–78.) As Duncan II
explained, “Undoubtedly the extent of the pecuniary ability of a prisoner to
furnish bail is a circumstance among other circumstances to be considered in
fixing the amount in which it is to be required, but it is not in itself
controlling. If the position of the counsel were correct, then the fact that the
prisoner had no means of his own, and no friends who were able or willing to
become sureties for him, even in the smallest sum, would constitute a case of

N.W.2d 573, 582; People ex rel. Gendron v. Ingram (1966) 34 Ill. 2d 623, 626
([“Sufficient, as used in the [Illinois] constitution, means sufficient to
accomplish the purpose of bail, not just the ability to pay in the event of a
‘skip’]; State v. Gutierrez (N.M.Ct.App. 2006) 140 N.M. 157, 162; Fragoso v.
Fell (Ariz.Ct.App. 2005) 210 Ariz. 427, 433; see also State v. Brooks (Minn.
2000) 604 N.W.2d 345, 350 [explaining that Pennsylvania’s law—which
permitted all prisoners to be “ ‘Bailable by Sufficient Sureties’ ”—“became the
model for almost every state constitution adopted after 1776” and two-thirds
of state constitutions contain similar or identical language], italics omitted.)

25
excessive bail, and would entitle him to go at large upon his own
recognizance.” (Duncan II, at p. 78, italics added.)
Taken together, the Duncan cases implicitly recognized that
unaffordable bail is not per se excessive and that, aside from prohibiting a
bail amount disproportionate to the circumstances, the California
Constitution’s bail provision—now in section 12—did not require bail in an
affordable amount.
We now address the extent to which the California Supreme Court’s
decision in Humphrey affects the historical understanding and operation of
section 12’s bail provisions. In holding that the denial of bail must comport
with due process and equal protection principles, the Humphrey court
carefully explained that “where a financial condition is . . . necessary, the
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.” (Humphrey, supra, 11 Cal.5th at p. 143,
italics added.)
Although the Humphrey court made clear that a trial court must
consider a defendant’s ability to pay in making a bail determination,
Humphrey did not suggest that a court is precluded from setting bail at an
amount beyond a defendant’s means when necessitated by the circumstances
presented. To the contrary, Humphrey explicitly recognized that “[i]n
unusual circumstances, the need to protect community safety may conflict
with the arrestee’s fundamental right to pretrial liberty—a right that also
generally protects an arrestee from being subject to a monetary condition of
release the arrestee can’t satisfy—to such an extent that no option other than
refusing pretrial release can reasonably vindicate the state’s compelling
interests. In order to detain an arrestee under those circumstances, a court

26
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. [Citation.] [¶] Detention in
these narrow circumstances doesn’t depend on the arrestee’s financial
condition. Rather, it depends on the insufficiency of less restrictive conditions
to vindicate compelling government interests: the safety of the victim and the
public more generally or the integrity of the criminal proceedings. Allowing
the government to detain an arrestee without such procedural protections
would violate state and federal principles of equal protection and due process
that must be honored in practice, not just in principle.” (Ibid., italics added.)
Reasonably read, the foregoing passage in Humphrey meaningfully
restricts, but does not purport to eliminate, the traditional power of a court to
set bail at an amount that may prove unaffordable, so long as the court—
after undertaking an individualized consideration of all relevant factors
including the defendant’s ability to pay—makes the necessary findings to
support a detention. That is, the court must find clear and convincing
evidence that no other conditions of release, including affordable bail, can
reasonably protect the state’s interests in assuring public and victim safety
and the arrestee’s appearance in court. (Humphrey, supra, 11 Cal.5th at
pp. 143, 152–154.)
Thus, when a court sets bail at an amount higher than a person can
likely afford after finding clear and convincing evidence that no conditions
short of detention can vindicate these compelling state interests, it cannot be
said that the court “effectively detain[ed]” the person “ ‘solely because’ ” the
person “ ‘lacked the resources’ to post bail.” (Humphrey, supra, 11 Cal.5th at
p. 143, italics added.) Though the person’s inability to post the court-ordered
bail amount necessarily results in the person’s detention, the person’s

27
financial condition is not the determinate cause of detention. Rather, the
determinate cause of the detention is the court’s finding that no other
conditions short of detention are sufficient to vindicate the state’s interests.
(See United States v. Fidler (9th Cir. 2005) 419 F.3d 1026, 1028 [“de facto
detention” when defendant is unable to comply with a financial condition
does not violate the federal Bail Reform Act if the record shows “the detention
is not based solely on the defendant’s inability to meet the financial condition,
but rather on the district court’s determination that the amount of the bond
is necessary to reasonably assure the defendant’s attendance at trial or the
safety of the community”]; United States v. McConnell (5th Cir. 1988) 842
F.2d 105, 108–110.)
We acknowledge the recent decision in In re Brown (2022) 76
Cal.App.5th 296 (Brown) offers an alternative interpretation of Humphrey.
As a preliminary matter, we observe the Brown court summarizes Humphrey
as follows: “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.)” (Brown, at pp. 305–
306.)
While we concur in the foregoing summary, we cannot agree with the
Brown court’s conclusion that, when a trial court makes the required finding
above, then Humphrey leaves a court with no option other than to formally
order pretrial detention. For one thing, such a conclusion appears at odds
with the historical understanding of section 12’s general right to release on

28
bail by sufficient sureties, and Humphrey did not disavow that
understanding. Moreover, Humphrey repeatedly acknowledged that an
outright pretrial detention order would not offend the due process clause in
those rare instances in which a court concludes, by clear and convincing
evidence, that no nonfinancial condition in conjunction with affordable money
bail can reasonably protect the state’s compelling interests in public safety or
arrestee appearance. (Humphrey, supra, 11 Cal.5th at pp. 143, 154, 156.) If,
in balancing the liberty interest of an accused with the state’s compelling
interests, an outright pretrial detention order would be appropriate, then a
fortiori a bail order in an amount higher than a defendant can afford would
also be appropriate.8
CONCLUSION
In closing, we summarize our answer to the California Supreme Court’s
question and explain our view of the framework governing bail
determinations as informed by the principles in Humphrey.
Section 28(f)(3) became fully operative when the voters approved
Proposition 9 in 2008, and its bail provisions can be fully reconciled with
those in section 12, as follows. When a defendant’s case falls outside the
circumstances specified in section 12, subdivisions (a) through (c), the

8 We note it can be difficult to know with any certainty what a defendant
might in good faith be able to afford in terms of bail. But if a defendant truly
cannot afford to post any bail, then arguably all that remains, in effect, is OR
release. (Black’s Law Dict. (11th ed. 2019) p. 1543, col. 2 [“release on
recognizance” means “[t]he pretrial release of an arrested person who
promises, usually in writing but without supplying a surety or posting bond,
to appear for trial at a later date”]; Pen. Code, §§ 1270, 1318.) Both sections
12 and 28(f)(3) contain OR release provisions that are separate and distinct
from their bail provisions and that clearly provide for judicial discretion. (See
Humphrey, supra, 11 Cal.5th at p. 147; York, supra, 9 Cal.4th at pp. 1139–
1141.)

29
defendant has a general right under sections 12 and 28(f)(3) to be released on
bail by sufficient sureties, or to be released on OR in the court’s discretion,
subject to the considerations below.
In fixing the amount of bail and release conditions, or in exercising its
discretion to release a person on OR, courts must consider 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 the
defendant appearing at the trial or hearing of the case. (§§ 12, 28(b)(3) &
(f)(3).) Public safety and the safety of the victim shall be the primary
considerations. (§ 28(f)(3).)
“In those cases where the arrestee poses little or no risk of flight or
harm to others, the court may offer OR release with appropriate conditions.
[Citation.] Where the record reflects the risk of flight or a risk to public or
victim safety, 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. If the court concludes that money bail
is reasonably necessary, then the court must consider the individual
arrestee’s ability to pay, along with the seriousness of the charged offense
and the arrestee’s criminal record, and—unless there is a valid basis for
detention—set bail at a level the arrestee can reasonably afford. And if a
court concludes that public or victim safety, or the arrestee’s appearance in
court, cannot be reasonably assured if the arrestee is released, it may detain
the arrestee only if it first finds, by clear and convincing evidence, that no
nonfinancial condition of release can reasonably protect those interests.”
(Humphrey, supra, 11 Cal.5th at p. 154.) Though excessive bail cannot be
imposed, courts are not required to set bail at an amount a defendant will
necessarily be able to afford. Before a court sets bail at an amount higher

30
than a person can likely afford, it must make the aforementioned findings
necessary to support a detention.
Finally, we reiterate the fundamental principle that “liberty is the
norm, and detention prior to trial or without trial is the carefully limited
exception.” (United States v. Salerno (1987) 481 U.S. 739, 755.) While
section 12 does not prohibit courts from fixing bail at an amount a defendant
likely cannot meet, it will be the rare case where such a monetary condition
is truly necessary to sufficiently protect the state’s compelling interests in
public and victim safety and in ensuring appearances in court.
DISPOSITION
Having answered the question posed to us by the California Supreme
Court, we dismiss the petition for writ of habeas corpus as moot.

_________________________
Fujisaki, J.

WE CONCUR:

_________________________
Tucher, P.J.

_________________________
Rodríguez, J.

31
Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Susan Greenbert

Counsel: Law Offices of Marsanne Weese, Marsanne Weese, Rose
Mishaan; Civil Rights Corps, Carson White, Katherine
Hubbard, Salil Dudani, and Alec Karakatsanis for
Petitioner

ACLU Foundation of Northern California, Avram Frey,
Mica Doctoroff, Emi Young; ACLU Foundation of
Southern California, Summer Lacey for American Civil
Liberties Union of Northern California, American Civil
Liberties Union of Southern California, California
Public Defenders Association, Crime Survivors for
Safety and Justice, and Claudia Y. Bautista, Ventura
County Public Defender as Amicus Curiae on behalf of
Petitioner

Stephen M. Wagstaffe, District Attorney of San Mateo
County, Lechelle Mercier, Law Clerk, Bryan Abanto
and Joshua Martin, Deputy District Attorneys for Real
Party in Interest

In re Kowalczyk (A162977)

32