I concur only with the judgment. I agree that the superior court erred in granting defendant’s motion to set aside the information pursuant to Penal Code section 995,1 but disagree that the magistrate erred in denying defendant release on his own recognizance (OR). Under the California Constitution, defendant had no right to be released on OR pending his preliminary examination, and the magistrate acted reasonably within the bounds of his discretion in denying defendant OR release for public safety reasons. (Cal. Const., art. I, § 12 (hereafter article I, section 12).) Because defendant was not denied any right—let alone a substantial right—at the preliminary hearing within the meaning of section 995,1 would reverse the contrary judgment of the Court of Appeal.
The conflict between article I, section 12 and section 859b.
Article I, section 12 states, in pertinent part, that “A person may be released on his or her own recognizance in the court’s discretion.”2 (Italics added.) It follows logically from this provision that, as a matter of constitutional prerogative, a trial court may grant, or not grant, OR release in its sound discretion. Article I, section 12 directs a court or magistrate, in granting or denying OR release or in imposing OR conditions, to weigh considerations relating to public safety that extend beyond those intended to *889ensure subsequent court appearances. (In re York (1995) 9 Cal.4th 1133, 1143-1144 & fn. 7, 1150 [40 Cal.Rptr.2d 308, 892 P.2d 804] (York.)
In contrast, section 859b provides that, if the defendant is in custody and the preliminary examination is set or continued beyond the 10-court-day period for good cause, “the defendant shall be released pursuant to Section 1318” (italics added) unless certain exceptions are met.3 Only one of the six exceptions arguably is concerned with public safety.4 Based on the language of section 859b, the majority holds that a court has no discretion to deny OR release in the absence of the specified exceptions, most of which are unrelated to public safety. Thus, section 859b, as construed by the majority, conflicts with the plain words of article I, section 12.
It is fundamental that a constitutional provision prevails over a conflicting statutory provision. (Hart v. Jordan (1939) 14 Cal.2d 288, 292 [94 P.2d 808]; Howard Jarvis Taxpayers Assn. v. City of Roseville (2003) 106 Cal.App.4th 1178, 1188 [132 Cal.Rptr.2d 1].) As explained below, both the language and the history of the OR provision in article I, section 12 establish that: (1) OR release is not a matter of right but a matter of sound court discretion, and (2) public safety is a relevant factor, which a court should consider in deciding OR release.
The relevant language is “[a] person may be released on his or her own recognizance in the court’s discretion.” (Art. I, § 12, italics added.) As the *890majority acknowledges in another context, the word “may” is ordinarily deemed permissive. (Maj. opn., ante, at p. 869.) Here, interpreting the word “may” as permissive is consistent with the language “in the court’s discretion.” This language, providing only for discretionary consideration of an application for OR release, leaves no room for recognizing a statutory right to OR release. (Van Atta v. Scott (1980) 27 Cal.3d 424, 452 [166 Cal.Rptr. 149, 613 P.2d 210] (Van Atta) [creation of right to OR release would contravene OR provision in article I, section 12].)
The history of article I, section 12 provides further support. That provision was enacted by ballot Proposition 7, adopted by the voters in the November 5, 1974, General Election following a recommendation by the California Constitutional Revision Commission. (Van Atta, supra, 27 Cal.3d at p. 453; Dant v. Superior Court (1998) 61 Cal.App.4th 380, 384 [71 Cal.Rptr.2d 546] (Dant).) Proposition 7 provided: “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, [f] A person may be released on his or her own recognizance in the court’s discretion.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1974), text of Prop. 7, p. 71; Van Atta, supra, 27 Cal.3d at p. 452, fn. 33.) The analysis by the Legislative Analyst explained that: “Instead of being released on bail prior to trial, the accused person may be released on his or her own recognizance at the discretion of the court.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1974), analysis of Prop. 7 by Legis. Analyst, p. 26, italics added.)
Previously, in 1971, the California Constitution Revision Commission had recommended amending various provisions of the California Constitution. At that time, the bail provisions of the Constitution were contained in article I, section 6, but no mention was made of OR release in the Constitution. (Dant, supra, 61 Cal.App.4th at p. 385.) The commission proposed an OR clause, which recognized the “well-established practice of releasing persons accused of crimes on their own recognizance.” (Cal. Const. Revision Com., Proposed Revision of Cal. Const., pt. 5, (1971) p. 19.)
The revision commission noted that the proposed OR provision would explicitly incorporate current OR practices that already existed in the law. The commission stated: “The ‘Own Recognizance ’ system presents a desired alternative to the bail system, which frequently works an injustice on those who cannot afford to post a bail bond. An individual who may be released on his own recognizance is better able to defend himself and to avoid incarceration until proved guilty. It is important to note that while release on bail is a matter of right, release on personal recognizance is entirely at the court’s discretion and is not a matter of right. The Commission recommendation will bring constitutional language more in line with actual practices in the release *891of criminal defendants and more consistent with contemporary concepts of social equity and fundamental justice for all persons, regardless of their economic status.” (Cal. Const. Revision Com., Proposed Revision of Cal. Const., pt. 5, supra, at p. 19, italics added; see also (Ballot Pamp., Gen. Elec. (Nov. 5, 1974), analysis of Prop. 7 by Legis. Analyst, p. 26.)
When article I, section 12 was proposed and enacted, then Penal Code section 1318 stated, in pertinent part: “Upon good cause being shown, any court or magistrate who could release a defendant from custody upon his giving bail may release such defendant on his own recognizance if it appears to such court or magistrate that such defendant will surrender himself to custody as agreed, by following the provisions of this article.” (Pen. Code, former § 1318, added by Stats. 1959, ch. 1340, § 1, p. 3612 and repealed by Stats. 1979, ch. 873, § 11, p. 3042, operative Jan. 1, 1981.)5 Also, consistent with Proposition 7, then section 1318.2 provided: “The powers granted to a court or magistrate by this article are purely discretionary and permissive. This article does not give any defendant the right to be released on his own recognizance.” (Pen. Code, former § 1318.2, added by Stats. 1959, ch. 1340, § 1, p. 3612 and repealed Stats 1979 ch. 873, § 11, p. 3042, operative Jan. 1, 1981.)
As shown in its history, article I, section 12 (as originally enacted) expressly provided a right to bail, while OR release was only a discretionary alternative to release on bail as consistent with then sections 1318 and 1318.2. (See Van Atta, supra, 27 Cal.3d at pp. 452-453; In re Smiley (1967) 66 Cal.2d 606, 613 [58 Cal.Rptr. 579, 427 P.2d 179] [OR procedure is “simply an alternative to bail in appropriate cases”].)
In 1979, the Legislature reorganized the bail statutes and provided the procedural framework for OR releases. (Stats. 1979, ch. 873, p. 3037; Dant, supra, 61 Cal. App.4th at p. 385.) As part of the reorganization, it added newly enacted sections 1318 and 1270. (Stats. 1979, ch. 873, §§ 4, 12, pp. 3039, 3042-3043.) The OR provision in former section 1318 was moved to section 1270. Section 1270, subdivision (a) read, in pertinent part, “Any person, who has been arrested for or charged with an offense oilier than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail. . . .”6 (Stats. 1979, ch. 873, § 4, p. 3039, italics added.) The 1979 *892statutory scheme regarding OR release remained consistent with article I, section 12.
In 1982, the voters were presented with a ballot measure proposing an amendment of article I, section 12 to allow courts to deny release on bail in the interest of public safety. (Ballot Pamp., Primary Elec. (June. 8, 1982), Prop. 4, pp. 16-17.) The Attorney General’s official summary described the measure as adding provisions to the Constitution “prohibiting release of persons on bail when [a] court makes specified findings.” (Ballot Pamp., Primary Elec. (June 8, 1982) Prop. 4, Official Title and Summary prepared by Atty. Gen., p. 16.) It explained, “Release on felony offenses is prohibited where: (1) Acts of violence on another person are involved and court finds substantial likelihood the person’s release would result in great bodily harm to others. (2) The person has threatened another with great bodily harm and court finds substantial likelihood the person would carry out the threat.” (Ibid.) Similarly, the Legislative Analyst explained the proposal “would broaden the circumstances under which the courts may deny bail,” specifically, in felony cases under the above two sets of circumstances. (Ballot Pamp., Primary Elec. (June 8, 1982) analysis of Prop. 4 by Legis. Analyst, p. 16.)
Supporters of Proposition 4 touted the measure as a “significant breakthrough on behalf of public safety,” allowing “judges to deny release on bail to a defendant who is accused of committing any felony, be it violent or nonviolent, in clear cases where the court finds based on clear and convincing evidence that the defendant has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.” (Ballot Pamp., Primary Elec. (June 8, 1982) Prop. 4, argument in favor of Prop. 4, p. 18.) After explaining to the electorate that “[pjresent law does not allow judges in making bail decisions to consider public safety,” Proposition 4 supporters stressed the measure would “provide the judges with a necessary legal tool to protect the public from repeat violent offenders.” (Ibid.)
Significantly, Proposition 4 retained article I, section 12’s provision regarding discretionary OR release originally enacted by the voters in 1974. (Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 4, p. 17.) In passing Proposition 4 on June 8, 1982, why would the voters approve of placing express public safety limitations on the constitutional bail provision but not the OR release provision?7 Because the prior constitutional bail provision *893gave a defendant an absolute right to bail in noncapital cases and gave no discretion to the court to deny bail, even where public safety was at stake. In contrast, the constitutional OR provision already recognized the court’s discretion to deny OR release, whether or not based on public safety considerations. In short, there was no comparable need to place limitations on the granting of OR release.
From the history of article I, section 12,1 infer the following: (1) although pretrial bail continues to be a matter of right, the voters considered public safety a paramount factor in determining whether that right even exists and (2) the voters also wanted judges, in granting OR release as a discretionary alternative to bail, to consider the same public safety interests. (See York, supra, 9 Cal.4th at pp. 1143-1144 & fn. 7 [article I, section 12’s OR provision incorporates public safety concerns of bail provision].) To state these principles another way: “Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail . . . .” (§ 1270, italics added.)
Here, in denying defendant OR release, the magistrate noted that “the file is replete with incidents that obviously cause great concern.” Those “incidents” included serious allegations: that defendant had dangled his two-year-old daughter over the balcony railing of his second-story apartment; that he had hit his wife in the face with his fist; that he had threatened to cut a neighbor’s throat; and that he had choked and decapitated the family cat. Moreover, defendant was charged with serious felonies and there had been some question about his mental competence. The magistrate exercised his discretion by denying OR release for public safety reasons.
The majority does not dispute that the magistrate exercised his discretion reasonably. Rather, it finds that he had no discretion to deny OR release because none of section 859b’s exceptions existed. How does the majority arrive at that finding despite the conflict between section 859b and article I, section 12? Without any citation to authority, it asserts that article I, section 12 simply does not apply to OR release when used as a lesser remedy in place of dismissal “when the prosecution for good cause obtains a continuance of the preliminary examination beyond the statutorily prescribed 10-day period.” (Maj. opn., ante, at p. 878; see id. at p. 881.) It reasons: “[A]rticle I, section 12 never has been interpreted to preclude the Legislature from prescribing dismissal of a proceeding—with the resultant release of the defendant without condition—when the prosecution is unable to proceed with the preliminary examination within 10 days. For similar reasons, article I, section 12 does not *894preclude the Legislature from adopting a lesser remedy or sanction when a defendant is not afforded a preliminary examination within the time specified by statute but the prosecution has established good cause for a continuance.” (Maj. opn., ante, at pp. 878-879; see id. at p. 881.)
This argument is a “red herring,” i.e., an attempt to divert attention from the real question. (Oxford English Dict., <http://dictionary.oed.com> [as of June 5, 2006].) Article I, section 12 never has been interpreted to preclude the Legislature from prescribing dismissal of a proceeding, because that constitutional provision has nothing to do with court dismissals. Even if the Legislature can require the greater sanction of dismissal, it does not necessarily follow that it can adopt any remedy or sanction short of dismissal without regard to conflicting constitutional provisions.
Article I, section 12 addresses bail and OR releases at the pretrial stage without any specified exceptions relating to particular stages of the pretrial proceedings. (York, supra, 9 Cal.4th at pp. 1139-1140.) In order to construe the OR provision as the majority does, it would be necessary to insert additional language to that provision to the effect that: “A person may be released on his or her own recognizance in the court’s discretion, except: absent certain limited circumstances, a person must be released on his or her own recognizance without regard to public safety where there is a delay in prosecution even for good cause.’’'’ “To insert [such] words into this section of the Constitution would give to it an added meaning not to be found in the definite language of the section as adopted by the people. ‘Courts are no more at liberty to add provisions to what is declared [in the Constitution] in definite language, than they are to disregard existing express provisions [of the Constitution].’ [Citations.]” (Ross v. City of Long Beach (1944) 24 Cal.2d 258, 260 [148 P.2d 649].)
There is another reason why the majority’s assertion of the inapplicability of article I, section 12 should be rejected. Section 1318 codifies the court’s authority to place reasonable conditions on a criminal defendant who is released on OR. (York, supra, 9 Cal.4th at p. 1144.) Article I, section 12 is the source of that authority, as well as the authority to grant or deny OR release. (York, at p. 1143, fn. 7.) Significantly, section 859b expressly incorporates section 1318. Thus, it would be anomalous to conclude that article I, section 12 applies to a section 859b situation regarding the imposition of OR conditions, but does not apply regarding the discretionary authority to deny OR release.
The majority further argues that, “[e]ven in those situations to which article I, section 12’s OR provision is directed, namely, when a defendant is placed *895on OR as an alternative to being released on bail, article I, section 12 cannot properly be interpreted to mean that a court invariably retains discretion to release a defendant on OR and to preclude the Legislature from, for example, establishing specific crimes for which OR release is not permitted. (Maj. opn., ante, at p. 879, second italics added.) Again, the majority presents a red herring by proffering hypothetical that do not apply here. Section 859b does not establish specific crimes for which OR release is not permitted. Rather, it abolishes any exercise of discretion by forbidding a court or magistrate from denying OR release in the interest of public safety, the very same interests that the voters were concerned with in enacting Proposition 4. Thus, the majority’s decision today means that, absent the limited exceptions in section 859b, courts must grant OR release to a noncapital defendant who is charged with violent or serious felonies, has failed to appear in court in the past, has threatened others with violence, and has committed past acts of violence.
The majority invokes general separation of powers principles as support for its claim that the Legislature may reasonably limit a court’s discretion with respect to its inherent powers. (Maj. opn., ante, at p. 879.) However, here, we have a specific constitutional provision granting express discretionary authority to the courts. Nevertheless, I do not dispute that the Legislature has the authority to implement the standards and procedures set forth in article I, section 12 by establishing reasonable guidelines and restrictions under which courts will exercise their discretion. In other words, the Legislature can reasonably define what factors contribute to an abuse of discretion and forbid the unreasonable exercise of discretion.
But I believe that, unlike section 859b, sections 1319, 1270, and 1270.1 merely codify the very same public safety interests that are contained in article I, section 12 and designate those interests and other factors (including flight risk and the defendant’s failure to appear in the past) that a court should consider in its reasonable exercise of discretion. Thus, sections 1319, 1270, and 1270.1 are consistent with article I, section 12. In contrast, section 859b (in taking away all court discretion absent exceptional circumstances) “materially impair[s]” the trial court’s exercise of its express constitutional power. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1103 [29 Cal.Rptr.3d 249, 112 P.3d 636]; see also maj. opn., ante, at p. 887 [“[t]he statute requires the court to release the defendant on OR when the prosecution establishes good cause for a continuance, and now that we have clarified that the statute imposes a mandatory duty upon courts to release defendants on OR in the absence of a showing that any of the exceptions to section 859b apply, we do not anticipate that courts nonetheless will defy our holding and refuse to release defendants”].)
*896A defendant who is unable to post reasonable bail has no constitutional right to be free from confinement on OR before trial. (York, supra, 9 Cal.4th at p. 1149.) Nevertheless, a defendant’s statutory right to a timely preliminary hearing and the seriousness of keeping a defendant in custody before a determination of probable cause are important considerations. However, courts should have the discretion to make OR decisions on a case-by-case basis, weighing and balancing those considerations and the hardship on the defendant with other factors such as the length of the continuance and custody before the preliminary hearing, the potential danger to other persons if the defendant is released, the seriousness of the charged offense, the previous criminal record of the defendant, and the probability that the defendant will appear for subsequent court proceedings if released. If courts have the broad discretion to weigh considerations relating to the public safety in imposing OR conditions (York, supra, 9 Cal.4th at pp. 1144—1145), so too should they have that same broad discretion in determining OR release.
I therefore conclude that section 859b on its face conflicts with article I, section 12 because: (1) it establishes pretrial OR release as a matter of right absent exceptional circumstances, most of which are unrelated to public safety and (2) it removes a court’s discretion in considering public safety as a relevant factor in deciding OR release. Consequently, I urge the Legislature to amend section 859b in a manner that is consistent with the state Constitution.
Baxter, J., and Werdegar, J., concurred.
Respondent’s petition for a rehearing was denied August 23, 2006, and the opinion was modified to read as printed above. Corrigan, J., did not participate therein. Werdegar, J., was of the opinion that the petition should be granted.
Except as otherwise noted, all further statutory references are to the Penal Code.
Article I, section 12 states, in full: “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 great and the court finds *889based 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.
“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.”
Under section 859b, the defendant need not be released on OR if:
“(1) The defendant requests the setting of continuance of the preliminary examination beyond the 10-court-day period.
“(2) The defendant is charged with a capital offense in a cause where the proof is evident and the presumption great.
“(3) A witness necessary for the preliminary examination is unavailable due to the actions of the defendant.
“(4) The illness of counsel.
“(5) The unexpected engagement of counsel in-a jury trial.
“(6) Unforeseen conflicts of interest which require appointment of new counsel."
The majority asserts that the Legislature accounted for public safety interests in section 859b by authorizing the denial of OR release when there is a capital charge or the defendant has acted to render a witness unavailable. (Maj. opn., ante, at p. 871.) However, the witness provision applies even if the defendant caused the unavailability by nonviolent or nonthreatening means. Thus, the witness provision appears more concerned with preventing defendants from benefiting from their wrongdoings.
In 1973, the Legislature amended section 1318 to include within its provision, “a defendant arrested upon an out-of-county warrant.” (Stats. 1973, ch. 620, § 2, p. 1144.)
The same language is contained in the current section 1270.
In 1994, the voters passed Proposition 189 which amended article I, section 12 by inserting “ ‘or felony sexual assault offenses on another person.’ ” (Historical Notes, 1A West’s Ann. Cal. Const. (2002 ed.) foll. art. I, § 12, p. 89.)