IN RE: Eric Jon WICK on Habeas Corpus.

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Court of Appeal, Fourth District, Division 3, California.

IN RE: Eric Jon WICK on Habeas Corpus. In re Thomas Read MERRILL on Habeas Corpus.

Nos. G010932, G010951.

Decided: August 15, 1991

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Denise M. Gragg, Deputy Public Defenders, Santa Ana, Pohlson & Moorhead and Gary M. Pohlson, Laguna Hills, for petitioners. Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., Craig McKinnon, Deputy Dist. Atty., for respondent.


The issue presented in these proceedings is whether a trial court is precluded from setting bail in cases where the People do not seek the death penalty even though “special circumstances” are alleged.1  Feeling bound by the only case directly on point, In re Freeman (1980) 102 Cal.App.3d 838, 162 Cal.Rptr. 423, the trial court denied petitioners' motions to set bail because they had been charged with crimes which could warrant the death penalty, even though the prosecutor had stated on the record that the death penalty would not be sought.   We find that the language of the constitutional provision which authorizes bail, coupled with the logic of our Supreme Court's decision in Sand v. Superior Court (1983) 34 Cal.3d 567, 194 Cal.Rptr. 480, 668 P.2d 787, compels a different result.   We therefore decline to follow Freeman.


Petitioners were charged by information with, inter alia, two counts of first degree murder committed during the course of an armed robbery.   The information alleged three “special circumstances” under Penal Code section 190.2: 2  multiple murders (§ 190.2, subd. (a)(3));  murder perpetrated in the commission of robbery (§ 190.2, subd. (a)(17)(i));  and murder perpetrated in the commission of burglary (§ 190.2, subd. (a)(17)(vii)).   At the outset of the preliminary hearing, the deputy district attorney made the following statement on the record:  “Your Honor, before I call the witness, I had informed defense counsel prior to today's date, for purposes of their business with the county, that we would not be seeking the death penalty in the case against Mr. Wick or Mr. Merrill.”   Following the preliminary hearing, the trial court found sufficient cause to hold petitioners to answer.

Petitioners thereafter filed motions to set bail.   The People opposed these motions, relying on In re Freeman, supra, 102 Cal.App.3d 838, 162 Cal.Rptr. 423.   Commissioner Aronson denied the motions and stated:  “The Freeman case holds that, as long as it potentially can be a capital case, regardless of the representation made by the People that they are not seeking death, ․ the court is precluded from setting bail.   That's it, and I have to follow it.  [¶] Anyway, better luck in the Court of Appeal.” 3

Petitioners then sought relief in this court.   On May 29, 1991, we issued an order to show cause why writs of habeas corpus should not be issued.   We also directed the trial court to conduct bail hearings, limited solely to the issue of whether this court should release petitioners on bail pending final determination of these proceedings, and to “make a recommendation to this court on the issue of bail.”   For reasons not revealed by the record, no such hearing took place for petitioner Merrill.   A hearing was conducted for petitioner Wick, however, at which Wick's mother was called as a witness.   Following the testimony, the trial court recommended that we not allow bail during the pendency of these proceedings.   The court found the evidence against Wick “overwhelming,” and then stated:  “The likelihood of the defendant fleeing is—cannot be discounted despite his background and his family being out here.   In light of what he is facing, it might be a very prudent thing to do․  [¶] [T]he facts of this case are very aggravated, and I am afraid the defendant will flee.”   While the trial court considered recommending that bail be set at $2 million, it ultimately recommended bail be denied, stating that setting bail at such an amount was “tantamount to setting no bail at all.”

We did not stay petitioners' trial pending resolution of these habeas proceedings.   We have been informed that petitioners were found guilty at trial, and that the special circumstance allegations were found to be true.



 In light of the jury verdicts rendered against petitioners after issuance of our orders to show cause, the issue raised by these proceedings has now become moot.   However, “[i]f an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue․”  (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715–716, 106 Cal.Rptr. 21, 505 P.2d 213.)   Judicial “ ‘consideration ought not be ․ defeated, by short term orders, capable of repetition, yet evading review.’ ”  (United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 907, 122 Cal.Rptr. 877, 537 P.2d 1237, citations omitted;  accord, Christina K. v. Superior Court (1986) 184 Cal.App.3d 1463, 1466, 229 Cal.Rptr. 564.)   We believe the issue raised here is both important and likely to recur.   We therefore exercise our inherent discretion and proceed to the merits.


 The parties have focused almost exclusively on the language of the bail statute (§ 1270.5), as well as the opinions in In re Freeman, supra, 102 Cal.App.3d 838, 162 Cal.Rptr. 423 and Sand v. Superior Court, supra, 34 Cal.3d 567, 194 Cal.Rptr. 480, 668 P.2d 787.   We begin our analysis, however, on a somewhat broader plane.   The right to bail in California is grounded not in section 1270.5 but in our Constitution.  Article I, section 12, subdivision (a) provides that a person shall be released on bail except for “[c]apital crimes when the facts are evident or the presumption great.”  (Emphasis added.)   This particular constitutional mandate is implemented by section 1270.5, which provides in pertinent part:  “A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his or her guilt is evident or the presumption thereof great.”  (Emphasis added;  see In re Law (1973) 10 Cal.3d 21, 25, 109 Cal.Rptr. 573, 513 P.2d 621 [statutes relating to bail merely implement constitutional right].) 4

The term “capital crimes” from article I, section 12, subdivision (a) has apparently never been specifically defined.   A very similar term, however, “capital case,” was the subject of construction by our Supreme Court in Sand v. Superior Court, supra, 34 Cal.3d 567, 194 Cal.Rptr. 480, 668 P.2d 787.   Just as in the present proceedings, the defendant in Sand was charged with a “special circumstance” murder, and the prosecutor stated on the record that the People would not seek the death penalty.  (Id. at p. 569, 194 Cal.Rptr. 480, 668 P.2d 787.)   The issue in Sand, however, was not bail, but rather whether defendant was entitled to “ancillary defense services” at state expense under section 987.9.   That statute authorizes additional funds for an indigent defendant in the trial of a “capital case.”   Defendant contended his case remained “capital” because special circumstances had been alleged, but the court rejected this argument.   After reviewing the entire 1977 death penalty legislation (Stats.1977, ch. 316, §§ 4–14, pp. 1256–1262), the court held:  “If defendant is found guilty of first degree murder with special circumstances he will be sentenced to life imprisonment without parole.   Because he does not risk capital punishment, his is not a ‘capital case’ within the meaning of section 987.9 as construed in light of the 1977 death penalty statute.”  (Sand, supra, 34 Cal.3d at p. 572, 194 Cal.Rptr. 480, 668 P.2d 787, emphasis added.)

It is clear that, under Sand, a court is no longer dealing with a “capital case ” when the prosecutor elects not to seek the death penalty.   In light of Sand, we would be hard pressed to ascribe a different meaning to the term “capital crime ” found in article I, section 12, subdivision (a).   Based on the logic of Sand, therefore, we believe there is a constitutional right to bail in any “special circumstance” murder case where the prosecution elects not to seek the death penalty.   Stated another way, if the removal of a potential death sentence negates the existence of a “capital case,” it must have a similar effect upon a “capital crime.”

Our rationale, however, is directly contrary to that found in In re Freeman, supra, 102 Cal.App.3d 838, 162 Cal.Rptr. 423.   In that case, defendant and the prosecutor entered into an agreement whereby defendant would waive the penalty trial if convicted of murder with special circumstances in exchange for the prosecutor's promise that the People would not seek the death penalty.   Defendant then filed a motion to fix his bail, but it was denied.   In denying defendant's subsequent petition for writ of habeas corpus, the Freeman court focused solely on the fact that defendant could have received the death penalty based on the offense charged.   After citing former section 1270 (now section 1270.5) but omitting any reference to the constitutional right to bail, the court stated:  “There is no evidence that the capital charge made will be changed or modified before the completion of the guilt phase of the trial or the entry of final judgment on the offense charged.   In this state the absolute right to bail is conditioned on the gravity of the charge.”  (In re Freeman, supra, 102 Cal.App.3d at p. 840, 162 Cal.Rptr. 423, emphasis added.) 5

 We decline to follow Freeman because, were we to do so, we believe we would be interpreting section 1270.5 in such a manner that it would conflict with article I, section 12, subdivision (a), thereby making the statute unconstitutional.   As we explained above, the logic of Sand compels the conclusion that a defendant is not facing a “capital crime” if the prosecution decides not to seek the death penalty, and is thus constitutionally entitled to bail.   Were we to follow Freeman, which looks only to the offense charged, we would fail to take into account the effect of the prosecutor's decision not to seek the death penalty.   In rejecting Freeman's interpretation of the bail statute, and employing the Sand rationale, we construe section 1270.5 in such a manner that it does not conflict with article I, section 12, subdivision (a).   It is well settled that “legislation should be construed, if reasonably possible, to preserve its constitutionality.”  (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 305, 138 Cal.Rptr. 53, 562 P.2d 1302.)6

 Further, on a “non-constitutional” level, we believe Sand makes perfect sense.   The key to the Sand opinion is that the court focused on the potential punishment to that defendant.   We believe it is likewise proper to focus on the potential punishment to these defendants.   Since the prosecutor has determined that these defendants cannot possibly receive the death penalty, it is logical to conclude they have not been charged with an offense “punishable with death” under section 1270.5.   Simply stated, it makes no sense to interpret the term “capital case” in one manner while construing the phrase “punishable with death” in an opposite manner.7


 Our holding does not mean that all alleged perpetrators of aggravated murders will be roaming the streets while free on bail, as the facts of these proceedings clearly demonstrate.   While defendants in “noncapital cases” may be admitted to bail as a matter of right under Article I, section 12, that provision also empowers the trial judge to set a very high bail amount:  “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.”   In his recommendation concerning bail pending resolution of these proceedings, Commissioner Aronson stated he considered petitioner Wick a substantial flight risk.   In the future, where trial courts are confronted with defendants whose risk of flight is great, it is well within their discretion to set a very high bail amount.   Had the trial court not been bound by the Freeman decision, we believe a high bail amount would have been appropriate.8


Due solely to the fact that these proceedings are now moot, the orders to show cause are discharged, and the petitions for writs of habeas corpus are denied.


1.   Disputes concerning bail are not new in the history of California jurisprudence.   In the first case ever decided by our Supreme Court, defendants charged with homicide were ordered released on bail.   (People v. Smith (1850) 1 Cal. 9, 14–15.)

2.   All statutory references are to the Penal Code unless otherwise specified.

3.   We assume the trial court reviewed the transcript of the preliminary hearing and concluded that, in addition to the fact that these cases involved “capital crimes,” the “facts were evident” or “the presumption was great” to justify the denial of bail.  (See Cal. Const., art. I, § 12, subd. (a);  Pen.Code, § 1270.5.)

4.   Section 1270.5 has an interesting history;  it was originally enacted in 1872 as section 1270 and, after being temporarily repealed, was reenacted and renumbered in 1986.  (See notes following §§ 1270 and 1270.5 in Deering's Ann.Pen.Code (1991 pocket supp.) pp. 52–53.)

5.   Freeman relied on footnote 45 of People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 in support of the proposition that the gravity of the offense is defined solely by the nature of the charge.   In Anderson our Supreme Court held this state's then-existing death penalty statute unconstitutional.   In footnote 45 the court dealt with the issue of whether all the defendants who had been convicted of capital crimes and were on death row were now entitled to bail, since their offenses were no longer “punishable with death.”   The court held they were not, stating:  “[W]e deem it appropriate to note that article I, section 6, of the California Constitution [now art. I, § 12, subd. (a) ] and section 1270 of the Penal Code, dealing with the subject of bail, refer to a category of offenses for which the punishment of death could be imposed and bail should be denied under certain circumstances.   The law thus determined the gravity of such offenses both for the purpose of fixing bail before trial and for imposing punishment after conviction.”  (Id. at p. 657, fn. 45, 100 Cal.Rptr. 152, 493 P.2d 880.)We find Freeman's reliance on the Anderson footnote misplaced.   First of all, Anderson addressed itself solely to a large group of cases (i.e., all the defendants then on death row) where the People had successfully sought the death penalty.   In Freeman (as well as in the present proceedings), the People specifically chose not to seek the death penalty, and this is a distinction we cannot ignore.   Perhaps more importantly, however, our Supreme Court later held that the Anderson footnote applied only to defendants sentenced to death under the old death penalty statute.   In In re Boyle (1974) 11 Cal.3d 165, 113 Cal.Rptr. 99, 520 P.2d 723, the court addressed the issue of whether footnote 45 applied to defendants who allegedly committed a first degree murder after the effective date of Anderson but before the enactment of the “special circumstances” statute, section 190.2, which restored capital punishment.   The court held these defendants were unaffected by Anderson and were entitled to bail, reasoning that section 190.2 was new legislation and that “[n]othing we said in footnote 45 was intended to govern a situation in which the Legislature acts to declare a new and different class of ‘capital offenses', ․”  (Id. at p. 167, 113 Cal.Rptr. 99, 520 P.2d 723.)   The primary theoretical underpinning of Freeman, therefore, is highly suspect.

6.   The Sand court distinguished Freeman because it involved the issue of bail.   However, it began its discussion of Freeman with the following sentence:  “Whatever the merits of the Court of Appeal's approach in Freeman of focusing exclusively on the offense charged rather than considering as well the potential punishment, the bail situation is distinguishable.”  (Sand, supra, 34 Cal.3d at p. 574, 194 Cal.Rptr. 480, 668 P.2d 787.)   The court went on to say that section 987.9 was enacted simultaneously with the 1977 death penalty statute, and the question of whether the Legislature intended sections 1268a and 1270 (now section 1270.5) to be interpreted in the same manner as section 987.9 was not before the court.  (Id. at pp. 574–575, 194 Cal.Rptr. 480, 668 P.2d 787.)   We believe the Supreme Court recognized the inherent inconsistency between its approach in Sand and the Freeman rationale.

7.   We note that, while many states have constitutional bail provisions similar to that of California, the issue presented in these proceedings has rarely arisen elsewhere.   Our research has unearthed two decisions from other states.   The Arkansas Supreme Court reached a result similar to that we reach here in Walker v. State (1919) 137 Ark. 402, 209 S.W. 86.   The Kansas Supreme Court reached a contrary result in State v. Christensen (1948) 165 Kan. 585, 195 P.2d 592.

8.   We feel compelled to note that, absent Freeman, the trial court could not have denied bail based solely on risk of flight.   In recommending that we deny bail pending issuance of this opinion, the trial court conducted an ordinary bail hearing and stated it was relying on Penal Code section 1275.   That statute provides, in pertinent part:  “In setting, reducing, or denying bail, the judge or magistrate shall take into account ․ the probability of [defendant] appearing at trial.”   However, article I, section 12, passed by the voters as Proposition 4 in 1982, does not authorize trial courts to take risk of flight into account in denying bail, but merely in fixing bail.   The constitutional provision which purports to authorize the denial of bail under such circumstances is article I, section 28, subdivision (e), a portion of the Victims' Bill of Rights, passed by the voters as Proposition 8 in June 1982.   Subdivision (e) contains language identical to that found in Penal Code section 1275, empowering trial courts to take certain factors into account in “fixing, reducing, or denying” bail.   Subdivision (e) never took effect, however, because Proposition 4 was a conflicting initiative and received more votes in the June 1982 election.  (People v. Barrow (1991) 233 Cal.App.3d 721, 284 Cal.Rptr. 679;  see also Yoshisato v. Superior Court (1991) 232 Cal.App.3d 1506, 284 Cal.Rptr. 182.)   Thus, to the extent that Penal Code section 1275 attempts to authorize the denial of bail based solely on the risk of flight, it is unconstitutional, because article I, section 12 grants trial courts no such power.

SILLS, Presiding Justice.


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