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Court of Appeal, First District, Division 4, California.

Hugh McDERMOTT et al., Petitioners, v. SUPERIOR COURT of the State of California, FOR the CITY AND COUNTY OF SAN FRANCISCO, et al., Respondents; The PEOPLE of the State of California, Real Party in Interest.

Civ. 29500.

Decided: August 30, 1971

John Kaplan, Stanford, Robert Bartels, Iowa City, Iowa, for petitioners Hugh McDermott et al. Edward T. Mancuso, San Francisco Public Defender, San Francisco, for real party in interest. Evelle J. Younger, Atty. Gen. of State of California, Edward P. O'Brien, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for respondents.

Criminal charges are pending against petitioners in San Francisco Superior Court. In this proceeding orders of respondent court fixing bail are challenged; petitioners assert the unconstitutionality of Penal Code section 13521, which requires courts to add a 25 percent ‘penalty assessment’ to bail set in criminal cases.

Under the Penal Code section 1275, a magistrate, in fixing the amount of bail, is to take into consideration ‘the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his appearing at the trial or hearing of the case.’ Penal Code section 13521 was enacted in 1959;1 it provides that when bail is deposited in a criminal proceeding the person making such deposit ‘shall also deposit’ five dollars for every twenty dollars of bail. If bail is later forfeited, the assessment is to be transmitted to the State Treasury for the Peace Officers' Training Fund which was established to provide grants to local agencies for the recruitment and training of police officers. (Pen.Code, §§ 13521, 13510, et seq.) If bail is exonerated, the penalty assessment is returned.

Petitioners contend that to require an additional 25 percent penalty assessment after a reasonable bail has been established violates the constitutional guarantee against excessive bail (Cal.Const., Art. I, § 6; U.S.Const., 8th Amend.). The Attorney General argues that no constitutional problem arises because the statutes may be construed as calling for inclusion of the assessment within the total amount fixed by the court to assure a defendant's appearance. We cannot adopt this construction.

Section 13521 provides on its face that the penalty assessment is in addition to, and not part of, the bail set by the magistrate. The section specifically states that when bail is deposited the defendant ‘shall also deposit’ the 25 percent charge. As stated in Sawyer v. Barbour (1956) 142 Cal.App.2d 827, 834, 300 P.2d 187, 191, ‘The procedure followed is to determine * * * how much bail the arrested person must post and then to add the penalty assessment. The statute says the person making a deposit of bail ‘shall also deposit’ the penalty assessment. The total sum deposited includes the bail and the penalty assessment, but the bail does not include the penalty assessment. The penalty assessment is in addition to the bail; it does not constitute, and is not included in, the deposit of bail.' We are informed that several courts, perhaps seeking prudently to avoid the constitutional problem here presented, include the penalty assessment in setting bail; the Alameda County courts, for example, have established a bail schedule which includes the assessment. In San Francisco, there apparently is no uniform practice; some judges consider the penalty when setting the bail while others do not. (The San Francisco Committee on Crime, A Report on the Criminal Court of San Francisco, Part II, (1971 p. 31.)2 But the mere fact that a judge includes the penalty assessment in announcing the total amount to be deposited by the defendant as a condition for release does not necessarily mean that he has included the penalty assessment in his consideration of what reasonable bail should be; he may have arrived at a figure for bail and then added the 25 percent assessment in announcing the total amount to be deposited. In fact, an opinion of the Attorney General suggests such a procedure in the case of arrest warrants in which the magistrate is to fix the amount of bail. (35 Ops.Atty.Gen. 77, 80–81; see Pen.Code, § 815a.)

It is argued that only if the penalty assessment is included in bail can section 13521 be reconciled with other code sections covering bail. For example, several sections provide that upon posting of bail the defendant must be discharged from custody. (See, e. g., §§ 1269b, 1295.) Thus, it is argued, since the only requirement for discharge from custody is posting of bail or the deposit of the sum set as bail, the penalty assessment must be considered to be included in bail. But section 13521, which was passed in 1959, long after the other statutory provisions relating to bail, cannot be so construed without raising new conflicts with other statutory provisions governing distribution of bail funds. Penal Code section 1307 provides that bail deposited with the superior court and forfeited goes to the county treasury. Penal Code section 1463 provides that forfeited bail collected by municipal and justice courts is to be distributed, in percentages fixed by that statute, among county and city treasuries, depending on who made the arrest. For example, where an arrest is made by an Oakland police officer, 22 percent of the forfeited bail goes to the City of Oakland and the remainder to the County of Alameda. Under the suggested interpretation of section 13521, 25 percent of bail moneys collected would have to go to the Peace Officers' Training Fund, a result in conflict with the provisions of sections 1307 and 1463. It is clear that what the Legislature intended was that the regular bail funds would be distributed according to sections 1307 and 1463, and the 25 percent assessment to the State Peace Officers' Training Fund.

Moreover, section 13521 does not apply solely to deposits of bail; the 25 percent assessment is also applicable to fines and other penalties collected after conviction. If, as the Attorney General argues, the penalty assessment is included in bail set under section 1275, consistency of interpretation would require that the assessment is also to be included in, rather than added onto, fines and penalties, to the detriment of local government treasuries. There is nothing in the language or history of section 13521 to suggest that the Legislature intended such a result.

We conclude that section 13521 is not reasonably susceptible of the interpretation that the penalty assessment is to be included in the bail set by magistrates. The clear language of section 13521 and reconciliation of that section with the total bail scheme compel the interpretation that the penalty assessment is in addition to the bail set under section 1275. Therefore, we must determine whether such an assessment is unconstitutional.

Article I, section 6, of the California Constitution provides: ‘All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, * * *.'3 In Sawyer v. Barbour, supra, 142 Cal.App.2d 827, 300 P.2d 187, the court upheld Vehicle Code section 773, which imposed a penalty assessment on fines and bail in vehicular offenses. The court held that the penalty assessment constituted a fine rather than a form of bail. In that case the court was concerned with the constitutionality of the assessment as it applies to fines after conviction and to bail utilized as a substitute for fine upon failure to contest the charge. The court held that the Legislature could impose more than one penalty for the performance of an unlawful act; hence the penalty assessment was in that context valid. But in the present case it is clear that the assessment cannot constitutionally be considered a fine; petitioners have not been convicted of an unlawful act and punishment before judgment would violate due process. In fact, Sawyer v. Barbour recognized that a penalty assessment added to bail, when bail is for the purpose of assuring the defendant's appearance, might raise constitutional problems. In Sawyer the court made this statement: ‘We do not construe section 773 as requiring a person charged with an offense covered thereby to deposit the penalty assessment in cash when he is admitted to bail on an undertaking with sureties. To do so might impair the right to bail on sufficient sureties in violation of article I, § 6, of the Constitution. * * * We read ‘deposit of bail’ as meaning deposit of cash or deposit of an undertaking with sufficient sureties. If a person charged with an offense covered by section 773 deposits an undertaking, he may include the amount of the penalty assessment in the undertaking or deposit the amount in cash.' (142 Cal.App.2d at 837, 300 P.2d at 193.) In other words, the Sawyer court felt that the constitutional problem might be solved by giving the defendant a choice of posting the penalty assessment in cash or presenting undertakings of sureties. But this formulation does not solve the problem of possible excessive bail; moreover the quoted language in Sawyer cannot be reconciled with the court's earlier holding that the penalty assessment was not bail. In a subsequent case, People v. Norman (1967) 252 Cal.App.2d 381, 398–399, 60 Cal.Rptr. 609, the court upheld the constitutionality of section 13521 as it applies to bail by citing Sawyer without further analysis. In In re Harris (1968) 69 Cal.2d 486, 72 Cal.Rptr. 340, 446 P.2d 148, the court in a footnote stated that section 13521 was constitutional as applied to bail in a criminal case, citing Norman. But that footnote is dictum, as the constitutionality of section 13521 was not at issue.

We must therefore deal anew with the constitutional question. The sole permissible purpose of bail in criminal cases is to insure that the defendant will appear in court when required; bail may not be used as a means of punishing the defendant or raising revenue. (In re Newbern (1961) 55 Cal.2d 500, 504, 11 Cal.Rptr. 547, 360 P.2d 43; Sawyer v. Barbour, supra, 142 Cal.App.2d 827, 833, 300 P.2d 187.) It was to attain the end of insuring the defendant's presence that section 1275 set forth the criteria to be considered in setting bail—the seriousness of the offense charged, the prior criminal record of the defendant, and the probability of his appearing at the trial or hearing. (In re Newbern, supra.) In setting bail, the magistrate determines what is a necessary amount to insure the defendant's presence; any amount imposed above that amount exceeds the bail necessary to accomplish the specified purpose. It is true that there is no set formula for what is ‘reasonable’ bail; the fixing of bail is largely within the discretion of the trial court. (In re Morehead (1951) 107 Cal.App.2d 346, 349, 237 P.2d 335; see Witkin, Cal.Criminal Procedure, § 157, p. 150.) But we are not dealing here with the propriety of bail set by a magistrate in the exercise of his discretion, but with the validity of a statute adding 25 percent to the amount which the magistrate has, in the exercise of his discretion, determined to be necessary to secure the defendant's presence in court. We conclude that the requirement that the defendant post, whether in cash or surety bond, an additional penalty assessment violates the California constitutional guarantee against excessive bail and right to bail upon sufficient sureties. It is not significant that the penalty assessment is returned to the defendant should bail be exonerated; he nevertheless is compelled to post the amount in order to secure his release. Penal Code section 13521, as it applies to bail, is unconstitutional. This holding does not affect the validity of the penalty assessment as it applies to fines and other forfeitures imposed as punishment after conviction.

A writ will issue directing respondent court to refix petitioners' bail so as to eliminate any penalty assessment.


1.  In pertinent part, section 13521 reads: ‘When any deposit of bail is made for an offense to which this section applies, the person making such deposit shall also deposit a sufficient amount to include the assessment prescribed in this section for forfeited bail. If bail is forfeited, the amount of such assessment shall be transmitted by the clerk of the court to the county treasury and thence to the State Treasury pursuant to this section. If bail is returned, the assessment made thereon pursuant to this section shall also be returned.’

2.  The amounts of bail set for petitioners indicate that in some instances the judge probably considered the penalty assessment in determining bail while, in other cases, the penalty assessment was added on top of bail. For example, for petitioners McDermott and Steelman, the amount to be deposited was set at $1,250, of which $250 would be the penalty assessment. This would indicate that the court probably set $1,000 as reasonable bail and added $250 for the penalty assessment, to arrive at $1,250. On the other hand, total bail and penalty assessment for petitioner Stewart was set at $1,000, of which $800 would be the normal bail and $200 the penalty assessment. It would appear in this case that the magistrate determined that $1,000 was the amount that the defendant should post, and included the penalty charge within that amount.

3.  The Eighth Amendment to the United States Constitution also prohibits ‘excessive bail’; in light of the California constitutional provision, it is unnecessary to determine whether the Eighth Amendment's prohibition against excessive bail is applicable to the states.

CHRISTIAN, Associate Justice.

DEVINE, P.J., and DAVID, J., * concur.

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