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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF ORANGE, Respondent, and Michael Keste REMINGTON, Real Party In Interest.

Civ. 13241.

Decided: November 09, 1973

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., and Oretta D. Sears, Deputy Dist. Atty., for petitioner. Robert H. Green, Santa Ana, and William Marshall Morgan, Los Angeles, for real party in interest. No appearance by respondent.


The question presented in this extraordinary review is whether a defendant charged withe the crime of conspiracy to commit murder may be admitted to ball even though strong proof of guilt exists. Prior to February 1972, conspiracy to commit murder was a capital offense (Pen.Code, §§ 182, 190) but in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, California's capital punishment statute was declared unconstitutional.

Michael Kester Remington is an attorney practicing in the County of Orange. He is also the President of Cal-Vend Co. which is engaged in the business of selling vending machines.

On May 31, 1973, Remington was arrested and charged with several serious violations of the Penal Code,1 with the principal counts being conspiracy to murder Alfred W. Fehling and conspiracy to murder Ned Preston Delancy (§§ 182, 187).2 At the time of Remington's arrest, bail was set at $300,000. On June 1, he made a motion to reduce bail before Judge Lae in the municipal court. The motion was denied without prejudice. On June 4, defendant was arraigned and renewed his motion for a reduction in bail. Following an evidentiary hearing, Judge Thompson found the proof of guilt to be evident and the presumption of guilt to be great and ordered that Remington be held without bail (§ 1270).

Later, a preliminary hearing was held before Judge Mast. At the conclusion thereof, Judge Mast found that the proof of guilt was evident and the presumption of guilt was great and likewise denied defendant's application for bail.

On June 26, Remington filed a petition for writ of habeas corpus in the superior court on the basis that he was being illegally deprived of his liberty by reason of the court's failure to set bail. Judge Turner ruled that Judge Mast had correctly stated the law and that when the proof of guilt is evident and the presumption of guilt is great, section 1270 precludes the granting of bail. However, Judge Turner ordered that a de novo hearing be conducted for the purpose of determining the bail issue.

On June 30, the information was filed by the People and the de novo hearing was arguments on the motion and considering the evidence contained in the transcripts of the prior proceedings, Judge Dickey agreed that the proof of guilt was evident and the presumption of guilt was great. Nevertheless, he set bail at $200,000 on the theory that no constitutionally valid distinction could be made for the purpose of bail between the case of Remington on a charge of conspiracy to commit murder (the object of which was never accomplished)3 and the case of a defendant charged with attempted murder and held to be entitled to reasonable bail (see In re Underwood, 9 Cal.3d 345, 107 Cal.Rptr. 401, 508 P.2d 721).

Remington's bail was promptly posted and he was released from custody pending trial.4

Turning briefly to the factual background on the conspiracy charges, it should be noted that each of the municipal and superior court judges confronted with the bail issued properly found that there was strong, solid evidence establishing Remington's complicity in the conspiracies to murder two men.

In early May 1973, Remington contacted Gary Rollo and asked Rollo to make arrangements to kill Fehling (intended victim—count I). The price agreed upon was $2,000–$2,500 and Remington paid Rollo $1,000 down. Rollo employed Bobby Hart to kill Fehling. In turn, Hart engaged the services of Charles Hulett.

In late May, Remington agreed to pay Rollo $2,500 to kill Delancy (intended victim—count II).

The motive behind each conspiracy was the same: both of the intended victims had civil suits then pending against Cal-Vend and/or Remington to recover substantial damages for breach of contract.

The bizarre murder plots were uncovered when the gunmen hired by Rollo (Hart and Hulett) were stopped for a routine traffic violation and a loaded gun was observed in their car. Interrogation of Hart and Hulett eventually led to Rollo. In turn, he cooperated with the authorities by disclosing Remington's role in the conspiracies.5

Following Remington's release on bail, the district attorney, acting on behalf of the People (‘Petitioner’) filed a petition for writ of mandate with this court. We denied the petition. A petition for hearing was filed in the Supreme Court. In granting the petition, the Supreme Court retransferred the matter to this court with directions to issue an alternative writ of mandate and reconsider the cause in light of the comments contained in footnote 45 in People v. Anderson, 6 Cal.3d 628, 657, 100 Cal.Rptr. 152, 493 P.2d 880. We issued an alternative writ and directed the Orange County Superior Court (‘Respondent’) and Remington (‘Real Party in Interest’) to show cause why the order setting bail should not be vacated.

The ultimate issue is whether Remington has an absolute right to release on bail under article I, section 6, of the California Constitution. We hold that he does. Consequently, the order setting bail must stand.

Article I, section 6, which dates from 1849, provides in part: ‘All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.’ Pursuant to the constitutional of power, the Legislature, in 1851, enacted the predecessor of the present section 1270, which states: ‘A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great.’ The effect of these provisions prior to People v. Anderson, supra, 6 Cal.3d 628 100 Cal.Rptr. 152, 493 P.2d 880, was well-settled. Those charged with capital crimes6 were not admissible to bail where the evidence against them was such that a jury's verdict would be sustained on motion for a new trial or appeal. (Ex Parte Curtis, 92 Cal. 188, 28 P. 223; In re Troia, 64 Cal. 152, 28 P. 231; Witkin, California Criminal Procedure, § 150 at p. 143.)

The Anderson court held that capital punishment abridged the guarantee of article I, section 6, of the California Constitution against cruel or unusual punishments. However, the court was concerned with the fact that the abolition of the death penalty raised immediate difficulties with the application of the above-noted non-bail-ability provisions, which by their own terms deny an absolute right to bail only to those who may, if convicted, suffer the penalty of death.7 The court offered a possible solution to the uncertainties created by its decision to abolish capital punishment in the following language: ‘[¶] The issue of the right to bail in cases in which the law has heretofore provided for the death penalty has been raised for the first time by the People and curiae on petition for rehearing. Although this question was never an issue in this case, we deem it appropriate to note that article I, section 6, of the California Constitution 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. Those offenses, of course, remain the same but under the decision in this case punishment by death cannot constitutionally be exacted. The underlying gravity of those offenses endures and the determination of their gravity for the purpose of bail continues unaffected by this decision. Accordingly, to subserve such purpose and subject to our future consideration of this issue in an appropriate proceeding, we hold that they remain as offenses for which bail should be denied in conformity with article I, section 6, of the Constitution and Penal Code section 1270 when the proof of guilt is evident or the presumption thereof great.’ (6 Cal.3d at 657, fn. 45, 100 Cal.Rptr. at 172, 493 P.2d at 900.)

While the guidance offered by the Anderson court is entitled to great weight in the determination of the instant case, it is clear that the court there spoke by of dictum, which does not bind us in our decision. The same is true of In re Underwood, supra, 9 Cal.3d 345 at pp. 349–350, 107 Cal.Rptr. 401, 508 P.2d 721, and In re Law, 10 Cal.3d 21 at pp. 25–26, 109 Cal.Rptr. 573, 513 P.2d 621, for the question of bail in a capital case was not before the court in those cases.

The case under review is, in fact, one of first impression in California.8 However, the courts of sister states have in the past had before them the issue of whether the abolition of the death penalty entitles those charged with offenses formerly punishable by death to an absolute right to relese on bail, given constitutional and statutory provisions essentially the same as our own. Those courts which have considered the question have unanimously held that a necessary consequence of the abolition of the death penalty is that language such as ‘capital offenses' (Cal.Const., art. I, § 6) and ‘offense punishable with death’ (Pen.Code, § 1270) ceases to limit any right to bail set out in conjunction therewith. (State v. Pett, 235 Minn. 492, 92 N.W.2d 205; City of Sioux Falls v. Marshall, 48 S.D. 378, 204 N.W. 999; Ex Parte Ball, 106 Kan. 536, 188 P. 424, 8 A.L.R. 1348; In re Perry, 19 Wis. 676. See also State v. Christensen, 165 Kan. 585, 195 P.2d 592; Ex Parte Berry, 198 Wash. 317, 88 P.2d 427; Ex Parte Herndon, 18 Okl.Cr. 68, 192 P. 820, 19 A.L.R. 804; Walker v. State, 13 Ark. 402, 209 S.W. 86, A.L.R. 968.)

The rationale of these cases is simply that the term ‘capital offenses' encompasses only those crimes which may, in fact, be punished by death. The elimination of the death penalty means the extinction of the category of capital offenses. Since the California Constitution in its present wording guarantees release on bail to all except those charged with capital offenses, and since there are presently no capital offenses in this state, it follows that the words of exception constitute dead letter. Remington the remaining effective language, ‘All persons shall be bailable by sufficient sureties . . ..’ (Cal.Const., art. I, § 6.)

As the Supreme Court observed in In re Underwood, supra, 9 Cal.3d 345, 107 Cal.Rptr. 401 508 P.2d 721, the purpose of bail is ‘to assure the defendant's attendance in court when his presence is required . . .. Bail is not a means for punishing defendants . . . nor for protecting the public safety. Such objectives are provided for otherwise.’ (9 Cal.3d 345 at p. 384, 107 Cal.Rptr. 401 at p. 403, 508 P.2d 721 at p. 723.)

The abolition of the death penalty eliminated the great incentive to flight which made the denial of bail in formerly capital cases rational. Regardless of the gravity of the charges, the California Constitution, read in conjunction with the Anderson decision, unequivocally assures the accused the right to prepare his defense while enjoying the advantages of release on bail. “If the constitutional guarantees are wrong, let the people change them—not judges or legislators.” (In re Underwood, 9 Cal.3d 345 at p. 350, 107 Cal.Rptr. 401 at p. 404, 508 P.2d 721 at p. 724, quoting In re Keddy, 105 Cal.App.2d 215, 220, 233 P.2d 159.)

The petition for a preemptory writ of mandate is denied; and the alternative writ is discharged.


1.  All code references are to the Penal Code unless otherwise indicated.

2.  In the four remaining counts, defendant was charged with ; soliciting the killing of Fehling (§ 653f); soliciting the killing of Delancy (§ 653f); soliciting another to assault Theresa Bleul and Brigette Milla by means of force likely to produce great bodily injury (§ 653f); and conspiracy to violate section 246 of the Penal Code by causing the discharge of a firearm into an inhabited dwelling.

3.  Neither Fehling (intended victim in count I) nor Delancy (intended victim in count II) were killed, injured or otherwise harmed. Similarly, no one suffered any personal injury in connection with the four (4) remaining counts. However, a shot was fired into a Cucamonga home (count VI).

4.  While Remington's trial commenced in October 1973 (prior to our determination as to the validity of the bail order), we have resolved to conduct this review on the merits so as to comply with the directive of the California Supreme Court (see discussion, infra).

5.  Rollo also assisted the police and district attorney in gaining evidence against Remington consisting of a tape recording: He phoned Remington and pretended he had actually killed Delancy; Remington agreed to meet Rollo for breakfast the next day and pay him $1,000. (Instead, Remington was arrested.)

6.  Formerly, the following were capital offenses: first degree murder (§ 190); conspiracy to commit murder (§ 182); kidnaping for extortion or robbery where the victim suffered bodily harm (§ 209); wrecking a train (§ 219); perjury or subornation of perjury resulting in the execution of an innocent person (§ 128); treason against the State of California (§ 37); felonious assault with malice aforethought by a convict under a life sentence (§ 4500); and sabotage causing death or great bodily injury (Mil. & Vet.Code, § 1672(a)). (See Witkin, 2 California Crimes (1963) § 1026 at p. 972.)

7.  We are cognizant of the fact that legislation has since been enacted restoring the death penalty for the following crimes: murder for hire; murder of a peace officer; felony murder committed during a robbery, kidnaping, forcible rape, lewd act on a child under the age of 14, or burglary of a dwelling place; murder of a witness to a crime; murder committed by a person with degree murder; wreck multiple slayings; and causing a train wreck resulting in death. (Stats.1973, ch. 719, p. 1481, effective January 1, 1974.) Assuming the new statute is constitutional, it has no application to the case at bar because of the prohibition against ex post facto laws contained in article I section 16 of the California Constitution.

8.  In Griffin v. Superior Court, 26 Cal.App.3d 672, 103 Cal.Rptr. 379, the court upheld the validity of an order fixing bail for a defendant charged with first degree murder, but did so without passing on the constitutional issue presented.

KERRIGAN, Associate Justice.

GARDNER, P. J., and GABBERT, J., concur.