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Court of Appeal, Third District, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF BUTTE COUNTY, Respondent, Andrew Jerome WILLIS, Real Party in Interest.

Civ. 22139.

Decided: September 21, 1982

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Eddie T. Keller and Nelson Kempsky, Deputy Attys. Gen., for petitioner. No appearance for respondent. Donald J. Blake, Jr., Oroville, for real party in interest.

Real party in interest, Andrew Jerome Willis (defendant), was charged by felony complaint with burglary (Pen. Code, § 459) and robbery (Pen. Code, § 211).   The crimes were alleged to have occurred on June 8, 1982.   At the conclusion of a preliminary examination at which defendant was held to answer, the People moved that the court apply the provisions of California Constitution, article I, section 12, as newly amended by Proposition 4 (enacted June 9, 1982) and hold defendant without bail on grounds that a threat had been made by him against a witness.1  The magistrate granted the motion, citing a declaration of the crime victim, Mr. Howard Wesley Sutton, in which he stated that defendant had threatened to kill him if he reported the crime.   The magistrate stated “․ it is my belief that he is a threat to the safety of the residents of this particular community, that there is a likelihood and sufficient clear and convincing evidence that their might be harm to others, particularly Mr. Howard Wesley Sutton.”

An information was filed in respondent superior court on July 19 charging defendant with burglary, robbery, and assault with a deadly weapon.   On that date the People also filed declarations of two persons (Sutton and a police officer) alleging that defendant had made threats against them.   On July 20, 1982, defendant filed a motion for release on his own recognizance or bail.   At the hearing on the motion, held July 23, 1982, the court ruled that application of Proposition 4 to defendant, whose alleged crimes occurred prior to the effective date of Proposition 4, violated the constitutional prohibition against ex post facto legislation (U.S. Const., art. I, § 9).   The court then took evidence on the question of whether defendant was a flight risk, determined that he was, and set bail at $10,000.2

On August 25, the People sought a writ of mandate in this court on the grounds that the trial judge had erred as a matter of law in holding that retroactive application of Proposition 4 had an unconstitutional ex post facto effect.

 “A statute has ex post facto effect when it alters the situation of an accused to his disadvantage by:  (a) making criminal an action innocent when done;  (b) making more serious an act already criminal when done;  (c) inflicting greater punishment than that attending the act at the time it was committed;  or (d) permitting a person to be convicted with less evidence than was required when the act was done.  (Kring v. Missouri (1882) 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506.)   The doctrine does not apply to trivial matters but to some vested and substantial right possessed at the time of the offense (Mallett v. North Carolina (1901) 181 U.S. 589, 597, 21 S.Ct. 730, 733, 45 L.Ed. 1015, 1019–1020;  People v. Talkington (1935) 8 Cal.App.2d 75, 82, 47 P.2d 368.)  ․ [¶ ] Examples of procedural changes held not to violate the ex post facto rule include:  (a) permitting comment by the court;  (b) formerly incompetent witnesses made competent to testify;  (c) granting new rights of appeal to the state;  (d) changes in the statute of limitations;  (e) reception of previously inadmissible evidence;  (f) permitting refixing of sentences;  (g) extending time to pronounce judgment;  (h) eliminating one of the grounds for quashing an indictment.  [Citations.]”  (People v. Sobiek (1973) 30 Cal.App.3d 458, 472–473, 106 Cal.Rptr. 519, cert. den., 414 U.S. 855, 94 S.Ct. 155, 38 L.Ed.2d 104.)

 The sole authority cited by defendant in the superior court to support his contention that application of Proposition 4 would be ex post facto was Ellis v. Dept. of Motor Vehicles (1942) 51 Cal.App.2d 753, 125 P.2d 521.   In Ellis, the court quoted the following definition of ex post facto from Corpus Juris Secundum:  “ ‘An ex post facto law is one which, operating retrospectively and on penal or criminal matters only, renders a previously innocent act criminal, aggravates, or increases the punishment for, a crime, alters the rules of evidence, penalizes an innocent act while assuming to regulate civil rights and remedies, deprives an accused of some protection or defense previously available, or alters his situation to his disadvantage.’  (16 C.J.S. 886.)”  (Emphasis added;  Ellis v. Dept. of Motor Vehicles, supra, 51 Cal.App.3d at p. 758, 125 P.2d 521.)

The genesis of the emphasized portion of the definition quoted in Ellis was the Supreme Court decision in Ex Parte Medley (1890) 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835, 840.   Not suprisingly, the Supreme Court later found it necessary to explain the precise scope of that somewhat murky pronouncement:  “It is sufficient now to say that a statute belongs to that class which by its necessary operation ․ ‘․ alters the situation of the accused to his disadvantage.’  [Citations.]   Of course, a statute is not of that class unless it materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed.”  (Emphasis added;  Thompson v. State of Utah (1898) 170 U.S. 345, 351–352, 18 S.Ct. 620, 623, 42 L.Ed. 1061, 1066–1067.) 3

Retrospective application of Proposition 4 may have the effect of depriving a defendant of the opportunity to be free on bail that he would have enjoyed under the old law.  (See fn. 2., ante, p. 823.)   But legislative changes in the criteria utilized in determining whether bail is granted in no way affects questions relating to punishment or to a defendant's guilt or innocence.   Proposition 4 does not enlarge the punishment to which the accused was liable when the crime was allegedly committed nor make any act criminal that was previously not criminal.   It does not change the quality or degree of the offense, alter the rules of evidence or require more or less evidence than the law required when the offense was committed.   As the case law amply demonstrates, not every retroactive application of a law which “alters [a defendant's] situation to his disadvantage” constitutes an ex post facto violation.  (See, e.g., Vlick v. Superior Court (1982) 128 Cal.App.3d 992, 1000–1001, 180 Cal.Rptr. 742.)

Pretrial detention (and the issue of a defendant's right to bail) can be characterized as one of several stages of pretrial procedure.   While it is true that a presumption of innocence attaches during these proceedings, the Supreme Court has held that the accused does not have to be treated as innocent in every way prior to trial.  (Bell v. Wolfish (1979) 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447.)   Defendants have always been subject to detention both before and during trial where there is a strong risk of flight or a threat to the trial process.   The fact that a defendant who threatens witnesses may be denied bail under Proposition 4 where previously bail would be available does not bring the statute within the doctrinal sphere of ex post facto legislation.   As the Supreme Court pointed out more than 85 years ago:  “Detention is a usual feature of every case of arrest in a criminal charge, even when an innocent person is wrongfully accused;  but it is not imprisonment in a legal sense.”  (Emphasis added;  Wong Wing v. United States (1896) 163 U.S. 228, 235, 16 S.Ct. 977, 980, 41 L.Ed. 140, 142.)

Courts have always had legal power to revoke bail in order to protect the integrity of the legal process.   Historically, threats against witnesses, attempts to destroy evidence and other disruptive practices have been grounds for revoking bail and detaining the defendant.  (Fernandez v. United States (Harlan, Circuit Justice, 1961) 81 S.Ct. 642, 5 L.Ed.2d 683;  United States v. Smith (8th Cir. 1971) 444 F.2d 61, 62, cert. den., (1972) 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253;  United States v. Bigelow (6th Cir. 1976) 544 F.2d 904, 907–908;  Gavino v. MacMahon (2d Cir. 1974) 499 F.2d 1191, 1195;  Nail v. Slagton (W.D.V. 1972) 353 F.Supp. 1013, 1019–1020.)

In sum, defendant has been detained under the bail provisions of Proposition 4 because of his potential acts (as indicated by his threats to two persons) and not as punishment for the commission of a crime.   Accordingly, we hold that the retroactive application of Proposition 4 does not violate the federal constitutional prohibition against ex post facto legislation.4

The instant petition has been served on respondent court and the real party in interest.   No opposition to the petition has been filed and the time within which to do so has expired (Cal. Rules of Court, rule 56(b)).   Under these circumstances this court is empowered to issue a peremptory writ of mandate without first issuing an alternative writ.  (Code Civ. Proc., § 1088;  Central & West Basin Water etc. Dist. v. Wong (1976) 55 Cal.App.3d 191, 196, 127 Cal.Rptr. 448;  Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)

Let a peremptory writ of mandate issue directing respondent court to vacate its order setting bail and to redetermine defendant's eligibility for bail according to the terms of California Constitution, article I, section 12, as amended by Proposition 4.


1.   Proposition 4 amended article I, section 12, of the California Constitution, reads as follows:  “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 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 based 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.”  (Emphasis added.)Proposition 8, approved by the voters on June 8, 1982, also contains a provision amending article I, section 12, of the California Constitution.   For purposes of this proceeding we assume, as the People maintain, that the bail provisions are in conflict;  consequently the provisions of Proposition 4 take effect over those of Proposition 8 which conflict with it because Proposition 4 received a greater number of votes.  (Cal. Const., art. XVIII, § 4;  see also Brosnahan v. Brown (Sept. 2, 1982, S.F. 24441) 32 Cal.3d 236, 186 Cal.Rptr. 30, 651 P.2d 274.)

2.   The law regarding the right to bail prior to June 9 is set forth in Penal Code section 1268 et seq.;   see also Van Atta v. Scott (1980) 27 Cal.3d 424, 166 Cal.Rptr. 149, 613 P.2d 210.

3.   In re Bray (1979) 97 Cal.App.3d 506, 158 Cal.Rptr. 745, which cites with approval the language from Ellis, is distinguishable.   In Bray, the court held that the retroactive application of parole provisions of the Determinate Sentencing Law (DSL) to prisoners who committed crimes before July 1, 1977, had an unconstitutional ex post facto effect, where the prisoner had acquired a vested right to an eighteen-month parole term under the DSL and the later statute increased the maximum parole period to 4 years.   The case here is qualitatively different.   Defendant had no vested or absolute right to bail and application of Proposition 4 would not have the effect of increasing the sentence to be served following conviction.   The mere anticipation or hope of receiving a grant of conditional liberty does not rise to the level of a substantial or vested right.  (Greenholtz v. Nebraska Penal Inmates (1979) 442 U.S. 1, 7–11, 99 S.Ct. 2100, 2103–05, 60 L.Ed.2d 668, 675–678.)

4.   Proposition 4 was attacked below on the sole ground that it violated the ex post facto prohibition;  we therefore do not consider any other challenges to its constitutionality.

PUGLIA, Presiding Justice.

EVANS and SPARKS, JJ., concur.