IN RE: Thomas Hercules PIPINOS on Habeas Corpus. (1981)

PROCEEDING on order to show cause in response to petition for a writ of habeas corpus. Writ denied.

Petition for writ of habeas corpus to compel the setting of bail on appeal (In re Podesto, 15 Cal.3d 921, 127 Cal.Rptr. 97, 544 P.2d 1297). This court denied the writ and the California Supreme Court ordered the Director of Corrections to show cause before this court why the relief prayed for should not be granted.

After a jury convicted Pipinos of five offenses dealing with controlled substances (one count of conspiracy to furnish, four counts of possession for sale and sale), he was sentenced to four concurrent terms of four, four, four and three years, as well as a stayed four-year sentence on the conspiracy count. Pipinos faces a total of four years, less credits, in custody upon affirmation of conviction. Before conviction, bail was set at $60,000, but after his conviction and sentencing, bail was denied. Pipinos now seeks release from custody, upon bail, pending appeal.

Pipinos contends (1) the trial court abused its discretion in refusing to set bail on appeal and (2) it did not adequately state its reasons under In re Podesto, supra, 15 Cal.3d 921, 127 Cal.Rptr. 97, 544 P.2d 1297.

Offered in evidence at the sentencing hearing were the reports of two doctors and the probation officer, all of whom recommended no state prison custodial time be imposed in this case. All described the petitioner as a family man and an aggressive businessman who got involved in the sale of amphetamines through poor judgment, greed and the bad influence of business associates in the restaurant distribution business.

The probation report, although acknowleding the seriousness of the offense “for which a prison sentence could most easily be justified,” pointed out Pipinos has no criminal background; he was mainly motivated by a desire to make money, hence can be adequately punished by a fine; he is the sole support of his wife and two children. The crime is nonviolent. Accordingly, a formal probation of five years was recommended along with sanctions, including 365 days local time and a fine of $2,500.

Dr. Thomas Rodgers recommended monitored probation, finding Pipinos not violent and the community in no danger from his release. He said Pipinos is a “braggart” but not a psychopath and has never been violent or used substances himself. Dr. G. Thomas Gitchoff, a criminologist, described Pipinos as a highly motivated, energetic Greek man who might be described as hyperactive and extremely gregarious, as well as being an industrious and successful businessman who “lives and works for his family.” Although he “rules the roost” and displays “a proud and braggard style,” he also has a compassionate side and donates to charities and the less fortunate. Gitchoff asserts Pipinos presents no threat to the community. Accordingly, Gitchoff designed a suggested rehabilitative program involving five years' probation on condition of payment of a fine and furnishing of food and catering services free of charge to certain fund-raisers and nonprofit organizations.

We note in passing the court rejected these recommendations when it sentenced Pipinos to prison for four years.

The appeal is apparently based primarily on alleged insufficiency of the affidavit which supported the search warrant. The petition does not, however, reveal an explicit basis for the appeal. The prosecution asserts, and indeed the record reveals, the search issues apparently relate only to charges of burglary of which Pipinos was acquitted. These would not be relevant to the appeal.

At the hearing on Pipinos's motion to remain at liberty on bail pending appeal, the trial court stated its reasons to deny bail as follows:

“I do find and I am persuaded that there is some substantial flight risk at this point in time.

“We're in a different ballgame now. He knows he's been sentenced to prison for a substantial period of time and I think he, in good faith, and probably with some reason, perhaps, was hopeful that was not going to be the judgment of the court, and maybe anticipated up to this point in time that that wouldn't be the judgment, but that question has been resolved now, and he knows exactly what the judgment of the court is, and I think that makes changes the situation substantially, and I'm persuaded that he wouldn't give much pause to flee, because I'm sure he's not at all happy about the prospect of spending some time in prison, even though he'll be, if not literally, at least to some extent, in the company of Big Frank, his mentor, the one he admires so much.

“Secondly, I do think that he does represent some risk to society. What I meant by that in my pronouncement of judgment, not quite the same risk a rapist or murderer does, but he represents some risk, and I'm not persuaded that there's going to be this sudden metamorphosis that he seems to suggest that there might be, that his conviction and now his sentence to prison is going to have that major effect, going to bring about that substantial a change in his character.

“I think what we're dealing with here are the results of some basic character flaws in Mr. Pipinos, and I am not persuaded that there's going to be any change in that regard.

“As far as the trial proceedings, I don't perceive a substantial likelihood of success of appeal. I'm in a bit of a disadvantage and not really in a position to comment on the rulings on some of the pretrial motions, but at least the part of the case that I have been directly involved in, I don't see a substantial likelihood of success on appeal.

“So I think all three would be the criteria, factors that I have to consider, mentioned in Podesto, and I have considered, and I'm satisfied that they dictate the denial of bail on appeal.

“So, the application for the setting of bail will be denied. He will be remanded to the custody of the sheriff.”

The court in In re Podesto, supra, 15 Cal.3d 921, 127 Cal.Rptr. 97, 544 P.2d 1297, stated the issue of bail on appeal is within the sound discretion of the trial court, but its reasons must be briefly expressed in writing to permit meaningful review (id. at p. 938, 127 Cal.Rptr. 97, 544 P.2d 1297). In exercising discretion under Penal Code section 1272 to release on bail after conviction, the court may consider (1) the likelihood of the defendant's flight, (2) the potential danger to society posed by the defendant's release, and (3) the frivolousness or lack of diligence in defendant's prosecution of his appeal. The court should not place too much weight on supposed predictions of dangerous behavior not based on past events, but when the pattern of a particular defendant's history indicates the defendant will commit more crimes if released, a court unquestionably retains authority to deny release on appeal.

Podesto also tells us “trial courts should render a brief statement of the reasons in support of an order denying a motion for bail on appeal. (Citations.) Such a statement need not include conventional findings of fact; all that is required is that the basis for the order be set forth with sufficient specificity to permit meaningful review (citations).” (Id. at p. 938, 127 Cal.Rptr. 97, 544 P.2d 1297.)

Here, the trial court based its denial of bail specifically on the likelihood Pipinos would flee and he would continue his criminal activities as a dealer in controlled substances. The court also opined Pipinos would not succeed on appeal.

The trial court provided us with the explicit reasons for denial of bail but, of course, did not detail the evidence as would be true if findings of fact were required. Its comments do provide sufficient specificity to enable us to make a meaningful review. We know the court observed petitioner throughout the trial and heard argument at sentencing and bail-setting hearings. It has concluded Pipinos's personality is such that, facing a four-year prison term, he may well flee. Certainly Pipinos' incarceration will have a devastating effect on his business. The prosecution argued, and the court could properly infer, the threat of such serious consequences to his family and business might well prompt an effort to flee. The court also noted it was not likely he would make a turnabout from his very profitable illegal trafficking in these drugs and, therefore, there was a danger to society. This is necessarily a judgment call based on the court's perception of his character. Under this combination of circumstances, it is not our province to substitute our judgment for that of the trial judge. There was no abuse of discretion.

Podesto also gives the trial court discretion to decline to grant release on bail pending appeal where the appeal is wholly frivolous. We understand this to be a separate basis for denial of the motion. Here, however, the trial court was not well situated to judge the character of the appeal and acknowledged that fact. The test in assessing the character of the appeal, however, is not as the court expressed, i. e., whether there is a “substantial likelihood of success on appeal,” but rather whether “the appeal is so baseless as to deserve to be condemned as frivolous or is sought as a device for mere delay.” Since either of the other two factors relied on by the court would support the denial of bail, any man in this connection is harmless. We point out, however, we are possessed of no better information about the merits of Pipinos' appeal. He has yet to provide this court with an explanation of the arguments so we may judge whether the appeal is frivolous.

For lack of demonstrated abuse of discretion in the trial court, the petition for a writ of habeas corpus is denied.

I respectfully dissent. I would grant the writ. The trial court's statement is woefully inadequate to allow us to review its evaluative process in weighing the factors for, and against, the setting of bail.

While there is no presumption in favor of, or against, the release of a convicted felon during the appeal process, the matter being left to the sound discretion of the court seeking some “practical assurance that defendant will attend upon the court when his presence is requested” (In re Brumback, 46 Cal.2d 810, 813-815, 299 P.2d 217), it is clear the court does not have “unbridled” authority in the area (In re Podesto, 15 Cal.3d 921, 924, 127 Cal.Rptr. 97, 544 P.2d 1297). Guidelines to assist the courts in making reasoned determinations regarding post-conviction bail applications are set out in Podesto, where it states consideration should be given to these relevant factors:

(1) The likelihood of defendant's flight if not confined pending appeal;

(2) Whether defendant's freedom on bail poses a danger to the community; and/or

(3) Whether the court can determine defendant's appeal is wholly frivolous or the appeal is not being diligently pursued.

In order for a meaningful review to determine whether the denial of bail is a manifest abuse of discretion, further directions impose a duty on a trial court to state reasons supporting denial. While no conventional findings of fact are required, the basis for the order must be set forth with specificity sufficient to afford a meaningful review. (In re Podesto, supra, 15 Cal.3d 921, 938, 127 Cal.Rptr. 97, 544 P.2d 1297).

Applying these rules I find no evidence the court exercised its discretion at all.

THE RECORD DOES NOT SHOW HOW, IF AT ALL, THE TRIAL COURT BALANCED THE EVIDENCE PRESENTED ON THE BAIL ISSUE.

The inadequacy of a statement of reasons containing only findings of ultimate fact to assist appellate review of a trial court's abuse of discretion has been consistently stressed in state and federal decisions. We turn first to those authorities relied upon by Podesto.

In establishing that the trial court's statement of reasons need not include conventional findings of fact, Podesto only holds a court need not comply with the formalities of written findings of fact specified in rule 232, California Rules of Court. Podesto specifically refers to People v. Browning, 45 Cal.App.3d 125, 119 Cal.Rptr. 420, for that proposition. Browning, although making the same statement, involved a trial record in which the court stated it had read the minor's entire file, every probation report and clinical study, and set forth its reasons for differing with the conclusions contained therein. Thus, although conventional findings of fact were not made, a sufficient factual basis for the court's conclusion was established so as to allow meaningful appellate review. Not so here.

Both Podesto and Browning bottom their holdings on Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84. Kent interprets a federal juvenile statute requiring a “full investigation” before waiving a minor to adult court for prosecution, and holds this necessarily implies the court must record a statement of its reasons. While not requiring the statement be formal, or that it necessarily include conventional findings of fact, Kent requires it be sufficient to demonstrate full investigation has been made, the question carefully considered, and to set forth the basis for the order with sufficient specificity to permit meaningful review.

In Juan T. v. Superior Court, 49 Cal.App.3d 207, 22 Cal.Rptr. 405, the probation report concluded the minor was fit; other evidence submitted to the trial court was ambiguous. The court, finding the trial court's mere statement after reviewing the record and hearing the evidence to the effect it was satisfied the minor was unfit to be treated as a juvenile, sent the matter back for a statement of adequate reasons because it could not follow “ ‘the analytic route the court traveled from evidence to action,’ ” or whether the court merely “ ‘randomly leap(ed) from evidence to conclusions.’ ” (Id., at p. 209, fn. 2, 122 Cal.Rptr. 405, citing Topanga Ass'n for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506, 515-516, 113 Cal.Rptr. 836, 522 P.2d 12.)

Where the court's conclusion is bolstered by a probation recommendation reaching the same result, and a full evidentiary record showing “overwhelming evidence” supporting the conclusion reached by a trial court, failure to make a statement of reasons is harmless error. (People v. Chi Ko Wong, 18 Cal.3d 698, 722-723, 135 Cal.Rptr. 392, 557 P.2d 976.) However, the Supreme Court noted a crucial distinction exists where, as here, professional opinions reach a conclusion contrary to the court's finding on a record less compelling. (Id., at p. 722, 135 Cal.Rptr. 392, 557 P.2d 976.)

A finding that a minor is unfit for treatment as a juvenile is one of ultimate fact, and is the conclusionary equivalent to a finding a person is a danger to the community, or that a person will skip bail.

Chi Ko Wong's facts are a far cry from our case where three professional reports fully document conclusions precisely opposite those reached by the trial court, and the other evidentiary factors, at least facially, also appear overwhelmingly to point to a contrary determination.

Federal decisions have construed an identical statement of reasons in cases denying bail on appeal, uniformly rejecting findings solely in conclusionary form.

In United States v. Thompson (D.C.Cir.1971) 452 F.2d 1333, 1336, footnote 7, (cert. den. 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467), the court discusses why a remand for further findings was necessary since the district judge's order denying bail “does no more than repeat the statutory standard contained in the Court Reform Act and state that the defendant has failed to meet it.” The court held this recitation did not satisfy the requirements of rule 9(b) Federal Rules of Appellate Procedure (28 U.S.C.A.) requiring the court state in writing its reasons for the action taken. It held a mere parroting of the provisions of the applicable statute is not an adequate substitute for a full statement of reasons. It then quotes from Weaver v. United States (D.C.Cir.1968) 405 F.2d 353, 354, “(t)he District Judge should indicate not only which one or more of the reasons has prompted him to deny release, but should also delineate the basis for his utilization of such reason or reasons Only when these reasons are spelled out can an appellant intelligently renew his motion before this court; and only then can this court fairly review the merits.” (Italics added, citing also United States v. Williams (7th Cir. 1958) 253 F.2d 144, Rhodes v. United States (4th Cir. 1960) 275 F.2d 78; Jones v. United States (D.C.Cir.1966) 358 F.2d 543; United States v. Seegers (D.C.Cir.1970) 433 F.2d 493.)

The court points out where, as here, a defendant does come forth with evidence, a statement from the court should specify why it does not find that evidence “clear and convincing.” The right to an effective appeal includes a right to know what one is appealing from. There is no reason why the parties, or for that matter the reviewing court, should be forced to operate in the dark.

In United States v. Stanley (D.C.Cir.1972) 469 F.2d 576, the court noted that in matters of the propriety of bail on appeal, a trial judge's familiarity with the case ordinarily enables it to readily associate the relevant facts and appropriate relationships with the criteria governing release from custody. Its role in evolving trial evidence and its observation of the accused's trial demeanor¹ often imparts to those facts a significance not discernable from the paper record upon which bail decisions in appellate courts must be achieved. Findings on the risks of danger or flight and on the efficacy of particular conditions of release to sufficiently minimize those risks are obviously enriched by a feel for the case that comes only from participation in the live trial. (The much more extensive findings than we deal with, are set out verbatim.)²

However, the court continued, a statement of reasons without the settling effect of a reasoned treatment of the relevant information by the judge is apt to confront the appellate court with “ ‘a welter of assertion and counterassertion (by the parties) from which we have no adequate means of emerging.’ ” (United States v. Stanley, supra, 469 F.2d 576, 583, quoting Hansford v. United States (D.C.Cir.1965) 353 F.2d 858, 861.) “Without elucidation of the basis for the judge's action, we cannot fairly evaluate the merits of either the application or the judge's decision thereon.” (United States v. Stanley, supra, 469 F.2d 576, 584). Fairness, both to appellant and as an aid to the reviewing court requires the trial court's reasoning be delineated.

Weaver v. United States, supra, 405 F.2d 353, states, “the District Judge should indicate not only which one or more of (the statutory) reasons has prompted him to deny release, but should also delineate the basis for his utilization of such reason or reasons. If he deems the appeal frivolous, he should state the considerations, legal and factual, which led him to that conclusion. If he views appellant's release as posing a risk of danger or flight, he should point to those factors in the record which foreshadow such a possibility. He should also inquire concerning available financial and nonfinancial conditions of release and offer reasons why they do not ‘assure that the person will not flee or pose a danger to any other person or to the community.’ ” (Id., at p. 354, italics added, fn. omitted.)

Noting the trial judge's reasons for denying release were little more than a recitation of certain of the procedural events during the prosecution and an expression of opinion that release conditions would not suitably safeguard against flight or dangerousness, the court found them inadequate. Stanley found only vague insinuations, not facts, and noted the information reviewable did not point inexorably to a single conclusion; rather, in critical respects, it lent itself to duplicitous interpretations. On the one hand, is appellant's impressive showing, predicated largely on personal and family ties to the district, the absence of any substantial prior criminal record, and the stability of home and job pending appeal. On the other hand he was found guilty of a heinous offense, admits to past use of narcotics, faces five years in prison without hope of probation or parole. (Factors much more grave than we find here.)

The court also noted (United States v. Stanley, supra, 469 F.2d 576, 585) the trial judge's statement only obliquely opined that appellant's appeal is frivolous. (The judge's statement in this case does not go even that far.) The court then remanded to give the trial court an opportunity to submit further information.

Our job is to determine whether the trial court properly exercised its discretion, not merely to be able to find the trial court recognized the proper standard to be applied. (Juan T. v. Superior Court, supra, 49 Cal.App.3d 207, 212, 122 Cal.Rptr. 405.) It is the validity of the process used in arriving at the conclusion which is ours to review.

Kent v. United States, supra (1966) 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, states due process requires, as a precondition to a critical dispositional decision, that there be a meaningful appellate review of the judge's discharge of its statutory duty. Such is not available unless the judge sets forth with specificity, the reasons for his dispositional decision. So, also, Podesto's requirement of a statement of reasons to allow meaningful appellate review, to insure the judge himself analyzes the problems and recognizes the grounds for his decision, and to preserve public confidence in the decision-making process by “helping to persuade the parties (and public) that administrative decision-making is careful, reasoned and equitable” (Topanga Ass'n for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506, 517, 113 Cal.Rptr. 836, 522 P.2d 12), is founded on procedural due process. Failure to conform requires reversal unless the error is harmless beyond reasonable doubt. (In re Podesto, supra, 15 Cal.3d 921, 937, 127 Cal.Rptr. 97, 544 P.2d 1297; People v. Chi Ko Wong, supra, 18 Cal.3d 698, 722-723, 135 Cal.Rptr. 392, 557 P.2d 976.) Here, where the majority is forced to speculate, indeed to manufacture, reasons the trial court could have used in rejecting the solid and extensive evidence favorable to Pipinos, we cannot say the court's omission is harmless error. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

In face of the federal decisions and the express motivations behind the requirement for stating reasons for denying bail, we conclude Podesto's intent is not fulfilled by remarks which do no more than show judicial conversance with the standard by which discretion is to be exercised. The conclusionary “statement of reasons” articulated by the trial court does not allow us to meaningfully review the reasons supporting the court's rejecting the professional opinions and favorable evidence presented to it; to determine whether the court did or did not analyze the problems; nor, I think, does it preserve public confidence in the decision-making process. It is merely an application of judicial sunblock which, if applied in every case, would screen out all appellate illumination, and prevent meaningful bail review in almost every case involving a state prison sentence, even though the issue has been resolved by random leaps from evidence to conclusion, springbokian in scope.

Merit of the Underlying Appeal

The majority assumes Pipinos has some burden of convincing the trial court, or us, of the nonfrivolousness of his appeal.

Here, the prosecution urges us to find the appeal is likely to be frivolous because the major issue in this, as in most narcotics cases, relate to search and seizure issues, and these were “well briefed” in a pretrial writ “not found to be meritorious by this court or the Supreme Court.” Factually, however, neither court addressed the merits of the issues raised by the writ, it was rejected as not being timely filed, not being accompanied by a sufficient record, and the parties so notified.³ Further, the sentencing court was apprised Pipinos intended to raise the constitutional issue of being denied his right to fully cross-examine a witness at trial regarding factors he claims went to his defense of entrapment.

The trial court ruled it did not perceive a “substantial likelihood of success” on appeal. This is not the standard approved in Podesto and, in any event, improperly places the burden on this issue.

Danger to the Community

Except to alert us to its using this factor as one ground for denying bail, the third and fourth paragraphs of the trial court's quoted remarks (set forth in the majority opinion) give us no factors by which we may judge the validity of the denial. The court's personal, abbreviated psychological assessment and prediction of future behavior are contrary to those professional evaluations presented at sentencing and included in the record here. Thomas A. Rodgers, M.D. stated his opinion, the “community is safe” it “need not fear this man.” Dr. G. Thomas Gitchoff, criminologist, reports Pipinos presents neither a threat or danger to the community. Although not expressly so stating, the probation recommendation of one year in the county jail as a condition of probation seems to negate a finding of danger to the community.⁴

Certainly, the court need merely consider these professional evaluations, and may reject them in favor of evidence it deems more compelling. However, here the record makes it appear the court rejected these studies out-of-hand based solely on its own “vibes.” Podesto urges caution in denying bail based solely on the alleged dangerous propensities of defendants, even those predicted by experts (In re Podesto, supra, 15 Cal.3d 921, 935, 936, 127 Cal.Rptr. 97, 544 P.2d 1297), without looking to the pattern of a defendant's history; i. e., nature of present crime and past convictions, and to the circumstances of the particular defendant. Nowhere does this record show any factors which the court weighed in predicting Pipinos' future criminal activity. The repeated inferences drawn by the majority as to inferences which might have been drawn by the trial court involves precisely the judicial gymnastics Podesto's standards were meant to prevent.

Likelihood of Flight

A defendant presents a prima facie case for release pending appeal upon demonstrating minimal likelihood of flight based upon (1) his community ties (employment, length of residence, family attachments and property holdings); (2) his record of court appearances or of flights to avoid prosecution, and (3) severity of pending sentence. Unquestionably, Pipinos meets this burden: he is a U. S. citizen by birth, and has lived in San Diego approximately 15 years; he has been steadily employed and, at time of sentencing, was earning a legitimate income in excess of $50,000 per year; he is married, residing with his wife, 14-year-old son and 8-year-old daughter; he states he intends to continue his own business;⁵ he has no criminal history. Further, he has made all court appearances to date. Yet, the trial court did not mention it even considered these factors in finding “some substantial flight risk,” (alluding solely to the 4-year sentence). While we acknowledge this sentence may not be one you do “standing on your head,” in the absence of special circumstances it is a confinement of only 22/3 years. There is no showing the sentence is so severe that, in and of itself, it raises the specter of Pipinos electing to further destroy his family and earning abilities, forego his property (which undoubtedly will have to be security for forfeited bail, his earlier $60,000 bail was so secured), and incur additional felony exposure by becoming a fugitive. I do not read Podesto as permitting a trial court to deny bail based on severity of sentence alone (a non-discretionary act), rather than weighing it against the community ties and history of court appearances. To do so would allow bail denial after every prison term sentence regardless of offsetting factors. There is no evidence of such balancing here.

In summary, by not exercising its discretion after balancing the factors relevant to the issues of Pipinos' future danger to the community, and his flight risk, the court erred. (See discussion in 5 Witkin, Cal. Procedure, (2d ed. 1971) “Extraordinary Writs” s 88(d), p. 3863; e. g., Richter v. Superior Court, 214 Cal.App.2d 821, 29 Cal.Rptr. 826; Salute v. Pitchess, 61 Cal.App.3d 557, 560, 132 Cal.Rptr. 345.) In determining the likelihood of success on appeal it used the wrong standard. The matter should be remanded for a redetermination by the trial court based upon all relevant factors. If bail is again denied, a record sufficient to afford a meaningful review should be prepared.

FOOTNOTES

1.  The significance of using observance of demeanor to predict future conduct as a factor in the denial of post-conviction bail, is questioned even by some trial judges. See Frankel, Lawlessness in Sentencing, 41 University of Cincinnati Law Review 1, 27 (1972), where it states “(t)he trial judge's observation of the defendant is often a minor and fleeting factor. It is, in the folklore of our judicial system, overdrawn and overweighed.” See also statement of Judge Stanley A. Weigel, Appellate Review of Sentences, Hearings on S.2722, before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Congress, 2nd Session, 75-76 (1966), as referred to by Bazelon, dissenting in Stanley page 590 at footnote 10.

2.  “I. FINDINGS OF FACT“1. On May 21, 1971, defendant was found guilty by a jury of receipt and concealment of narcotic drugs knowing same to have been imported contrary to law, 21 U.S.C. s 174.“2. The evidence introduced at trial was more than sufficient to sustain defendant's conviction and the Court can recall no error in that proceeding.“3. During defendant's pre-sentence interview he admitted using narcotics during his employment as a Metropolitan Police Department officer, and re-affirmed this fact at sentencing.“4. On August 2, 1971, defendant was sentenced to a term of imprisonment of five years, the minimum sentence permitted for a violation of 21 U.S.C. s 174.“5. On that same date, this Court, sua sponte, determined that defendant should not be released pending appeal.“6. On October 27, 1971, defendant filed the within motion, arguing that this Court erred in referring to 23 D.C. Code s 1325 for the appropriate standards for judging release pending appeal.“II. CONCLUSIONS OF LAW“1. The appropriate standard for judging release pending appeal following a conviction under 21 U.S.C. s 174 is 18 U.S.C. ss 3146 and 3148, as determined in United States v. Benjamin Thompson, (147 U.S.App.D.C. 1, 452 F.2d 1333) D.C.Cir. No. 71-1182 decided October 7, 1971; i. e., subsequent to denial of defendant's release on August 2, 1971.“2. By reason of the foregoing findings this Court is of the opinion that no one or more conditions of release as outlined in 18 U.S.C. s 3146 will reasonably assure that defendant will not flee or pose a danger to any other person or to the community.” (United States v. Stanley, supra, 469 F.2d 576, 548-585, fn. 42.)

3.  We are somewhat surprised this point is raised in view of the Attorney General's express concession in Podesto, denial of a writ for reasons other than on its merits is not a valid basis for bail denial. (In re Podesto, supra, 15 Cal.3d 921, 938, fn. 12, 127 Cal.Rptr. 97, 544 P.2d 1297.)

4.  The majority's note “in passing” the court rejected the professional recommendations when it denied probation, is a non sequitur on the issue we now address.

5.  The majority suggests the trial court may have relied on unsupported hearsay remarks by the district attorney in his argument against granting of bail, to the effect the prison sentence would devastate Pipinos' family and destroy his business. There is no evidence to support either these remarks, or that the court was of such a mind. In the absence of facts, I would suppose the court recognized it could not rely on this unreliable hearsay. Further, the evidence is contrary. The business, a wholesale food distributorship, is one which undoubtedly could be continued by Pipinos' wife, or through other management. His family is described as close-knit and supportive.

COLOGNE, Acting Presiding Justice.

WIENER, J., concurs.