San Francisco DA asks state high court to review appellate bail ruling

The San Francisco district attorney has asked the state Supreme Court to exercise its independent authority to review an appellate court's decision over the consideration of public safety when determining pretrial release of a criminal defendant.

San Francisco District Attorney George Gascón suggested in a letter sent last Thursday that the 1st District Court of Appeal's recent opinion is inconsistent with prior case precedent and the Penal Code and said it undermines his office's obligation to protect the public. In re Humphrey (2018) 19 Cal. App. 5th 1006.

"Absent action from this court, the fallout from Humphrey will be severe," Gascon wrote to the Supreme Court.

The ruling stated that if a judge finds that a defendant is dangerous, and his or her pretrial release would present a risk to public safety, the court may continue to detain him if it concludes "that no less restrictive nonfinancial conditions of release would be sufficient to protect the victim and the community." In the decision, the court concluded that the San Francisco County district attorney's office failed to present any evidence to establish that no condition of release would ensure the safety of the community or any person.

In a statement Friday to the Daily Journal, Gascon said, "There are offenders and offenses that represent too great a risk to public safety to be released, and yet they do not qualify for no-bail pretrial detention under current law. What's more, pursuant to Humphrey, the court can't consider public safety when setting bail."

While Gascón acknowledged the "wealth-based inequity that monetary bail creates," in his letter to the court, he wrote, "There are still individuals whose risk is so high detention remains necessary to protect public safety."

Gascón asked the high court to address the conflict between two provisions of the Penal Code and Humphrey. The Penal Code sections he referred to offer a set of circumstances when a judge may be allowed to deny pretrial release for safety reasons.

The appellate court chose not to address the issue, saying it was untimely, Gascon noted.

Commenting on the letter, San Francisco Deputy Public Defender Chesa Boudin said the San Francisco prosecutor "is asking the Supreme Court to do something highly unusual, which is to weigh in on an issue of law not addressed in the Humphrey court. Gascón is saying because he doesn't like the opinion, he wants the Supreme Court to use Humphrey as an opportunity to reach a decision it [the appellate court] chose not to address."

But Harmeet Dhillon of the Dhillon Law Group said she has heard of several judges that are confused in the wake of the decision. "I think it'd be great for the California Supreme Court to scrutinize this decision," she said.

Gascón said in his letter that the inconsistent rulings concerning the denial of pretrial release will lead to courts applying the "decision they deem to have superior reasoning, which in turn may result in differing approaches for factually indistinguishable cases, even within the same county."