Justices consider cash bail denials in noncapital cases

Amid controversy over California's cash bail system, the state Supreme Court considered Tuesday the constitutionality of a widespread practice: the denial of bail in noncapital cases.

Justices questioned the proper standard of review in bail cases, with San Diego criminal appellate attorney Laura G. Schaefer arguing the appellate court is law-based de novo "because you're dealing with a fundamental constitutional right of liberty."

"So we don't worry about what the trial court did? We just look at the cold record and make our own determination about bail?" asked Justice Carol A. Corrigan. "That seems like an odd standard."

Corrigan also said she's "not sure that the presumption of innocence applies in the bail determination."

Schaefer, however, said it can't be ignored, and it's "why people should not be detained pretrial." She argued bail determination is a two-step process to consider both the crime and the person accused, but only the crime was considered here.

A partner at Boyce & Schaefer, Schaefer is trying to persuade justices her client, Christopher Lee White, was improperly denied bail in 2017 after he was arrested for attempted rape and attempted kidnapping. The case is one of several bail-related matters currently before the court, and it comes at a politically charged time: A 2018 law that eliminates cash bail will go to voters in November after a successful signature referendum. In re: Christopher Lee White, S248125

Justices requested supplemental briefing regarding the possible effect of the 2018 law, which Schaefer in response said is irrelevant. Her brief said the issue in her case concerns the intent of 2008 amendments to bail laws under the crime victim rights act Marsy's Law, which she wrote "cannot be ascertained from legislation enacted ten years later."

"For centuries, our Constitution has protected the right of pretrial liberty," Schaefer wrote. "The California Constitution prohibits the Legislature and the courts from infringing on this right in favor of current policy preferences."

In his brief, Deputy San Diego District Attorney Peter Quon Jr. agreed the 2018 bail reform act is irrelevant, noting White was denied bail before the law was enacted. Even if it was in effect, it still allows for denial of bail for the violent felony sex offenses with which White was charged.

Quon's colleague R. Daniel Owens argued before the court on Tuesday, emphasizing public safety is the utmost important consideration in a bail determination, which he said is "strictly factual."

Owens referenced earlier comments from Justice Joshua P. Groban, who said he was having trouble parsing legal from factual in this case "because as Justice [Leondra R.] Kruger describes, it's quite intertwined."

Groban read excerpts from the trial court ruling in which San Diego County Superior Court Judge Robert J. Kearney differentiated between White and his co-defendant and said either's release likely would physically harm others, including the alleged victim and other children. The ruling was affirmed by the 4th District Court of Appeal.

"What part of that are we able to extract and just say 'this part is just de novo, this part is abuse of description?'" Groban asked Schaeffer.

Schaefer said justices can look at the undisputed facts, such as his lack of criminal history, and determine if White presents a true danger.

Justice Mariano-Florentino Cuéllar asked where exactly the trial court erred. Schaefer said the judge failed to distinguish her client's situation from that of his more culpable co-defendant.

"He's the one that grabbed the girl. My client stood by his tuck and apologized after the crime and drove the co-defendant away," Schaefer said. "The two are in very different positions."

Chief Justice Tani G. Cantil-Sakauye seemed skeptical, reading other excerpts from Kearney's ruling that chronicled White's specific involvement, including that the victim is a stranger and the attack occurred in daylight. Schaeffer retorted crimes against non-strangers in a private setting "are actually usually more dangerous than crimes that are committed in the open because they're more likely to evade detection."

Owens said the record is "well developed" and shows factual determinations, including "an individualized determination of Mr. White's future dangerousness."

"The court took the time to carefully consider White's conduct, statements and actions over the course of the continuum of the attack," he said.

Cuéllar asked Owens if he'd be surprised if another judge granted White bail. Owens responded, "To engage in that hypothetical of whether or not a different trial court would have ruled differently, I would not be surprised if a trial court ruled differently than the counterpart."

The trial court judge made a well-reasoned decision, Owens said, "and there are no further facts that have been incorporated into the record that would change that analysis."