Appeal panel says Judicial Council emergency no-bail rule does not remove judges’ discretion

The Judicial Council's emergency zero bail rule does not remove judges' discretion to raise bail as they see fit, an appellate panel ruled Wednesday, rejecting the San Diego County public defender's argument the rule was meant as a mandate.

"The rule does not simply mandate zero bail for the covered offenses, irrespective of the particular facts of each defendant's case," wrote Justice Patricia Guerrero of the 4th District Court of Appeal. "[T]he Judicial Council did not intend to suspend the array of statutes governing bail, as well as the superior courts' inherent authority, which allow the court to depart from the scheduled bail amount or impose bail conditions in individual cases under appropriate circumstances."

Division 1 Presiding Justice Judith McConnell and Justice Richard Huffman concurred. Ayala v. Superior Court of San Diego, 2020 DJDAR 3984

In response to concerns overcrowded prisons and jails might turn into vectors for the coronavirus, California Chief Justice Tani G. Cantil-Sakauye and the Judicial Council issued an emergency statewide schedule of zero bail for all misdemeanor and many felony offenses. The temporary emergency rule -- the fourth of 11 rules intended to lower jail population, suspend evictions and foreclosures -- took effect April 13 and will remain for at least three months after the emergency is over.

Shortly after the order took effect, the office of San Diego County District Attorney Summer Stephan sought bail increases for 100 to 200 people in pretrial custody on misdemeanor or felony charges.

Superior Court Presiding Judge Lorna A. Alksne issued an order specifying the emergency bail schedule should be implemented in the same manner as the regular county bail schedule, asserting each court "retains the traditional authority in an individual case to depart from the bail schedule or impose conditions of bail to assure the appearance of the defendant or protect public safety."

In response, San Diego County Public Defender Randall Mize sought the immediate release of all the pretrial defendants. Deputy Public Defender Whitney Nastasia Antrim argued to the panel on Tuesday the Judicial Council's rule was meant to be interpreted as a mandate, and a judge should not have authority to increase bail or impose conditions in an individual case.

She argued Alksne's implementation order is inconsistent with the emergency rule.

"If the Judicial Council had intended for it to remain discretionary or presumptive, they would have left it as an advisory or recommendation, the opposite of saying something is mandatory," Antrim told the panel Tuesday. She stated that during the pandemic numerous constitutional violations have occurred, including violations of the right to a speedy trial and the First Amendment right to assemble for religious gatherings.

Cantil-Sakauye is "well aware that everyone gives up some rights, so no one gives up everything" during a pandemic, Antrim said.

Deputy District Attorney Marissa Bejarano told the panel the Judicial Council order does not supersede the U.S. and California Constitutions, and judges retain discretion to deviate from an emergency order.

"Emergency Rule 4 adopted an emergency bail schedule, which trial courts may deviate from to protect the public and the other factors set forth in the Constitution," Bejarano said. "Any other interpretation would frustrate the intent of the council to safely reduce the jail population."

After the opinion was published Wednesday, Antrim said she and her office were disappointed.

"The Fourth District Court of Appeal ignores the danger to those who are eligible for release under the Judicial Council's Emergency Rule 4 but remain in custody -- in direct conflict with the rule's stated purpose and language," Antrim said in an email Wednesday. "We intend to seek further review."

Responding via email, Judicial Council Public Affairs Analyst Blaine Corren wrote, "The council has no comment. Court rulings speak for themselves."

District Attorney Stephan did not immediately respond to a request for comment.