California Court of Appeals, Second District, First Division
ORIGINAL PROCEEDING; petition for writ of habeas corpus, No. BA389735 William N. Sterling, Judge.
Angela Berry; Law Office of Alex R. Kessel, Alex R. Kessel and Ivy Kessel for Petitioner.
Jackie Lacey, District Attorney, Roberta Schwartz and Patrick D. Moran, Deputy District Attorneys, for Real Party in Interest.
No appearance by Respondent.
Defendant was charged with assault with a deadly weapon with further allegations that he personally used a firearm and acted to benefit a street gang in the commission of the offense. The trial court released defendant on $90, 000 bail. Shortly before a pretrial conference, at an in camera ex parte hearing at which defendant was not present, the trial court raised defendant’s bail to $1 million. In this habeas proceeding, defendant challenges his detention on this increased bond as in violation of Penal Code sections 1270.1 and 1289 and his Sixth Amendment and due process rights, and seeks vacation of the court’s order increasing his bail and reinstatement of the previously ordered bail. We conclude that the trial court erred in failing to address the reliability of the confidential information; further, the trial court failed to provide defendant with the gist of the prosecution’s requested increase in bail, and failed to consider some manner in which defendant could participate in the hearing while at the same time preserving the government’s need to proceed in camera. We therefore grant defendant’s petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 22, 2012, a felony complaint was filed against defendant, a member of a gang, and several other codefendants charging them with assault with a deadly weapon. (§ 245, subd. (a)(2).) The complaint also alleged defendant personally used a firearm and committed the offense to further the interests of a street gang. (§§ 186.22, subd. (b), 12022.5, subd. (a).) Defendant was released on $90, 000 bail, and appeared at a pretrial hearing represented by counsel on March 7, 2012. On that date, a further pretrial conference was set for March 21, 2013.
On March 14, 2013, the prosecution moved ex parte for an in camera hearing to increase the amount of bail, and submitted a declaration under seal in support. The court conducted an ex parte, in camera hearing in which it received confidential information. Our review of the transcript of the hearing indicates the trial court made no effort to ascertain the reliability of the information. After the hearing, the court ordered defendant’s bail forfeited, reset bail at $1 million, and issued a bench warrant for defendant’s arrest. On that same day, defendant was arrested and remains incarcerated. On March 20, 2013, defendant requested an open hearing on his bail increase, but the court denied the request.
On April 8, 2012, defendant filed a petition for writ of habeas corpus asserting that his detention on an increased bond violated sections 1270.1 and 1289 as well as his Sixth and Fourteenth Amendment rights, and seeks to have his bail reinstated at $90, 000. He argues due process and the Sixth Amendment require an open hearing, and refutes that the language of section 1289 permits ex parte in camera bail hearings. Lastly, deducing that confidential information was used at the hearing, he contends he is entitled to discover the material relied on by the prosecution in raising his bail. The People counter that no notice to defendant was required by the literal language of sections 1270.1 and 1289.
Well-settled principles govern the court’s ability to set, increase, or reduce bail. “Except under limited circumstances, the California Constitution guarantees a pretrial right to release on nonexcessive bail. (Cal. Const. art I, § 12.).... The court in setting, reducing, or denying bail must primarily consider the public safety. [Citation.] Additionally, the court considers the seriousness of the offense charged, the defendant’s criminal record and the probability the defendant will appear for hearings or trial. [Citation.] As to the seriousness of the offense charged, the court, inter alia, considers the alleged injury to the victim, alleged threats to victims or witnesses, the alleged use of a firearm and the alleged use or possession of controlled substances. (Ibid.)” (In re Weiner (1995) 32 Cal.App.4th 441, 444.) The trial court’s statement of reasons shall “contain more than mere findings of ultimate fact or a recitation of the relevant criteria for release on bail; the statement should clearly articulate the basis for the court’s utilization of such criteria.” (In re Pipinos (1982) 33 Cal.3d 189, 193.)
Section 1270.1 requires notice and a hearing for the setting of bail. Section 1270.1, subdivision (a), provides that for serious and violent felonies, a person may be released on a scheduled bail amount after a hearing before an magistrate or judge in an “open court.” (§ 1270.1, subd. (a).) Under section 1289, bail may reduced or increased; but it may be increased only by a showing of good cause. (§ 1289; In re Annis (2005) 127 Cal.App.4th 1190, 1195–1196.) Section 1289 makes no provision for a hearing; but if defendant applies for a reduction in bail, the statute expressly provides notice must be given to the prosecution, yet no such corollary provision for notice to the ...