California Court Of Appeals Rules The Emergency Statewide Bond Schedule, Like Other Bail Schedules, Do Not Bind California Judges
On April 6th, the California Judicial Council issued a statewide emergency order setting a statewide bail schedule in California to $0.00 for most misdemeanors and many felony offenses. The measure was intended to curb the spread of COVID-19 in jails…regardless of the negative impact on public safety or the data to justify the Order.
The results have been predictable.
A Modesto man, released on the zero bail order, was later arrested on gun charges during a shooting investigation.
In Los Angeles, Eric Medina was released under a zero bail order only to be arrested later four times in three weeks on suspicion of grand theft auto.
Despite the intent of the Judicial Council to slow the virus, those released from jail under the Order are also not being tested for COVID-19, which has led to the release of inmates testing positive for the virus.
Ayala v. Superior Court of San Diego
Judges in San Diego read the Chief Justice’s emergency bail schedule order and applied it just like any other bail schedule. Why did they do that? Because if there is no review within 48 hours of a bail schedule, that not only violates the rights of the defendants in the cases where bail is set by the schedule but also the rights of the People to ask for bail in circumstances where the schedule would have set it at zero or perhaps an amount less than a judge thinks is appropriate.
In Ayala v. Superior Court of San Diego, an opinion issued April 29, 2020, the 4th District Court of Appeals ruled that the statewide emergency bail schedule is just that—a bail schedule that pre-sets bails until defendants can be seen by judges in open court. In other words, it functions just like the countywide bail schedule that Courts are required to adopt in the absence of the statewide emergency bail schedule. Said the Court:
“The history and language of the rule show that the Judicial Council intended to adopt a statewide bail schedule, which like countywide bail schedules sets the presumptive bail amount for the covered offenses and violations. The Judicial Council did not intend to suspend the array of statutes governing bail, as well as the superior court's inherent authority, which allow the court to depart from the scheduled bail amount or impose bail conditions in individual cases under appropriate circumstances.”
In other words, setting a schedule is not akin to setting bail, according to the Court: “The rule, after all, does not simply mandate zero bail for the covered offenses. It establishes a statewide bail schedule to be applied by trial courts.”
That was not good enough for bail reformers. The San Diego Public Defender decided to take the position opposite to what bail reformers have been saying all along. In this case, since they liked the fact that California’s Chief Justice set bail at zero for many crimes, they want to now defend that there is absolutely no departing from the bail schedule, that meaningful individualized consideration is no longer necessary, and that the bail schedule absolutely governs and there can be no relief from it. This is contrary to what most bail reformers have been saying for years—they think the schedules are too high and have made a living off of arguing for departures from the bail schedule.
So, now bail reformers want to support the absolutely application of the bail schedule with no departures whatsoever, even though, according to the San Francisco Chronicle, there is no data that supports the imposition of the schedule in the first place: “California’s Chief Justice says she and other judicial leaders still lack information on conditions in county jails and the impact of the virus on everyone in the justice system — defendants, victims and the public.”
While we have criticized the Judicial Council’s move as a poorly conceived one-size fits all solution that should have been handled at the local level, we have to commend San Diego District Attorney Summer Stephan for making sure cooler heads prevailed. The Judicial Council’s Order was not based on data, but instead was a knee-jerk reaction. Just because we have a virus out there doesn’t mean that we are going to permanently check the rule of law at the door.