Filed 4/29/20 CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JUAN AYALA et al., D077460
Petitioners,
v. (San Diego County Super. Ct. No. CD283843) THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest. D077461 STORMY ANDERSON et al.,
Petitioners, (San Diego County v. Super. Ct. No. SCD282146)
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Real Party in Interest. ORIGINAL PROCEEDINGS in mandate. Lorna A. Alksne, Judge. Petitions
denied.
Randy Mize, Public Defender, and Whitney N. Antrim, Deputy Public Defender,
for Petitioners.
No appearance for Respondent.
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Marissa
Bejarano, Deputy District Attorneys, for Real Party in Interest.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Michael T.
Murphy, Deputy Attorneys General, as Amicus Curiae.
In these proceedings, we interpret Emergency Rule 4, adopted by the Judicial
Council of California in response to the ongoing emergency situation in this state caused
by the COVID-19 pandemic.1 Emergency Rule 4 establishes a statewide Emergency
Bail Schedule. The Emergency Bail Schedule sets bail for all misdemeanor offenses,
felony offenses, and violations of postconviction supervision at zero dollars (zero bail),
except as specified in the rule.
The San Diego County Superior Court, through its presiding judge, implemented
Emergency Rule 4 in General Order No. 041320-42. Among other things, the order
established a procedure for handling persons arrested prior to implementation of the
Emergency Bail Schedule. These persons were to be released on zero bail, unless the
1 The emergency rules related to the COVID-19 pandemic, including Emergency Rule 4, are set out in the California Rules of Court, Appendix I.
2 prosecuting agency notified the custodial officer that the agency would be requesting an
increase in bail, a " 'no bail' " hold, or the imposition of conditions of release. The order
specified that the Emergency Bail Schedule should be implemented in the same manner
as the regularly adopted San Diego County bail schedule and asserted that 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."
Petitioners challenge the superior court's implementation order as inconsistent
with Emergency Rule 4. They contend that bail for offenses and violations covered by
the rule must be set at zero dollars, and the superior court has no authority to increase bail
or impose conditions in an individual case. They also contend the implementation order,
including the remote hearings contemplated therein, violate various constitutional
protections.
We conclude the implementation order is not inconsistent with Emergency Rule 4.
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. We further conclude
petitioners have not shown the implementation order or its procedures violate any
3 guarantees of the federal or state constitutions, at least on the current record. We
therefore deny the petitions.
FACTUAL AND PROCEDURAL BACKGROUND
A state of emergency exists in the State of California as a result of the ongoing
COVID-19 pandemic. Federal, state, and local officials have undertaken extraordinary
measures to mitigate its spread. In Executive Order N-38-20, the Governor of California
conferred on the Judicial Council unprecedented authority to promulgate rules governing
court administration, practice, and procedure as necessary to address the emergency. The
executive order provides that, to the extent any such rule adopted by the Judicial Council
would be inconsistent with any statute concerning civil or criminal practice or procedure,
the relevant statute or portion thereof is suspended to resolve the inconsistency. The
executive order states, "The purpose of this paragraph is to afford the Judicial Council
and its Chairperson maximum flexibility to adopt any rules concerning civil or criminal
practice or procedure they may deem necessary to respond to the COVID-19 pandemic,
4 while ensuring that the rules adopted 'shall not be inconsistent with statute,' as provided
in Article VI, section 6 of the California Constitution."2
Pursuant to this authority, and its constitutional obligation to "adopt rules for court
administration, practice and procedure" (Cal. Const., art. VI, § 6, subd. (d)), the Judicial
Council considered and adopted eleven emergency rules covering various aspects of civil
and criminal practice, including Emergency Rule 4. In a report to the Judicial Council
recommending adoption of the emergency rules, the chairs of the Judicial Council's six
internal committees outlined their rationale: "The continuous operation of our courts to
provide due process and protect the public is essential for our constitutional form of
government; however, courts are clearly high-risk places during this pandemic because
they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses,
defendants, law enforcement, and juries in numbers well in excess of what is allowed for
gathering under current executive and health orders. Indeed, many court facilities in
California are ill-equipped to implement social distancing and satisfy other public health
requirements necessary to protect people involved in court proceedings and prevent the
2 We hereby take judicial notice of the Governor's executive order. (Evid. Code, § 452, subd. (c); Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1157, fn. 1.) As authority for the order, the Attorney General and the District Attorney cite Government Code section 8571. That section provides, "During a state of war emergency or a state of emergency the Governor may suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency . . . where the Governor determines and declares that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency." The parties do not challenge the Governor's authority to issue the executive order or the Judicial Council's authority to adopt Emergency Rule 4. We therefore need not consider the validity of the executive order or the rule.
5 further spread of COVID-19." In particular, "[t]he spread of the virus has hit California's
inmate population as well as staff members in the prison system. Many inmates have
ongoing court cases and courts cannot be assured that safe social distancing can be
maintained with the transport of in-custody defendants and the holding cells adjacent to
or within courthouses."
The report noted that the pretrial custody decisions of trial courts can affect the
spread of COVID-19. "During the COVID-19 pandemic, trial courts have a vital role to
play in balancing public safety and public health by assisting to safely reduce jail
populations in a manner that protects the health of inmates, jail staff, those who transport
defendants to courts, and others as individuals leave jail and return to their communities.
The courts can assist by permitting more persons accused of misdemeanors and other
lower-level offenses to be released from jail custody prior to arraignment, which in turn
will reduce the immediate burden on the courts to conduct arraignments and preliminary
examinations within compact timeframes."
Prior to the Governor's executive order, the Chief Justice recommended that trial
courts reduce the incarcerated population by adopting emergency bail schedules that
would result in fewer people in custody based on their inability to post bail. Her
recommendation advised courts to "[r]evise, on an emergency basis, the countywide bail
schedule to lower bail amounts significantly for the duration of the coronavirus
emergency, including lowering the bail amount to $0 for many lower level offenses—for
all misdemeanors except for those listed in Penal Code section 1270.1 and for lower-level
felonies."
6 The committee chairs' report noted that, "[f]ollowing this advisory, some courts
adopted emergency bail schedules, but during this time there is a need for greater
uniformity throughout the state." They therefore proposed that the Judicial Council
"adopt an emergency rule of court that provides for a statewide Emergency Bail
Schedule." The emergency rule would adopt an Emergency Bail Schedule "to set bail at
$0 for misdemeanors and certain felonies . . . ." The Emergency Bail Schedule would
apply "[p]ursuant to Penal Code section 1269b . . . to any accused currently held in
county jail custody charged with an offense covered by the schedule." The regularly
adopted countywide bail schedule would apply to any other offenses. The emergency
rule would require "[b]ail to be set at $0 for violations of misdemeanor probation,
whether the arrest is made with or without a bench warrant. For violations of felony
probation, parole, post release community supervision, or mandatory supervision, bail
must be set in the same amount as bail for the underlying substantive charge of
conviction under the Emergency Bail Schedule."
The Judicial Council adopted the recommended rule as Emergency Rule 4. It
provides, "Notwithstanding any other law, this rule establishes a statewide Emergency
Bail Schedule, which is intended to promulgate uniformity in the handling of certain
offenses during the state of emergency related to the COVID-19 pandemic." (Emergency
Rule 4(a).) "Under the statewide Emergency Bail Schedule, bail for all misdemeanor and
felony offenses must be set at $0, with the exception of only the offenses listed
below . . . ." (Emergency Rule 4(c).) Likewise, "[u]nder the statewide Emergency Bail
Schedule, bail for all violations of misdemeanor probation, whether the arrest is with or
7 without a bench warrant, must be set at $0." (Emergency Rule 4(f)(1).) "Bail for all
violations of felony probation, parole, post-release community supervision, or mandatory
supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the
bail amount in the court's countywide schedule of bail for charges of conviction listed [in
the exceptions to the statewide Emergency Bail Schedule]." (Emergency Rule 4(f)(2).)
Even for covered offenses, Emergency Rule 4 does not affect the constitutional authority
of superior courts to deny bail altogether in limited circumstances: "Nothing in the
Emergency Bail Schedule restricts the ability of the court to deny bail as authorized by
article I, section 12, or 28(f)(3) of the California Constitution." (Emergency Rule 4(d).)3
Emergency Rule 4 directed the superior courts to apply the statewide Emergency
Bail Schedule, by no later than 5 p.m. on April 13, 2020, to every accused person arrested
and in pretrial custody and to every accused person held in pretrial custody. (Emergency
3 The exceptions to the statewide Emergency Bail Schedule—which are not at issue here—are the following: (1) a serious felony, as defined in Penal Code section 1192.7, subdivision (c), or a violent felony, as defined in Penal Code section 667.5, subdivision (c); (2) a felony violation of Penal Code section 69; (3) a violation of Penal Code section 166, subdivision (c)(1); (4) a violation of Penal Code section 136.1 when punishment is imposed under subdivision (c) of that statute; (5) a violation of Penal Code section 262; (6) a violation of Penal Code sections 243, subdivision (e)(1), or 273.5; (7) a violation of Penal Code section 273.6 if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of the protected party; (8) a violation of Penal Code section 422 where the offense is punished as a felony; (9) a violation of Penal Code section 646.9; (10) a violation of an offense listed in Penal Code section 290, subdivision (c); (11) a violation of Vehicle Code sections 23152 or 23153; (12) a felony violation of Penal Code section 463; and (13) a violation of Penal Code section 29800. (Emergency Rule 4(c).) As noted, for these offenses, the regularly adopted countywide bail schedule applies. (Emergency Rule 4(e)(1).) Each superior court retains the authority to modify its countywide bail schedule for these offenses. (Emergency Rule 4(e)(2).)
8 Rule 4(b).) The rule remains in effect "until 90 days after the Governor declares that the
state of emergency related to the COVID-19 pandemic is lifted, or until amended or
repealed by the Judicial Council." (Emergency Rule 4(g).)
On April 13, 2020, the respondent superior court adopted its general order
implementing Emergency Rule 4. The order provided that the superior court should
apply the Emergency Bail Schedule "in the same manner as the regularly adopted San
Diego County Bail Schedule" except as specified in the order.
The order stated, "For persons arrested prior to the effective date and time of this
order, bail shall be set in accordance with the [Emergency Bail Schedule]. However, the
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."
To preserve that authority, the order adopted a procedure for making
individualized assessments regarding persons held in custody: "Persons whose bail is
reduced to zero by the [Emergency Bail Schedule] shall be released from custody at
5:00 p.m. on April 15, 2020, or as soon thereafter as is feasible, unless prior to 5:00 p.m.
on April 15, 2020, the prosecuting agency notifies the Sheriff that it will be requesting an
increase in bail, a 'no bail' hold, or imposition of conditions of release." The order
required that the prosecuting agency provide a list of such objections to defense counsel
by the same date and time. Under the order, the prosecution and defense counsel must
meet and confer regarding the objections within 24 hours. If the parties subsequently
agree that a person could be released on zero bail under the Emergency Bail Schedule, he
9 or she shall be released by the sheriff. If the parties agree that a person could be released
on increased bail, or subject to conditions, the parties shall submit a stipulation and
proposed order to the court to that effect and notify the sheriff. If the parties cannot
agree, and the defendant has not yet been arraigned, "the prosecuting agency shall put the
matter on the video-court calendar commencing Monday, April 20, 2020, or as soon as
practical thereafter, for arraignment and bail review." In all other cases where the parties
cannot agree, "the matter will be reviewed by a judicial officer via telephone conference
as soon as practical."
For newly arrested persons, the order provides that bail must be set in accordance
with the Emergency Bail Schedule. But, as with persons already in custody, the order
adopted a procedure for considering departures from the Emergency Bail Schedule and
bail conditions: "Requests for a modification of the bail amount, or for conditions of
release, shall be made to the daytime or after-hours duty judge. If bail is modified, or
conditions imposed, the court will notify the Sheriff's Watch Commander at the detention
facility where the defendant is housed, and the Sheriff shall note the change on
defendant's paperwork, including any release papers."
The San Diego County Public Defender filed an objection to the implementation
order. The superior court, through its presiding judge, set a briefing schedule and hearing
10 on the objection. In a written order after the hearing, the presiding judge overruled the
public defender's objection.4
Pursuant to the superior court's implementation order, the prosecuting agencies
identified between 100 and 200 persons in pretrial custody for whom a bail increase or
bail conditions are sought. These individuals, represented by the public defender, now
petition this court for a writ of mandate directing the superior court to rescind its
implementation order and adopt their interpretation of the Emergency Bail Schedule.
They argue that Emergency Rule 4 mandates zero bail for any covered offense or
violation, with the only exception being the court's constitutional authority to deny bail
altogether. Under their interpretation, the superior court cannot increase bail above zero
dollars or impose conditions on bail.
In a second petition, three individuals arrested for violating their postconviction
supervision also challenge the superior court's implementation of Emergency Rule 4.
They allege that they are being held in custody without bail and the superior court refuses
to apply Emergency Rule 4 to them.
We consolidated the proceedings on the two petitions and issued an order to show
cause. In this opinion, where it is necessary to distinguish between them, we refer to the
first petitioners as the "pretrial petitioners" and the second petitioners as the
"postconviction petitioners."
4 For good cause, we grant the district attorney's application to include this order as an exhibit to her return.
11 DISCUSSION
I
Bail Generally
The California Constitution provides that a defendant "shall be released on bail by
sufficient sureties" unless an exception applies. (Cal. Const., art. I, § 12.) The amount of
bail required in a specific case is governed by multiple statutory and constitutional
provisions, several aspects of which we describe briefly here.5
The superior court judges in each county are required by statute to adopt a
"countywide schedule of bail" for bailable felony, misdemeanor, and infraction offenses
(except Vehicle Code infractions). (Pen. Code, § 1269b, subd. (c).) "The countywide
bail schedule shall contain a list of the offenses and the amounts of bail applicable for
each as the judges determine to be appropriate. If the schedule does not list all offenses
specifically, it shall contain a general clause for designated amounts of bail as the judges
of the county determine to be appropriate for all the offenses not specifically listed in the
schedule." (Id., subd. (f).) "In adopting a uniform countywide schedule of bail for all
5 The exceptions to the right to bail are "(a) Capital crimes when the facts are evident or the presumption great; [¶] (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others; or [¶] (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released." (Cal. Const., art. I, § 12; see In re White (2018) 21 Cal.App.5th 18, 24-25, review granted May 23, 2018, S248125; In re Bright (1993) 13 Cal.App.4th 1664, 1667 & fn. 4; In re Nordin (1983) 143 Cal.App.3d 538, 543.)
12 bailable felony offenses the judges shall consider the seriousness of the offense charged."
(Id., subd. (e).)
The countywide bail schedule sets out the "presumptive" amount of bail for the
identified offenses. (In re Christie (2001) 92 Cal.App.4th 1105, 1109 (Christie).) In
general, before a defendant's appearance in court, "the bail shall be in the amount fixed in
the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be
pursuant to the uniform countywide schedule of bail for the county in which the
defendant is required to appear . . . ." (Pen. Code, § 1269b, subd. (b).)
If conditions warrant, a peace officer may apply for bail in excess of the scheduled
amount: "If a defendant is arrested without a warrant for a bailable felony offense or for
the misdemeanor offense of violating a domestic violence restraining order, and a peace
officer has reasonable cause to believe that the amount of bail set forth in the schedule of
bail for that offense is insufficient to ensure the defendant's appearance or to ensure the
protection of a victim, or family member of a victim, of domestic violence," the officer
may apply for an order setting a higher bail. (Pen. Code, § 1269c.) Likewise, for most
offenses, the defendant may apply for release "on bail lower than that provided in the
schedule of bail or on his or her own recognizance." (Ibid.) If a defendant does not make
bail, he is entitled to automatic review of the order fixing the amount of bail. (Id.,
§ 1270.2.) In the course of a criminal case, the court may revisit the amount of bail under
various circumstances. (See, e.g., id., § 1289.)
The court need not adhere to the scheduled amount, but rather has the discretion to
make individualized determinations as appropriate. A court's consideration of the
13 amount of bail in an individual case is governed by mandatory factors identified in the
California Constitution: "In setting, reducing or denying bail, the judge or magistrate
shall take into consideration the protection of the public, the safety of the victim, the
seriousness of the offense charged, the previous criminal record of the defendant, and the
probability of his or her appearing at the trial or hearing of the case. Public safety and the
safety of the victim shall be the primary considerations." (Cal. Const., art. I, § 28,
subd. (f)(3).) The bail statutes set out these factors to guide the court's discretion as well.
(Pen. Code, § 1275, subd. (a).)
In addition to the amount of bail, courts have the authority to impose conditions
related to public safety on persons released on bail. (Cal. Const., art. I, § 28, subd. (b)(3);
In re Webb (2019) 7 Cal.5th 270, 278.) "Any condition must be reasonable, and there
must be a sufficient nexus between the condition and the protection of public safety."
(Webb, at p. 278.)
II
Interpretation of Emergency Rule 4
Against this backdrop, the Judicial Council adopted Emergency Rule 4. As noted,
Emergency Rule 4 established a statewide Emergency Bail Schedule. (Emergency
Rule 4(a).) "Under the statewide Emergency Bail Schedule, bail for all misdemeanor and
felony offenses must be set at $0" unless the defendant is charged with certain excepted
offenses. (Emergency Rule 4(c).) Under the statewide Emergency Bail Schedule, "bail
for all violations of misdemeanor probation, whether the arrest is with or without a bench
warrant, must be set at $0" and "[b]ail for all violations of felony probation, parole, post-
14 release community supervision, or mandatory supervision, must be set in accord with the
statewide Emergency Bail Schedule, or for the bail amount in the court's countywide
schedule of bail for" excepted offenses. (Emergency Rule 4(f)(1)-(2).)
The parties dispute the meaning of these provisions. "We independently review
interpretations of California Rules of Court, applying the usual rules of statutory
construction." (In re William M.W. (2019) 43 Cal.App.5th 573, 583.) " 'As in any case
involving statutory interpretation, our fundamental task here is to determine the
Legislature's intent so as to effectuate the law's purpose.' [Citation.] 'We begin with the
plain language of the statute, affording the words of the provision their ordinary and
usual meaning and viewing them in their statutory context, because the language
employed in the Legislature's enactment generally is the most reliable indicator of
legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the
statutory language. [Citation.] If, however, 'the statutory language may reasonably be
given more than one interpretation, " ' "courts may consider various extrinsic aids,
including the purpose of the statute, the evils to be remedied, the legislative history,
public policy, and the statutory scheme encompassing the statute." ' " ' " (People v.
Cornett (2012) 53 Cal.4th 1261, 1265.)
Petitioners contend the plain language of Emergency Rule 4 compels their
interpretation. In their view, the mandatory language of the rule (e.g., bail "must be set")
establishes that the superior court cannot depart from the zero bail amount in the
statewide Emergency Bail Schedule. They argue, "In no uncertain terms, the Chief
Justice of the California Supreme Court and the Judicial Council ordered that bail 'must'
15 be set at $0 unless certain exceptions apply." We disagree. The rule does not simply
mandate zero bail for the covered offenses, irrespective of the particular facts of each
defendant's case. Instead, it adopts a statewide Emergency Bail Schedule, under which
bail for the covered offenses is zero dollars. At the very least, the rule's focus on a bail
schedule, which has an established meaning and function in setting bail that is not
mandatory, introduces ambiguity regarding the superior court's authority to depart from
the zero bail amount under Emergency Rule 4. The rule can reasonably be interpreted, as
urged by the district attorney, to preserve the court's existing authority to increase bail
from the scheduled zero bail amount if the circumstances and existing statutes allow such
a departure.
The history and structure of the rule show that the district attorney's proposed
interpretation is the correct one. The Judicial Council report recommending adoption of
the emergency rules emphasized that the Chief Justice had issued an advisory to trial
courts to "[r]evise, on an emergency basis, the countywide bail schedule to lower bail
amounts significantly for the duration of the coronavirus emergency, including lowering
the bail amount to $0 for many lower level offenses . . . ." Because the trial courts do not
have the power generally to suspend existing statutes or court rules, the recommended
emergency countywide bail schedules would necessarily function in the same manner as
existing regularly adopted bail schedules. Namely, trial courts applying such emergency
countywide bail schedules could, in appropriate circumstances, increase bail from zero
dollars in individual cases or impose reasonable conditions on release.
16 The report noted that "some courts adopted emergency bail schedules, but during
this time there is a need for greater uniformity throughout the state." This focus on
uniformity is reflected in the first subdivision of the rule, entitled "Purpose," which states,
"Notwithstanding any other law, this rule establishes a statewide Emergency Bail
Schedule, which is intended to promulgate uniformity in the handling of certain offenses
during the state of emergency related to the COVID-19 pandemic." (Emergency
Rule 4(a), italics added.)
The Judicial Council report and the express purpose of Emergency Rule 4 show
that the rule was intended to mandate that the Chief Justice's recommendation be adopted
by every trial court in the state in the same manner, i.e., the same offenses would be
subject to the same zero dollar scheduled bail amount in every county. The focus on
uniformity undermines the petitioners' argument that the statewide Emergency Bail
Schedule in Emergency Rule 4 was intended to function differently from existing
countywide bail schedules—by depriving trial courts of their established authority to
depart from the scheduled bail amount and impose bail conditions. To the contrary, this
focus shows that the Judicial Council intended the statewide Emergency Bail Schedule to
operate as if each court had adopted it—uniformly—as a countywide bail schedule.
The report specifically invokes Penal Code section 1269b, which mandates the
adoption of countywide bail schedules. It states, "Pursuant to Penal Code section 1269b,
[the rule would require] the application of the statewide Emergency Bail Schedule to any
accused currently held in county jail custody charged with an offense covered by the
schedule." The report indicates that, rather than superseding the existing statutes
17 governing the setting of bail, the statewide Emergency Bail Schedule established by the
rule was intended to fit comfortably within them.
This interpretation is confirmed by the language and structure of Emergency
Rule 4. 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. Absent some
persuasive indication to the contrary, we must give effect to the established meaning of
this concept and its role in the statutes governing bail. (See People v. King (2006)
38 Cal.4th 617, 622 [" ' "The words of the statute should be given their ordinary and
usual meaning and should be construed in their statutory context." ' "].)
Emergency Rule 4 contains no indication that the term schedule should be given
anything other than its established meaning and significance. The rule directs trial courts
to "apply the statewide Emergency Bail Schedule" to certain categories of persons in
custody. (Emergency Rule 4(b).) It then describes the substance of the schedule, i.e.,
zero bail for the covered offenses. (Emergency Rule 4(c).) For excepted offenses, the
rule directs trial courts to apply their regularly adopted countywide bail schedules, and
courts retain the authority to modify those schedules as needed. (Emergency Rule 4(e).)
By establishing a statewide bail schedule and directing courts to apply it, while
continuing to apply their countywide bail schedule to excepted offenses, the rule
embodies the Judicial Council's intent to create a uniform schedule for the covered
18 offenses—but not to alter the normal function of bail schedules in setting bail for
individual defendants under existing statutes.6
Petitioners claim that this interpretation leads to "absurd results" because it will
not promote a reduction in the jail population. We disagree. Based on the record before
us, including the papers submitted by petitioners, numerous individuals in custody in San
Diego County have been released under this interpretation of the statewide Emergency
Bail Schedule, including dozens of defendants in pretrial custody and two of the three
named postconviction petitioners. The effect of the statewide Emergency Bail Schedule
is to set the presumptive bail amount at zero dollars for the covered offenses. If bail is to
be set above that amount—for example, in the amount previously specified in the
countywide bail schedule—it must be justified. (See Pen. Code, § 1269c; Christie, supra,
92 Cal.App.4th at p. 1110.) The scheduled bail amount matters, both legally and
practically. Petitioners have not shown that interpreting the statewide Emergency Bail
Schedule as imposing a new scheduled bail amount of zero dollars is so ineffective as to
be absurd.
6 Petitioners have submitted a letter written by the district attorney to the Judicial Council commenting on Emergency Rule 4 shortly after its adoption. The letter appears to support petitioners' interpretation of Emergency Rule 4 as mandating zero bail for all covered offenses regardless of an individual defendant's circumstances. In her return, the district attorney disavows the letter. She contends it was sent before her office had the opportunity to review other analyses of the rule and subsequent Judicial Council statements. The letter is not binding on the district attorney, but we have considered it. The letter, as well as similar materials prepared by the sheriff, do not affect our interpretation of the rule.
19 Petitioners point out that the rule expressly confirms a trial court's ability to deny
bail: "Nothing in the Emergency Bail Schedule restricts the ability of the court to deny
bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution."
(Emergency Rule 4(d).) Applying the principle of expressio unius est exclusio alterius,
petitioners argue that the inclusion of this exception to the statewide Emergency Bail
Schedule shows that the Judicial Council did not intend any other exception, e.g., for bail
increases under existing bail statutes. (See Rojas v. Superior Court (2004) 33 Cal.4th
407, 424 [" 'Under the maxim of statutory construction, expressio unius est exclusio
alterius, if exemptions are specified in a statute, we may not imply additional exemptions
unless there is a clear legislative intent to the contrary.' "].) Petitioners misapply the
principle to Emergency Rule 4. The constitutional authority to deny bail is an exception
to the application of bail schedules generally. By enumerating this authority, the rule
confirms that the statewide Emergency Bail Schedule yields—as does any other bail
schedule—to this constitutional provision. It does not speak to the ability of courts to
apply the statewide Emergency Bail Schedule in the same manner as countywide bail
schedules, with upward departures where warranted. The constitutional authority to deny
bail altogether is not in the same category as the statutory authority to depart from a
scheduled bail amount. The enumeration of the first does not imply the exclusion of the
second. Likewise, the rule's preservation of the countywide bail schedule (Emergency
Rule 4(e)) reflects a limitation of the scope of the statewide Emergency Bail Schedule to
certain covered offenses. It does not reflect a limitation on the trial court's power to
20 depart from the scheduled bail amount—whether in the statewide schedule or the
countywide schedule—under existing bail statutes.
Petitioners also point out that Emergency Rule 4 supersedes any other laws
contrary to its application. (Emergency Rule 4(a).) They argue that, in light of that broad
assertion, "reliance on pre-existing Penal Code provisions is misplaced." Setting aside
the issue of whether the Governor or Judicial Council could broadly suspend existing bail
statutes, the Governor's executive order provides that a "statute is suspended only to the
extent it is inconsistent with the proposed rule[.]" The statutes governing departures from
scheduled bail amounts are not inconsistent with Emergency Rule 4 for the reasons we
have already discussed. Instead, they are complimentary and thus readily harmonized.
The statewide Emergency Bail Schedule works in tandem with the existing statutes
governing bail, as it was intended to do. Moreover, whatever else may be said about the
Governor's power to suspend statutes, we are confident that we must not extend such
suspension beyond what is strictly necessary to implement Emergency Rule 4, especially
where as here the Judicial Council has not specifically identified any existing statutes that
must be suspended. The statute governing countywide bail schedules must be suspended
21 in part to accommodate the statewide Emergency Bail Schedule, but we will not imply
any broader suspension.7
The superior court's implementation order adopts the statewide Emergency Bail
Schedule and mandates its application "in the same manner" as the regularly adopted San
Diego County bail schedule. It directs judges to set bail in accordance with the statewide
Emergency Bail Schedule. For persons already in custody, the order creates procedures
for determining whether the scheduled zero bail amount will be applied, or whether the
court will increase bail or impose conditions. Because Emergency Rule 4 created a
statewide bail schedule, it does not foreclose the ability of the superior court to depart
from the schedule in accordance with existing law in this manner. Petitioners have not
shown that the superior court's implementation order is inconsistent with Emergency
Rule 4.
Petitioners argue that the procedure for determining whether defendants will be
released on zero bail, or whether bail will be increased or conditions imposed, is
unauthorized and unconstitutional. Courts have broad inherent powers over their own
procedures. " 'It is . . . well established that courts have fundamental inherent equity,
supervisory, and administrative powers, as well as inherent power to control litigation
7 In this context, we are reminded of the rule of statutory construction that strictly limits the implied repeal of one statute by a later statute. " '[A]ll presumptions are against a repeal by implication. [Citations.]' [Citation.] Absent an express declaration of legislative intent, we will find an implied repeal 'only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are "irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation." ' " (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476-477.)
22 before them. [Citation.] "In addition to their inherent equitable power derived from the
historic power of equity courts, all courts have inherent supervisory or administrative
powers which enable them to carry out their duties, and which exist apart from any
statutory authority. [Citations.] 'It is beyond dispute that "Courts have inherent
power . . . to adopt any suitable method of practice, both in ordinary actions and special
proceedings, if the procedure is not specified by statute or by rules adopted by the
Judicial Council." [Citation.]' [Citation.] That inherent power entitles trial courts to
exercise reasonable control over all proceedings connected with pending litigation . . . in
order to insure the orderly administration of justice. [Citation.] 'Courts are not powerless
to formulate rules of procedure where justice demands it.' " ' " (In re Reno (2012)
55 Cal.4th 428, 522.)
Emergency Rule 4 required the superior court to apply the statewide Emergency
Bail Schedule to both new arrestees and individuals already in custody. (Emergency
Rule 4(b).) For those in custody, the new statewide zero bail schedule was not self-
executing. The superior court properly implemented a procedure to determine which
defendants would be released on zero bail and which would not. The procedure began
with the direction that defendants subject to the statewide Emergency Bail Schedule
"shall be released from custody" at 5:00 p.m. on April 15, 2020, or as soon thereafter as
is feasible. To prevent release, the prosecuting agency was required to submit an
objection to the sheriff by the same date and time. The prosecution and defense counsel
were required to meet and confer regarding the objections within the next 24 hours. If
the parties agreed that a person could be released on increased bail, or subject to
23 conditions, the parties were required to submit a stipulation and proposed order to the
court to that effect and notify the sheriff. If the parties could not agree, the superior court
would address the disputes in remote and telephonic hearings. (We discuss petitioners'
objections to these hearings in the next part.)
Petitioners have not shown that these procedures conflict with Emergency Rule 4.
The rule establishes a statewide Emergency Bail Schedule, but it does not dictate the
procedures courts must use to apply it to defendants in custody. The procedure
implemented by the superior court was a reasonable exercise of its inherent supervisory
and administrative powers. Petitioners' contrary argument largely relies on their
interpretation of Emergency Rule 4 as requiring a defendant's release on zero bail in all
cases. We have rejected that interpretation for the reasons set forth above.
Petitioners rely on In re Alberto (2002) 102 Cal.App.4th 421, but it is inapposite.
Alberto held that a second judge may not generally reconsider a first judge's bail
determination without good cause. (Id. at p. 426.) If the prosecution had believed the
first judge's bail determination was erroneous as a matter of law, its remedy was to file a
petition for writ of mandate in the appellate court. (Id. at p. 431.) Here, there has been
no finding by a court that any individual defendant's bail should be set at zero dollars.
Instead, the Judicial Council changed the scheduled amount of bail for the covered
offenses. When the court considers the prosecution's objection to the scheduled amount,
it is considering bail for the first time under the revised schedule. It is not reconsidering a
prior zero dollar bail determination.
24 The postconviction petitioners argue that they have been denied the benefit of
Emergency Rule 4. They allege the sheriff has "refus[ed]" to apply the statewide
Emergency Bail Schedule to violations of probation, parole, and post-release community
supervision. In her return, the district attorney disagrees. She maintains that two of the
three named postconviction petitioners have been released pursuant to the statewide
Emergency Bail Schedule. The third named postconviction petitioner remains in custody
on a court-issued arrest warrant. The district attorney contends Emergency Rule 4 allows
for continued custody of that individual because it omits mention of a warrant in its
subdivision discussing the application of the statewide Emergency Bail Schedule to
violations of felony postconviction supervision. (See Emergency Rule 4(f)(2).) In other
words, the Emergency Bail Schedule does not apply to postconviction petitioners who
were convicted of underlying felonies and arrested pursuant to a court-issued warrant
specifying a bail amount (or no bail). Petitioners do not respond to the district attorney's
arguments; they simply reassert their belief that the sheriff refuses to apply the statewide
Bail Schedule or Emergency Rule 4 to violations of probation, parole, and post-release
community supervision. Since it appears the parties agree that Emergency Rule 4 applies
to the postconviction petitioners, and indeed two postconviction petitioners have been
released under the rule, this issue appears to be moot and we need not consider it further.
(See Epstein v. Superior Court (2011) 193 Cal.App.4th 1405, 1408-1409.) Specific
disputes regarding the application of Emergency Rule 4 to postconviction defendants, if
any, may be raised in future proceedings.
25 In their petitions, petitioners also raised a short, nonspecific constitutional
challenge to the superior court's implementation order. They summarily referenced the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and
article I, sections 14 and 15 of the California Constitution. The thrust of the argument
was that petitioners' continued custody was unjust, and they have not been properly
arraigned within the time periods set by statute, but petitioners provided no legal
authority or argument in support of their constitutional challenge. It was therefore
waived. (See People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Crittenden (1994)
9 Cal.4th 83, 153 [where defendant asserts constitutional challenge "without argument or
citation of authority," we generally do not consider such unsupported contentions].) In
their reply, petitioners for the first time make specific equal protection, due process, and
Eighth Amendment arguments. We normally do not consider arguments made for the
first time on reply. (Magana v. Superior Court (2018) 22 Cal.App.5th 840, 854, fn. 2
(Magana).) Petitioners' contentions raise important issues, but it is precisely because
these issues are important that they must be presented and considered in accordance with
established appellate procedure, which allows the opposing party a chance to respond. In
any event, to the extent petitioners' arguments are predicated on their interpretation of
Emergency Rule 4 as requiring zero bail for all covered offenses, they are rejected. To
the extent they raise other matters, we will not consider them in this proceeding (ibid.),
26 and we express no opinion on the validity of any such arguments which individual
petitioners may assert in the future.8
In sum, we reject petitioners' contention that the superior court cannot depart from
the zero bail amount in the statewide Emergency Bail Schedule in any individual case.
To the contrary, the history and structure of Emergency Rule 4 show that the Judicial
Council intended the statewide Emergency Bail Schedule to function in the same manner
as the countywide bail schedule in each court. The superior court retains the ability to
depart from the scheduled zero bail amount or impose bail conditions under appropriate
circumstances in an individual case. We likewise conclude that petitioners have not
demonstrated that the superior court's implementation order was unauthorized or
unconstitutional. Emergency Rule 4 required the application of the statewide Emergency
Bail Schedule to defendants already held in pretrial custody. (Emergency Rule 4(b).)
The implementation order created a reasonable process for delineating those defendants
who could be released on the scheduled zero dollar bail, and those defendants for whom
individualized bail decisions would be made after the prosecution requested an upward
departure in the scheduled amount or conditions of release.
8 In addition, petitioners contend the implementation order's use of an April 15 date was inconsistent with Emergency Rule 4's direction that courts apply the statewide Emergency Bail Schedule "[n]o later than . . . April 13, 2020." (Emergency Rule 4(b).) Because both dates have passed (and they had passed before the petitions were filed), we can provide no effective relief on this issue. We therefore need not consider this specific contention.
27 III
Remote and Telephonic Hearings
The superior court's implementation order contemplates that bail disputes will be
handled by either remote or telephonic hearings. In their petition, petitioners objected to
these hearings as unnecessary and unwarranted because, under their interpretation of
Emergency Rule 4, the superior court had no power to entertain any objections to the
release on zero bail of a defendant charged with a covered offense (except complete
denial of bail under article I, section 12 of the California Constitution). Because we have
rejected petitioners' interpretation of Emergency Rule 4, we necessarily reject this
contention as well.
In a brief supplemental letter, petitioners objected to the remote hearing procedure
as unconstitutional. Under the California Constitution, "The defendant in a criminal case
has the right to . . . be personally present with counsel . . . ." (Cal. Const., art. I, § 15.)
Petitioners also argued that their right to effective assistance of counsel under the U.S.
and California constitutions would be infringed by remote hearings. At the time of the
letter, the superior court had not yet held any remote or telephonic hearings.
The emergency rules adopted by the Judicial Council address the use of remote
and telephonic hearings. Emergency Rule 3 authorizes courts to require that judicial
proceedings and court operations be conducted remotely, "in order to protect the health
and safety of the public, including court users, both in custody and out of custody
defendants, witnesses, court personnel, judicial officers, and others . . . ." (Emergency
Rule 3(a).) A remote proceeding under the rule "includes, but is not limited to, the use of
28 video, audio, and telephonic means for remote appearances; the electronic exchange and
authentication of documentary evidence; e-filing and e-service; the use of remote
interpreting; and the use of remote reporting and electronic recording to make the official
record of an action or proceeding." (Emergency Rule 3(a)(3).)
The superior court's implementation order is not facially inconsistent with
Emergency Rule 3. Both recognize the need, and allow for the use, of remote
appearances given the ongoing state of emergency related to the COVID-19 pandemic.
Indeed, based on their reply, petitioners do not object in general to the use of remote or
telephonic hearings under Emergency Rule 3 or the related Emergency Rule 5, which
provides for personal appearance waivers by a defendant under various circumstances.
Petitioners have therefore failed to establish any basis for relief against the superior
court's implementation order itself.
In their reply, petitioners argue that the superior court has not always complied
with the consent requirement of Emergency Rule 3. The rule provides, in relevant part,
"In criminal proceedings, courts must receive the consent of the defendant to conduct the
proceeding remotely and otherwise comply with emergency rule 5. Notwithstanding
Penal Code sections 865 and 977 or any other law, the court may conduct any criminal
proceeding remotely. As used in this rule, 'consent of the defendant' means that the
consent of the defendant is required only for the waiver of the defendant's appearance as
provided in emergency rule 5." (Emergency Rule 3(a)(2); see Emergency Rule 5(b)-(c)
[describing the nature of valid consent].) Petitioners allege that some remote and
telephonic hearings have been held without the consent of the defendant and they attach
29 reporter's transcripts to their reply where such hearings have apparently proceeded
without a defendant's consent.
We normally do not consider arguments made for the first time on reply.
(Magana, supra, 22 Cal.App.5th at p. 854, fn. 2.) Here, not only did petitioners not
include any argument regarding consent in their petitions, they could not have done so
because the hearings had not yet occurred. The evidence they submit in support of their
argument was not included in their petitions and likewise did not exist until afterward.
Under these circumstances, petitioners' consent arguments are not properly before us and
we need not consider them. (Ibid.)
Moreover, petitioners have not presented a sufficiently definite controversy for
adjudication of their individual claims in this proceeding. "The ripeness requirement, a
branch of the doctrine of justiciability, prevents courts from issuing purely advisory
opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the
judiciary does not extend to the resolution of abstract differences of legal opinion. It is in
part designed to regulate the workload of courts by preventing judicial consideration of
lawsuits that seek only to obtain general guidance, rather than to resolve specific legal
disputes. However, the ripeness doctrine is primarily bottomed on the recognition that
judicial decision[-]making is best conducted in the context of an actual set of facts so that
the issues will be framed with sufficient definiteness to enable the court to make a decree
finally disposing of the controversy." (Pacific Legal Foundation v. California Coastal
Com. (1982) 33 Cal.3d 158, 170.)
30 Here, petitioners have not presented an actual set of facts specific to any defendant
who did not consent to a remote or telephonic hearing. Petitioners do not seek individual
relief for any aggrieved defendant. Instead, they seek a blanket advisory opinion on the
practices of the superior court. We cannot offer such an opinion. The infringement of a
defendant's constitutional rights, and the prejudice therefrom, cannot be determined in a
vacuum. We cannot create binding decisional law on the basis of several transcripts,
without any context, and the broad allegations of counsel. We cannot grant relief to any
specific defendant without a record of the factual and legal circumstances at issue as they
relate to that particular individual.
This conclusion is without prejudice to petitioners' ability to challenge, by petition
for writ of mandate or otherwise, any order or proceeding they claim violates their
constitutional or statutory rights. We express no opinion on the validity of any such
challenge.
31 DISPOSITION
The petitions are denied. This opinion will be final as to this court five days from
its filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Finality will not be extended by
this court's April 15, 2020 implementation order.
GUERRERO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.