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California Court of Appeal: Trial Court Violated Humphrey by Setting High Bail Without Considering Financial Condition of Defendant or Nonfinancial Conditions of Release

by Matt Clarke

The Court of Appeal of California, Second Appellate District, held the trial court erred by setting bail at an amount it knew the defendant was unable to post and failing to consider nonfinancial conditions of release for the purpose of pretrial detention in violation of In re Humphrey, 482 P.3d 1008 (Cal. 2021).

In 2019, Kernell Brown was charged with multiple sex-related crimes involving two children. His bail was ultimately set a $2.45 million.

On March 25, 2021, the California Supreme Court issued Humphrey, in which it held that it’s unconstitutional to condition pretrial release from custody exclusively on whether the arrestee can afford bail. The Humphrey Court instructed that when a monetary condition is necessary because nonmonetary conditions of release aren’t sufficient to protect the safety of the public and victim and to ensure the arrestee’s appearance at trial, the trial court “must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” The Humphrey Court stated that an arrestee’s continued pre-trial detention cannot depend on the arrestee’s financial condition.

Several weeks after Humphrey was issued, Brown filed a pro se motion to be released on his own recognizance or alternatively to reduce bail to no more than $1,000, arguing that he’s indigent and would agree to nonfinancial conditions of release such as electronic monitoring, community housing, home detention, treatment and education programs, a pretrial case manager, and a protective order.

The trial court heard arguments on Brown’s motion, but at the outset of the hearing, the court declared that Humphrey was inapplicable because it doesn’t apply to cases where the defendant is charged with a serious and violent felony. The court also stated that Humphrey doesn’t overrule § 1275, which requires a finding of unusual circumstances to set bail below the county bail schedule. The court denied Brown’s motion, concluding that there weren’t any unusual circumstances justifying a deviation from the bail schedule.

Brown subsequently petitioned the Court of Appeal for a writ of mandate to overturn the trial court’s ruling, which the Court treated as a petition for writ of habeas corpus. See Berman v. Cate, 187 Cal. App. 4th 885 (2010).

The Court began its discussion by reviewing Humphrey and noting that in that opinion the California Supreme Court “undertook a fundamental reexamination of the use of money bail as a means of pretrial detention.” After doing so, the Court stated that the trial court “misunderstood its scope and, accordingly, deprived Brown of his right to a bail determination that complied with the Supreme Court’s decision.”

First, the Court stated that the trial court incorrectly believed that Humphrey is inapplicable in cases involving serious or violent felonies, pointing out that nothing in the opinion supports that limitation. In fact, the defendant in Humphrey was charged with both a serious and a violent felony, so those very types of charges were at issue in Humphrey.

Second, the trial court failed to consider any of the nonfinancial conditions proposed by Brown, as required by Humphrey once a defendant is deemed a flight risk or danger to public or victim safety, according to the Court. Consequently, the trial court couldn’t have determined that less restrictive alternatives to pretrial detention were insufficient to reasonably protect the public or victim.

Third, the Court stated that the trial court’s belief that Humphrey requires consideration of the defendant’s financial condition and ability to pay only if there’s a reason to deviate from the bail schedule is actually the opposite of what Humphrey requires. The Court explained: “Under Humphrey, the amount specified in the bail schedule … is appropriate only if the court first determines the arrestee can afford to post it.”

Finally, the Court rejected the trial court’s setting bail for Brown at an amount that it knew was impossible for him to post, which is the very situation the Humphrey Court held to be unconstitutional. Although the Humphrey Court acknowledged that there are cases where only pretrial detention will suffice, the trial court in such cases must explain its reasons on the record and include them in the court’s minutes. In the present case, the trial court failed to explain its reasoning for Brown’s pretrial detention; the only record regarding Brown’s motion by the trial court is that his motion was “filed, argued and denied by the court.”

Thus, the Court held that the trial court failed to comply with Humphrey by either modifying bail to an amount Brown could post or satisfactorily explaining the need for a pretrial detention order and that Brown is entitled to a new hearing on his motion.

Accordingly, the Court granted Brown’s petition and instructed the trial court to consider his motion consistent with Humphrey and this opinion. See: In re Brown, 76 Cal. App. 5th 296 (2022).  


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