by David Kim

The Supreme Court of California unanimously held that article I, section 28(f)(3) of the California Constitution does not expand the noncapital offenses for which a trial court may deny pretrial bail beyond those specified in article I, section 12, subdivisions (b) and (c). Answering a question reserved in In re Humphrey, 482 P.3d 1008 (Cal. 2021), the Court concluded that the provisions may be harmonized. Section 28(f)(3) refers to the possibility that a defendant may or may not be released and makes public and victim safety the primary considerations. Resolving a conflict among the Courts of Appeal, the Court further held that bail must be set in a reasonable amount based on the totality of the circumstances, which generally means an amount reasonably attainable for the defendant.

Background

In January 2021, Gerald John Kowalczyk attempted to pay for a hamburger at a fast-food restaurant with six credit cards, three of which belonged to people who had lost them. He was charged with felony vandalism, three counts of felony identity theft, one count of misdemeanor identity theft, and one count of misdemeanor petty theft of lost property. At arraignment, the trial court denied release on his own recognizance and set bail at $75,000.

Kowalczyk moved for release on his own recognizance or a reduction of bail, arguing that he was indigent, posed no danger, and presented minimal flight risk. The trial court denied the motion, noting his 64 prior convictions and his failure to comply with supervision while released on his own recognizance within the past five years and expressing concern that he would not appear at future proceedings. Rather than leaving bail at $75,000, the court entered a new order denying bail altogether and denied two further motions to set bail.

Kowalczyk filed a petition for writ of habeas corpus challenging the denial of bail, which the Court of Appeal dismissed as moot after he pleaded no contest to misdemeanor identity theft for time served and was released. The Supreme Court transferred the matter back with directions to address the question reserved in Humphrey. On remand, the Court of Appeal reconciled the provisions and also concluded that courts need not set bail in an amount a defendant can afford, conflicting with In re Brown, 76 Cal. App. 5th 296 (Ct. App. 2022) (bail must be affordable where money bail is reasonably necessary). Although the petition remained moot, the Court granted review as to issues likely to evade review, viz., whether the provisions can be reconciled and whether a trial court may ever set bail above a defendant’s ability to pay.

Analysis

The Court began its analysis with the text of the two provisions. Section 12 provides that a person “shall be released on bail by sufficient sureties,” subject to three exceptions, each requiring that “the facts are evident or the presumption great.” Subdivision (a) covers capital crimes. Subdivision (b) covers felony offenses involving violence or sexual assault against another person and additionally requires clear and convincing evidence of a substantial likelihood that release would result in great bodily harm to others. Subdivision (c) covers felony offenses when the court finds by clear and convincing evidence that the defendant threatened another with great bodily harm and that there is a substantial likelihood the defendant would carry out the threat if released. Section 28(f)(3), enacted in 2008 through Proposition 9, provides that “[a] person may be released on bail by sufficient sureties” and mandates that “[p]ublic safety and the safety of the victim shall be the primary considerations.” Both provisions prohibit excessive bail, and Proposition 9 did not expressly repeal section 12. The California Supreme Court had reserved on several occasions how the provisions “can or should be reconciled.” In re Harris, 550 P.3d 116 (Cal. 2024); Humphrey; In re White, 463 P.3d 802 (Cal. 2020).

The Court stated that constitutional provisions are construed under principles similar to those governing statutory construction, beginning with the ordinary meaning of the text, and must be harmonized where possible. Professional Engineers in California Government v. Kempton, 155 P.3d 226 (Cal. 2007). An implied repeal arises only where there is “no possibility of concurrent operation” or “undebatable evidence of an intent to supersede the earlier” provision. Wishnev v. The Northwestern Mutual Life Ins. Co., 451 P.3d 777 (Cal. 2019).

Harmonizing Sections 12
and 28(f)(3)

The People argued that section 12’s mandate that a defendant “shall” be released conflicts with section 28(f)(3)’s statement that a defendant “may” be released, vesting trial courts with discretion to deny bail beyond section 12’s exceptions. The Court acknowledged that “shall” is ordinarily mandatory and “may” permissive. People v. Standish, 135 P.3d 32 (Cal. 2006). But “may” also expresses possibility, and its connotation can be ambiguous, requiring attention to language, context, and history, the Court reasoned. People v. Ledesma, 939 P.2d 1210 (Cal. 1997).

The Court determined that history, text, and structure support reading section 28(f)(3) to refer only to the possibility that a defendant will or will not be released. The right to bail has been guaranteed since 1849 and was adopted “to abrogate the common law rule that bail was a matter of judicial discretion.” In re Law, 513 P.2d 621 (Cal. 1973). Unlike the 1982 initiative that proposed to repeal section 12 outright, Proposition 9 did not repeal that right, and when the voters have narrowed the right to bail, they have amended section 12 itself, the Court explained. Because section 12 states a broad right and then lists exceptions, further exemptions may not be implied under the canon expressio unius est exclusio alterius absent “a clear legislative intent to the contrary.” Lopez v. Sony Electronics, Inc., 420 P.3d 767 (Cal. 2018). The Court noted that section 12 also provides the offense categories and standards of proof governing denial of bail, while section 28(f)(3) contains none, and Humphrey itself applied section 12’s standard of proof to safety concerns arising under section 28(f)(3). Neither implied-repeal circumstance was present. Thus, the Court concluded that concurrent operation is possible, and Proposition 9’s ballot materials evince no intent to eliminate section 12’s guarantee.

The Court was unpersuaded by the People’s remaining arguments, distinguishing Standish as a case concerning competing measures presented at the same election, one of which expressly proposed to repeal section 12. Nor does the harmonizing construction render section 28(f)(3) surplusage because a defendant eligible for denial of bail under section 12 may nonetheless be granted bail, and section 28(f)(3) directs courts to weigh public and victim safety in making that determination, the Court explained. White. The trial court accordingly erred in denying bail without determining whether it could make the findings section 12 requires.

Setting Bail and the Defendant’s Financial Circumstances

Turning to the second question, the Court held that bail determinations, including the amount set, must be reasonable under the totality of the circumstances and that as a general rule, a court may not set bail in an amount objectively unattainable for the defendant. The Court reasoned that unattainable bail imposed outside the circumstances section 12 authorizes conflicts with the guarantee of release “by sufficient sureties” and would leave the findings required to deny bail with “no real force or effect.” Such bail is also excessive. A prisoner’s pecuniary ability is “a circumstance among other circumstances to be considered in fixing the amount,” though “not in itself controlling.” Ex parte Duncan, 54 Cal. 75 (1879). But bail higher than reasonably necessary to serve the purposes of bail is excessive, and courts may not use “artificially high or objectively unattainable bail as an end run to effectuate pretrial detention,” according to the Court. Finally, Humphrey had held unconstitutional, on equal protection and due process grounds, the conditioning of freedom solely on ability to pay. See Bearden v. Georgia, 461 U.S. 660 (1983).

The Court stated that pretrial “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” and a noncapital defendant may be detained only in the circumstances specified in section 12, subdivisions (b) and (c). A court may not condition release on monetary bail unless it has assessed the defendant’s financial situation, determined by clear and convincing evidence that no nonfinancial condition of release will reasonably vindicate the state’s interests, and stated its findings in the record. Where money bail is necessary, the amount must be reasonable in light of the purposes of bail and an individualized assessment of the totality of the circumstances, including protection of the public and the victim, the seriousness of the offense, the defendant’s criminal record and compliance history, the likelihood of appearance, and the defendant’s financial resources. Bail need not be easily affordable, conclusory assertions of indigency need not be accepted, and a defendant alleging an inability to pay bears the burden of supporting that allegation with reliable evidence.

The Court limited its holding in several respects. Its framework does not address “marginal hypothetical scenarios” not before the Court, including a wealthy defendant facing a significant prison term on a felony charge who is not subject to detention under section 12 but presents a threat to public or victim safety or a credible and significant flight risk. The Court also had no occasion to consider whether section 28(f)(3) is inoperative in its entirety, and it addressed pretrial bail only. The Legislature may provide further guidance within constitutional parameters.

Conclusion

Accordingly, the Court affirmed the judgment of the Court of Appeal dismissing the petition for writ of habeas corpus as moot but disapproved of that court’s reasoning to the extent it is inconsistent with the opinion. See: In re Kowalczyk, 587 P.3d 1205 (Cal. 2026).  

Subscribe today

Already a subscriber? Login