In re White ( 2018 )

Filed 3/6/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CHRISTOPHER LEE WHITE D073054
on Habeas Corpus. (San Diego County Super. Ct. No.
SCN376029)
ORIGINAL PROCEEDING in habeas corpus. Robert J. Kearney, Judge. Petition
denied.
Boyce & Schaeffer, Laura Schaefer, Robert E. Boyce and Benjamin Kington for
Petitioner.
Summer Stephan, District Attorney, Jesus Rodriguez, Assistant District Attorney,
Peter Quon, Jr., Mark A. Amador, Linh Lam and Daniel Owens, Deputy District
Attorneys for San Diego County District Attorney.
Petitioner Christopher Lee White is in custody awaiting trial on charges of
attempted kidnapping with intent to commit rape (Pen. Code, § 209, subd. (b)),1 assault
with intent to commit rape (§ 220, subd. (a)(1)), contact with a minor with intent to
1 Further statutory references are to the Penal Code unless otherwise specified.
commit a sexual offense (§ 288.3, subd. (a)), and false imprisonment (§§ 236, 237, subd.
(a)). At his preliminary hearing, White requested release on reasonable bail.
The California Constitution provides that a defendant "shall be released on bail by
sufficient sureties" unless an exception applies. (Cal. Const., art. I, § 12.) One such
exception covers "[f]elony 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 on clear and convincing evidence that there
is a substantial likelihood the person's release would result in great bodily harm to
others." (Id., art. I, § 12, subd. (b).) The trial court here recognized that it is "unusual" to
deny bail for a noncapital offense, but it nonetheless found that the exception applied.
White challenges the court's finding by petition for writ of habeas corpus.
(§ 1490.) He asserts that the court erred by finding that the constitutional exception
applied. For reasons we will explain, we disagree and deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Fifteen-year-old J.D. lived with her family near the beach in Encinitas, California.
On July 26, 2017, she was staying with friends because her family had been on vacation.
In the afternoon, she rode her bicycle to her family's house to get her surfboard and go
surfing. Across from her house she saw two men standing near a blue truck. They were
playing loud music and looked out of place. J.D. felt like they were watching her.
A woman loading her car nearby saw the two men and thought they looked
"creepy." The men were staring at her as well. She was concerned that they might
burglarize her vacation rental after she left. The woman's son thought they were being
2
"creepy" also, so he took a Snapchat video of them. He told police he was worried about
the men wanting to kidnap his younger brothers.
J.D. had a bad feeling about the men, so she went through a gate into her
neighbor's yard, hopped over the fence, and went into her garage. She later said she was
trying to prevent the men from seeing where she lived. J.D. retrieved her surfboard from
the garage, went out front, and left the surfboard in her driveway. The men were still
staring at her, which made her feel uncomfortable.
J.D. went inside, but she became concerned that someone would try to steal her
surfboard. She grabbed some surfboard wax, went back outside, and started to wax the
surfboard. The men were still standing by their truck. J.D. noticed a few people walk by,
and a surfer came up from the beach and asked to borrow some wax. This request was
normal, so J.D. agreed.
J.D. continued to wax her surfboard in the driveway. At some point, when she had
her back to the road, one of the men from the truck came up behind her and grabbed her
neck "like a pressure lock." The man—later identified as White's roommate Jeremiah
Owens—shoved J.D.'s face toward the driveway, but J.D. managed to catch herself with
her hands. Owens said, "All right. Let's do this." He tried to pull her upright and toward
the truck. J.D. repeatedly told him "no" and "stop."
J.D. managed to fight Owens off and step away from him. She saw the other
man—later identified as White—still standing by the truck, looking up and down the
street. She told Owens and White, "That's not cool. You can't do that." White said,
"We're sorry" or "Sorry," and J.D. backed away toward her house. But then, while J.D.
3
was watching them, White looked at Owens and said, "Go in the house." J.D. thought
Owens would try and attack her again.
J.D. went through the gate, locked it "as fast as [she] could," and ran into the
house. Her neighbor's dog was barking near the gate. J.D. was "really scared" and
locked both doors into the house. She thought Owens and White were going to follow
her inside. She thought they might break the lock on the gate or hop over the fence. She
was going to hide, but she heard the truck's engine start. She looked outside and saw
White in the driver's seat. Owens ran around to the passenger side. J.D. thought they
looked scared, and they drove quickly away. She started hyperventilating and crying.
She tried and eventually succeeded in calling her parents, who told her to call the police.
She called 911, and police responded.
The police began an investigation and detained White. In two interviews with
police, White denied knowing that Owens intended to attack J.D. White said Owens told
him he thought J.D. was pretty. White admitted he "might have said go and get her" to
Owens, but he said he meant go "talk to her." Owens then told him "hey watch out" or
"watch this" and walked over to J.D. White said he thought Owens was just going to talk
to her. White claimed that, when the attack began, he yelled at Owens to stop and told
J.D. he was sorry. White said Owens told him afterwards that a "primal instinct" came
over him. White was concerned that Owens had mental health issues. Forensic
examination of White's mobile phone revealed an internet search history in the days after
the attack that included the questions, "Why would someone act on their primal
4
instinct?," "How can you tell if someone you know is being brain washed?," and "What
to do if someone you know is being brainwashed?" Owens was later arrested as well.
The San Diego County District Attorney charged White and Owens with the
offenses identified above. White was arraigned, pleaded not guilty, and was detained
without bail. In advance of his preliminary hearing, White filed a written request for bail.
It alleged that he had no criminal history and was not a violent person. It was supported
by a number of letters from family and friends.
At the preliminary hearing, the court heard testimony from J.D. and several
investigating officers. After the testimony, the prosecution asked the court to find
probable cause and bind White and Owens over for trial. The prosecution believed that
Owens was the direct perpetrator and White was an aider and abettor of the attack on J.D.
The court agreed. It found J.D. to be a credible witness. As to White, it found persuasive
the following facts and inferences from J.D.'s testimony: (1) White and Owens loitered
in front of J.D.'s house without any legitimate purpose, (2) they stared at J.D. in an
abnormal manner, (3) White told Owens he should go into the house with J.D., (4) White
waited for Owens to come back from attacking J.D. and drove away with him, and
(5) White behaved like a lookout during the attack.
The court then heard White's request for bail. White's counsel argued that White
was a high school graduate, was gainfully employed as a cable installer, and had the
support of family and friends. He requested that bail be set at $50,000. Owens requested
bail as well. The prosecution opposed. As to White, it argued, "I will submit to the
Court that Mr. White did, in fact, aid and abet, encouraged this very violent crime. And I
5
believe the Court is on sound legal ground to deny bail to him. I'll submit to the Court as
to whether you would like to set bail, given the fact that he is not as culpable perhaps as
Mr. Owens in being the direct perpetrator."
The court recognized, "It would be an unusual case, in fact, it would be the quite
rare case where someone was held on a non-capital offense without bail." But the court
believed the circumstances justified remand without bail here. It explained, "In looking
at this case and the facts of the case, I do believe the facts are evident, [and] the
presumption is great. I do find by clear and convincing evidence that one defendant
inflicted the acts of violence, the other person aided and abetted in that. The Court finds
on the basis of the clear and convincing evidence that there is a substantial likelihood that
the release of either of these gentlemen would result in great bodily harm to others. I
think the individuals [sic] at threat would be J.D. herself. I also think other children, who
are the most vulnerable members of our society, would be at risk based on the conduct in
this case and what's alleged to have occur[red] in this case. So it is extremely unusual,
but I do find under these particular facts that the burden is met."
White challenged the court's remand order by petition for writ of habeas corpus in
this court. He requested that we direct the trial court to vacate the order and set
reasonable bail. We requested and received an informal response from the district
attorney. After considering the petition and the informal response, we issued an order to
show cause why the relief sought by White should not be granted. This proceeding
followed.
6
DISCUSSION
I
As noted, 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
Constitution initially contained a single exception, for "capital offenses when the proof is
evident or the presumption great." (Former Cal. Const., art. I, § 6; In re Application of
Weinberg (1918) 177 Cal. 781, 782; Ex parte Curtis (1891) 92 Cal. 188, 189; In re
Nordin (1983) 143 Cal. App. 3d 538, 543 (Nordin).) The electorate later adopted an
initiative constitutional amendment that added two additional exceptions. (Cal. Const.,
art. I, § 12, amended by initiative, Primary Elec. (June 8, 1982); see In re Bright (1993)
13 Cal. App. 4th 1664, 1667, fn. 4; Nordin, at p. 543.)
One of the added exceptions, which is at issue here, covers "[f]elony 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 on
clear and convincing evidence that there is a substantial likelihood the person's release
would result in great bodily harm to others[.]" (Cal. Const., art. I, § 12, subd. (b).)2
White challenges the trial court's findings that (1) "the facts are evident or the
2 The phrase "felony sexual assault offenses on another person" was not part of the
original exception. It was added later. (See Assem. Const. Amend. No. 37, Stats. 1994
(1993-1994 Reg. Session) res. ch. 95, approved Nov. 8, 1994.) The other added
exception covers "[f]elony 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, subd. (c).)
7
presumption great" and (2) "there is a substantial likelihood the person's release would
result in great bodily harm to others."
II
Although its phrasing is archaic, the requirement that "the facts are evident or the
presumption great" has long been held to mean simply that the evidence in the record
would be sufficient to sustain a conviction. (Nordin, supra, 143 Cal.App.3d at p. 543;
see In re Application of Weinberg, supra, 177 Cal. at p. 782; Ex parte Curtis, supra, 92
Cal. at p. 189.) Our consideration of this requirement is therefore governed by the
familiar substantial evidence standard: "When the sufficiency of the evidence to support
a conviction is challenged on appeal, we review the entire record in the light most
favorable to the judgment to determine whether it contains evidence that is reasonable,
credible, and of solid value from which a trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] Our review must presume in support of the
judgment the existence of every fact the jury could reasonably have deduced from the
evidence. [Citation.] Even where, as here, the evidence of guilt is largely circumstantial,
our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire
whether the evidence might reasonably be reconciled with the defendant's innocence.
[Citations.] It is the duty of the jury to acquit the defendant if it finds the circumstantial
evidence is susceptible to two interpretations, one of which suggests guilt and the other
innocence. [Citation.] But the relevant inquiry on appeal is whether, in light of all the
8
evidence, 'any reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.' " (People v. Zaragoza (2016) 1 Cal.5th 21, 44 (Zaragoza).)3
White is alleged to have aided and abetted Owens in the commission of the
charged offenses. " 'A person aids and abets the commission of a crime when he or she,
(i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or
purpose of committing, facilitating or encouraging commission of the crime, (iii) by act
or advice, aids, promotes, encourages or instigates the commission of the crime.' "
(People v. Hill (1998) 17 Cal. 4th 800, 851.) J.D. testified that White and Owens watched
her for an unusual length of time, making her feel uncomfortable; that White appeared to
act as a lookout for Owens; that White did not intervene during the attack but instead
encouraged Owens to take J.D. into her house; and that White waited for Owens after the
attack and drove him away. While White's statements to police denied any malicious
intent, he acknowledged discussing J.D.'s attractiveness and telling Owens to "go and get
her." Based on this record, a reasonable jury could find beyond a reasonable doubt that
White and Owens agreed that Owens would attack J.D. while White acted as his lookout.
The jury could find credible J.D.'s interpretation of White's behavior and of his statement
3 The phrase "the facts are evident or the presumption great" has the same meaning
for the trial court, so its assessment of this requirement is governed by the same
substantial evidence standard. Because sufficiency of the evidence is a legal question, we
do not defer the trial court's determination. We review the record independently to
determine whether the evidence would be sufficient to sustain a conviction. This
situation is analogous in substance to a trial court's consideration of a motion for acquittal
under section 1118.1 and our review thereof. (See People v. Houston (2012) 54 Cal. 4th
1186, 1215; People v. Whisenhunt (2008) 44 Cal. 4th 174, 200.)
9
("Get in the house") and convict him of the charged offenses on that basis. White has not
shown that the evidence in the record would be insufficient to sustain his conviction.
White points out that mere presence at the scene of a crime, or failure to intervene,
is insufficient in and of itself to constitute aiding and abetting. (See People v. Pettie
(2017) 16 Cal.App.5th 23, 57; In re Michael T. (1978) 84 Cal. App. 3d 907, 911.) But
J.D.'s testimony shows that White's participation was much greater than simply presence
at the scene or failure to intervene. A jury could reasonably infer that White acted as a
lookout during the attack and encouraged Owens to continue after J.D. first fought him
off.
While a reasonable jury could alternatively find that Owens acted independently,
as White claims, the constitutional standard requires us to consider whether the evidence
would be sufficient to sustain a conviction, presuming the existence of every fact a jury
could reasonably deduce from the evidence and resolving any conflicts in the evidence in
favor of upholding the order. (See Zaragoza, supra, 1 Cal.5th at p. 44; Nordin, supra,
143 Cal.App.3d at p. 543.) Under this standard, the evidence would be more than
sufficient to sustain White's conviction of the charged offenses—even if a reasonable
jury, viewing the evidence differently, would be justified in acquitting him.
III
The second requirement, that the court find by "clear and convincing evidence that
there is a substantial likelihood the person's release would result in great bodily harm to
others[,]" has not been defined in prior authorities. The parties have not cited, and our
10
research has not found, any published opinions discussing its meaning. We will therefore
consider the issue here.
Historically, with the exception of capital cases, bail was available to a defendant
without regard to his threat to public safety. (In re Underwood (1973) 9 Cal. 3d 345,
349–350.) The former provisions of the California Constitution prohibited applying a
public safety exception to the general right to reasonable bail. (Id. at p. 351.) In adopting
the exception at issue here, and its companion "threat" exception, the electorate abrogated
the prior rule. "In 1982, the voters were presented with a ballot measure proposing an
amendment of article I, section 12 to allow courts to deny release on bail in the interest of
public safety." (People v. Standish (2006) 38 Cal. 4th 858, 892 (conc. & dis. opn. of
Chin, J.); see id., at p. 875 (maj. opn. of George, C.J.).)
Statutory enactments confirm this focus on public safety. Section 1275 provides,
in relevant part, "In setting, reducing, or denying bail, a judge or magistrate shall take
into consideration the protection of the public, the seriousness of the offense charged, the
previous criminal record of the defendant, and the probability of his or her appearing at
trial or at a hearing of the case. The public safety shall be the primary consideration."
11
(§ 1275, subd. (a)(1).)4 "In considering the seriousness of the offense charged, a judge or
magistrate shall include consideration of the alleged injury to the victim, and alleged
threats to the victim or a witness to the crime charged, the alleged use of a firearm or
other deadly weapon in the commission of the crime charged, and the alleged use or
possession of controlled substances by the defendant." (§ 1275, subd. (a)(2).)
These statutory factors must be considered with an eye toward the ultimate
determination set forth in the California Constitution: whether there is "clear and
convincing evidence that there is a substantial likelihood the person's release would result
in great bodily harm to others." (Cal. Const., art. I, § 12, subd. (b).) The seriousness of a
charged offense involving interstate financial fraud might, for example, be directly
relevant to the amount of reasonable bail (see People v. Amata (1969) 270 Cal. App. 2d
575, 584–585), but it would be less relevant to the court's assessment of likelihood of
great bodily harm to others if the defendant were released. Similarly, the likelihood of a
defendant showing up for future hearings or trial is directly relevant to the amount of
reasonable bail, but it is relevant to the consideration of the likelihood of great bodily
4 Similar factors have appeared in the California Constitution since 1982. (Former
Cal. Const., art. I, § 28, subd. (f)(3), added by initiative, Primary Elec. (June 8, 1982).)
Our Supreme Court previously held that they did not go into effect when initially
approved because a competing initiative, which added the exception to the right to bail at
issue here, garnered more votes at the same election. (People v. Standish, supra, 38
Cal.4th at p. 877; In re York (1995) 9 Cal. 4th 1133, 1140, fn. 4 (York).) In 2008,
however, the electorate approved an initiative constitutional amendment that included the
factors at issue here, with an added emphasis on the safety of victims. (Cal. Const., art. I,
§ 28, subd. (f)(3), amended by initiative, Gen. Elec. (Nov. 4, 2008).) Because our
analysis in this opinion would not change based on consideration of these factors, we
need not consider the effect of the 2008 amendment on California's bail system.
12
harm to others only if the defendant's failure to appear would somehow increase the
likelihood of such harm.
Most relevant to the constitutional determination is evidence of violence or
infliction of bodily harm in the defendant's criminal record or in connection with the
charged offenses. Completed acts, attempts, and threats are all relevant to the court's
inquiry. A court should be particularly attuned to facts that indicate whether past
instances of violence or bodily harm were isolated events or would be expected to recur if
the defendant were released on bail.
In order to deny bail, the trial court must find a "substantial likelihood" that the
defendant's release would result in great bodily harm to others. (Cal. Const., art. I, § 12,
subd. (b).) This standard requires more than a mere possibility, and it cannot be based on
speculation about the general risk to public safety if a defendant is released. Great bodily
harm to others must be a substantial likelihood. While the term "cannot . . . be reduced to
a rigid formula susceptible to mechanical application" (Nordin, supra, 143 Cal.App.3d at
p. 543), we observe that the standard requires more than simply a violent history. The
13
trial court must be convinced that future violence amounting to great bodily injury is
substantially likely if the defendant were released on bail.5
Importantly, the trial court must make its finding of substantial likelihood by clear
and convincing evidence. (Cal. Const., art. I, § 12, subd. (b).) " ' "Clear and convincing"
evidence requires a finding of high probability.' [Citation.] The evidence must be ' "so
clear as to leave no substantial doubt"; "sufficiently strong to command the unhesitating
assent of every reasonable mind." ' " (Nordin, supra, 143 Cal.App.3d at p. 543; see In re
Angelia P. (1981) 28 Cal. 3d 908, 919.) As the trial court here recognized, it will be the
"rare" and "unusual" case where a court is able to make this finding.
Although the parties do not directly address it, an important threshold question in
this proceeding is the proper standard for our review. As the foregoing discussion shows,
the court's finding on this element is essentially factual. The court must weigh the
evidence, make credibility determinations, resolve evidentiary conflicts, and ultimately
make a factual finding regarding whether there is a substantial likelihood the defendant's
release would result in great bodily harm to others. As such, we apply the substantial
5 At oral argument, White contended that our interpretation of the constitutional
standard should be informed by the presumption of innocence. But that presumption is a
doctrine to be applied at trial; it has no application to the rights of a pretrial detainee.
(Bell v. Wolfish (1979) 441 U.S. 520, 533; York, supra, 9 Cal.4th at p. 1148.) In fact, in
bail proceedings, the historical rule has been that the defendant is presumed guilty after
indictment. "[E]xcept for the purpose of a fair and impartial trial before a petit jury, the
presumption of guilt arises against the prisoner upon the finding of an indictment against
him." (Ex parte Ryan (1872) 44 Cal. 555, 558; see Ex parte Duncan (1879) 53 Cal. 410,
411.) This presumption appears to be reflected in the language of the constitutional
requirement that the facts must be evident or the presumption—of guilt—great. (See In
re Application of Westcott (1928) 93 Cal. App. 575, 576.)
14
evidence standard of review. (See Winograd v. American Broadcasting Co. (1998) 68
Cal. App. 4th 624, 632 ["When the trial court has resolved a disputed factual issue, the
appellate courts review the ruling according to the substantial evidence rule."].) The
rationale behind this standard is clear. The trial court is better positioned to weigh the
evidence and make credibility determinations; "we have nothing but the cold, unadorned
words on the pages of the reporter's transcript." (Escobar v. Flores (2010) 183
Cal. App. 4th 737, 749.) "The cold record cannot give the look or manner of the
witnesses; their hesitations, their doubts, their variations of language, their precipitancy,
their calmness or consideration. A witness may convince all who hear him testify that he
is disingenuous and untruthful, and yet his testimony, when read, may convey a most
favorable impression." (Maslow v. Maslow (1953) 117 Cal. App. 2d 237, 243.) The trial
court is better positioned to assess the weight and credibility of the evidence. Our
deference is therefore appropriate.6
6 We disagree with Nordin, supra, 143 Cal.App.3d at page 543, to the extent it
holds that independent review is appropriate. To justify independent review, Nordin cites
In re Hochberg (1970) 2 Cal. 3d 870, 874, footnote 2, which discusses general procedural
issues applicable to petitions for habeas corpus. Hochberg explains that when an
appellate court issues an order to show cause returnable in superior court and the
petitioner challenges the superior court's decision, "the reviewing court will make its
independent examination and appraisal of the evidence that was taken in the superior
court." (Ibid.) Hochberg does not speak to the myriad other situations where habeas
review arises and other standards are used. We likewise do not believe that review for
abuse of discretion is appropriate. Although the trial court's decision regarding the
amount of bail is discretionary (In re Christie (2001) 92 Cal. App. 4th 1105, 1107), the
decision to remand a defendant without bail depends on a specific factual showing. We
review this factual showing for substantial evidence.
15
As discussed above, our review for substantial evidence is limited in scope. We
must view the record in the light most favorable to the court's order, presume the
existence of every fact the court could reasonably have deduced from the evidence, and
resolve any conflicts in the evidence in favor of upholding the order. (Zaragoza, supra, 1
Cal.5th at p. 45.) And, while reasonable inferences based on the evidence will support
the court's order, unreasonable inferences or speculation will not. " 'While substantial
evidence may consist of inferences, such inferences must be "a product of logic and
reason" and "must rest on the evidence" [citation]; inferences that are the result of mere
speculation or conjecture cannot support a finding [citations.].' " (Kasparian v. County of
Los Angeles (1995) 38 Cal. App. 4th 242, 260; see People v. Morris (1988) 46 Cal. 3d 1,
21.)
While the trial court must be satisfied that the evidence supporting its finding is
clear and convincing, we do not make the same determination. "That standard was
adopted . . . for the edification and guidance of the trial court, and was not intended as a
standard for appellate review. 'The sufficiency of evidence to establish a given fact,
where the law requires proof of the fact to be clear and convincing, is primarily a
question for the trial court to determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal.' " (Crail v. Blakely (1973)
8 Cal. 3d 744, 750; see In re Mark L. (2001) 94 Cal. App. 4th 573, 580–581.) The ultimate
question for a reviewing court is whether any reasonable trier of fact could have made the
challenged finding by clear and convincing evidence. (See Zaragoza, supra, 1 Cal.5th at
p. 45.)
16
Based on the record, the trial court could reasonably have inferred that Owens did
not act alone, that White and Owens considered and planned the attack on J.D. over an
extended period of time, that White acted as Owens's lookout and encouraged him to
continue the attack after J.D. initially fought him off, and that White facilitated Owens's
flight from the scene by driving him quickly away. The trial court could have found
persuasive J.D.'s interpretation of White's statement, "[g]et in the house," as directed to
Owens and encouraging him to continue the attack out of public view. Based on the
circumstances of the attack, the court could reasonably infer that Owens and White were
highly dangerous. Their attack was deliberate, it occurred during the day on a heavily
trafficked street, and it targeted a vulnerable stranger. They worked in concert to increase
the odds of the attack's success. And although the attack was not completed, the trial
court could reasonably infer that Owens intended to rape J.D., a devastatingly harmful
injury, and White knew it.
Although such an attack can never be fully explained, the facts show no reason
why J.D. in specific was targeted. The criminal intent that led to the attack could apply to
any stranger. The trial court could therefore reasonably infer that White would likely
attack again, either alone or in concert with another, if released on bail.
We acknowledge that White did not have a criminal record, he had established
positive relationships with other individuals in his life, and he denied the allegations
against him formally and in interviews with police. The charged offenses alleged
violence against a single person, and they did not in fact result in great bodily harm.
17
Viewed as a whole, and even given our deferential standard of review, this record
tests the bounds of what would sustain an order remanding a defendant without bail under
the California Constitution. But, after thorough consideration, we conclude the evidence
is sufficient to support the remand order here. The trial court could reasonably find that
White acted so brazenly, so inexplicably, and so without regard for the laws and norms of
society that there would be a substantial likelihood that his release would result in great
bodily harm to others.
The trial court here found a substantial likelihood of great bodily harm to J.D.
specifically and to other children in general. Because the record supports the trial court's
finding that White's release would result in great bodily harm to others, we need not
consider whether the evidence supported a finding of great bodily harm to J.D.
specifically.7 As explained above, based on the testimony of J.D. and the statements of
others who observed White and Owens, the court could reasonably find that White and
Owens deliberated over the attack over an extended period of time, that White agreed to
act as a lookout during the attack, that White encouraged Owens to continue attacking
J.D. by telling him to "[g]et in the house" even after she fought Owens off, and that
White facilitated Owens's flight after the attack occurred. In addition to these facts, the
court could reasonably view the circumstances of the attack as highly unusual. Owens
7 We note, however, that there was no evidence J.D. was specifically targeted or
that she remained specifically under threat. Instead, the record shows that the risk of
great bodily harm caused by White's release is to strangers, rather than a specific person
known to White.
18
and White loitered on a well-trafficked street near the beach while watching J.D. It was
daytime. People passed by, including one surfer who talked with J.D. Unrelated
witnesses saw Owens and White, described them as "creepy," and worried that they
would kidnap children. Despite the likelihood that someone would see them, they
perpetrated a brazen attack on J.D.—and White specifically wanted the attack to
continue. The trial court could reasonably find that the criminal impulse shared by
Owens and White was so strong that White, either alone or in concert with another,
would attack again if he were released. The evidence therefore supports the trial court's
finding that there would be a substantial likelihood that White's release would result in
great bodily harm to others.
White claims that his role was "limited" and the crime was "spontaneous." But the
trial court could have reasonably found the opposite, as we discuss above. White argues
that his statements to police were exculpatory, but the trial court could reasonably have
found that White was not credible and was intent on minimizing his responsibility for the
crime. The court could instead have inferred from White's admissions that he knew more
19
about Owens's actions than he acknowledged. White has not shown that the evidence did
not support the court's order.8
8 Relying on United States v. Salerno (1987) 481 U.S. 739 (Salerno) and the recent
opinion in In re Humphrey (2018) 19 Cal.App.5th 1006 (Humphrey), White appears to
contend that the trial court was required to make a finding that no bail conditions or
combination of bail conditions would be sufficient to protect public safety before
ordering remand. We disagree. Salerno considered the constitutionality of a recently
enacted federal bail statute, which allowed pretrial detention without bail under certain
circumstances. (Salerno, at p. 741.) Salerno found the statute constitutional: "When the
Government proves by clear and convincing evidence that an arrestee presents an
identified and articulable threat to an individual or the community, we believe that,
consistent with the Due Process Clause, a court may disable the arrestee from executing
that threat." (Id. at p. 751.) Although the statute requires a federal trial court to find that
"no condition or combination of conditions will reasonably assure the appearance of the
person as required and the safety of any other person and the community" before a
defendant may be detained without bail, it does not apply to state court proceedings. (18
U.S.C. § 3142(e)(1); Salerno, at p. 742.) And Salerno did not imply that such a finding is
required in state courts as a matter of federal constitution law. White has not shown it
must be applied here. Humphrey considered whether and under what circumstances a
trial court could constitutionally impose a bail requirement that exceeded a defendant's
ability to pay. (Humphrey, at pp. 1015–1016.) It held that "a court which has not
followed the procedures and made the findings required for an order of detention must, in
setting money bail, consider the defendants ability to pay and refrain from setting an
amount so beyond the defendant's means as to result in detention." (Id., at p. 1037.) If
the court finds that it must impose money bail in excess of the defendant's ability to pay,
it must consider whether there are any less restrictive alternatives that would ensure his or
her future court appearances. (Ibid.) Here, because the court did follow the procedures
and make the constitutional findings required for an order of detention, and did not set
money bail, Humphrey is inapposite.
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DISPOSITION
The petition is denied.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
IRION, J.
21