In re Harris ( 2021 )


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  • Filed 11/29/21
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    In re JOHN HARRIS JR.,                       A162891
    on Habeas Corpus.
    (San Mateo County
    Super. Ct. No. 21-NF-002568-A)
    Petitioner John Harris Jr. filed this petition for writ of habeas corpus
    challenging the trial court’s decision denying him bail. He argues that (1) the
    court failed to comply with various standards articulated in In re Humphrey
    (2021) 
    11 Cal.5th 135
     (Humphrey); (2) insufficient evidence supported the
    denial of bail under the standards articulated in Humphrey and article I,
    section 12, subdivision (b) of the California Constitution; and (3) the court
    abused its discretion in denying bail. He also requests attorney fees and
    costs pursuant to Code of Civil Procedure section 1021.5. We conclude a
    remand is necessary because the court erred in failing to set out reasons on
    the record why less restrictive alternatives to detention could not reasonably
    protect the government’s interests in public or victim safety, and in failing to
    include those reasons in the minutes.
    FACTUAL AND PROCEDURAL BACKGROUND
    Petitioner, now in his mid-fifties, is implicated as the perpetrator of a
    violent rape that occurred in March 1989. The underlying facts are detailed
    below.
    1
    The victim woke up in her apartment with scarves tied around her
    ankles. The perpetrator had scarves tied around his own forehead and
    mouth, and he tied bandanas tightly around the victim’s eyes and neck. The
    perpetrator raped the victim, after which he strangled her and sawed and
    slashed at her neck with a serrated knife. As the perpetrator struggled with
    the victim he threatened to cut out her eye and tried to stab her repeatedly in
    the back but was unsuccessful due to the bluntness of the knife. The victim
    pleaded with the perpetrator to leave, saying that she would count to 100
    before calling the police, but defendant responded that he could not trust her
    not to call police. She then told him he could unplug the phone to slow her
    down. Ultimately, the victim managed to convince him to leave. The
    perpetrator left several scarves behind at the crime scene, including one with
    a floral design and border. The perpetrator’s deoxyribonucleic acid (DNA)—
    obtained from one of the scarves at the crime scene and a vaginal swab from
    the victim—was found to match petitioner’s.
    In February 2021, the People filed a complaint charging petitioner with
    attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664,
    subd. (a), 187, subd. (a), 189) 1, and aggravated mayhem (§ 205). As to both
    counts, the People alleged petitioner used a deadly or dangerous weapon, a
    knife. As to the attempted murder count alone, the People alleged petitioner
    inflicted great bodily injury.
    The same day the complaint was filed, the trial court appointed counsel
    and set bail at $5 million. Bail was set despite the fact the probation
    department submitted a “pretrial services court report” indicating that
    1     All further statutory references are to the Penal Code unless otherwise
    indicated.
    2
    petitioner appeared to be an appropriate candidate for release on his own
    recognizance with enhanced monitoring. 2
    On April 16, 2021, petitioner filed a bail motion. Relying on Humphrey,
    supra, 
    11 Cal.5th 135
    , petitioner argued he should be released on his own
    recognizance because he is indigent, and there is no indication he is a flight
    or safety risk. Petitioner also contended he was not a risk to public safety
    because the alleged crimes occurred over 32 years ago; he had not threatened
    or tried to contact the victim since the alleged crime; and he had a limited
    criminal history in the interim years. Moreover, he noted, he had community
    ties and the pretrial services court report indicated he should be released
    with nonfinancial conditions. Petitioner’s attorney filed a declaration in
    support of the motion stating, on information and belief, that petitioner is
    indigent and unable to afford bail, as set.
    The People opposed the motion and made the following proffers of
    evidence. In addition to the aforementioned circumstances underlying the
    offenses, which were recounted by the victim, the doctor who treated the
    victim after the incident observed that the laceration to her throat was four
    to five inches long and four to six millimeters deep. Had the cut been “ ‘a hair
    more’ ” it would have severed the victim’s jugular and likely caused her
    death.
    2     According to the report, petitioner could not be interviewed due to
    Covid-19 restrictions but petitioner received a favorable pretrial assessment
    score based on a calculation of eight factors, i.e., whether he: (1) was on
    active community criminal justice supervision; (2) had been charged with
    “felony drug, theft or fraud”; (3) had pending charges; (4) had a criminal
    history; (5) had two or more failures to appear; (6) had two or more violent
    convictions; (7) was unemployed at the time of arrest; and (8) had a history of
    drug abuse. Of these factors, petitioner responded affirmatively only to
    having a criminal history, and so he scored 2 out of a potential 14 points.
    3
    Furthermore, one of petitioner’s ex-wives told a prosecution
    investigator that petitioner kept a collection of scarves in their garage, and
    that he told her he used them “for tying arms and legs on the posts.” One ex-
    girlfriend told an investigator that petitioner liked to tie her up with scarves
    and blindfold her, and that their role-playing during sex included his
    pretending to be a rapist breaking into her home. She said this type of
    behavior occurred two to three times a month over the course of their 10-year
    relationship.
    Another ex-girlfriend—who met petitioner in September 2019—
    reported that when they started dating he told her of his sexual fetish
    associated with scarves and asked her to buy scarves with a border and floral
    pattern in the middle. Once when she purchased a scarf, he said it was the
    wrong kind and told her to buy the “correct one.” Petitioner then used the
    scarves to tie her to the bed and gag her, and he requested that she send him
    photos of herself bound to the bed with scarves.
    Another woman who married petitioner in mid-2020 reported that
    within their first year of marriage, petitioner was drunk and told her that a
    “ ‘girl crawled into my bed naked and you’re not going to lay in my bed naked
    and not give me any. So she tried to say I raped her.’ ” She also reported
    that petitioner placed a scarf over her mouth and eyes on several occasions.
    Yet another woman who met petitioner on an online dating website in late
    2020 received several scarves from him in the mail; although she was
    uninterested in him, she kept one scarf that had a floral design with a border.
    The People noted that although petitioner’s criminal history consisted
    of relatively minor convictions—one in 1998 for misdemeanor driving without
    a license (Veh. Code, § 12500, subd. (a)), and another in 1991 for
    misdemeanor theft (§ 484)—the theft conviction involved petitioner snatching
    4
    a scarf from the neck of a female stranger and then running away. Petitioner
    claimed he grabbed the scarf to satisfy his anger and frustration because he
    was having emotional and personal problems.
    Based on the above proffers, the People argued petitioner posed a
    danger to the alleged crime victim and public safety if released, as well as a
    flight risk since he is facing life terms. Emphasizing the gravity of the
    charged offenses and petitioner’s ongoing scarf fetish, the People argued
    there were no nonfinancial conditions of release that could protect the victim
    or ensure petitioner’s presence at trial. Consequently, the People urged the
    trial court to retain bail in the $5 million amount set or, in the alternative,
    deny bail pursuant to article I, section 12, of the California Constitution
    (hereafter section 12).
    On April 20, 2021, the trial court held a hearing on the bail motion.
    Through counsel, petitioner argued he could not afford bail as set and asked
    for release on his own recognizance with various nonfinancial conditions, e.g.,
    a no contact order with the victim, limitation of his use of dating websites,
    and Global Positioning System (GPS) tracking. Petitioner also argued that
    bail could not be denied because the People’s mere “proffers” of evidence were
    insufficient to meet the “clear and convincing evidence” standard. The People
    disagreed, countering that proffers of evidence are sufficient to support a bail
    determination and that, per Humphrey, the court had to assume the truth of
    the charges. The victim appeared during the hearing and expressed great
    fear for her safety and the safety of those close to her should petitioner be
    released.
    Ultimately, the trial court denied petitioner bail under section 12. The
    court found that Humphrey did not require live testimony and concluded:
    (1) the charged felony offenses involved acts of violence on another person;
    5
    and (2) based on the People’s proffer, there is clear and convincing evidence of
    a substantial likelihood that petitioner’s release would result in great bodily
    harm to others.
    DISCUSSION
    “Habeas corpus is an appropriate vehicle by which to raise questions
    concerning the legality of bail grants or deprivations. [Citations.] In
    evaluating petitioner’s contentions, this court may grant relief without an
    evidentiary hearing if the return admits allegations in the petition that, if
    true, justify relief. [Citations.] On the other hand, we may deny the petition,
    without an evidentiary hearing, if we are persuaded the contentions in the
    petition are without merit.” (In re McSherry (2003) 
    112 Cal.App.4th 856
    ,
    859–860.)
    We proceed by “applying the substantial evidence test to pure questions
    of fact and de novo review to questions of law. [Citation.] ‘[W]hen the
    application of law to fact is predominantly legal, such as when it implicates
    constitutional rights and the exercise of judgment about the values
    underlying legal principles, [the appellate] court’s review is de novo.’ ” (In re
    Taylor (2015) 
    60 Cal.4th 1019
    , 1035; In re Collins (2001) 
    86 Cal.App.4th 1176
    , 1181.)
    A. General Legal Standards
    The court in this case denied bail under section 12(b), which provides a
    constitutionally based exception to the general rule that a defendant charged
    with a noncapital offense is entitled to bail. (In re White (2020) 
    9 Cal.5th 455
    ,
    462 (White).) Section 12(b) provides: “A person shall be released on bail by
    sufficient sureties, except for: [¶] . . . [¶] (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
    6
    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.”
    In Humphrey, supra, 
    11 Cal.5th 135
    , the California Supreme Court
    “sketch[ed] the general framework governing bail determinations.” (Id. at
    p. 152.) There, the petitioner had been charged with first degree residential
    robbery and burglary, infliction of injury on an elder adult, and misdemeanor
    theft from an elder adult. (Id. at pp. 143–144.) At his arraignment, the
    petitioner requested release on his own recognizance, citing his advanced age,
    his community ties, and his unemployment and financial condition. (Id. at
    p. 144.) Without inquiring into the petitioner’s ability to pay, the trial court
    ultimately set bail at sums the petitioner could not afford. (Id. at p. 148.)
    The Court of Appeal reversed the trial court’s bail order and remanded for a
    new hearing with consideration of the petitioner’s ability to post bail and
    consideration of less restrictive alternatives in the event he could not afford
    bail. (Id. at p. 156.) The Supreme Court affirmed. As relevant here,
    Humphrey held: “An arrestee may not be held in custody pending trial unless
    the court has made an individualized determination that . . . detention is
    necessary to protect victim or public safety, or ensure the defendant’s
    appearance, and there is clear and convincing evidence that no less
    restrictive alternative will reasonably vindicate those interests.” (Id. at pp.
    139–140.) Put another way, “detention is impermissible unless no less
    restrictive conditions of release can adequately vindicate the state’s
    compelling interests.” (Id. at pp. 151–152.)
    Petitioner argues that before denying bail, the trial court was required
    under Humphrey to find clear and convincing evidence that no nonfinancial
    condition—i.e., no less restrictive alternative than detention—would protect
    the state’s interests in victim or public safety or ensuring his appearance, and
    7
    that the court erroneously failed to do so. Neither the San Mateo County
    District Attorney, appearing as respondent, nor the Attorney General,
    appearing as amicus curiae, disputes this. To the contrary, both acknowledge
    the court was required to make a finding on this point.
    We likewise agree. Although Humphrey involved a claim of excessive
    bail and not a denial of bail under section 12(b) as here, the generality with
    which Humphrey laid out the foregoing requirement—without resolving
    whether section 12 and section 28, subdivision (f)(3) of article I of the
    California Constitution “can or should be reconciled” 3 (Humphrey, at p. 155,
    3      In brief, the facts underlying this unresolved issue are as follows. In
    1982, the voters enacted Proposition 4, which amended section 12 regarding
    bail. (People v. Barrow (1991) 
    233 Cal.App.3d 721
    , 722.) The same year, the
    voters also passed Proposition 8, which contained competing provisions
    regarding bail. (People v. Standish (2006) 
    38 Cal.4th 858
    , 877.) Specifically,
    “Proposition 8 proposed to repeal . . . section 12 and substitute article I,
    section 28, subdivision (e). The proposed subdivision was entitled ‘Public
    Safety Bail.’ ” (Standish, at p. 874; Ballot Pamp., Primary Elec. (June 8,
    1982) text of Prop. 8, §§ 2–3, p. 33.) The California Supreme Court
    subsequently held that “the amendments to . . . section 12 proposed by
    Proposition 4 took effect, and that the provisions of article I, section 28,
    subdivision (e) proposed by Proposition 8 did not take effect” because
    Proposition 4 garnered more votes than Proposition 8. (Standish, at p. 875,
    877–878; In re York (1995) 
    9 Cal.4th 1133
    , 1140, fn. 4, citing Cal. Const.,
    art. II, § 10, subd. (b).) Then, in 2008, voters passed Proposition 9, which
    enacted as article I, section 28, subdivision (f)(3), provisions nearly identical
    to Proposition 8’s Public Safety Bail provisions. (Compare Voter Information
    Guide, Gen. Elec. (Nov. 4, 2008) text of Prop. 9, § 4.1, p. 130, with Ballot
    Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, § 3, p. 33.) Proposition 9,
    however, did not propose to repeal section 12. (Voter Information Guide,
    Gen. Elec. (Nov. 4, 2008) text of Prop. 9.)
    Here “we need not decide what role, if any, [article I, section 28,
    subdivision (f)(3)] has in the decision to deny bail under article I,
    section 12(b)” because, as in the White decision, the trial court below relied on
    section 12 and any “concerns about victim safety would only reinforce the
    trial court’s decision to deny bail.” (White, supra, 9 Cal.5th at p. 470.)
    8
    fn. 7)—reasonably indicates the Supreme Court’s contemplation that its
    holding applies to all orders for pretrial detention under section 12(b). (See
    Humphrey, at pp. 152, 154, 156.)
    B. Application of the Standards
    Having identified the legal standards applicable to the trial court’s
    decision to deny bail, we proceed to examine petitioner’s arguments about
    how such standards may be satisfied, and whether they were satisfied here.
    1. Proffered Evidence
    Petitioner first claims the applicable clear and convincing evidence
    standard cannot be met based on proffers of evidence. Citing the statutory
    definitions of “evidence,” “preliminary fact,” and “proffered evidence,” (Evid.
    Code, §§ 140, 400, 401, respectively), petitioner contends section 12 and
    Humphrey require that the People present “actual evidence” to support a bail
    denial. In other words, only evidence that would be admissible at a formal
    trial can support pretrial detention. Petitioner also suggests that pretrial
    detention based on proffered evidence violates due process. We are not
    persuaded.
    Evidence Code section 140 generally defines the term “ ‘[e]vidence’ ” as
    “testimony, writings, material objects, or other things presented to the senses
    that are offered to prove the existence or nonexistence of a fact.” Evidence
    Code section 400 defines “ ‘preliminary fact’ ” as “a fact upon the existence or
    nonexistence of which depends the admissibility or inadmissibility of
    evidence.” Evidence Code section 401 defines “ ‘proffered evidence’ ” as
    “evidence, the admissibility or inadmissibility of which is dependent upon the
    existence or nonexistence of a preliminary fact.” (Italics added.) Nothing in
    these statutes indicates that the word “evidence”—as used in section 12—
    denotes only evidence that is admissible at a formal trial. Notably, section 12
    9
    itself makes no mention of a requirement that evidence be presented in
    accord with all the formal rules of evidence for admissibility at a trial. 4
    Significantly, in the analogous context of the federal Bail Reform Act
    (
    18 U.S.C. § 3141
     et seq.), a proffer of evidence that does not meet the rules
    for admissibility at trial can satisfy the clear and convincing evidence
    standard, and federal decisions hold or otherwise recognize that proceeding
    by proffer does not violate due process. As relevant here, the federal act
    provides: “The rules concerning admissibility of evidence in criminal trials do
    not apply to the presentation and consideration of information at the [pretrial
    detention] hearing. The facts the judicial officer uses to support a finding . . .
    that no condition or combination of conditions will reasonably assure the
    safety of any other person and the community shall be supported by clear and
    convincing evidence.” (
    18 U.S.C. § 3142
    (f).) The United States Supreme
    Court has upheld the facial validity of the act’s detention procedures (United
    States v. Salerno (1987) 
    481 U.S. 739
    , 746–747, 751–752 (Salerno)), and other
    federal decisions have specifically upheld the propriety and validity of
    permitting the government to proceed by proffer (e.g., United States v. Smith
    (D.C. Cir. 1996) 
    79 F.3d 1208
    , 1210; United States v. Gaviria (11th Cir. 1987)
    
    828 F.2d 667
    , 669; United States v. Cardenas (9th Cir. 1986) 
    784 F.2d 937
    ,
    938; United States v. Delker (3d. Cir. 1985) 
    757 F.2d 1390
    , 1395–1396; United
    States v. Acevedo-Ramos (1st Cir. 1985) 
    755 F.2d 203
    , 207–208.)
    In rejecting the contention that the procedures of the Bail Reform Act
    violate due process, Salerno explained: “Detainees have a right to counsel at
    the detention hearing. [Citation.] They may testify in their own behalf,
    4     Petitioner’s seeming reliance on Humphrey is also unavailing. The
    question of whether proffered evidence can support a denial of bail was
    neither presented nor discussed in Humphrey.
    10
    present information by proffer or otherwise, and cross-examine witnesses
    who appear at the hearing. [Citation.] The judicial officer charged with the
    responsibility of determining the appropriateness of detention is guided by
    statutorily enumerated factors, which include the nature and the
    circumstances of the charges, the weight of the evidence, the history and
    characteristics of the putative offender, and the danger to the community.
    [Citation.] The Government must prove its case by clear and convincing
    evidence. [Citation.] Finally, the judicial officer must include written
    findings of fact and a written statement of reasons for a decision to detain.
    [Citation.] The Act’s review provisions . . . provide for immediate appellate
    review of the detention decision. [¶] We think these extensive safeguards
    suffice to repel a facial challenge.” (Salerno, 
    supra,
     481 U.S. at pp. 751–752,
    italics added.)
    Salerno and the foregoing federal cases would seem to foreclose a
    federal constitutional due process challenge to the sufficiency of proffers in
    bail hearings, at least where, as here, procedural safeguards are provided
    similar to those provided in the federal context. In line with the procedural
    safeguards discussed in Salerno, here petitioner had counsel at his bail
    hearing. Additionally, there is no indication in the record that the trial court
    disallowed defendant from testifying or presenting evidence (by proffer or
    otherwise); to the contrary, the court allowed defense counsel to present
    information by way of her own statements and representations, such as about
    petitioner’s indigency, employment, appearance history, and performance on
    probation. The trial court was guided by similarly enumerated factors, and
    the burden of proof was by clear and convincing evidence. (See Cal. Const.,
    art. I, § 12; Pen. Code, § 1275, subd. (a); Humphrey, supra, 11 Cal.5th at
    p. 152.) The court was obligated to provide a statement of reasons for the
    11
    detention, included in writing in the court’s minutes (Humphrey, at pp. 155–
    156; see part B.3(b), post), and the decision was subject to immediate review
    (§§ 1270.2, 1490). Accordingly, we cannot agree with petitioner’s suggestion
    that reliance on proffers of evidence categorically renders a bail decision
    invalid under federal due process principles. 5
    Moreover, petitioner provides no legal authority or argument
    supporting the notion that a state due process analysis would yield a
    different result. 6 The language of the federal and state due process
    guarantees are “virtually identical,” and so California courts look “to the
    United States Supreme Court’s precedents for guidance in interpreting the
    contours of our own due process clause and have treated the state clause’s
    prescriptions as substantially overlapping those of the federal Constitution.”
    (Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 
    57 Cal.4th 197
    , 212.) “With a minor modification, we have adopted the Mathews
    [v. Eldridge (1976) 
    424 U.S. 319
    ] balancing test as the default framework for
    analyzing challenges to the sufficiency of proceedings under our own due
    process clause. The first three factors—the private interest affected, the risk
    of erroneous deprivation, and the government's interest—are the same.
    5     As indicated, Salerno referred to the procedural safeguards in the Bail
    Reform Act as “extensive.” (Salerno, supra, 481 U.S. at p. 752.) Given the
    lack of adequate briefing on this issue, we do not consider or decide whether
    and which of those federal safeguards may be necessary to defeat a due
    process challenge. Nor do we suggest that all such safeguards are required to
    repel a due process challenge.
    6     Petitioner attempts to distinguish Salerno on the ground that the
    federal Bail Reform Act specifically allows for the use of proffers at bail
    proceedings, but fails to explain why the source of the practice of using
    proffers is relevant. Petitioner also points out that section 12 requires clear
    and convincing evidence, but the same is true in the federal act. (
    18 U.S.C. § 3142
    (f); Salerno, 
    supra,
     481 U.S. at p. 750.)
    12
    [Citations.] In addition, we may also consider a fourth factor, ‘ “the dignitary
    interest in informing individuals of the nature, grounds, and consequences of
    the action and in enabling them to present their side of the story before a
    responsible government official.” ’ ” (Ibid.) “[C]ogent reasons must exist
    before a state court in construing a provision of the state Constitution will
    depart from the construction placed by the Supreme Court of the United
    States on a similar provision in the federal Constitution.” (Gabrielli v.
    Knickerbocker (1938) 
    12 Cal.2d 85
    , 89; see, e.g., Mohilef v. Janovici (1996) 
    51 Cal.App.4th 267
    , 285, fn. 16.) Petitioner offers no such cogent reasons here,
    and we perceive no legal or logical reason why state due process principles
    require such a departure in this context.
    Contrary to petitioner’s contention, Naidu v. Superior Court (2018) 
    20 Cal.App.5th 300
     (Naidu) does not compel a different result. There, the
    petitioners were criminally charged with fraudulent use of a contractor’s
    license and released on their own recognizance (O.R.), but the trial court
    ordered a suspension of their licenses from the California Contractors State
    License Board (Board) as a condition of O.R. release. (Naidu, at p. 305.)
    Analyzing the petitioners’ challenge to that condition using due process
    balancing inquiries, Naidu concluded both federal and state due process
    clauses required that “at least some evidence of danger to the public support
    an order suspending a business license as part of a bail order.” (Id. at
    pp. 305, 311–313, italics added.) Naidu then concluded no such evidence was
    presented, indicating the Board “submitted very little that might even be
    construed as evidence that the public would be in danger if petitioners
    retained use of their business license.” (Ibid.) As Naidu recounted, the
    Board’s legal brief asserted that the petitioners exhibited a profound lack of
    judgment, a flagrant disrespect for the health and safety of others, and a
    13
    violation of trust accorded to contractors, but the court concluded such
    statements by counsel were not evidence sufficient to support license
    suspension. (Ibid.) The court observed the only “admissible” evidence
    presented in support of the Board’s assertion was a declaration of counsel
    that amounted to “no more” than a restatement of the Board’s litigation
    position and “its belief that it would be beneficial if the trial court suspended
    petitioners’ license.” (Ibid.) But this “[did] not constitute evidence that
    petitioners pose[d] such a danger to the public that suspending their business
    licenses was necessary.” (Ibid.)
    True, Naidu expressly spoke of the need for “actual evidence regarding
    the danger petitioners allegedly pose to the public” before a court can order
    suspension of a business license as part of a bail order (Naidu, supra, 20
    Cal.App.5th at p. 312.) But Naidu did not involve a section 12(b) offense, and
    there is no indication the trial court there was prepared to require pretrial
    detention in the absence of a license suspension condition. Moreover, Naidu
    did not address the federal case law upholding the federal constitutional
    validity of relying on proffers in the pretrial detention context; nor did it
    consider whether due process principles would preclude pretrial detention
    based on a reliable proffer of evidence.
    In discussing Naidu, petitioner does not analyze whether the
    competing interests in a due process analysis regarding a decision to suspend
    a business license as a condition of release on bail (or O.R. release) are
    comparable to the interests involved in a pretrial detention decision under
    section 12(b)—particularly the state’s interests—including administrative
    and fiscal burdens. For example, he does not address whether cases
    involving the potential suspension of a business license as a condition of
    pretrial release are as common as those wherein pretrial detention decisions
    14
    implicate substantial harm to public or victim safety, or whether the burdens
    of categorically requiring admissible evidence would be the same or similar
    when license suspensions are not at issue. Indeed, we note such burdens
    would fall not just on the People, but also on criminal defendants and defense
    attorneys when presenting information at a bail hearing. Moreover,
    detention orders—which are interim rulings—can be undone relatively
    quickly upon a showing of changed circumstances. (In re Alberto (2002) 
    102 Cal.App.4th 421
    , 426–427, 430–431; cf. §§ 1273, 1289.) It is not clear,
    however, whether a professional license suspension is easily reversed and
    whether reversal of a suspension can cure other reputational business
    interests at play. As it is not our role to make arguments for petitioner or to
    consider arguments not raised or meaningfully addressed below or in the
    habeas corpus petition, we decline to do so. 7 (In re Seaton (2004) 
    34 Cal.4th 193
    , 200; see People v. Duvall (1995) 
    9 Cal.4th 464
    , 475.)
    Finally, petitioner contended at oral argument that pursuant to
    Evidence Code section 300, evidence presented at any bail or pretrial
    detention hearing must comply with all the formal rules for admissibility of
    evidence at a trial. Petitioner, however, neither previously raised nor
    properly briefed this statute-based issue. Petitioner does not, for example,
    address the proper interpretation of Evidence Code section 300 or any bail-
    related statutes (e.g., Pen. Code, § 1319 8). Nor does petitioner address case
    7    Petitioner—who is represented by counsel—is required to present
    arguments under specific headings and to support arguments with authority
    when possible. (Cal. Rules of Court, rules 8.204(a)(1)(B) & 8.384(a)(1)–(2).)
    8      Section 1319 provides in relevant part that in cases where a defendant
    is charged with a violent felony as described in section 667.5, subdivision (c),
    the trial court “shall consider” the following in determining whether or not to
    grant release of the defendant: “(1) The existence of any outstanding felony
    warrants on the defendant. [¶] (2) Any other information presented in the
    15
    law that allows use of technically inadmissible evidence at hearings that
    implicate other liberty interests, such as sentencing and probation violation
    hearings. (See, e.g., People v. O’Connell (2003) 
    107 Cal.App.4th 1062
    , 1066
    [“ ‘As long as hearsay testimony bears a substantial degree of trustworthiness
    it may legitimately be used at a probation revocation proceeding.’ ”]; People v.
    Lamb (1999) 
    76 Cal.App.4th 664
    , 683 [“A sentencing judge may consider
    responsible unsworn or out-of-court statements concerning the convicted
    person’s life and characteristics.”].) Ultimately, given the untimeliness of
    petitioner’s argument and lack of briefing (Cal. Rules of Court,
    rules 8.204(a)(1)(B) & 8.384(a)(1)–(2)), we decline to address the argument.
    (People v. Crow (1993) 
    6 Cal.4th 952
    , 960, fn. 7.)
    In sum, we conclude, as a general matter, that proffers of evidence may
    satisfy section 12(b)’s clear and convincing evidence standard without
    offending federal or state due process principles. In so concluding, we
    emphasize that it remains within the discretion of the trial court to decide
    whether particular instances of proffered evidence may be insufficient, and
    whether to insist on the production of live testimony or other evidence in
    compliance with more stringent procedural requirements. (Cf. United States
    v. Delker, supra, 757 F.2d at p. 1395; United States v. Acevedo-Ramos, supra,
    755 F.2d at pp. 206–208.)
    2. Application of Section 12(b)
    In reviewing the trial court’s decision to deny bail under section 12(b),
    we assess two elements: (1) “whether the record contains substantial
    report prepared pursuant to Section 1318.1. The fact that the court has not
    received the report required by Section 1318.1, at the time of the hearing to
    decide whether to release the defendant on his or her own recognizance, shall
    not preclude that release. [¶] (3) Any other information presented by the
    prosecuting attorney.” (Italics added.)
    16
    evidence of a qualifying offense” and if so, then (2) “whether any reasonable
    fact finder could have found, by clear and convincing evidence, a substantial
    likelihood that the defendant’s release would result in great bodily harm to
    one or more members of the public.” (White, supra, 9 Cal.5th at p. 471.) If
    both elements are satisfied, we evaluate whether the trial court’s denial was
    an abuse of discretion. (Ibid.) “An abuse of discretion occurs when the trial
    court, for example, is unaware of its discretion, fails to consider a relevant
    factor that deserves significant weight, gives significant weight to an
    irrelevant or impermissible factor, or makes a decision so arbitrary or
    irrational that no reasonable person could agree with it.” (Id. at p. 470.)
    First, does the record contain substantial evidence of a qualifying
    offense? The answer is yes. Petitioner does not dispute that he was charged
    with one or more qualifying felonies involving acts of violence and sexual
    assault or that “the facts are evident or the presumption great” as required
    by section 12(b). Indeed, had petitioner challenged the trial court’s finding on
    this point, we would easily reject it based on the qualifying nature of the
    charges and the substantial evidence tending to show his guilt as the
    perpetrator, including the DNA evidence and the evidence of petitioner’s
    idiosyncratic scarf fetish, as well as the specific design of the scarves he used,
    i.e., floral with a border.
    Second, could any reasonable fact finder have found, by clear and
    convincing evidence, a substantial likelihood that the defendant’s release
    would result in great bodily harm to one or more members of the public?
    Again, the answer is yes.
    Petitioner was charged with attempted willful, deliberate, and
    premeditated murder and aggravated mayhem, and it was alleged that he
    personally used a deadly weapon—a knife—to inflict great bodily injury on
    17
    the victim. Both of the charged crimes are “serious” and “violent” felonies
    (§ 1192.7, subd. (c)(2), (7), (9), (23); § 667.5, subd. (c)(2), (7), (8), (12)) that
    carry the severe sentence of life in prison, albeit with the possibility of parole
    (§§ 205, 664, subd. (a)), and the court was required to assume the truth of
    these charges (Humphrey, supra, 11 Cal.5th at p. 153).
    Significantly, the People’s proffer of evidence concerning the
    circumstances of the underlying offenses was extensive and detailed and
    included the following. Petitioner bound and raped the victim, then tried to
    kill her. He tried to stab her in the back several times but was unsuccessful
    only because the knife was dull. He strangled her, and he sawed at her neck
    to within a hair’s breadth of her jugular. Within about two years of the 1989
    offenses, petitioner was convicted of theft after he targeted a female stranger
    and grabbed a scarf tied around her neck “to satisfy his anger and
    frustration” because he “had been having emotional and personal problems.”
    And as recounted earlier, multiple women romantically or otherwise involved
    with petitioner between 1997 and late 2020 provided statements to
    prosecution investigators showing that petitioner continues to act on a sexual
    fetish involving scarves and binding. While the proffered evidence indicated
    these women were willing partners, it also showed that petitioner
    consistently sought to exert sexual control over women involving fantasized
    violence and non-consent.
    Based on the record, we conclude a reasonable fact finder could have
    found clear and convincing evidence that petitioner’s release on bail would
    pose a substantial likelihood of great bodily harm to others. The proffered
    evidence amply supports the conclusion that petitioner is an extremely
    dangerous person. Petitioner is charged with grave offenses, the
    circumstances of which show he is capable of tremendous violence. His
    18
    relationships with women after 1989 and through at least 2019 indicate he
    continues to be compelled by sexually aggressive impulses. And for most of
    his life, petitioner has escaped detection and accountability for the vicious
    crimes he committed in 1989. Indeed, during the offense, defendant
    indicated he was trying to kill the victim to ensure he would escape
    undetected. Now, in his mid-fifties, he is facing what will potentially be
    confinement in prison until the end of his life. While the probation
    department’s pretrial risk assessment suggested petitioner was an
    appropriate candidate for release on his own recognizance with enhanced
    monitoring, the trial court was neither bound to follow that recommendation
    nor constrained to forgo its own individualized consideration of factors for
    making a bail determination. 9 (Humphrey, supra, 11 Cal.5th at p. 152.)
    Petitioner contends the trial court’s risk-of-harm finding is
    unsupported or unreasonable given the number of years that elapsed
    between the alleged 1989 offenses and the present and the absence of any
    allegation that he committed any criminally violent act in the interim. We
    cannot agree. The trial court was not compelled to find that petitioner’s past
    violent behavior was an unusual one-off situation unlikely to recur, or to
    accept his benign self-presentation. (See White, supra, 9 Cal.5th at pp. 468–
    469 [upholding pretrial detention under section 12(b) where charged crimes
    were more recent but involved factual allegations far less egregious than
    those here].) Here, the court’s decision finds substantial support in the
    record and was plainly within the bounds of reason. No abuse of discretion
    appears.
    9     Again, that risk assessment was completed simply by considering the
    eight factors noted in footnote 2, ante, without interviewing petitioner, or
    mentioning the circumstances underlying his offense.
    19
    Relying on reports reflecting pretrial release data in other jurisdictions,
    petitioner next appears to contend that as a statistical matter, it is unlikely
    he will reoffend if released. We are not persuaded. Setting aside the
    questionable relevance of such data to our review on appeal, giving weight to
    petitioner’s statistical reports seems at odds with Humphrey’s holding that
    bail decisions require “an individualized consideration of the relevant factors”
    (11 Cal.5th at p. 152) and “careful consideration of the individual arrestee’s
    circumstances.” (Id. at p. 156.)
    Petitioner further argues that the trial court detained him based solely
    on the charges in the complaint and that the court created an additional non-
    constitutionally based “category of offenses ineligible for pretrial release . . .
    by judicial fiat.” We cannot agree. The record plainly demonstrates the court
    based its decision on the proffered evidence, as well as the charges
    enumerated in the complaint.
    3. Application of the Humphrey Requirements
    As discussed, Humphrey determined that principles of due process
    require the trial court to find, by clear and convincing evidence, that no less
    restrictive condition than detention can reasonably protect the interests in
    public or victim safety, and the arrestee’s appearance in court. (Humphrey,
    supra, 11 Cal.5th at p. 154.) Petitioner argues the court “failed to address
    this prong of Humphrey’s analysis entirely.”
    Although the record does not reflect an express trial court finding on
    this point, respondent cites portions of the record where the court
    acknowledged that petitioner lacked financial resources to make bail and
    where the parties discussed nonmonetary alternatives. Accordingly,
    respondent contends the court did, in fact, consider less restrictive
    20
    nonmonetary alternatives to detention and implicitly made the required
    finding.
    We are in limited agreement with respondent that, as a jurisprudential
    matter, such a finding could be implicit and inferred from the record.
    Ordinarily, trial court judgments and orders are presumed correct. (Jameson
    v. Desta (2018) 
    5 Cal.5th 594
    , 608–609; Denham v. Superior Court (1970) 
    2 Cal.3d 557
    , 564.) Ambiguities in the record are resolved in favor of
    affirmance (Winograd v. American Broadcasting Co. (1998) 
    68 Cal.App.4th 624
    , 631), and an appellate court ordinarily presumes “the [trial] court knows
    and applies the correct statutory and case law.” (People v. Coddington (2000)
    
    23 Cal.4th 529
    , 644, overruled on other grounds by Price v. Superior Court
    (2001) 
    25 Cal.4th 1046
    , 1069, fn. 13.) Where, as here, nonfinancial conditions
    of release were discussed directly before the court’s denial of the bail motion,
    one would have to assume the worst to conclude the court ignored both the
    issue and the law in making its decision.
    Nonetheless, even though the general presumptions in favor of a
    judgment or order might otherwise support a finding made sub silentio,
    Humphrey specifically requires, as a matter of procedural due process, that a
    court entering a pretrial detention order set forth “the reasons for its decision
    on the record and to include them in the court’s minutes.” (Humphrey, supra,
    11 Cal.5th at p. 155.) Thus, the reasons supporting a denial of bail cannot be
    implied.
    In this regard, Humphrey explains that the requirement of explicit
    articulation will “facilitate review of the detention order, guard against
    careless or rote decisionmaking, and promote public confidence in the judicial
    process.” (Humphrey, supra, 11 Cal.5th at pp. 155–156.) And generally, an
    adequate statement of reasons is one that furthers these purposes and
    21
    “apprise[s] [the reviewing court] of the analytical process by which the trial
    court arrived at its conclusions.” (In re Pipinos (1982) 
    33 Cal.3d 189
    , 198, 202
    (Pipinos); see Kent v. United States (1966) 
    383 U.S. 541
    , 561 (Kent)
    [“Meaningful review requires that the reviewing court should review. It
    should not be remitted to assumptions.”].) Thus, trial courts choosing to deny
    bail must separately state and identify their reasons for finding that less
    restrictive alternatives to detention could not reasonably protect the interests
    in public or victim safety or ensuring the defendant’s appearance.
    Here, the trial court found, by clear and convincing evidence, a
    substantial likelihood that petitioner’s release would result in great bodily
    harm to others, and it identified its reasons supporting that finding. But the
    court did not actually address any less restrictive alternatives to pretrial
    detention and did not articulate its analytical process as to why such
    alternatives could not reasonably protect the government’s interests. And
    while overlapping reasons may exist for making the applicable findings under
    section 12(b) and Humphrey, the court’s failure to articulate its evaluative
    process requires that we speculate as to why the court believed that no
    nonfinancial conditions could reasonably protect the interests in public or
    victim safety. As such, the record here does not permit meaningful appellate
    review. 10 (In re Podesto (1976) 
    15 Cal.3d 921
    , 937 [“meaningful judicial
    10    We do not suggest that a trial court’s statement must be formal or that
    there are “magic words” that a court must recite. (Kent, 
    supra,
     383 U.S. at
    p. 561 [statement of reasons need not be formal nor necessarily include
    “conventional findings of fact”]; In re Podesto, supra, 15 Cal.3d at p. 938
    [statement of reasons in support of an order denying a motion for bail on
    appeal “need not include conventional findings of fact”].) But the statement
    should “clearly articulate the court’s evaluative process” and “set forth the
    basis for the order with sufficient specificity to permit meaningful review.”
    (Pipinos, supra, 33 Cal.3d at p. 205; Kent, 
    supra, at p. 561
    .)
    22
    review is often impossible unless the reviewing court is apprised of the
    reasons behind a given decision”].)
    We now address the consequence of this shortcoming. In Pipinos,
    supra, 
    33 Cal.3d 189
    , the trial court’s failure to adequately articulate its
    reasons for denying bail on appeal ultimately resulted in reversal because the
    trial court’s conclusory comments were insufficient to enable meaningful
    review of the defendant’s abuse of discretion contention. (Id. at pp. 203–205.)
    Yet, there are other cases indicating the failure to provide an adequate
    statement of reasons does not necessarily require reversal but is subject to a
    harmless error analysis. (C.S. v. Superior Court (2018) 
    29 Cal.App.5th 1009
    ,
    1036; see People v. Scott (1994) 
    9 Cal.4th 331
    , 355 (Scott).) Error of this type
    may be harmless in cases where there is “ ‘overwhelming evidence’ ”
    supporting the court’s decision. (C.S., at p. 1036.) This may be so even if the
    failure to make a statement of reasons amounts to an error of constitutional
    dimensions. (E.g., People v. Chi Ko Wong (1976) 
    18 Cal.3d 698
    , 722–723
    [applying harmless error analysis to affirm order denying juvenile court
    retention that was supported by overwhelming evidence]; see generally Cal.
    Const., art. VI, § 13; Pen. Code, § 1404.)
    Given the record before us, we need not resolve this apparent tension in
    the case law. Here, the parties discussed nonfinancial conditions, but the
    discussion was not extensive. In short, defense counsel argued that any
    concern about flight could be addressed if the court were to order GPS
    tracking or other conditions for release as set out in the pretrial release
    report. The prosecutor responded that no less restrictive conditions could
    protect the community, and that electronic home monitoring would not
    protect women whom petitioner might meet online or out and about. Defense
    counsel then countered that any concern about petitioner dating or being on
    23
    dating websites could be addressed if the court were to limit or monitor his
    internet usage; order GPS monitoring; issue no contact orders as to the
    victim; or impose other conditions suggested by pretrial services. The parties
    made similar arguments in their motion and opposition papers, but beyond
    this, the record reflects no other discussion and no evaluation by the court
    about nonmonetary or other conditions.
    In sum, the record does not permit meaningful appellate review, and
    we cannot say there was overwhelming evidence supporting a conclusion that
    less restrictive alternatives to detention could not reasonably protect the
    interests in public or victim safety. (See C.S., supra, 29 Cal.App.5th at
    p. 1036.) As such, we will remand this matter to the trial court for further
    findings. We express no opinion as to the result the court should reach on
    remand.
    (a) Forfeiture
    Before concluding, we address two further issues—the first being
    whether claimed error concerning the inadequacy of a statement of reasons
    can be forfeited. We examine this issue because the record does not show
    that petitioner objected to the adequacy of the trial court’s statement of
    reasons at the bail hearing.
    The Attorney General, as amicus curiae, takes the position that error
    concerning the omission or inadequacy of a statement of reasons regarding
    less restrictive alternatives to detention is “exhausted” because petitioner
    argued below that such alternatives could protect the government’s interests,
    and failure to lodge a timely objection does not result in forfeiture.
    We tend to agree that a petitioner who urges the availability of less
    restrictive alternatives to detention exhausts his or her superior court
    remedies as to that issue, and generally will be entitled to review of that
    24
    issue. And implicitly, such a petitioner also requests that the court provide
    an adequate statement of reasons to allow for meaningful judicial review. (In
    re Podesto, supra, 15 Cal.3d at p. 937.)
    But we do not foreclose the possibility of a situation where a claim
    concerning inadequacy of a statement of reasons can be forfeited. “ ‘ “No
    procedural principle is more familiar to this Court than that a constitutional
    right,” or a right of any other sort, “may be forfeited in criminal as well as
    civil cases by the failure to make timely assertion of the right before a
    tribunal having jurisdiction to determine it.” ’ ” (People v. Saunders (1993) 
    5 Cal.4th 580
    , 590.) In Scott, 
    supra,
     
    9 Cal.4th 331
    , for example, the court
    explained that the doctrine of waiver (or forfeiture, as it is now commonly
    referred to) applied “to claims involving the trial court’s failure to properly
    make or articulate its discretionary sentencing choices.” (Scott, at p. 353.)
    This was “fair and reasonable given the nature of the sentencing decisions at
    issue and the procedural backdrop against which they are made,” such as
    that “[t]he parties have ample opportunity to influence the court’s sentencing
    choices” insofar as “[b]oth sides often know before the hearing what sentence
    is likely to be imposed and the reasons therefor. Such information is
    contained in the probation report, which is required in every felony case and
    generally provided to the court and parties before sentencing.” (Id. at
    pp. 348–351.)
    If the doctrine of forfeiture can apply to a court’s failure to properly
    articulate its discretionary sentencing decisions, a fortiori it can apply to
    decisions to deny bail. Of course, depending on the timing of the bail hearing,
    a defendant may not have any idea what to expect in terms of the court’s
    decision and what might support it. Thus, in many cases, it may not be “fair
    or reasonable” to apply the doctrine of forfeiture.
    25
    In this case, the bail hearing took place before the preliminary
    examination, and nothing in the record indicates the parties were “clearly
    apprised” of what the bail decision would be and the reasons for it in advance
    of the hearing. Indeed, the pretrial services court report recommended
    release on various conditions, and even the prosecutor asked for no-bail as an
    alternative to the imposition of a $5 million bail condition. Under these
    circumstances, we decline to deem petitioner’s claim about the inadequacy of
    the statement of reasons forfeited.
    (b) Reasons in the Minutes
    The second subsidiary issue we address is petitioner’s argument that
    the trial court failed to comply with Humphrey’s mandate that courts include
    the reasons for denying bail in the minutes. As stated, Humphrey requires,
    as a matter of procedural due process, that courts entering an order resulting
    in pretrial detention “set forth the reasons for its decision on the record and
    . . . include them in the court’s minutes.” (Humphrey, supra, 11 Cal.5th at
    p. 155, italics added.)
    Nothing in the record indicates this issue was ever brought to the trial
    court’s attention, though as the Attorney General notes in his amicus brief,
    People v. Bonnetta (2009) 
    46 Cal.4th 143
     suggests the failure to object should
    not result in forfeiture in this context because a minute order is entered only
    after the hearing and errors in the minutes are not ones the parties can
    easily detect or ensure are avoided. (Bonnetta, at p. 152 [addressing failure
    to comply with statutory requirement for inclusion of a statement of reasons
    in court minutes in context of discretionary dismissals under section 1385].)
    In any case, we need not decide applicability of the forfeiture doctrine here or
    whether the issue should be considered “exhausted” because a remand is
    necessary to allow the trial court to state the reasons why nonfinancial or
    26
    other less restrictive alternatives to detention could not reasonably protect
    the interests in public or victim safety. We will simply direct trial court
    correction of this error as well.
    4. Attorney Fees and Costs
    Finally, we decline petitioner’s request for attorney fees and costs
    pursuant to Code of Civil Procedure section 1021.5. (In re Head (1986) 
    42 Cal.3d 223
    , 228 [“A decision which has as its primary effect the vindication of
    the litigant’s personal rights is not one which brings into play the attorney
    fees provisions of section 1021.5.”].)
    DISPOSITION
    The order denying bail is conditionally vacated. We remand the matter
    for further findings as to whether clear and convincing evidence would
    support a conclusion that no less restrictive alternatives to detention could
    reasonably protect the government’s interests in pretrial detention.
    (Humphrey, supra, 11 Cal.5th at pp. 154–155.) The trial court shall provide
    an adequate statement of reasons and a corrected minute order, in
    accordance with the views expressed herein. For the sake of efficiency, the
    court may, but need not, vacate its prior order denying bail and hold a new
    bail hearing in order to take new evidence or any other action it deems
    necessary.
    We decline petitioner’s other requests for relief, including his request
    for release on his own recognizance with appropriate conditions or with an
    affordable amount of bail, and his request for attorney fees.
    27
    _________________________
    Fujisaki, J.
    WE CONCUR:
    _________________________
    Tucher, P. J.
    _________________________
    Rodriguez, J.
    A162891/In re John Harris Jr.
    28
    In re John Harris Jr.
    (A162891)
    Trial Court:      San Mateo County
    Trial Judge:      Hon. Amarra A. Lee
    Attorneys:        Law Offices of Marsanne Weese, Marsanne Weese and Rose
    Mishaan, under appointment by the First District Court of Appeal, for
    Petitioner.
    Stephen M. Wagstaffe, District Attorney, Alpana Samant,
    Deputy District Attorney, for Respondent.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney
    General, Katie L. Stowe, Deputy Attorney General, for Attorney General Rob
    Bonta as Amicus Curiae upon the request of the Court of Appeal.
    29