In re Paige CA2/4 ( 2023 )

Filed 8/3/23 In re Paige CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
B325982
In re DERICK PAIGE, on Los Angeles County
Habeas Corpus Super. Ct. No. GA112033
ORIGINAL PROCEEDINGS on petition for writ of habeas
corpus. Rupa S. Goswami, Judge. Petition granted.
Erika Anzoategui, Cynthia M. Janis and Patricia
Fullinwider, Alternate Public Defenders, for Petitioner.
Collins + Collins, Tomas A. Guterres and Chandler A.
Parker for Respondent.
George Gascon, District Attorney of Los Angeles County,
and Elizabeth Marks, Deputy District Attorney, for Real Party in
Interest.
INTRODUCTION
In January 2023, Derick Paige filed a petition for writ of
habeas corpus in this court challenging the trial court’s order
rescinding his bail. A different panel of this court summarily
denied the petition a few days later. Paige then filed a petition for
review in the California Supreme Court. In April 2023, the
Supreme Court granted Paige’s petition for review and
transferred the case to this court with directions to vacate the
summary denial order and issue an order to show cause. We have
since complied with the Supreme Court’s directions and received
further briefing on the issues presented in Paige’s petition for
writ of habeas corpus.
In his petition, Paige contends the trial court abused its
discretion by rescinding his bail because it did not comply with
the requirements set forth in In re Humphrey (2021) 11 Cal.5th
135 (Humphrey) when rendering its decision. We agree. We
therefore grant the petition, vacate the order rescinding Paige’s
bail, and remand the matter to the trial court with directions to
hold a new hearing where it shall consider, and make findings on,
Paige’s bail consistent with Humphrey and its progeny, as well as
this court’s opinion. We decline Paige’s requests for other relief,
including his request to be released from custody, and express no
opinion on his entitlement to bail or any other relief.
BACKGROUND
On May 11, 2022, the Los Angeles County District Attorney
filed a felony complaint charging Paige with a single count of
2
attempted murder. (Pen. Code,1 § 664/187 subd. (a).) The
complaint further alleged that, in committing the alleged offense,
Paige personally used a firearm (§ 12022.5, subd. (a)) and
personally inflicted great bodily injury upon the victim
(§ 12022.7, subd. (a)).
At the arraignment on May 23, 2022, Paige pled not guilty
to the charge. Bail was set at $1.2 million.
On August 15, 2022, Paige moved for a formal bail review
hearing under Humphrey. Although unsupported by evidence,
Paige’s motion is the sole document in the record describing the
facts underlying the charge against him. The motion asserts
Paige and the victim have been friends since childhood. In the
late evening of May 3 or early morning of May 4, 2022, Paige shot
the victim “in the left side of her torso” with a Tec-9 firearm while
they were at a “‘dope house’ or ‘hoarder house’ where transient
individuals would [go] to drink alcohol and get high.” At the time,
Paige was drunk, and the victim was smoking crack cocaine. A
witness told law enforcement “there were no fights, arguments,
or any type of confrontation[ ]” leading up to the incident.
By way of his motion, Paige asserted he cannot afford the
set bail amount of $1.2 million. He also noted he was 45 years
old, and that although he had several convictions for several
“victimless offenses” related to his “long-standing drug
problem[,]”2 he had no history of bench warrants, as well as “no
1 All further undesignated statutory references are to the
Penal Code.
2 Paige sustained the following prior convictions: possession
of cocaine base for sale (Health & Saf. Code, § 11351.5) in 1999
and 2006; possession of an open container containing marijuana
while driving a motor vehicle (Veh. Code, § 23222, subd. (b)) in
3
serious or violent history.” He further expressed “willingness . . .
to be placed on electronic monitoring awaiting trial in this case,”
and “welcome[d] any stay-away, no contact orders imposed by
th[e] court as a condition of his release and is prepared to relocate
to the Palmdale area, far from [the victim]’s residence[.]” Paige
asked to be released on his own recognizance, or with bail not to
exceed $200,000, along with imposition of any necessary
nonfinancial conditions of release.
On August 16, 2022, the trial court held a hearing on
Paige’s motion. There, Paige’s counsel acknowledged Paige was
charged with “a serious offense[,]” but emphasized he “has no
history of prior serious offenses.” In addition, Paige’s counsel
pointed out the house where the incident took place had been
“taken over by the county,” and “nobody . . . still lives at that
house[.]” Counsel also highlighted Page’s willingness to comply
with any stay away orders, submit to electronic monitoring,
reside with his nephew in Los Angeles, and participate in a
residential drug treatment program while awaiting trial.
In response to the arguments by Paige’s counsel, the People
did not present any evidence. Instead, the Deputy District
Attorney stated: “[The] People’s opposition to reduction of bail or
[Paige’s release on his own recognizance] is based solely on the
high risk [to] public safety. This is a case where it is alleged that
the defendant and several other individuals were in a home
allegedly consuming narcotics when the defendant, unprovoked,
2004; driving with 0.08 percent blood alcohol (Veh. Code, § 23152,
subd. (b)) in 2005; and driving under the influence of an alcoholic
beverage or a drug or under the combined influence of an
alcoholic beverage and a drug (Veh. Code, § 21352, subd. (a)) in
2019.
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pulled out a Tec-9 style 9 millimeter handgun. [¶] The victim and
another witness stated that they were in fear and just,
potentially, tried to leave. And at that point, unprovoked, the
defendant shot the victim in the stomach one time. She was
taken to the hospital by one of the witnesses. [¶] Based on . . . the
public safety issue to the victim, to the other witnesses that were
in the home, and to the general public at large, the People would
oppose [Paige’s release on his own recognizance] and/or bail.”
Noting Paige did not have any prior convictions for serious or
violent felonies, the Deputy District Attorney asserted “th[e]
charge alone in this incident poses a very severe public safety
issue.”
The trial court ordered Paige to be held without bail. In so
doing, the trial court stated: “Under Humphrey, I only have three
alternatives: [release Paige on his own recognizance], set
affordable bail, or detain [with] no bail after making a clear and
convincing evidentiary finding. [¶] I’m not concerned about Mr.
Paige coming back to court. . . . [F]light risk is not my concern
here. And if flight risk were my concern, I would set some form of
affordable bail. [¶] My concern here is that this is a completely
unprovoked attempted murder. And that causes me a great deal
of concern because I don’t have any way of preventing something
like that from happening again. As [Paige’s] counsel concedes,
there were drugs and maybe other substances involved. It was an
unprovoked attack on a woman, and it was a use of deadly force.
[¶] Based on that . . . [and In re Brown (2022) 76 Cal.App.5th 296(Brown)], the court finds by clear and convincing evidence that
there are no less restrictive means to satisfy the purpose of
ensuring public safety. And I will, therefore, enter a no bail order
on this matter.”
5
The minute order for the August 16, 2022 hearing states
the trial court made the following orders and findings: “Upon
consideration of the relevant factors of the case and of the
defendant, including the defendant’s ability to pay, the protection
of the public and any complaining witness, the allegations and
seriousness of the charged offense, the defendant’s previous
criminal record and history of compliance with court orders, and
the likelihood that the defendant will appear at future court
proceedings, the court finds by clear and convincing evidence that
no less restrictive condition or combination of conditions of
release will reasonably assure the safety of the public or victim
and the defendant’s appearance in court.[ ]Defendant is to be
detained with no bail.”
On September 28, 2022, Paige filed a petition for writ of
habeas corpus in the superior court. The superior court construed
the petition as a petition for writ of mandate and denied it on
December 8, 2022. 3
On January 27, 2023, Paige filed a petition for writ of
habeas corpus in this court, which was summarily denied on
February 3, 2023. Paige then filed a petition for review in the
California Supreme Court. Subsequently, on April 12, 2023, the
Supreme Court granted Paige’s petition for review and
transferred the case back to this court. Further, the Supreme
Court directed this court to vacate the prior order denying Paige’s
3 The superior court judge presiding over Paige’s bail review
hearing was acting as a magistrate, and therefore her actions
were reviewable by the superior court on mandamus. (See
Magallan v. Superior Court (2011) 192 Cal.App.4th 1444, 1453
[“The superior court is the court with jurisdiction to review the
actions of a magistrate and issue a writ of mandate to a
magistrate”].)
6
petition for writ of habeas corpus, and instructed this court to
issue an order directing the Los Angeles County Sheriff’s
Department “to show cause why [Paige] should not be granted a
new bail review hearing on the basis that the superior court did
not adequately set forth the reasons for its decision on the
record[.]”
Per the Supreme Court’s instructions, on April 20, 2023, we
vacated the prior order denying Paige’s petition for writ of habeas
corpus and issued an order to show cause directed to the Sheriff’s
Department. On May 18, 2023, the People, as real party in
interest, filed a letter brief articulating their position on Paige’s
petition. Four days later, the Sheriff’s Department filed a
response to our April 2023 order stating it “defers to the District
Attorney with respect to all matters pertaining to [Paige’s]
entitlement to bail[.]”
DISCUSSION
I. Governing Legal Principles and Standard of Review
“[D]efendants charged with noncapital offenses are
generally entitled to bail. [Citations.] But article I, section 12 [of
the California Constitution] provides for exceptions in particular
circumstances when a defendant is charged with at least one
felony offense.” (In re White (2020) 9 Cal.5th 455, 462 (White).) Of
particular relevance here is the exception set forth in article I,
section 12(b), that applies in cases of “[f]elony offenses involving
acts of violence on another person . . . when the facts are evident
or the presumption great and the court finds based upon clear
and convincing evidence that there is a substantial likelihood the
person’s release would result in great bodily harm to others[.]”
(Cal. Const., art I, § 12, subd. (b).)
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“A person who falls within the article I, section 12(b)
exception does not have a right to bail, yet may nonetheless be
granted bail—or release on the person’s own recognizance—in the
trial court’s discretion.” (White, supra, 9 Cal.5th at p. 469.) In
deciding whether to exercise its discretion to deny bail, the trial
court must follow “the general framework governing bail
determinations[ ]” set forth by our Supreme Court in Humphrey,
supra, 11 Cal.5th at p. 152.4 Preliminarily, that framework
provides that “[w]hen making any bail determination, a superior
court must undertake an individualized consideration of the
relevant factors. These factors include the protection of the public
as well as the victim, the seriousness of the charged offense, the
arrestee’s previous criminal record and history of compliance
with court orders, and the likelihood that the arrestee will appear
at future court proceedings.” (Humphrey, supra, at p. 152.) “Along
with those primary considerations of victim and public safety, the
court must assume the truth of the criminal charges.” (Id. at p.
153.)
Under Humphrey, “a trial court must first determine
whether an arrestee is a flight risk or a danger to public or victim
safety. If the arrestee does pose one or both of these risks, then
the court should consider whether ‘nonfinancial conditions of
4 We agree with our colleagues in the First District that
“[a]lthough Humphrey involved a claim of excessive bail and not
a denial of bail under [article 12,] section 12(b) as here, the
generality with which Humphrey laid out the . . . requirement[s]”
discussed below “reasonably indicates the Supreme Court’s
contemplation that its holding applies to all orders for pretrial
detention under section 12(b).” (In re Harris (2021) 71
Cal.App.5th 1085, 1096 (Harris), review granted March 9, 2022,
S272632.)
8
release may reasonably protect the public and the victim or
reasonably assure the arrestee’s presence at trial.’” (Brown,
supra, 76 Cal.App.5th at p. 305, quoting Humphrey, supra, 11
Cal.5th at p. 154.) “Although ‘no condition of release can entirely
eliminate the risk that an arrestee may harm some member of
the public,’ the [Humphrey] court observed, ‘[t]he experiences of
those jurisdictions that have reduced or eliminated financial
conditions of release suggest that releasing arrestees under
appropriate nonfinancial conditions—such as electronic
monitoring, supervision by pretrial services, community housing
or shelter, stay-away orders, and drug and alcohol testing and
treatment [citations]—may often prove sufficient to protect the
community.’” (Brown, supra, at p. 305, quoting Humphrey, supra,
at p. 154, original italics.)
“Having considered potential nonfinancial conditions, if the
trial court nonetheless concludes money bail is ‘reasonably
necessary’ to protect the public and ensure the arrestee’s
presence at trial, then bail must be set ‘at a level the arrestee can
reasonably afford’ unless the court concludes, by clear and
convincing evidence, that no nonfinancial condition in
conjunction with affordable money bail can reasonably protect
public safety or arrestee appearance.” (Brown, supra, 76
Cal.App.5th at pp. 305-306, quoting Humphrey, supra, 11 Cal.5th
at p. 154.) These requirements ensure pretrial detention “doesn’t
depend on the arrestee’s financial condition. Rather, it depends
on the insufficiency of less restrictive conditions to vindicate
compelling government interests: the safety of the victim and the
public more generally or the integrity of the criminal
proceedings.” (Humphrey, supra, at p. 143.)
9
“A court’s procedures for entering an order resulting in
pretrial detention must also comport with other traditional
notions of due process to ensure that when necessary, the
arrestee is detained ‘in a fair manner.’ [Citations.] Among those
fair procedures is the court’s obligation to set forth the reasons
for its decision on the record and to include them in the court’s
minutes. [Citation.] Such findings 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.)
“[W]e review a trial court’s ultimate decision to deny bail
for abuse of discretion. [Citations.] Under this standard, a trial
court’s factual findings are reviewed for substantial evidence, and
its conclusions of law are reviewed de novo. [Citation.] 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.” (White,
supra, 9 Cal.5th at pp. 469-470.)
II. Analysis
Paige contends the trial court erred by rescinding his bail
because it did not comply with the requirements delineated in
Humphrey. Specifically, he argues the court failed to: (1) analyze
whether harm was reasonably likely to occur if he were released;
(2) analyze whether less restrictive alternatives to detention
would be insufficient to protect the government’s interest in
ensuring the safety of the public and the victim; and (3) state on
the record and in the minute order the reasons underlying its
finding that pretrial detention was required. As discussed below,
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we agree with Paige’s contentions and conclude the trial court did
not comply with Humphrey in deciding to detain him without
bail.
With respect to his first point, Paige correctly observes the
trial court did not analyze whether the public and/or the victim
would be at risk of harm if he were released. Instead, at the
August 2022 hearing, the court stated: “My concern here is that
this is a completely unprovoked attempted murder. And that
causes me a great deal of concern because I don’t have any way of
preventing something like that from happening again.” These
comments show that, in rescinding bail, the trial court focused
largely on its asserted inability to completely prevent a similar
incident from occurring. As noted above, however, the Humphrey
court observed: “[N]o condition of release can entirely eliminate
the risk that an arrestee may harm some member of the public.
[Citation.] In choosing between pretrial release and detention, we
recognize that absolute certainty—particularly at the pretrial
stage, when the trial meant to adjudicate guilt or innocence is yet
to occur—will prove all but impossible.” (Humphrey, supra, 11
Cal.5th at p. 154, original italics.) The Supreme Court therefore
directed trial courts to “focus instead on risks to public or victim
safety . . . that are reasonably likely to occur.” (Ibid.) Thus, the
record reflects the trial court may have given “significant weight
to an irrelevant or impermissible factor,” i.e., its inability to
ensure with certainty the safety of the victim and the public, and
thus abused its discretion in rescinding his bail. (White, supra, 9
Cal.5th at p. 470.)
With respect to Paige’s second and third arguments,
Harris, supra, 71 Cal.App.5th 1085, and Brown, supra, 76
Cal.App.5th 296, are instructive. In Harris, the petitioner was
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implicated as the perpetrator of a violent rape. (Harris, supra, at
p. 1091.) After the trial court set bail at $5 million, the petitioner
filed a bail motion, arguing under Humphrey that he should be
released on his own recognizance because he was indigent, and
there was no indication he posed a flight or safety risk. (Id. at p.
1092.) At the hearing on the motion, the petitioner, through
counsel, argued he could not afford bail as set, and asked for
release on his own recognizance with various nonfinancial
conditions, such as a no contact order with the victim, Global
Position System tracking, and limitation of his use of dating
websites to address the People’s concern that his ongoing scarf
fetish could lead him to engage in conduct similar to the actions
giving rise to the charges against him. (Id. at p. 1094.) The trial
court denied the motion. (Ibid.) Thereafter, the petitioner sought
a writ of habeas corpus in the appellate court. (Id. at p. 1091.)
The appellate court conditionally vacated the denial order
and remanded the case to the trial court. (Harris, supra, 71
Cal.App.5th at p. 1109.) It noted that although the trial court did
not expressly find less restrictive alternatives to detention would
be insufficient to protect the government’s interests in public or
victim safety and/or the arrestee’s appearance in court, “such a
finding could be implicit and inferred from the record.” (Id. at p.
1104.) The appellate court then held, however: “[E]ven 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.’ [Citation.] Thus, the reasons supporting a denial of bail
cannot be implied.’” (Id. at pp. 1104-1105.)
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Subsequently, the appellate court determined the trial
court did not satisfy the specified requirements. (Harris, supra,
71 Cal.App.5th at p. 1105.) Specifically, it noted the trial 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.” (Ibid.) The appellate court ultimately
concluded: “[T]he [trial] 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.” (Ibid, fn. omitted.)
In Brown, the petitioner was charged with felony offenses
after allegedly sexually abusing two children. (Brown, supra, 76
Cal.App.5th at p. 299.) Bail was initially set at $1.45 million, but
was increased to $3.45 million after an amended felony complaint
was filed. (Ibid.) At a subsequent hearing, the trial court reduced
bail to $2.45 million. (Id. at p. 300.)
Several months later, the petitioner moved for release on
his own recognizance, or, alternatively, reduced bail not
exceeding $1,000. (Brown, supra, 76 Cal.App.5th at p. 300.)
Acknowledging he had been accused of serious and violent
crimes, the petitioner maintained he was entitled to the relief
sought because he was indigent and would accept nonfinancial
conditions of release, including electronic monitoring, community
housing, home detention, treatment and education programs, a
pretrial case manager, and a protective order. (Ibid.) The trial
court denied the motion, finding “‘there are no lesser means of
protecting the public, in that [the offenses] seemed to be done in
the home with family members, [and] the court can’t stop family
13
members from seeing the defendant.’” (Id. at p. 301.) The
petitioner then challenged the trial court’s ruling by filing a
petition for writ of mandate in the appellate court, which the
court treated as a petition for writ of habeas corpus. (Ibid.)
The appellate court granted the petition and remanded the
case to the trial court to conduct a new bail hearing consistent
with Humphrey. (Brown, supra, 76 Cal.App.5th at p. 309.) In
arriving at this conclusion, the Brown court explained: “Here,
there was no evidence proffered in the trial court to support the
contention that harm to the public was reasonably likely to occur
if [the petitioner] were released. The trial court failed to address
any of the specific nonfinancial conditions proposed by [the
petitioner] or to indicate, even in general, why nonfinancial
conditions of release (such as a stay away or no contact order,
home detention, electronic monitoring[,] or surrender of [the
petitioner’s] class A driver’s license) would be insufficient to
protect the victims or the public or obviate the risk of flight. On
this record we cannot conclude there was sufficient evidence to
support a finding by clear and convincing evidence that less
restrictive alternatives to detention could not reasonably protect
the public or victim safety.” (Id. at p. 307.)
Here, as in Harris and Brown, Paige expressed willingness
to comply with any and all nonfinancial conditions of release,
including stay away and no contact orders, relocation to Los
Angeles or Palmdale, electronic monitoring, and participation in
residential drug treatment. (See Harris, supra, 71 Cal.App.5th at
p. 1094; see also Brown, supra, 76 Cal.App.5th at p. 300.)
Subsequently, in deciding pretrial detention was necessary, the
trial court expressed concern the charge stemmed from “an
unprovoked attack” involving “drugs and maybe other
14
substances[,]” and “f[ound] by clear and convincing evidence that
there are no less restrictive means to satisfy the purpose of
ensuring public safety.” In so doing, however, the court did not
“address any of the specific nonfinancial conditions proposed by
[Paige.]” (Brown, supra, at p. 307; see also Harris, supra, at p.
1105.) And, while the court noted its concerns with the
“unprovoked” nature of the shooting and Paige’s involvement
with “drugs and maybe other substances[,]” it did not “articulate
its analytical process” connecting those concerns to its finding
that all potential less restrictive alternatives to detention,
including those suggested by Paige, were insufficient to protect
the government’s interest in public safety. (Harris, supra, at p.
1105.) Nor did the court explain its “evaluative process” in the
minute order. (Ibid.) There, the trial court represented it
considered the factors discussed in Humphrey, supra, 11 Cal.5th
at pp. 152-153, but did not explain how it applied the facts in this
case to its analysis of those factors to conclude pretrial detention
was warranted. Further, here, as in Brown, there was no
evidence proffered or presented at the August 2022 hearing to
support a finding that no less restrictive alternatives would
adequately ensure public safety. (See Brown, supra, at p. 307.)
Based on this record, we cannot conclude the trial court
“ma[d]e an individualized determination that . . . detention is
necessary to protect victim or public safety[.]” (Humphrey, supra,
11 Cal.5th at p. 156.) Nor can we conclude the court “set forth the
reasons for its decision on the record and . . . include[d] them in
[the] minutes.” (Id. at p. 155.) Instead, the record demonstrates
that in rescinding Paige’s bail, the trial court “fail[ed] to consider
a relevant factor that deserves significant weight,” i.e., the
sufficiency or insufficiency of less restrictive alternatives to
15
vindicate the government’s interests in victim and public safety
(White, supra, 9 Cal.5th at p. 470), and did not follow the “fair
procedures” that ensure the entry of “an order resulting in
pretrial detention . . . comport[s] with . . . traditional notions of
due process[.]” (Humphrey, supra, at p. 155.)
In sum, for the reasons discussed above, the record reflects
the trial court did not comply with the requirements set forth in
Humphrey when deciding to hold Paige without bail. Accordingly,
we conclude the trial court abused its discretion in rescinding
Paige’s bail, and that Paige is entitled to a new bail review
hearing conducted in a manner consistent with Humphrey and its
progeny. (See Harris, supra, 71 Cal.App.5th at pp. 1106, 1109;
see also Brown, supra, 76 Cal.App.5th at p. 309.)5
5 In light of this conclusion, we need not address Paige’s
argument that, pursuant to In re Alberto (2002) 102 Cal.App.4th
421, the trial court, who did not preside over the arraignment
and did not issue the order initially setting bail at $1.2 million,
“lacked the authority to overrule the arraignment court’s bail
order[ ]” because “[a] judge cannot . . . overturn another judge’s
bail order based on facts already considered by the first judge[.]”
16
DISPOSITION
The petition for writ of habeas corpus is granted. The Los
Angeles Superior Court is directed to vacate its August 16, 2022
order denying Paige’s motion for formal bail review hearing and
rescinding his bail. The court is further directed to hold a new
hearing, where it shall consider, and render findings on, Paige’s
bail in a manner consistent with Humphrey and its progeny, as
well as this court’s opinion. We decline Paige’s requests for other
relief, including his request to be released from custody, and
express no opinion on his entitlement to bail or any other relief.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
MORI, J.
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