Opinion
G056289
12-21-2018
In re RANDAL LETCHER SCOTT on Habeas Corpus.
Fay Arfa, a law corporation and Fay Arfa for Petitioner. Tony Rackauckas, District Attorney, Brian F. Fitzpatrick and Eric Eastman, Deputy District Attorneys, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17WF1545) OPINION Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County, Sheila F. Hanson, Judge. Petition granted. Fay Arfa, a law corporation and Fay Arfa for Petitioner. Tony Rackauckas, District Attorney, Brian F. Fitzpatrick and Eric Eastman, Deputy District Attorneys, for Respondent.
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Seeking a writ of habeas corpus, Randal Letcher Scott challenges the trial court's order setting his bail at $750,000 with an implicit affordability determination that Scott could "choose to post bail" or remain behind bars at his election. In admitting Scott to bail, purportedly at his option, the court impliedly determined Scott did not pose such a public safety or flight risk that he should be precluded from release pending trial. Under such circumstances, the governing constitutional and statutory provisions, including due process safeguards against arbitrary treatment and excessive punishment, require that the bond must be fixed with a view to giving the prisoner his or her liberty. As we explain, the record does not support the court's determination Scott could secure his release with bail at $750,000. The record is to the contrary. We therefore grant Scott's request to return his bail to the $300,000 figure set by the magistrate after the preliminary hearing, and we issue a writ of habeas corpus setting bail at that amount on the terms and conditions referenced in our disposition below.
FACTUAL AND PROCEDURAL BACKGROUND
The trial court set and reset Scott's bail four times in the seven months between July 2017 and February 2018. The initial complaint on which Scott was arraigned in July 2017 alleged two counts of a lewd act on a child under 14 (Pen. Code, § 288, subd. (a); all further statutory references are to this code), with allegations of more than one victim (§ 667.61, subds. (b)/(e)), and substantial sexual contact identified as masturbation (§ 1203.066, subd. (a)(8)). The complaint alleged the first incident with one victim occurred in October 2015, and the second incident, with a different victim, occurred in November 2016. Scott was not arrested and arraigned until 19 months after a CAST interview with the first alleged victim and seven months after a CAST interview with the second. The reason for the delay is not disclosed in the record, but it suggests that authorities did not regard Scott as either an imminent public safety or flight risk.
In any event, Scott pleaded not guilty to the complaint, and the magistrate set bail pursuant to Orange County's bail schedule at one million dollars based on Scott's exposure to a life sentence resulting from the multiple victim allegation. Scott timely filed a motion to reduce his bail.
After several continuances of the bail motion, and nearly two months in jail, Scott appeared for his preliminary hearing in September 2017. After considering the evidence presented by the People, the magistrate found probable cause to hold Scott to answer. At the conclusion of the hearing, the magistrate also considered the evidence the parties presented on Scott's motion to reduce bail. The motion was granted and bail was set at $300,000. The court conditioned Scott's release on his posting that amount of bail, along with additional terms and conditions that included the surrender of his passport, no contact with "anyone under 18 years old," and GPS monitoring. Scott posted the bond three days later and was released from jail.
On September 20, 2017, the prosecutor filed an information against Scott displacing the complaint filed on July 20, 2017. The parties do not disclose the differences, if any, between the original complaint and the information. The prosecutor also apparently made an oral request to increase Scott's bail, which the court took under submission.
On September 28, 2017, the trial court arraigned Scott on the information, to which he pleaded not guilty. At the arraignment, the court also granted the prosecutor's request to raise Scott's bail. Relying on section 985's authorization for "bail in an increased amount" when "the indictment or information is presented," though the defendant previously "has given bail for his appearance to answer the charge," the trial court increased Scott's bail to one million dollars. The court distinguished section 1289, on which Scott relied to oppose the increase, on grounds that the "good cause" it requires to increase or decrease bail applies "[a]fter a defendant has been admitted to bail upon an indictment or information." (§ 1289, italics added.) Scott had previously posted bail to appear on the complaint, not the subsequent information. Because Scott could not make bail at one million dollars, the court remanded him into custody.
Section 1289 provides, in full: "After a defendant has been admitted to bail upon an indictment or information, the Court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the Court may order the defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the District Attorney."
In February 2018, Scott filed a motion to reduce his bail relying largely on the then-recent decision in In re Humphrey (2018) 19 Cal.App.5th 1006 (Humphrey). At a hearing on February 21, 2018, the trial court, at the suggestion of "[b]oth counsel," had the prosecutor review the allegations. The prosecutor summarized them as follows: "[T]he defendant . . . owned two music studios. One in the city of Cypress, and the other in the city of Irvine. [¶] There's two victims in this case. The first victim was approximately a six-year-old female. She and her mom were getting music lessons from the defendant in the defendant's music studio. At some point, the defendant started to date—or had a dating relationship with Jane Doe No. 1's mother. [¶] During that time frame, Jane Doe No. 1 made a disclosure to mom and later at a C.A.S.T. interview that the defendant had Jane Doe touch his penis during the shower or bath time. [¶] The defendant was interviewed by the Orange County Sheriff's Department, and . . . denied those allegations. [¶] Approximately a year-and-a-half later, Jane Doe No. 2 is five [and] 1/2 years old. She and her mom were getting music lessons from the defendant at his music studio. [¶] The defendant starts having an extramarital affair with Jane Doe No. 2's mother. Then Jane Doe No. 2's mother, at some point, spoke with Jane Doe No. 2 when she made a disclosure regarding the defendant showing his penis to her, as well as asking her to touch it. [¶] During a C.A.S.T. interview she, again, disclosed that the defendant took her in a back room during a music lesson, pulled his pants down exposing his penis asking Jane Doe No. 2 to touch it. She did not. He then asked her to touch it with a white feather duster, which she did. The white feather duster was recovered during the search . . . of the defendant's business. The defendant also denied that allegation." The prosecutor noted that, if convicted, Scott faced a maximum of 30 years to life on the charges against him, and a minimum of 15 years to life.
In response to the trial court's inquiry, Scott's attorney explained that Scott was not a music teacher but instead "the owner," who marketed the business using mailers and other means, recruited more than a dozen instructors, and coordinated their scheduling, including moving equipment as necessary for their lessons. Scott's attorney further explained that Scott married in November 2016 and that his wife was a legal resident with Chinese heritage who spoke English as a second language, but she had difficulty managing the business.
Counsel added that Scott has "had the music store for 13 years, and these are the first allegations . . . against him. And in both instances, he is having an affair with their mother, and . . . the allegation in Victim No. 2 came out when she found out he had been married or that he got married. [¶] And as the district attorney said in the conference, Victim No. 1, her parents are going through a very contentious divorce and child custody proceeding, and I think the husband is using this against him—against her to try to keep the child. So the child is in the middle, and she's totally recanted."
The trial court reviewed Scott's financial circumstances with him, highlighting certain facts, including that he and his wife owned no property and had monthly expenses of $5,000 but little income. The court confirmed "the capital that you have remaining is only the $11,000 in cash." The court remained skeptical ("I'm not convinced he has the collateral for $300,000") of Scott's request to return bail to its former amount, and expressed concern Scott might become a flight risk stating, "[i]f I let him out under certain conditions, and he continues to try to make the business work, but runs out of money, because he's close to running out of money . . . ." When the court observed, "I mean, I do wonder how he posted what he [previously] posted," referring to the earlier $300,000 bond, Scott responded, "I do have excellent credit, and I do have over $100,000 of available credit to me if I need . . . to use it. Also, I do have my family that I can probably borrow some, you know, minor money from." Scott added that he had "surrendered [his] passport as well." His line of credit appears to have been "just my credit card line."
Scott's attorney also explained her understanding that Scott would not be required to pay the bondsman a new premium because the bondsman stood ready to reassume the prior $300,000 bond. Specifically, Scott "wouldn't have to post it again" because, as the trial court phrased it, "the bail agent is prepared to re-post the bond." The bondsman was present at the hearing and explained to the court how GPS monitoring could be used to ensure Scott stayed away from his business as necessary, from airports, and from California and United States borders. The prosecutor urged the court to retain bail at one million dollars under the bail schedule, and the court took the matter under submission.
Two days later, on February 23, 2018, the parties reconvened for a new hearing at which the trial court reduced Scott's bond to $750,000, while also imposing GPS monitoring and other conditions "should [Scott] choose to post bail." The court provided an explanation for every aspect of its decision except its implicit finding that Scott could afford bail at $750,000. Specifically, the court made these findings:
"I evaluate[d] what the defendant's probability is of returning to court, and I do believe that there are some factors that indicate he's a flight risk. While he does have strong ties to the business community as a result of his music stores, I would note that he did commit these offenses in relationship to those, and that could have lasting damage to those businesses as evidenced by the fact he's indicated, he's currently losing money. That could be, as he's indicated because he's in custody. It could be because of the nature of the offenses. And I am aware that those businesses prior to his incarceration appear to be very profitable.
"I also know he has an extremely large line of credit in addition to having the ability, as the defense readily concedes, to post bond in the amount of $300,000. He also has an additional $100,000 line of credit.
"And I also consider he has no property. He doesn't own any property.
"He has adult children here in this state that I would assume he would want to maintain a relationship with, but he also has family through his wife, in terms of in-laws, that live outside of the United States.
"In assessing flight risk, I'm mindful that he is facing a mandatory sentence of life imprisonment if found guilty of these offenses and all allegations.
"I considered the seriousness of the offenses charged, the fact that he is alleged to have committed lewd acts on multiple children; that there are allegations that can result in life imprisonment.
"I considered whether there was any injury or threat. There was no physical injury. The court is unaware what, if any, mental injury occurred, and there were no threats made to any of the victims in this case, nor was there either a use of a firearm or deadly weapon. . . .
"I considered the defendant's previous criminal history, which is none. He has no prior criminal record.
"I considered the maximum potential sentence, which is life. Obviously, this, in combination with the other factors, concerns the court not only as it relates to a potential flight risk, but whether there's a public safety issue.
"I do believe that the defendant does pose a danger to the public if released with no protections whatsoever[,] based upon his history . . . alleged in this case. Granted, he has no prior history, but the fact that these offenses occurred over a period of time.
"I'm mindful, as I said at the first bail hearing, there are no unusual circumstances to reduce bail below schedule pursuant to Penal Code section 1275(c); however, there is now the Humphrey decision that the court must consider." The trial court determined, "in light of In re: Humphrey[,] [to] set bail in the amount of $750,000 on the following conditions," enumerating several conditions including GPS monitoring. Scott could not make bail at $750,000, remained jailed, and subsequently filed this habeas petition.
DISCUSSION
Scott contends that by authorizing his release on bail, the trial court properly concluded he was suitable for bonded release, but erred in setting an amount far beyond his means. He argues that a bail figure impossible for him to pay "effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order." (Humphrey, supra, 19 Cal.App.5th at p. 1014, review granted.) As Humphrey and other courts have explained, "A determination of ability to pay is critical in the bail context to guard against improper detention based only on financial resources." (Id. at p. 1036; see In re Avignone (2018) 26 Cal.App.5th 195, 208; [same].) In other words, as California courts have long recognized, once bail is authorized, an unreachable sum that the defendant cannot hope to pay "is the functional equivalent of no bail." (In re Christie (2001) 92 Cal.App.4th 1105, 1109.)
Published cases under Supreme Court review may be cited for their persuasive value, but have no binding or precedential effect. (Cal. Rules of Court, rule 8.1115(e)(1).)
The district attorney does not suggest Scott is unsuitable for release on bail, but instead defends the $750,000 bail figure on grounds that the trial court implicitly "found that petitioner could afford up to [a] $750,000 bond based on the resources . . . at his disposal." As we explain, the evidence does not support this conclusion, but instead demonstrates the $750,000 figure is excessive in relation to Scott's limited means.
"Habeas corpus is an appropriate vehicle by which to raise questions concerning the legality of bail grants or deprivations." (In re McSherry (2003) 112 Cal.App.4th 856, 859.) Several constitutional and statutory provisions set out the parameters for the trial court's bail decision and our review. Article I, section 12 of the California Constitution establishes a right to release on bail as the norm, except in limited cases including capital offenses. It provides: "A person shall be released on bail . . ." and "[e]xcessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case." Sections 1270.5 and 1271 mirror these provisions, generally recognizing preconviction bail "as a matter of right" for all but capital crimes.
Similarly, article I, section 28, subdivision (f)(3) of our Constitution recognizes that "[e]xcessive bail may not be required." The victim's rights provisions of article I, section 28, also specify, in language repeated in section 1275, that "[i]n setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations." (Cal. Const., art. I, § 28, subd. (f)(3).)
The district attorney concedes that where, as here, public safety and other considerations do not preclude bail, "a court may not order pretrial detention unless it finds . . . that the defendant has the financial ability but failed to pay the amount of bail the court finds reasonably necessary to ensure his or her appearance at future court proceedings . . . ." (Humphrey, supra, 19 Cal.App.5th at p. 1026.)
Humphrey concluded, and we agree, that due process requires individualized consideration of the defendant's ability to post bail because of "the gravity of the interests abridged by pretrial detention." (Humphrey, supra, 19 Cal.App.5th. at p. 1031.) The People conceded as much during oral argument. In Gerstein v. Pugh (1975) 420 U.S. 103, 114 (Gerstein), for example, the United States Supreme Court observed that "[p]retrial confinement may imperil the suspect's job, interrupt his source of income, . . . impair his family relationships" and undermine his "ability to assist in preparation of his defense." (Id. at p. 123.) Similarly, in Stack v. Boyle (1951) 342 U.S. 1, the high court recognized principles enshrined in federal statutes under which a defendant in a noncapital case generally shall be entitled to bail as a "traditional right to freedom before conviction." (Id. at p. 4.) This is consistent with, as Humphrey traced, other deeply-rooted rights that cannot be abridged because a defendant lacks funds or is indigent. (Humphrey, at p. 1037.) As Justice Jackson observed in Stack, "The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty." (Stack, supra, 342 U.S. at p. 7-8 (conc. opn. of Jackson, J.).)
In Humphrey, the trial court initially set the defendant's bail according to the county's bail schedule. By statute, the court must generally defer to the schedule, except in "unusual circumstances." (§ 1275, subd. (c).) But based on due process prohibitions against arbitrary treatment and excessive bail, Humphrey explained: "[U]nquestioning reliance upon the bail schedule without consideration of a defendant's ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention. Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant's appearance at trial or a court ordered hearing." (Humphrey, supra, 19 Cal.App.5th at p. 1044.)
Humphrey employed a de novo standard of review (Humphrey, supra, 19 Cal.App.5th at p. 1022), which Scott argues we should apply here. But Humphrey utilized that standard in the context of determining what factors are necessary in determining bail, not how to apply them. There, the lower court allowed a slight deviation from the bail schedule based on the defendant's strong ties to the community and willingness to participate in a drug treatment program. (Humphrey, at p. 1021.) But the lower court, while conditioning the defendant's release on a high bail figure and a treatment program, gave no consideration to the defendant's financial circumstances. Humphrey granted the defendant's habeas petition based on the trial court's total failure to evaluate the defendant's ability to meet bail. That omission made the trial court's bond authorization an empty, "anomalous" gesture because—having given no consideration to the defendant's finances—the bail amount the court required was no different than any other arbitrarily high and "unattainable figure," that made it "impossible for [the] petitioner to satisfy." (Ibid.) Humphrey therefore remanded the case for the trial court to evaluate the defendant's finances in the first instance. (Id. at p. 1048.)
In contrast, the trial court here specifically cited Humphrey in its ruling, presumably for its holding requiring an individualized consideration of the defendant's resources. Scott challenges the bail amount the court set after hearing his request to reduce bail in light of his particular financial circumstances. We review a trial court's decision to increase or decrease bail—and the specific figure selected—for abuse of discretion. (In re Christie, supra, 92 Cal.App.4th at p. 1107.) "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)
Here, while the trial court did not make an explicit finding that Scott could afford a $750,000 bail threshold, we agree with the district attorney that this inference is implicit in the court's reliance on Humphrey while authorizing bail. In other words, in admitting Scott to bail under Humphrey, the court determined his finances did not bar his release at $750,000, and that no risk to public or victim safety, nor risk of flight precluded his release altogether. Supporting the conclusion the court believed $750,000 in bail was within Scott's means, the court stated it imposed GPS monitoring as an additional condition of his release "should the defendant choose to post bail." (Emphasis added.)
The problem is that the evidence does not support the trial court's implicit bail affordability determination. While our review under the substantial evidence standard is deferential, we may not infer support for the lower court's order in a vacuum; instead, we must consider only evidence in the record that is "reasonable, credible, and of solid value." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1629.) The question on review is "whether the facts established by the evidence support the conclusions drawn." (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 415.
Our review of the record does not support the district attorney's attempt to justify the $750,000 bond figure. The district attorney argues the trial court did not abuse its discretion because: (1) Scott "owns two businesses that appeared to be very profitable prior to his incarceration" and Scott acknowledged ("'absolutely'") that "his business would make more money if [he] were released"; (2) Scott's own attorney "admitted" Scott could post a one million dollar bond; (3) Scott had "an extremely large line of credit," telling the court he enjoyed "'excellent credit'" with access to "'over $100,000 of available credit,'" if needed; (4) Scott "also said he has additional financial resources from his family"; and (5) Scott "said he had $11,000 in cash."
The record does not support the district attorney's characterization of the evidence. While Scott once owned two music-lesson businesses and stated at the bond reduction hearing that he "used to have income," one business had "completely closed, and the other" was "upside down," "losing money every month so the income is negative now." Scott did not provide the music instruction himself, but instead found instructors, marketed the business, coordinated "the teachers['] scheduling," and made sure after business hours that the necessary instruments, equipment, and supplies were available.
Scott and his wife had monthly living expenses of $5,000, but, with no means to make those payments, his family's savings were down to their last $11,000, constituting just a "small amount of capital and every month it's . . . getting eaten away to cover the expenses." Scott explained at the hearing, "I don't know how I'm going to provide for my wife at this point," because "it won't be long until [she] won't have a living." He stated, "I really am faced with a really difficult financial future. There's some decisions to make because there's not enough capital to keep the doors open . . . ."
Given these circumstances, the trial court questioned whether Scott even had "the collateral for [a] $300,000" bond, expressing concern he might become a flight risk "[i]f [the court] let[s] him out under certain conditions, and he continues to try to make the business work, but runs out of money, because he's close to running out of money . . . ." (Italics added.) At this point, Scott explained he had "excellent credit" consisting of "$100,000 of available credit to me if I need it to use it," and, additionally, "I do have my family that I can probably borrow some, you know, minor money from." (Italics added.) But apart from that, his options were limited; as he stated, "The only thing I'm coming up with now is just my credit card line."
The prosecutor urged the trial court to retain the "scheduled bail" at $1,000,000, apparently seizing on Scott's $100,000 credit line to imply he could draw that full amount to secure a million dollar bond. The implicit assumption, as the district attorney argues on appeal, is that a 10 percent down payment of $100,000 to the bondsman would garner Scott's release on bail at one million dollars. But in context, the trial court's concern was the viability of Scott's business, and not setting a bond at an amount exhausting all his resources. Indeed, that would be contrary to the court's point that forcing Scott to expend his remaining funds on bail would increase rather than decrease any flight risk, by increasing the chance his business would fail.
Contrary to the district attorney's assertion, Scott's attorney did not admit Scott could afford bail at $750,000 or one million dollars. She explained that while he "theoretically . . . could get out"—presumably by using all or nearly all of his $100,000 line of credit—in actuality "[w]hat the court has done is, basically, set the bail out of his reach so he can't get out." Nothing in the record suggests Scott had the resources to devote $75,000 or $100,000 to bail, leaving virtually no credit or other assets to run his business or support his wife. Their remaining $11,000 was rapidly dwindling, and they could expect, at best, only "minor" help from Scott's family.
Three other reasons the district attorney advances are equally lacking to support the trial court's $750,000 bail order. We number those reasons (6), (7), and (8), as follows: (6) Scott "was able to retain two private attorneys to represent him in this case," (7) he had agreed on his earlier release to pay the $330 per month cost for GPS monitoring, and (8) he previously posted the $300,000 bond "within two days" after it was set. The trial court did not rely on any of these reasons and we find them spurious.
The purpose of bail is not to bankrupt the defendant or drive him to utilize resource-strapped public defenders at public expense. It is exactly the opposite: to enable the accused "to assist in preparation of his defense." (Gerstein, supra, 420 U.S. at p. 123.) We see no reason why that would not include allocating some funds to Scott's retained counsel. In his traverse, moreover, Scott explained that one of his attorneys was relieved soon after the hearing.
Similarly, the fact that Scott agreed to pay $330 per month for GPS monitoring and that he quickly posted the previous $300,000 bond amount do not support the conclusion he could make bail at $750,000—a 250 percent increase. The record does not support a bond amount two and one-half times what Scott earlier paid. Indeed, the record showed his finances were declining, not increasing; his lone remaining business was losing money, his wife could not effectively run that business without him, and their monthly expenses would quickly consume their remaining capital. No evidence supports the court's conclusion that the $750,000 bail figure was remotely affordable for Scott. It therefore violated Scott's right not to have his pretrial liberty conditioned on an excessive bail sum, when the court deemed him suitable for pretrial release.
REMEDY
The district attorney argues that if the bond amount does not pass constitutional muster, the proper remedy is to remand the matter for another bail hearing in the trial court. We disagree. Bail has been set and reset there four times already: at Scott's arraignment on the complaint, after the preliminary hearing, at his arraignment on the information, and on his motion to reduce the bail. Four bail hearings are enough. It is time to move this case forward to trial. Ample precedent supports this court's authority to correct the bond amount. "In an application to this court upon habeas corpus, for a reduction of bail upon the ground that the amount fixed by the trial court is excessive," "[i]t must clearly appear that the trial court has abused its discretion before this court will reduce the amount." (Ex parte Ruef (1908) 7 Cal.App. 750, 752 (Ruef); see, e.g., Ex parte Black (1934) 140 Cal.App. 361, ["it is well settled that this court should not reduce the bail unless it clearly appears that the trial court has abused its discretion"].) Although rarely exercised, the Supreme Court's authority to set bail is long-established. (E.g., Ex parte Clarke (1881) 62 Cal. 490, 491, disapproved on another ground in People v. Bouchard (1957) 49 Cal.2d 438,442 ["Let him be admitted to bail in the sum of one thousand dollars"].)
This court's authority to set bail is of the same constitutional dimension as the Supreme Court's. As the high court has observed, "There is no question of power here presented. The Constitution, art. VI, §§ 4 and 4b [now § 10], confers upon the Supreme Court and the District Courts of Appeal and each individual justice the right to issue the writ of habeas corpus, and Penal Code, section 1490, makes it a proper avenue for obtaining bail." (In re Brumback (1956) 46 Cal.2d 810, 815, fn. omitted.) Section 1490 provides: "When a person is imprisoned or detained in custody on any criminal charge, for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail, upon averring that fact in his petition, without alleging that he is illegally confined." (Italics added.)
The district attorney's reliance on our constitution's victims' rights provisions to require remand is misplaced. Invoked by the district attorney, article I, section 28 states: "Before any person arrested for a serious felony may be released on bail, a hearing may be held before the magistrate or judge, and the prosecuting attorney and the victim shall be given notice and reasonable opportunity to be heard on the matter." (Cal. Const., art. I, § 28, subd. (f), ¶ 3.) This language is permissive ("a hearing may be held") and, as we have noted, four such hearings have already been held. On our own motion, we take judicial notice of the complete trial court record, of which Scott furnished only portions of the record and the district attorney none. We observe that the district attorney does not appear to have made any effort to ensure the presence of the alleged victims, or their parents (id. subd. (e)), at any prior hearings—including oral argument in this court, where bail reduction was the very issue at stake in Scott's habeas petition.
In language not cited by the district attorney, article I, section 28, provides that an alleged victim's right to be heard is "upon request" (id., subd. (b)(8)), which may be enforced by "the prosecuting attorney upon request of the victim" (id., subd. (c)(1)) "in any trial or appellate court" (ibid.). The fact that the district attorney now raises victims' rights as an obstacle to bail reduction without having pursued the opportunity for those rights to be exercised at our recent hearing—for example, by a "retained attorney of a victim" (ibid.)—nor at any hearing below persuades us that this purported basis for remand is forfeited. Remand is unnecessary.
As discussed, the $750,000 bond amount is clearly excessive in relation to Scott's finances. In Ruef, the appellate court reduced the defendant's bail to reflect that 37 of more than 100 charges on which he was indicted reflected duplicative charging, which the district attorney did not deny. With bail set at $5,000 or $10,000 per charge, the total bail amount was manifestly excessive, and the reviewing court reduced bail accordingly, by reducing to a "nominal amount" the bail amounts related to the duplicate charges. (Ruef, supra, 7 Cal.App. at p. 754.) The $750,000 bail amount here bears no relation to the underlying evidence, including Scott's financial circumstances, which seemed no better and likely were worse than at the preliminary hearing when the magistrate set bail at $300,000. In our May 17, 2018, order for the district attorney to show cause why a writ of habeas corpus should not issue, we set bail at $300,000 pending our further order, with other terms and conditions as reflected in the margin.
As to bail, our May 17, 2018 order specified: "Pending further order of this court, bail is set in the amount of $300,000 on the following conditions: At his own expense, petitioner is ordered to remain under continuous GPS monitoring that has the capability of creating surveillance and stay-away zones to ensure that petitioner stays away from all United States borders, all California borders, all airports, and the location of his current business or any future business during business hours. The GPS monitoring should be programmed to immediately notify the monitoring officer of a violation, and should there be a violation, the GPS Monitor shall immediately notify the Orange County Superior Court and counsel, and immediately surrender petitioner to the court. Petitioner is further ordered not to be in the presence of any minor, he is prohibited from using the internet or any other electronic device to communicate with any minor, and he is ordered to comply with any and all protective orders filed in this case." --------
The week after our May 17, 2018 bail order, Scott posted a surety bond for $300,000 and he appeared at trial court hearings in July and September involving pretrial motions and discovery. At both hearings, the trial court expressly found the "[p]resent bail deemed sufficient and continued." Nothing in the record since then suggests the bail amount set at $300,000 is insufficient to secure Scott's presence, and nothing suggests any meaningful change in Scott's financial circumstances. Of course, if there is a change, either party may seek to increase or decrease the bond amount or otherwise request to alter the bail terms and conditions for good cause. (§ 1289.) In the meantime, to ensure that the matter duly proceeds to trial, Scott's release remains conditioned on posting the $300,000 bail amount and adhering to the same terms and conditions in our May 17, 2018 bail order.
DISPOSITION
Scott's petition for a writ of habeas corpus is granted; the writ to issue forthwith. His continued release pending adjudication of the charges against him remains conditioned on posting the $300,000 bail amount and adhering to the same terms and conditions articulated in our May 17, 2018 bail order. Our order to show cause is discharged and the matter is remanded for further proceedings consistent with this opinion.
GOETHALS, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.