Court rules bail can be required despite state order

A statewide order eliminating bail for all but the most serious charges during the coronavirus pandemic was not binding on a county’s judges, who can still require defendants to post bail or hold them without bail at a prosecutor’s request, a state appeals court ruled Wednesday.

The ruling by the Fourth District Court of Appeal in San Diego allows Superior Court judges in San Diego County to decide whether to set bail in individual cases despite the April 7 order by the state Judicial Council that reduced bail to zero for nearly all misdemeanor charges as well as most nonviolent felonies.

The order, recommended by Chief Justice Tani CantilSakauye, took effect April 13 and was intended to reduce overcrowding in county jails that makes inmates and staff more vulnerable to the coronavirus. The order, criticized by a number of local sheriffs and prosecutors, is due to expire 90 days after the end of the state of emergency declared by Gov. Gavin Newsom.

The Judicial Council’s order did not suspend a judge’s “inherent authority” to decide whether a defendant should remain in custody or post bail as security for release, Justice Patricia Guerrero said in the 30 ruling, the first by an appeals court on the issue.

She said the order enacted an “emergency bail schedule” mandating zero bail for most crimes — but bail schedules, adopted by each county under longstanding practice, have never prohibited judges from making their own decisions in individual cases.

So far, Guerrero said, San Diego County has released dozens of defendants without bail since April 13 but has granted prosecutors’ requests to hold, for further review, 100 to 200 defendants who otherwise would have been eligible for release without bail.

Before the Judicial Council’s order took effect, San Diego County District Attorney Summer Stephan sent a letter to the council that described the zerobail mandate as binding on all courts. Stephan later disavowed the letter, saying she had written it before receiving additional information about the issue, and the court said it was not binding on her office.

Although the ruling directly affects only prosecutions in San Diego County, if it withstands appeal it will authorize judges in all other counties to make similar decisions on bail. The county public defender’s office said it would appeal the ruling to the state Supreme Court.

The ruling “ignores the danger to those who are eligible for release under the Judicial Council’s Emergency Rule 4 but remain in custody — in direct conflict with the rule’s stated purpose and language,” said Deputy Public Defender Whitney Antrim.