Ayala v. Superior Court of San Diego Cnty.

262 Cal.Rptr.3d 22

Juan AYALA et al., Petitioners,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

The People, Real Party in Interest.

Stormy Anderson et al., Petitioners,

v.The Superior Court of San Diego County, Respondent;

The People, Real Party in Interest.

D077460

D077461

Court of Appeal, Fourth District, Division 1, California.

Filed April 29, 2020

Randy Mize, Public Defender, and Whitney N. Antrim, Deputy Public Defender, for Petitioners.

No appearance for Respondent.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Marissa Bejarano, Deputy District Attorneys, for Real Party in Interest.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Michael T. Murphy, Deputy Attorneys General, as Amicus Curiae.

GUERRERO, J.

In these proceedings, we interpret Emergency Rule 4, adopted by the Judicial Council of California in response to the ongoing emergency situation in this state caused by the COVID-19 pandemic.¹ Emergency Rule 4 establishes a statewide Emergency Bail Schedule. The Emergency Bail Schedule sets bail for all misdemeanor offenses, felony offenses, and violations of postconviction supervision at zero dollars (zero bail), except as specified in the rule.

The San Diego County Superior Court, through its presiding judge, implemented Emergency Rule 4 in General Order No. 041320-42. Among other things, the order established a procedure for handling persons arrested prior to implementation of the Emergency Bail Schedule. These persons were to be released on zero bail, unless the prosecuting agency notified the custodial officer that the agency would be requesting an increase in bail, a " ‘no bail’ " hold, or the imposition of conditions of release. The order specified that the Emergency Bail Schedule should be implemented in the same manner as the regularly adopted San Diego County bail schedule and asserted that each court "retains the traditional authority in an individual case to depart from the bail schedule or impose conditions of bail to assure the appearance of the defendant or protect public safety."

Petitioners challenge the superior court's implementation order as inconsistent with Emergency Rule 4. They contend that bail for offenses and violations covered by the rule must be set at zero dollars, and the superior court has no authority to increase bail or impose conditions in an individual case. They also contend the implementation order, including the remote hearings contemplated therein, violate various constitutional protections.

We conclude the implementation order is not inconsistent with Emergency Rule 4. The history and language of the rule show that the Judicial Council intended to adopt a statewide bail schedule, which like countywide bail schedules sets the presumptive bail amount for the covered offenses and violations. The Judicial Council did not intend to suspend the array of statutes governing bail, as well as the superior court's inherent authority, which allow the court to depart from the scheduled bail amount or impose bail conditions in individual cases under appropriate circumstances. We further conclude petitioners have not shown the implementation order or its procedures violate any guarantees of the federal or state constitutions, at least on the current record. We therefore deny the petitions.

FACTUAL AND PROCEDURAL BACKGROUND

A state of emergency exists in the State of California as a result of the ongoing COVID-19 pandemic. Federal, state, and local officials have undertaken extraordinary measures to mitigate its spread. In Executive Order N-38-20, the Governor of California conferred on the Judicial Council unprecedented authority to promulgate rules governing court administration, practice, and procedure as necessary to address the emergency. The executive order provides that, to the extent any such rule adopted by the Judicial Council would be inconsistent with any statute concerning civil or criminal practice or procedure, the relevant statute or portion thereof is suspended to resolve the inconsistency. The executive order states, "The purpose of this paragraph is to afford the Judicial Council and its Chairperson maximum flexibility to adopt any rules concerning civil or criminal practice or procedure they may deem necessary to respond to the COVID-19 pandemic, while ensuring that the rules adopted ‘shall not be inconsistent with statute,’ as provided in Article VI, section 6 of the California Constitution."²

Pursuant to this authority, and its constitutional obligation to "adopt rules for court administration, practice and procedure" ( Cal. Const., art. VI, § 6, subd. (d)), the Judicial Council considered and adopted eleven emergency rules covering various aspects of civil and criminal practice, including Emergency Rule 4. In a report to the Judicial Council recommending adoption of the emergency rules, the chairs of the Judicial Council's six internal committees outlined their rationale: "The continuous operation of our courts to provide due process and protect the public is essential for our constitutional form of government; however, courts are clearly high-risk places during this pandemic because they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries in numbers well in excess of what is allowed for gathering under current executive and health orders. Indeed, many court facilities in California are ill-equipped to implement social distancing and satisfy other public health requirements necessary to protect people involved in court proceedings and prevent the further spread of COVID-19." In particular, "[t]he spread of the virus has hit California's inmate population as well as staff members in the prison system. Many inmates have ongoing court cases and courts cannot be assured that safe social distancing can be maintained with the transport of in-custody defendants and the holding cells adjacent to or within courthouses."

The report noted that the pretrial custody decisions of trial courts can affect the spread of COVID-19. "During the COVID-19 pandemic, trial courts have a vital role to play in balancing public safety and public health by assisting to safely reduce jail populations in a manner that protects the health of inmates, jail staff, those who transport defendants to courts, and others as individuals leave jail and return to their communities. The courts can assist by permitting more persons accused of misdemeanors and other lower-level offenses to be released from jail custody prior to arraignment, which in turn will reduce the immediate burden on the courts to conduct arraignments and preliminary examinations within compact timeframes."

Prior to the Governor's executive order, the Chief Justice recommended that trial courts reduce the incarcerated population by adopting emergency bail schedules that would result in fewer people in custody based on their inability to post bail. Her recommendation advised courts to "[r]evise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses—for all misdemeanors except for those listed in Penal Code section 1270.1 and for lower-level felonies."

The committee chairs' report noted that, "[f]ollowing this advisory, some courts adopted emergency bail schedules, but during this time there is a need for greater uniformity throughout the state." They therefore proposed that the Judicial Council "adopt an emergency rule of court that provides for a statewide Emergency Bail Schedule." The emergency rule would adopt an Emergency Bail Schedule "to set bail at $0 for misdemeanors and certain felonies ...." The Emergency Bail Schedule would apply "[p]ursuant to Penal Code section 1269b ... to any accused currently held in county jail custody charged with an offense covered by the schedule." The regularly adopted countywide bail schedule would apply to any other offenses. The emergency rule would require "[b]ail to be set at $0 for violations of misdemeanor probation, whether the arrest is made with or without a bench warrant. For violations of felony probation, parole, post release community supervision, or mandatory supervision, bail must be set in the same amount as bail for the underlying substantive charge of conviction under the Emergency Bail Schedule."

The Judicial Council adopted the recommended rule as Emergency Rule 4. It provides, "Notwithstanding any other law, this rule establishes a statewide Emergency Bail Schedule, which is intended to promulgate uniformity in the handling of certain offenses during the state of emergency related to the COVID-19 pandemic." (Emergency Rule 4(a).) "Under the statewide Emergency Bail Schedule, bail for all misdemeanor and felony offenses must be set at $0, with the exception of only the offenses listed below ...." (Emergency Rule 4(c).) Likewise, "[u]nder the statewide Emergency Bail Schedule, bail for all violations of misdemeanor probation, whether the arrest is with or without a bench warrant, must be set at $0." (Emergency Rule 4(f)(1).) "Bail for all violations of felony probation, parole, post-release community supervision, or mandatory supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the bail amount in the court's countywide schedule of bail for charges of conviction listed [in the exceptions to the statewide Emergency Bail Schedule]." (Emergency Rule 4(f)(2).) Even for covered offenses, Emergency Rule 4 does not affect the constitutional authority of superior courts to deny bail altogether in limited circumstances: "Nothing in the Emergency Bail Schedule restricts the ability of the court to deny bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution." (Emergency Rule 4(d...