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Filed 3/17/23 In re Berthelotte CA4/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re COLE CHRISTOPHER 

BERTHELOTTE

on Habeas Corpus.

E079251

(Super.Ct.No. SWF2100454)

The County of Riverside

OPINION

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Albert J. 

Wojcik, Judge. (Retired judge of the Riverside County Super. Ct. assigned by the Chief 

Justice pursuant to art. VI, § 6 of the Cal. Const.) Granted.

John P. Newton for Petitioner.

Kelly A. Moran and Minh C. Tran, County Counsel for Real Party in Interest 

Riverside County Sheriff’s Department.

Michael A. Hestrin, District Attorney, and Jesse Male, Deputy District Attorney

for Invited Participant, the People.

Cole Christopher Berthelotte filed a petition for writ of habeas corpus challenging 

the trial court’s decision to set his bail at $1 million. He contends that the trial court 

failed to comply with In re Humphrey (2021) 11 Cal.5th 135 (Humphrey), and that the 
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district attorney’s basis for requesting the bail amount stemmed from a campaign of 

vindictive prosecution. We issued an order to show cause. We now conclude a remand 

is necessary because the trial court failed to set out reasons on the record why less 

restrictive alternatives could not reasonably protect the government’s interests in public 

or victim safety.1

BACKGROUND

In April 2021, the People filed a complaint charging Berthelotte with oral 

copulation of a child under 14 (§ 287, subd. (c)(1)) and committing a lewd act on a child 

under 14 (§ 288, subd. (a)). 

At the arraignment, Berthelotte pled not guilty and asked to be released on his own 

recognizance, given that he has no contacts outside the state, does not have a criminal 

history, and has lived in the same house with his mother his entire life. Berthelotte also 

noted that Humphrey, which had been decided just weeks earlier, “basically eviscerated” 

the state’s pre-existing bail scheme. The court denied the request, found under 

Humphrey that “clear and convincing evidence [showed] that no accommodation of 

conditions [would] reasonably ensure the safety of the victim and public in this matter

[a]nd no nonmonetary alternatives to bail are adequate or sufficient to ensure public 

safety or ensure the defendant’s future court appearance,” and set bail at $110,000. 

Berthelotte posted bail and subsequently obtained a job stocking grocery store shelves at 

night.

1

 Undesignated statutory references are to the Penal Code.
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The People filed an amended complaint in February 2022 alleging an additional 

count of each crime. At the preliminary hearing two months later, the trial court held

Berthelotte to answer and, upon the People’s request, set a bail review hearing on the date 

of arraignment on the information. The People requested a bail review hearing based on 

the possibility that even more charges could be filed, which would affect the bail amount 

requested.

The subsequently filed information charged two counts of oral copulation of a 

child 10 or under (§ 288.7, subd. (b)) and two counts of committing a lewd act on a child 

under 14 (§ 288, subd. (a)). This increased Berthelotte’s criminal exposure; although oral 

copulation of a child under 14 (as previously charged) is punishable by three, six, or eight 

years in prison, oral copulation of a child under 10 (as now charged) is punishable by a 

term of 15 years to life. (§§ 287, subd. (c)(1), 288.7, subd. (b).)

At the bail review hearing, the People requested that the trial court “set bail either 

at no bail under Humphrey or set it at $1 million,” the amount set by the bail schedule. 

Berthelotte contended that the trial court (under a previous magistrate) misapplied 

Humphrey at the 2021 arraignment and that, under a proper analysis with the current 

pleading, the People failed to show that unaffordable bail or pretrial detention was 

authorized. He noted, as he did at the 2021 arraignment, that he has no criminal history, 

no contacts outside of the state, and that he has lived with his mother his entire life. He 

also noted that he has been in full compliance with the trial court’s orders (by attending 

every hearing on time and complying with the protective order barring contact with the 
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victim) and that he has no access to the victim or other children. In response, the People 

contended that the increased criminal exposure increased Berthelotte’s flight risk; that he 

actually did have family outside of California; and that “we don’t know whether he has 

continuing access to children.” Berthelotte replied that the People’s reference to his 

family out of state were to his grandparents on his estranged father’s side and that he does 

not speak to his father or have ties to those grandparents.

The trial court then stated its ruling in the following exchange:

“[Court:] Looking at the amended felony complaint in the information, the stakes 

have been raised considerably. I could understand why bail was what it was set at 

previously, $110,000, on this particular matter and the issues that I have to address 

because the complaint or the information is a new one. It’s a couple weeks old, May 

11th. Because of that and because of the stakes being raised, I do see a potential flight

risk. [¶] The fact that Mr. Berthelotte appeared in court whenever he was ordered to

appear in court, that was based upon the other charges. We have the individual in two 

different incidents, I guess, under 14 years of age. He is a threat to the alleged victim, a 

threat to public safety, alleged victim is under 14 years of age. I am going to set bail in 

the amount of $1 million. He will be remanded to custody at this time.

“[Defense Counsel]: Your Honor, may I add one more thing? May I add one 

more thing?
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“[Court]: I don’t want to hear anything further. If there’s a Humphrey argument, 

if there’s a Humphrey argument because of the issues I raised, I’d have him held without 

bail. So based on Humphrey, he will be held without bail; otherwise, it’s $1 million.”

The court exonerated the current bail bond and held Berthelotte on $1 million bail.

Berthelotte currently remains in custody.

DISCUSSION

Humphrey held that pretrial detention “is impermissible unless no less restrictive 

conditions of release can adequately vindicate the state’s compelling interests.” 

(Humphrey, supra, 11 Cal.5th at pp. 151-152.) The same is true if, instead of pretrial 

detention, a court sets bail at an amount a defendant cannot afford. (See In re Kowalczyk

(2022) 85 Cal.App.5th 667, 690 [“If, in balancing the liberty interest of an accused with 

the state’s compelling interests, an outright pretrial detention order would be appropriate, 

then a fortiori a bail order an in amount higher than a defendant can afford would also be 

appropriate”], footnote omitted.) These protections arise in no small part from the fact 

that “[t]he accused retains a fundamental constitutional right to liberty.” (Humphrey, 

supra, at p. 150.)

Thus, “[w]here the record reflects the risk of flight or a risk to public or victim 

safety, the court should consider whether nonfinancial conditions of release may 

reasonably protect the public and the victim or reasonably assure the arrestee’s presence 

at trial.” (Humphrey, supra, 11 Cal.5th at p. 154.) Only after “a reasoned inquiry” and a 

“careful consideration of the individual arrestee’s circumstances” may a court conclude, 
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based on “clear and convincing evidence,” that either pretrial detention or unaffordable 

bail may be imposed. (Id. at p. 156; see In re Kowalczyk, supra, 85 Cal.App.5th at p. 

690].)

A court’s reasons for imposing pretrial detention or unaffordable bail may not be 

implied; rather, a court making such a determination is obliged to “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; see In re Harris (2021) 71 Cal.App.5th 1085, 1105 [trial 

courts must “separately state and identify their reasons for finding that less restrictive 

alternatives to detention” are insufficient] (Harris), review granted Mar. 9, 2022, 

S272632.) Due process requires as much. (Humphrey, supra, at p. 155.)

Because the court’s decision called for an exercise of judgment based on the 

record before it, we review for an abuse of discretion. (See In re White (2020) 9 Cal.5th 

455, 469.) The court’s discretion “must be exercised within the confines of the 

applicable legal principles.” (Sargon Enterprises, Inc. v. University of Southern 

California (2012) 55 Cal.4th 747, 773.)

Here, the record of the bail review hearing contains no indication that the trial 

court considered either what bail Berthelotte could afford or the adequacy of nonfinancial 

conditions of release. It did not, for instance, weigh the concern that Berthelotte “is a 

threat to the alleged victim” against Berthelotte’s compliance with the protective order 

prohibiting any contact with her. It also did not expressly state why Berthelotte’s flight 

risk due to the “stakes being raised” would not have been reasonably addressed by 
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electronic monitoring or supervision by pretrial services. Rather, it jumped from 

considering flight risk and public safety to a bare conclusion that $1 million bail was 

necessary, only concluding (by implication) that both nonfinancial release conditions and 

affordable bail were insufficient. That jump contravenes Humphrey and was therefore an 

abuse of discretion. (See also Harris, supra, 71 Cal.App.5th at p. 1105 [conditionally 

vacating bail order where 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”], review 

granted; In re Brown (2022) 76 Cal.App.5th 296, 307 (Brown) [vacating bail order where 

trial court “failed to address any of the specific nonfinancial conditions proposed by 

[petitioner] or to indicate, even in general, why nonfinancial conditions of release . . . 

would be insufficient to protect the victims or the public or obviate the risk of flight”].)

The People2contend that the trial court was statutorily required to find that 

unusual circumstances exist before deviating from the bail schedule and that Berthelotte’s

proffered evidence was unsubstantiated and therefore insufficient. However, blind 

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 Our initial order to show cause was directed at the District Attorney even though 

neither the District Attorney nor the People was holding Berthelotte in custody. (See 

§ 1477.) The District Attorney then filed what it called an “Invited Return” and called 

itself an “Invited Participant” while noting that Berthelotte’s custodian was still not a 

party. We issued an opinion on February 15, 2023 granting Berthelotte relief, and the 

People filed a petition for rehearing the next day. We granted the petition, vacated the 

opinion, and ordered the Riverside County Sheriff, Berthelotte’s custodian, to show cause 

why relief should not be granted. The Riverside County Sheriff filed a one-sentence 

response that stated that it would operate in accordance with court orders, raising no 

arguments nor joining in arguments made. Counsel informed the court that the Sheriff 

did not wish to orally argue. We thus consider the People’s arguments here.
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reliance on a bail schedule is not permissible after Humphrey. “Under Humphrey the 

amount specified in the bail schedule (or any other amount of bail, for that matter) is 

appropriate only if the court first determines the arrestee can afford to post it.” (Brown, 

supra, 76 Cal.App.5th at p. 307.) And here, at the bail review hearing, the trial court 

never determined on the record one way or the other what bail Berthelotte could afford.

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Thus, we need not consider the evidentiary burdens and standards for determining ability 

to pay bail; the trial court’s decision violated Humphrey regardless of whether Berthelotte 

can actually afford the amount set by the bail schedule.

In sum, Berthelotte is entitled to a new hearing at which the trial court considers, 

on the record, what amount of bail Berthelotte can afford and, if it decides to either set 

bail at an unaffordable amount or deny bail altogether, why less restrictive alternatives

would not reasonably protect the public and the victim or reasonably assure his presence 

at trial. Because we find that Berthelotte is entitled to another bail review hearing under 

Humphrey, we need not, and do not, address his claims of vindictive prosecution.4

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At the 2021 arraignment, the trial court assumed that Berthelotte was indigent.

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 In its return and at oral argument, the People contended that we should deny the 

petition because it was never directed to the warden holding Berthelotte in custody. 

Brown recently reiterated that a writ of habeas corpus is the appropriate vehicle to 

challenge the denial of bail. (Brown, supra, 76 Cal.App.5th at p. 301.) That case 

construed a petition for a writ of mandate as a petition for a habeas writ and ordered a 

new bail hearing even though, like here, the writ was opposed by the District Attorney, 

not the Attorney General’s office. (Ibid.) The procedure here was thus not legally 

inappropriate under that authority, and, practically, we are not ordering the warden to 

take any action here. At this stage in the proceedings, and given Berthelotte’s clear 

entitlement to relief, we see no reason to deny the petition regardless of what procedure 

[footnote continued on next page]
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DISPOSITION

The petition is granted. The Riverside Superior Court is directed to vacate its 

order setting bail at $1 million and thereafter hold a new hearing to consider Berthelotte’s 

bail in a manner that is consistent with Humphrey and this court’s opinion.

We decline Berthelotte’s other requests for relief, including his request for release 

on his own recognizance.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

CODRINGTON

Acting P. J.

FIELDS

J.

our division would adopt as preferred. (See § 1484 [court may grant any relief “as the 

justice of the case may require”].)