Filed 11/21/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re GERALD JOHN 

KOWALCZYK

on Habeas Corpus.

 A162977

 (San Mateo County

 Super. Ct. No. 21SF003700A)

Gerald John Kowalczyk filed a petition for writ of habeas corpus 

challenging the trial court’s decision denying him bail. We issued an order to 

show cause and later asked the parties to brief a number of issues, including 

whether pretrial detention is authorized outside of the circumstances 

specified in article I, section 12 of the California Constitution. We ultimately

dismissed the habeas petition as moot on the motion of the People, the real 

party in interest, who informed us that petitioner had pled and been 

sentenced in the underlying criminal matter. 

The California Supreme Court granted review and transferred the 

matter back to this court with directions to vacate our dismissal order and to 

“issue an opinion that addresses which constitutional provision governs the 

denial of bail in noncapital cases—article I, section 12, subdivisions (b) and 

(c), or article I, section 28, subdivision (f)(3), of the California Constitution —

or, in the alternative, whether these provisions can be reconciled.” At this 

juncture, we have received additional briefing from the parties and held oral 

argument on the question posed. 
2

Adhering to settled principles governing the construction of 

constitutional provisions, we conclude that the bail provisions of article I, 

section 28, subdivision (f)(3) can be reconciled with those of article I, 

section 12 (hereafter section 12 and section 28(f)(3)) and that both sections 

govern bail determinations in noncapital cases. This means that section 12’s 

general right to bail in noncapital cases remains intact, while full effect must

be given to section 28(f)(3)’s mandate that the rights of crime victims be 

respected in all bail and OR release determinations. In so concluding, we 

reject any suggestion that section 12 guarantees an unqualified right to 

pretrial release or that it necessarily requires courts to set bail at an amount 

a defendant can afford.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged petitioner by complaint with one felony count of 

vandalism (Pen. Code, § 594, subd. (b)(1)), three felony counts of identity 

theft (id. § 530.5, subd. (a)), one misdemeanor count of petty theft of lost 

property (id. § 485), and one misdemeanor count of identity theft (id. § 530.5, 

subd. (c)(1)). Petitioner waived arraignment on the complaint, and the court

set bail at $75,000. Prior to his preliminary hearing, petitioner filed a motion 

seeking release on his own recognizance (OR) with drug conditions and 

electronic monitoring, arguing that he posed no danger to the alleged victims 

or the community and was a minimal risk for nonappearance at future court

proceedings. 

At a hearing in May 2021, the prosecutor opposed the bail motion and 

requested that bail remain set at $75,000. According to the prosecutor, the 

judge who initially set bail determined that petitioner posed a danger to the 

public based on the recommendation of a pretrial services report and on 

petitioner’s extensive RAP sheet. Given petitioner’s ongoing commission of 
3

crimes, including while on probation, the prosecutor argued that no less 

restrictive nonfinancial conditions could protect the public from him. 

Petitioner contended otherwise, noting there was no showing of flight risk or 

a risk of “harm to others” insofar as the charged offenses were property 

crimes and the majority of his prior offenses were merely theft or drug 

related. Petitioner also urged consideration of his inability to pay the bail 

amount and the imposition of alternative conditions, such as drug testing. 

The court denied bail altogether and ordered petitioner detained. 

Although the court indicated it was not worried for the safety of the victims of 

the charged offenses, it emphasized protection of the public as the primary 

concern and viewed petitioner’s property crimes as a significant public safety 

issue. The court observed that petitioner was a chronic reoffender whose

RAP sheet documented 64 prior convictions and was over 100 pages long. 

Among those prior convictions were at least four convictions for driving under 

the influence. Petitioner received the maximum score of 14 on the Virginia 

Pretrial Risk Assessment Instrument, and the pretrial services report 

indicated petitioner failed to abide by supervised OR conditions in the last 

five years. The court also indicated its concern that petitioner might 

abscond, noting his convictions spanned multiple states and multiple

counties in California. Furthermore, petitioner—who was unhoused and

unemployed—made no showing of any incentive to remain and attend future 

court appearances. Highlighting petitioner’s unprecedented “level of 

recidivism,” the court found that no nonfinancial or financial conditions could 

accomplish the goals of protecting the public or ensuring petitioner’s

appearance at future court proceedings. 

At the preliminary hearing in mid-May 2021, the court (a different 

judicial officer than the two who considered the issue of bail before) held 
4

petitioner to answer to the felony identity theft counts, but not the felony 

vandalism count, and “ ‘certified’ ” the misdemeanor counts to the superior 

court. The court considered and denied the defense’s oral motion to reduce 

bail, explaining that the prior judge already considered the issue of bail and 

that the circumstances had not sufficiently changed to warrant disturbing 

that order. 

In mid-June 2021, petitioner again moved to reduce bail or for OR

release, contending that he posed no risk to specific victims or the public and 

that nonfinancial terms could be used to secure his appearance. He also 

noted he was not held to answer on the felony vandalism charge, which he 

claimed was a changed circumstance warranting reconsideration of bail. At 

one point during the hearing, but before the prosecutor raised the issue of 

petitioner’s extensive criminal history and recidivism, the court (a different 

judicial officer than those before) indicated she did not see a public safety 

issue in the case. Ultimately, the court denied the motion and declined to 

disturb the no bail order due to the absence of changed circumstances. 

In July 2021, petitioner filed his habeas petition challenging the denial 

of bail on various grounds. As indicated, we issued an order to show cause 

but ultimately dismissed the petition as moot. The California Supreme Court 

granted review, and transferred the matter back to this court with directions 

to vacate our order dismissing the petition as moot, to conduct further 

proceedings as appropriate, and to “issue an opinion that addresses which 

constitutional provision governs the denial of bail in noncapital cases—article 

I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), 

of the California Constitution—or, in the alternative, whether these 

provisions can be reconciled.” 
5

DISCUSSION

A. California Constitutional Provisions Relating to Bail

1. Early History

In 1849, article I, section 7 of the California Constitution provided: “All 

persons shall be bailable, by sufficient sureties, unless for capital offenses, 

when the proof is evident or the presumption great.” (Cal. Const. of 1849, 

art. I, § 7.) Article I, section 6 of the 1849 Constitution also provided: 

“Excessive bail shall not be required . . . .” These provisions were 

subsequently joined and set forth in article I, section 6 of the California

Constitution of 1879, and in 1974 they were relocated to section 12 with an 

added provision explicitly permitting OR release at the court’s discretion.

1 

(Standish, supra, 38 Cal.4th at p. 874.) 

2. Propositions 4 and 8 in 1982

In 1982, Proposition 4 proposed to amend section 12 by adding two 

subdivisions that would “broaden the circumstances under which the courts 

may deny bail.” (Ballot Pamp., Primary Elec. (June 8, 1982) analysis of 

Prop. 4 by the Legislative Analyst, p. 16.)

2 According to the Legislative 

Analyst, under new subdivision (b), bail “could be denied in felony cases 

involving acts of violence against another person when . . . the proof of guilt is 

1 In full, this former version of section 12 read: “A person shall be 

released on bail by sufficient sureties, except for capital crimes when the 

facts are evident or the presumption great. Excessive bail may not be 

required. [¶] A person may be released on his or her own recognizance in the 

court’s discretion.” (Former Cal. Const., art. I, § 12; People v. Standish (2006) 

38 Cal.4th 858, 874 (Standish) [prior to 1974, there was a “ ‘ “well-established 

practice of releasing persons accused of crimes on their own recognizance” ’ in 

appropriate circumstances as an alternative to requiring the posting of 

bail”].)

2 Petitioner’s unopposed request for judicial notice of various documents, 

including voter information guides, is granted. 
6

evident or the presumption of guilt is great and . . . there is a substantial 

likelihood that the accused’s release would result in great bodily harm to 

others.” (Id., analysis of Prop. 4 by the Legislative Analyst, p. 16; see id., text 

of Prop. 4, p. 17.) And under new subdivision (c), bail “could be denied in 

felony cases when . . . the proof of guilt is evident or the presumption of guilt 

is great and . . . the accused has threatened another with great bodily harm 

and there is a substantial likelihood that the threat would be carried out if 

the person were released.” (Id., analysis of Prop. 4, p. 16.) Proposition 4 also 

proposed to add a constitutional “requirement that the courts, in fixing the 

amount of bail, consider . . . the seriousness of the offense, the person’s 

previous criminal record, and the likelihood that the person will appear to 

stand trial[].” (Ibid.)

On the same ballot was Proposition 8—known as “ ‘The Victims’ Bill of 

Rights’ ”—which would accord a number of constitutional rights to crime 

victims in areas ranging from bail to restitution. (Ballot Pamp., Primary 

Elec. (June 8, 1982) text of Prop. 8, p. 33.) In particular, Proposition 8 would

acknowledge that “[t]he rights of victims pervade the criminal justice system, 

encompassing not only the right to restitution . . . , but also the more basic 

expectation that persons who commit felonious acts causing injury to 

innocent victims will be appropriately detained in custody.” (Ibid., italics 

omitted.) To accomplish these goals, the proposition explained, “broad 

reforms in the procedural treatment of accused persons and the disposition 

and sentencing of convicted persons are necessary and proper as deterrents to 

criminal behavior and to serious disruption of people’s lives.” (Ibid., italics 

omitted.)

With regard to bail, Proposition 8 proposed to repeal section 12 and to 

substitute section 28, subdivision (e) (“section 28(e)”) in its place. (Standish, 
7

supra, 38 Cal.4th at p. 874; Ballot Pamp., Primary Elec., supra, text of 

Prop. 8, §§ 2–3, p. 33.) Section 28(e), entitled “Public Safety Bail,” provided

as follows: “A person may be released on bail by sufficient sureties, except for 

capital crimes when the facts are evident or the presumption great. 

Excessive bail may not be required. In setting, reducing or denying bail, the 

judge or magistrate shall take into consideration the protection of the public, 

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 shall be the primary consideration. [¶] A person 

may be released on his or her own recognizance in the court’s discretion, 

subject to the same factors considered in setting bail. However, no person 

charged with the commission of any serious felony shall be released on his or 

her own recognizance.” (Ballot Pamp., Primary Elec., supra, text of Prop. 8, 

§ 3, p. 33, italics omitted.)

Ultimately, Proposition 4 and Proposition 8 both passed, but 

Proposition 4 received more votes than Proposition 8. Over a decade later, 

the California Supreme Court commented that the bail and OR provisions in 

Proposition 4 prevailed over those in Proposition 8 because the former 

received more votes than the latter. (In re York (1995) 9 Cal.4th 1133, 1140, 

fn. 4 (York).) However, the York court did not analyze at length whether the 

two propositions might be harmonized so that both of their bail and OR 

provisions could be given effect. (Standish, supra, 38 Cal.4th at pp. 876–877.)

In 2006, the California Supreme Court performed such an analysis in 

Standish, supra, 38 Cal.4th 858. In conducting a “section-by-section 

comparison of Propositions 4 and 8,” the Standish court observed their bail 

and OR provisions were in “direct conflict”: “Proposition 8 would have 

repealed . . . section 12 [citation], while Proposition 4 amended that provision. 
8

[Citation.] Proposition 8 would have rescinded the court’s discretion to grant 

OR release for any serious felony[

3] [citation], while Proposition 4 left the 

court’s preexisting discretion intact without any restriction. [Citation.] 

Proposition 4 stated that all accused persons ‘shall’ be admitted to bail, 

subject to certain limitations [citation], while Proposition 8 would have 

rendered bail discretionary in all cases and would have extended the 

restrictions it imposed upon bail to OR release.” (Id. at pp. 877–878.) In view 

of this analysis and the greater number of votes Proposition 4 received, the 

court determined that Proposition 4’s bail and OR amendments to section 12 

took effect, and that Proposition 8’s conflicting provisions in section 28(e) did 

not. (Id. at p. 878.)

As relevant here, the voters approved two subsequent amendments. 

First, in 1994 the voters passed Proposition 189, which expanded the 

exception in subdivision (b) of section 12 to include persons who have 

committed “felony sexual assault offenses 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.” (Supp. Ballot Pamp., 

Gen. Elec., (Nov. 8, 1994) text of Prop. 189, p. 18, italics omitted.) Second, 

and as will be discussed below, the voters approved Proposition 9 in 2008.

3. Proposition 9 in 2008

Proposition 9—entitled the “ ‘Victims’ Bill of Rights Act of 2008: 

Marsy’s Law’ ”—proposed to amend section 28 as added to the Constitution in 

1982, including the bail provisions previously held inoperative. (Voter 

3 As noted, post, this specific provision rescinding a court’s discretion to 

grant OR release for serious felonies was expressly stricken from section 28 

by the passage of Proposition 9 in 2008.
9

Information Guide, Gen. Elec. (Nov. 4, 2008) text of Prop. 9, §§ 1 & 4.1, 

pp. 128–130.) Proposition 9 contained a finding that crime victims are 

entitled to “justice and due process” and that its provisions are necessary “to 

remedy a justice system that fails to fully recognize and adequately enforce” 

such rights. (Id., text of Prop. 9, § 2, p. 128.) Specifically, Proposition 9 

declared: “The People of the State of California find that the ‘broad reform’ of 

the criminal justice system intended to grant these basic rights mandated in 

the Victims’ Bill of Rights initiative measure passed by the electorate as

Proposition 8 in 1982 has not occurred as envisioned by the people. Victims 

of crime continue to be denied rights to justice and due process.” (Ibid.)

Importantly, Proposition 9 included the following declaration of its 

purposes and intent: “The rights of victims also include broader shared 

collective rights that are held in common with all of the People of the State of 

California and that are enforceable through the enactment of laws and 

through good-faith efforts and actions of California’s elected, appointed, and 

publicly employed officials. These rights encompass the expectation shared 

with all of the people of California that persons who commit felonious acts 

causing injury to innocent victims will be appropriately and thoroughly 

investigated, [and] appropriately detained in custody . . . so that the public 

safety is protected and encouraged as a goal of highest importance.”4 (Voter 

Information Guide, Gen. Elec., supra, text of Prop. 9, § 4.1, p. 129.)

4 The italics in this and in the following quoted text from Proposition 9 

reflect the original italicized language appearing in the ballot materials, 

which informed the reader: “This initiative measure amends a section of the 

California Constitution and amends and adds sections to the Penal Code; 

therefore, existing provisions proposed to be deleted are printed in strikeout 

type and new provisions proposed to be added are printed in italic type to 

indicate that they are new.” (Voter Information Guide, Gen. Elec., supra,

introductory paragraph to text of Prop. 9, p. 128.)
10

Upon its passage, Proposition 9 amended section 28, subdivision (a), to 

provide that crime victims had the personally enforceable rights described in 

subdivision (b)(1) through (17). (Voter Information Guide, Gen. Elec., supra,

text of Prop. 9, § 4.1, p. 129.) In particular, subdivision (b)(3) of section 28 

guaranteed the right of crime victims “[t]o have the safety of the victim and 

the victim’s family considered in fixing the amount of bail and release 

conditions for the defendant.” (Text of Prop. 9, § 4.1, p. 129.)

Proposition 9 also added subdivision (f)(3) to section 28, which reflected 

the same title (“Public Safety Bail”) and contained language nearly identical 

to the language that appeared in Proposition 8’s version of section 28(e). 

(Compare Voter Information Guide, Gen. Elec., supra, text of Prop. 9, § 4.1, 

p. 130 with Ballot Pamp., Primary Elec., supra, text of Prop. 8, p. 33.) Given 

its significance to petitioner’s contentions, we set forth the following relevant

text of proposed section 28(f)(3), as it appeared in the ballot materials:

(f) In addition to the enumerated rights provided in 

subdivision (b) that are personally enforceable by victims as 

provided in subdivision (c), victims of crime have additional 

rights that are shared with all of the People of the State of 

California. These collectively held rights include, but are not 

limited to, the following: 

[¶] . . . [¶]

(e) (3) Public Safety Bail. A person may be released on bail 

by sufficient sureties, except for capital crimes when the facts are 

evident or the presumption great. Excessive bail may not be 

required. In 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 consideration considerations.

A person may be released on his or her own recognizance in 

the court’s discretion, subject to the same factors considered in 
11

setting bail. However, no person charged with the commission of 

any serious felony shall be released on his or her own 

recognizance.

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.

When a judge or magistrate grants or denies bail or release 

on a person’s own recognizance, the reasons for that decision 

shall be stated in the record and included in the court’s minutes.

(Voter Information Guide, Gen. Elec., supra, text of Prop. 9, § 4.1, p. 130.)

Unlike the situation earlier with Proposition 8, Proposition 9 did not 

propose to repeal section 12. Proposition 9 did, however, include a provision

entitled “Conflicts with Existing Law” which specifically stated: “It is the 

intent of the People of the State of California in enacting this act that if any 

provision in this act conflicts with an existing provision of law which provides 

for greater rights of victims of crime, the latter provision shall apply.” (Voter 

Information Guide, Gen. Elec., supra, text of Prop. 9, § 7, p. 132, block 

capitalization omitted.)

B. The Humphrey Decision

To round out the constitutional landscape pertaining to bail, we discuss

the California Supreme Court’s decision in In re Humphrey (2021) 11 Cal.5th 

135 (Humphrey).

In Humphrey, the charges against the 66-year-old petitioner included

first degree residential robbery and burglary, infliction of injury on an elderly 

victim, and four prior strike allegations. (Humphrey, supra, 11 Cal.5th at 

pp. 143–144.) In seeking OR release without any condition of money bail, the 

petitioner cited his age, community ties, financial condition, history of 

appearing in court, remoteness of his prior offenses, as well as the fact that 

the charged offenses involved the alleged taking of $7 and a bottle of cologne
12

from the victim. (Id. at p. 144.) The court set bail at $600,000, then later at 

$350,000, despite the petitioner’s protestations that he could not afford these

bail amounts. (Id. at pp. 144–145.) After the Court of Appeal granted habeas 

relief, the California Supreme Court granted review “to address the 

constitutionality of money bail as currently used in California as well as the 

proper role of public and victim safety in making bail determinations.” (Id. at 

p. 147.) 

Ultimately, the Supreme Court held it unconstitutional to detain

arrestees solely because they lack financial resources. (Humphrey, supra, 11 

Cal.5th at p. 156.) In so holding, the court emphasized that bail 

determinations require “an individualized consideration of the relevant 

factors,” including “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, 11 

Cal.5th at p. 152, citing §§ 12, 28(b)(3), (f)(3); Pen. Code, § 1275, subd. (a)(1).)

The Humphrey court underscored the following general framework for 

pretrial release and detention determinations: “Where 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. If the 

court concludes that money bail is reasonably necessary, then the court must 

consider the individual arrestee’s ability to pay, along with the seriousness of 

the charged offense and the arrestee’s criminal record, and—unless there is a 

valid basis for detention—set bail at a level the arrestee can reasonably 

afford. And if a court concludes that public or victim safety, or the arrestee’s 

appearance in court, cannot be reasonably assured if the arrestee is released, 
13

it may detain the arrestee only if it first finds, by clear and convincing 

evidence, that no nonfinancial condition of release can reasonably protect 

those interests.” (Humphrey, supra, 11 Cal.5th at p. 154.) In sum, “detention 

is impermissible unless no less restrictive conditions of release can 

adequately vindicate the state’s compelling interests.” (Id. at pp. 151–152.)

As relevant here, the Humphrey court expressly noted that “[e]ven 

when a bail determination complies with the above prerequisites, the court 

must still consider whether the deprivation of liberty caused by an order of 

pretrial detention is consistent with state statutory and constitutional law 

specifically addressing bail—a question not resolved [in Humphrey]—and 

with due process.” (Humphrey, supra, 11 Cal.5th at p. 155, fn. omitted.) In a 

footnote accompanying this statement, the court noted it was leaving 

unresolved the question of whether section 12 and section 28(f)(3) “can or 

should be reconciled, including whether these provisions authorize or prohibit 

pretrial detention of noncapital arrestees outside the circumstances specified 

in section 12, subdivisions (b) and (c).” (Humphrey, at p. 155, fn. 7; In re 

White (2020) 9 Cal.5th 455, 470.) As indicated, the California Supreme Court 

has directed us to resolve that open issue in this case.

C. Analysis

Before turning to the question presented, we address petitioner’s claim 

that section 28(f)(3) is completely inoperative because Proposition 8 never 

took effect in 1982. We review this issue de novo. (Taxpayers for Accountable 

School Bond Spending v. San Diego Unified School Dist. (2013) 215 

Cal.App.4th 1013, 1026 (Taxpayers for Accountable School Bond Spending).)

1. Section 28(f)(3) is fully operative

In contending section 28(f)(3) is inoperative, petitioner emphasizes that

the ballot materials accompanying Proposition 9 made no mention of the 
14

Supreme Court’s decision holding that Proposition 8’s similar bail provisions 

were inoperative; nor did the materials otherwise indicate the voters were 

being asked to “re-enact” or effectuate the inoperative bail provisions of 

section 28(e). Thus, petitioner claims, the voters’ 2008 approval of 

Proposition 9 did not reflect an intent to resuscitate the inoperative bail and 

OR provisions of Proposition 8, and section 28(f)(3) must be deemed 

inoperative. Alternatively, petitioner posits that effect should be given only 

to the “genuinely new material” of section 28(f)(3), i.e., only those portions of 

the constitutional text that were italicized in the ballot materials.

5

“Under the California Constitution, ‘[t]he legislative power of this State 

is vested in the California Legislature . . . but the people reserve to 

themselves the powers of initiative and referendum.’ (Cal. Const., art. IV, 

§ 1.)” (Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105, 1111.) The initiative 

power is “ ‘one of the most precious rights of our democratic process’ ”

(Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 

591), and “courts have consistently declared it their duty to ‘ “jealously 

guard” ’ and liberally construe the right so that it ‘ “be not improperly 

annulled” ’ ” (California Cannabis Coalition v. City of Upland (2017) 

3 Cal.5th 924, 934). “ ‘If doubts can reasonably be resolved in favor of the use 

of this reserve power, courts will preserve it.’ ” (Associated Home Builders, at 

p. 591.) In analyzing challenges to the exercise of the initiative power, courts 

generally assume that, when voters are provided the whole text of a proposed 

constitutional amendment, they have considered each aspect of the law and

5 In their joint amicus brief in support of petitioner, the American Civil 

Liberties Union of Northern and Southern California, the California Public 

Defenders Association, Crime Survivors for Safety and Justice, and the 

Public Defender of Ventura County (hereafter amici) essentially advance this 

the same argument, as well as a few other of petitioner’s arguments. 
15

voted intelligently. (See Brosnahan v. Brown (1982) 32 Cal.3d 236, 252 

(Brosnahan).)

Here, there is no dispute that the voters were provided the entire text

of Proposition 9. Thus, when the voters cast their ballots, they presumably 

considered each aspect of the law and voted intelligently to approve all of its 

terms, including the whole of section 28(f)(3). (Brosnahan, supra, 32 Cal.3d 

at p. 252.) That the ballot materials omitted to mention section 28(f)(3)’s

similarity to bail provisions previously deemed inoperative despite voter 

approval in 1982 provides no basis for its annulment.

In arguing to the contrary, petitioner directs our attention to Elections 

Code section 9086, subdivision (f), which provides: “The provisions of the 

proposed measure differing from the existing laws affected shall be 

distinguished in print, so as to facilitate comparison.” (Italics added.) 

Pointing to a paragraph in the 2008 ballot materials that explains “new 

provisions proposed to be added are printed in italic type to indicate that they 

are new” (see ante, fn. 4), petitioner argues that, at best, the voters intended 

to enact only those few italicized words and phrases within section 28(f)(3) of 

Proposition 9, i.e., “the safety of the victim,” “and the safety of the victim,” 

“considerations,” and “and the victim.” 

We express no view as to whether Elections Code section 9086, 

subdivision (f), would have required the entirety of section 28(f)(3) to be

italicized, had a timely challenge to the typeface in the Voter Pamphlet been 

filed. Elections Code section 9086 is silent as to whether italicization is 

appropriate for laws that technically exist but have been deemed inoperative, 

such as the bail provisions at issue. Here, petitioner cites no authority for 

the view that, despite section 28(f)(3)’s approval by the voters, only its

italicized portions should be given effect. Indeed, when excised from the 
16

sentences they appear in, the words and phrases that were italicized in 

section 28(f)(3) did not convey a complete idea and had no real meaning 

beyond their conceptual references. Contrary to petitioner’s contention, there 

simply is no basis for believing that the voters intended to enact certain 

select words and phrases divorced from the contextual language that gave 

them meaning.

2. Section 12 and section 28(f)(3) can be reconciled and each given 

full effect

We now address whether section 12(b) and (c) or section 28(f)(3) 

governs the denial of bail in noncapital cases, or alternatively, whether these 

provisions can be reconciled. This is a matter of constitutional interpretation, 

which we undertake de novo. (Taxpayers for Accountable School Bond 

Spending, supra, 215 Cal.App.4th at p. 1026.)

We focus first on the meaning of these constitutional provisions. For

this task, we adhere to well established principles similar to those governing 

statutory construction. (Silicon Valley Taxpayers’ Assn., Inc. v. Santa Clara 

County Open Space Authority (2008) 44 Cal.4th 431, 444.) Our goal is to 

ascertain the intent of the lawmakers “so as to effectuate the purpose of the 

law.” (People v. Canty (2004) 32 Cal.4th 1266, 1276 (Canty).) We start by

examining the language of the constitutional provisions, “ ‘ “giving the words 

their usual, ordinary meaning.” ’ ” (Ibid.) If the language is clear and 

unambiguous, we follow its plain meaning. (Ibid.) We construe the language

in the context of the measures as a whole and the overall legislative scheme, 

according significance to every word, phrase, and sentence in order to achieve

the legislative purpose. (Ibid.) “The intent of the law prevails over the letter 

of the law, and ‘ “the letter will, if possible, be so read as to conform to the 

spirit of the act.” ’ ” (Id. at pp. 1276–1277.) Once we ascertain the meaning 

of each constitutional provision, we will be positioned to determine which 
17

provision governs the denial of bail in noncapital cases or whether the two 

provisions can be reconciled. 

To reiterate, section 12 provides in relevant part: “A person shall be 

released on bail by sufficient sureties, except for: [¶] (a) Capital crimes . . . ;

[¶] (b) Felony offenses involving acts of violence on another person, or felony 

sexual assault offenses on another person . . . and the court finds . . . that 

there is a substantial likelihood the person’s release would result in great 

bodily harm to others; or [¶] (c) Felony offenses . . . and the court finds 

. . . that the person has threatened another with great bodily harm and that 

there is a substantial likelihood that the person would carry out the threat if 

released.” Section 12 further provides: “Excessive 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. [¶] A person may be released on his or her own recognizance in 

the court’s discretion.”

Section 28(f)(3) provides in full: “Public Safety Bail. A person may be 

released on bail by sufficient sureties, except for capital crimes when the 

facts are evident or the presumption great. Excessive bail may not be 

required. In 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. [¶] A person may be released on his or her own recognizance 

in the court’s discretion, subject to the same factors considered in setting bail. 

[¶] Before any person arrested for a serious felony may be released on bail, a 
18

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. [¶] When a judge or magistrate grants or denies bail 

or release on a person’s own recognizance, the reasons for that decision shall 

be stated in the record and included in the court’s minutes.”

The principal dispute centers around the language in the first sentence 

of each of these constitutional provisions. Specifically, the lead clauses are 

virtually identical except that section 12 states that a person “shall be

released on bail by sufficient sureties,” while section 28(f)(3) says that a 

person “may be released on bail by sufficient sureties.” (Italics added.) The 

precise inquiry is this: What is the meaning of the seemingly permissive 

language in section 28(f)(3), and can it be reconciled with the mandatory 

language in section 12, which embodies a longstanding “constitutional right

to be released on bail pending trial” in noncapital cases subject to two 

exceptions? (Standish, supra, 38 Cal.4th at p. 878; see Cal. Const. of 1849, 

art. I, § 7; In re Law (1973) 10 Cal.3d 21, 25.)

Turning to section 28(f)(3)’s use of the term “may,” we observe that, 

ordinarily and presumptively, “may” is permissive. (Standish, supra, 38 

Cal.4th at p. 869.) “May” is a term that also refers to an expression of 

possibility. (Black’s Law Dictionary (11th ed. 2019) p. 1172, col. 2.) Given 

that section 12 was fully operative when Proposition 9 was presented to the 

voters and approved, the most natural reading of section 28(f)(3)’s phrase “[a] 

person may be released on bail by sufficient sureties” is that the phrase is a 

declarative statement of existing law. (Italics added.) That is, the phrase 

acknowledges that a person may or may not be released on bail, consistent 

with the dictates in section 12 that a person is generally entitled to bail 

release in noncapital cases except under the circumstances articulated in
19

section 12(b) and (c), or (as will be discussed below) when a person may not 

be able to post bail as set.

Construing section 28(f)(3) in this manner fully promotes the voters’ 

intent to “preserve and protect” the right of crime victims “to justice and due 

process” by having “the safety of the victim and the victim’s family considered 

in fixing the amount of bail and release conditions for the defendant.” (Voter 

Information Guide, Gen. Elec. (Nov. 4, 2008), text of Prop. 9, § 4.1, p. 129; id., 

arguments in favor of Prop. 9, p. 62.) Section 28(f)(3) accomplishes this by

requiring that (1) all bail determinations take into consideration and give 

primacy to protection of the public and victim safety6; (2) all OR 

determinations be subject to the same factors considered in setting bail; and 

(3) victims be notified and provided a reasonable opportunity to be heard 

“[b]efore any person arrested for a serious felony may be released on bail.” At 

the same time, these victim safety provisions do not conflict with section 12 

or otherwise impede its operation; they simply mandate additional 

considerations in bail and OR determinations in noncapital cases.

Accordingly, construing the first sentence of section 28(f)(3) as declarative of 

the general right to bail allows for complete reconciliation of section 28(f)(3) 

and section 12.

The People advance a different construction of section 28(f)(3), 

essentially contending the phrase “[a] person may be released on bail by 

sufficient sureties” must be interpreted as a grant of judicial discretion to 

deny bail release in all noncapital cases. (Italics added.) Such construction, 

of course, would mean that section 28(f)(3) is in direct conflict with section 12 

6 Sections 28(f)(3) and 12 both additionally require consideration of “the 

seriousness of the offense charged, the previous criminal record of the 

defendant, and the probability of [the defendant] appearing at the trial or 

hearing of the case.”
20

and its limited exceptions for denying bail release in certain noncapital cases. 

Setting aside for a moment the strong presumption against implied repeal, 

the People’s construction finds no support in the text of section 28 or in the 

ballot materials accompanying Proposition 9.

Apart from the People’s proffered interpretation of section 28(f)(3)’s

first sentence, the text of section 28 contains no language indicating an intent 

to broaden the authority of judges and magistrates to deny bail. Indeed, 

when the measure mentions the topic of bail, it does so in a manner that is 

fully consistent with the terms of section 12. For instance, section 28’s

prefatory declarations include a finding that the rights of crime victims 

“encompass the expectation” shared by all Californians that, prior to trial,

“persons who commit felonious acts causing injury to innocent victims will be 

. . . appropriately detained in custody.” (§ 28, subd. (a)(4), italics added.) Not 

only does this finding align with section 12’s contemplation that pretrial bail 

release may be denied in certain serious felony cases, but the specificity of the 

italicized language counters any suggestion that judges were being given 

discretion to deny bail to any person accused of committing a noncapital 

offense.

Similarly, the ballot materials accompanying Proposition 9 featured an 

impartial analysis by the Legislative Analyst that specifically informed the 

voters: “The Constitution would be changed to specify that the safety of a 

crime victim must be taken into consideration by judges in setting bail for 

persons arrested for crimes.” (Voter Information Guide, Gen. Elec., supra, 

analysis of Prop. 9 by the Legislative Analyst, p. 59.) While that analysis

accurately conveyed the measure’s intent to add victim safety as a new 

mandatory consideration for bail determinations, the Legislative Analyst 

offered no view that the measure would completely eliminate the historic
21

right to bail which has existed in the California Constitution since 1849. Nor 

did the arguments for and against Proposition 9 suggest that the measure 

would expand judicial discretion to deny bail release beyond the exceptions in 

section 12(b) and (c). (Voter Information Guide, Gen. Elec., supra, arguments 

in favor of Prop. 9 and rebuttal to argument in favor of Prop. 9, pp. 62–63.)

Moreover, where, as here, a later law contains no terms explicitly 

providing for repeal of existing law, we must contend with the strong 

presumption against repeal by implication. (Western Oil & Gas Assn. v. 

Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419–

420.) To overcome this presumption, the bail provisions of sections 12 and 

28(f)(3) “ ‘must be irreconcilable, clearly repugnant, and so inconsistent that 

the two cannot have concurrent operation.’ ” (Western Oil & Gas, at pp. 419–

420.) Put another way, “ ‘[t]here must be ‘no possibility of concurrent 

operation.’ ” (Ibid., italics added.) 

As discussed, sections 28(f)(3) and 12 are easily reconciled by giving a 

natural reading to the first sentence of section 28(f)(3) and understanding its 

meaning as a declarative statement of existing law. Such construction

respects the longstanding constitutional right to bail as embodied in 

section 12, while also fully effectuating Proposition 9’s constitutionally 

mandated considerations of public and victim safety in all bail and OR 

release determinations. Consequently, there appears no basis for finding a 

repeal by implication.

In reaching this conclusion, we acknowledge that in Standish, supra, 

38 Cal.4th 858, our Supreme Court determined that the bail provisions 

previously approved in Proposition 8—which were nearly identical to those in 

section 28(f)(3)—were in direct conflict with the bail provisions approved in 

Proposition 4—which amended section 12 with the language existing today. 
22

(Standish, at pp. 877–878.) That finding of conflict, however, is neither 

dispositive nor persuasive in the present matter.

Significantly, the Standish court was faced with the circumstance that 

section 28(e), as proposed in Proposition 8, explicitly called for the repeal and 

substitution of section 12. (Standish, supra, 38 Cal.4th at p. 877.) Because 

the repeal clause would eliminate the constitutional right to bail enshrined in 

section 12, then by necessity section 28(e) had to articulate its own 

constitutional parameters for the availability of bail. Thus, section 28(e)’s 

use of the permissive term “may” was properly understood as rendering “bail 

discretionary in all cases.” (Standish, at p. 877.) In stark contrast, 

Proposition 9 had no repeal clause and thus presented the voters with bail 

release provisions that, presumably, would have to operate concurrently with 

the existing constitutional provision recognizing the right to bail in most 

noncapital cases. For the reasons discussed, our reading of section 28(f)(3) is 

the most natural one given the operative provisions of section 12.

In sum, we interpret the first sentence of section 28(f)(3) as a 

declarative statement recognizing that bail may or may not be denied under 

existing law. Under this construction, section 12’s general right to bail 

remains intact, while full effect is accorded to section 28(f)(3)’s mandate that

the rights of crime victims be respected in bail and OR release 

determinations.

3. Bail and OR release after Humphrey

As indicated, section 12 provides that a person “shall be released on 

bail by sufficient sureties” except for capital crimes and specific felony 

offenses. Having concluded that sections 12 and 28(f)(3) must be given 

concurrent effect, we turn to petitioner’s contention that section 12 

guarantees an “absolute right to pretrial release” and requires courts to set 
23

bail at an amount a defendant can afford. For the reasons below, we reject 

petitioner’s expansive and novel reading of section 12.

First, petitioner’s contention finds no support in the plain language of

section 12. The phrase “released on bail by sufficient sureties” as used in 

both sections 12 and 28(f)(3) generally refers to the state of being released 

from custody after the posting of some sufficient security such as “cash, 

property, or (more often) a commercial bail bond—which is forfeited if the 

arrestee later fails to appear in court.” (Humphrey, supra, 11 Cal.5th at 

p. 142; Pen. Code, §§ 1268, 1269; accord Stack v. Boyle (1951) 342 U.S. 1, 5.) 

A “surety” is: “1. Someone who is primarily liable for paying another’s debt 

or performing another’s obligation” or “2. A formal assurance; esp., a pledge, 

bond, guarantee, or security given for the fulfillment of an undertaking.” 

(Black’s Law Dict. (11th ed. 2019) p. 1742, col. 2; Civ. Code, § 2787 [enacted 

in 1872 and defining a surety as “one who promises to answer for the debt,

default, or miscarriage of another, or hypothecates property as security 

therefor”].)

Although we have found no California case expressly interpreting the 

phrase “sufficient sureties,” the phrase must be construed in conjunction with 

section 12’s requirement that trial courts fix the amount of bail upon 

consideration of “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.” When viewed as a whole, and with reference to 

section 28(f)(3)’s additional considerations of public and victim safety, the 

most natural reading of section 12 is that a person has a right to be released 

upon the posting of a sufficient security which a court, in its discretion, 

determines is adequate to accomplish the purposes of bail, i.e., to protect 

public and victim safety and to ensure a defendant’s presence in court. 
24

(§§ 12; 28(b)(3), (f)(3).) This construction clearly promotes the 

constitutionally-based policy purposes of bail, while a contrary construction 

that categorically requires release on affordable bail does not.

Indeed, our construction comports with the long history of section 12, 

which has never been understood as mandating affordable bail. At the time 

our state Constitution was drafted in 1879, people were routinely confined in 

jail for want of bail. (1 Willis & Stockton, Debates and Proceedings, Cal. 

Const. Convention 1878–1879 (1880), p. 310 [“the vast majority of those who 

are committed for various offenses under felonies are persons who are unable 

to give bail”]; id. at p. 317 [“if [a man] [is] poor and unable to give bail, he 

must go to jail, there to remain perhaps for months to await the meeting of 

the Grand Jury”]; 3 Willis & Stockton, supra, at p. 1188 [“Sometimes we lock 

men up because they cannot give bail”].) Section 12 and its predecessors 

sought to curtail this all-too-common situation by expressly recognizing a 

right to bail in most cases, and by prohibiting the imposition of excessive bail.

But neither of these constitutional provisions has ever been construed as 

imposing an absolute requirement that bail be affordable.

7

7 The language of section 12 is materially identical to clauses in the 

Constitutions of our sister states. (E.g., Iowa Const., art. I, § 12 [“All persons 

shall, before conviction, be bailable, by sufficient sureties, except for capital 

offences where the proof is evident, or the presumption great.”]; N.M. Const., 

art. II, § 13 [“All persons shall, before conviction, be bailable by sufficient 

sureties, except for capital offenses when the proof is evident or the 

presumption great and in situations in which bail is specifically prohibited by 

this section”]; Ariz. Const., art. II, § 22 [“All persons charged with crime shall 

be bailable by sufficient sureties, except . . .”]; Ill. Const., art. I, § 9 [“All 

persons shall be bailable by sufficient sureties, except for the following 

offenses where the proof is evident or the presumption great . . .”].) 

Our interpretation of section 12 is in line with the case law interpreting 

these sister state Constitutions. (E.g., State v. Briggs (Iowa 2003) 666 
25

Notably, petitioner’s position that bail must be affordable was 

essentially rejected well over a century ago in the cases of Ex parte Duncan 

(1879) 53 Cal. 410 (Duncan I) and Ex parte Duncan (1879) 54 Cal. 75 

(Duncan II), in which a prisoner twice sought relief by habeas corpus to have 

his bail amount lowered, and twice the high court denied relief. (Duncan I, at 

pp. 411–412; Duncan II, at pp. 76, 80.) In Duncan I, the court indicated that 

the setting of the amount of bail was a matter of judicial discretion, to be 

interfered with on review only when the amount was excessive, i.e., “ ‘per se

unreasonably great and clearly disproportionate to the offense involved,’ etc.” 

(Duncan I, at p. 411.) 

More significantly, in Duncan II, the court confronted and rejected the 

argument that a bail amount is excessive simply because a prisoner is unable 

to procure it. (Duncan II, supra, 54 Cal. at pp. 77–78.) As Duncan II

explained, “Undoubtedly the extent of the pecuniary ability of a prisoner to 

furnish bail is a circumstance among other circumstances to be considered in 

fixing the amount in which it is to be required, but it is not in itself 

controlling. If the position of the counsel were correct, then the fact that the 

prisoner had no means of his own, and no friends who were able or willing to 

become sureties for him, even in the smallest sum, would constitute a case of 

N.W.2d 573, 582; People ex rel. Gendron v. Ingram (1966) 34 Ill. 2d 623, 626

([“Sufficient, as used in the [Illinois] constitution, means sufficient to 

accomplish the purpose of bail, not just the ability to pay in the event of a 

‘skip’]; State v. Gutierrez (N.M.Ct.App. 2006) 140 N.M. 157, 162; Fragoso v. 

Fell (Ariz.Ct.App. 2005) 210 Ariz. 427, 433; see also State v. Brooks (Minn. 

2000) 604 N.W.2d 345, 350 [explaining that Pennsylvania’s law—which 

permitted all prisoners to be “ ‘Bailable by Sufficient Sureties’ ”—“became the 

model for almost every state constitution adopted after 1776” and two-thirds 

of state constitutions contain similar or identical language], italics omitted.)
26

excessive bail, and would entitle him to go at large upon his own 

recognizance.” (Duncan II, at p. 78, italics added.)

Taken together, the Duncan cases implicitly recognized that

unaffordable bail is not per se excessive and that, aside from prohibiting a 

bail amount disproportionate to the circumstances, the California 

Constitution’s bail provision—now in section 12—did not require bail in an 

affordable amount.

We now address the extent to which the California Supreme Court’s 

decision in Humphrey affects the historical understanding and operation of 

section 12’s bail provisions. In holding that the denial of bail must comport 

with due process and equal protection principles, the Humphrey court

carefully explained that “where a financial condition is . . . necessary, the 

court must consider the arrestee’s ability to pay the stated amount of bail—

and may not effectively detain the arrestee ‘solely because’ the arrestee 

‘lacked the resources’ to post bail.” (Humphrey, supra, 11 Cal.5th at p. 143, 

italics added.) 

Although the Humphrey court made clear that a trial court must 

consider a defendant’s ability to pay in making a bail determination, 

Humphrey did not suggest that a court is precluded from setting bail at an 

amount beyond a defendant’s means when necessitated by the circumstances 

presented. To the contrary, Humphrey explicitly recognized that “[i]n 

unusual circumstances, the need to protect community safety may conflict 

with the arrestee’s fundamental right to pretrial liberty—a right that also 

generally protects an arrestee from being subject to a monetary condition of 

release the arrestee can’t satisfy—to such an extent that no option other than 

refusing pretrial release can reasonably vindicate the state’s compelling 

interests. In order to detain an arrestee under those circumstances, a court 
27

must first find by clear and convincing evidence that no condition short of 

detention could suffice and then ensure the detention otherwise complies 

with statutory and constitutional requirements. [Citation.] [¶] Detention in 

these narrow circumstances 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. Allowing 

the government to detain an arrestee without such procedural protections 

would violate state and federal principles of equal protection and due process 

that must be honored in practice, not just in principle.” (Ibid., italics added.)

Reasonably read, the foregoing passage in Humphrey meaningfully 

restricts, but does not purport to eliminate, the traditional power of a court to

set bail at an amount that may prove unaffordable, so long as the court—

after undertaking an individualized consideration of all relevant factors

including the defendant’s ability to pay—makes the necessary findings to 

support a detention. That is, the court must find clear and convincing 

evidence that no other conditions of release, including affordable bail, can 

reasonably protect the state’s interests in assuring public and victim safety 

and the arrestee’s appearance in court. (Humphrey, supra, 11 Cal.5th at 

pp. 143, 152–154.) 

Thus, when a court sets bail at an amount higher than a person can 

likely afford after finding clear and convincing evidence that no conditions

short of detention can vindicate these compelling state interests, it cannot be 

said that the court “effectively detain[ed]” the person “ ‘solely because’ ” the 

person “ ‘lacked the resources’ to post bail.” (Humphrey, supra, 11 Cal.5th at 

p. 143, italics added.) Though the person’s inability to post the court-ordered 

bail amount necessarily results in the person’s detention, the person’s 
28

financial condition is not the determinate cause of detention. Rather, the 

determinate cause of the detention is the court’s finding that no other 

conditions short of detention are sufficient to vindicate the state’s interests. 

(See United States v. Fidler (9th Cir. 2005) 419 F.3d 1026, 1028 [“de facto 

detention” when defendant is unable to comply with a financial condition 

does not violate the federal Bail Reform Act if the record shows “the detention 

is not based solely on the defendant’s inability to meet the financial condition, 

but rather on the district court’s determination that the amount of the bond 

is necessary to reasonably assure the defendant’s attendance at trial or the 

safety of the community”]; United States v. McConnell (5th Cir. 1988) 842 

F.2d 105, 108–110.)

We acknowledge the recent decision in In re Brown (2022) 76 

Cal.App.5th 296 (Brown) offers an alternative interpretation of Humphrey. 

As a preliminary matter, we observe the Brown court summarizes Humphrey

as follows: “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. (Humphrey, supra, 11 Cal.5th at p. 154.)” (Brown, at pp. 305–

306.)

While we concur in the foregoing summary, we cannot agree with the 

Brown court’s conclusion that, when a trial court makes the required finding 

above, then Humphrey leaves a court with no option other than to formally 

order pretrial detention. For one thing, such a conclusion appears at odds 

with the historical understanding of section 12’s general right to release on 
29

bail by sufficient sureties, and Humphrey did not disavow that 

understanding. Moreover, Humphrey repeatedly acknowledged that an 

outright pretrial detention order would not offend the due process clause in 

those rare instances in which a court concludes, by clear and convincing 

evidence, that no nonfinancial condition in conjunction with affordable money 

bail can reasonably protect the state’s compelling interests in public safety or 

arrestee appearance. (Humphrey, supra, 11 Cal.5th at pp. 143, 154, 156.) 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 in an amount higher than a defendant can afford would 

also be appropriate.8

CONCLUSION

In closing, we summarize our answer to the California Supreme Court’s 

question and explain our view of the framework governing bail 

determinations as informed by the principles in Humphrey. 

Section 28(f)(3) became fully operative when the voters approved

Proposition 9 in 2008, and its bail provisions can be fully reconciled with 

those in section 12, as follows. When a defendant’s case falls outside the 

circumstances specified in section 12, subdivisions (a) through (c), the

8 We note it can be difficult to know with any certainty what a defendant

might in good faith be able to afford in terms of bail. But if a defendant truly 

cannot afford to post any bail, then arguably all that remains, in effect, is OR 

release. (Black’s Law Dict. (11th ed. 2019) p. 1543, col. 2 [“release on 

recognizance” means “[t]he pretrial release of an arrested person who 

promises, usually in writing but without supplying a surety or posting bond, 

to appear for trial at a later date”]; Pen. Code, §§ 1270, 1318.) Both sections 

12 and 28(f)(3) contain OR release provisions that are separate and distinct 

from their bail provisions and that clearly provide for judicial discretion. (See 

Humphrey, supra, 11 Cal.5th at p. 147; York, supra, 9 Cal.4th at pp. 1139–

1141.)
30

defendant has a general right under sections 12 and 28(f)(3) to be released on 

bail by sufficient sureties, or to be released on OR in the court’s discretion, 

subject to the considerations below.

In fixing the amount of bail and release conditions, or in exercising its 

discretion to release a person on OR, courts must consider 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 the 

defendant appearing at the trial or hearing of the case. (§§ 12, 28(b)(3) & 

(f)(3).) Public safety and the safety of the victim shall be the primary 

considerations. (§ 28(f)(3).)

“In those cases where the arrestee poses little or no risk of flight or 

harm to others, the court may offer OR release with appropriate conditions.

[Citation.] Where 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. If the court concludes that money bail 

is reasonably necessary, then the court must consider the individual 

arrestee’s ability to pay, along with the seriousness of the charged offense 

and the arrestee’s criminal record, and—unless there is a valid basis for 

detention—set bail at a level the arrestee can reasonably afford. And if a 

court concludes that public or victim safety, or the arrestee’s appearance in 

court, cannot be reasonably assured if the arrestee is released, it may detain 

the arrestee only if it first finds, by clear and convincing evidence, that no 

nonfinancial condition of release can reasonably protect those interests.” 

(Humphrey, supra, 11 Cal.5th at p. 154.) Though excessive bail cannot be

imposed, courts are not required to set bail at an amount a defendant will 

necessarily be able to afford. Before a court sets bail at an amount higher 
31

than a person can likely afford, it must make the aforementioned findings 

necessary to support a detention.

Finally, we reiterate the fundamental principle that “liberty is the 

norm, and detention prior to trial or without trial is the carefully limited 

exception.” (United States v. Salerno (1987) 481 U.S. 739, 755.) While 

section 12 does not prohibit courts from fixing bail at an amount a defendant 

likely cannot meet, it will be the rare case where such a monetary condition 

is truly necessary to sufficiently protect the state’s compelling interests in 

public and victim safety and in ensuring appearances in court.

DISPOSITION

Having answered the question posed to us by the California Supreme 

Court, we dismiss the petition for writ of habeas corpus as moot.

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Rodríguez, J.
32

Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Susan Greenbert

Counsel: Law Offices of Marsanne Weese, Marsanne Weese, Rose 

Mishaan; Civil Rights Corps, Carson White, Katherine 

Hubbard, Salil Dudani, and Alec Karakatsanis for 

Petitioner

ACLU Foundation of Northern California, Avram Frey, 

Mica Doctoroff, Emi Young; ACLU Foundation of 

Southern California, Summer Lacey for American Civil 

Liberties Union of Northern California, American Civil 

Liberties Union of Southern California, California 

Public Defenders Association, Crime Survivors for 

Safety and Justice, and Claudia Y. Bautista, Ventura 

County Public Defender as Amicus Curiae on behalf of 

Petitioner

Stephen M. Wagstaffe, District Attorney of San Mateo 

County, Lechelle Mercier, Law Clerk, Bryan Abanto

and Joshua Martin, Deputy District Attorneys for Real 

Party in Interest

In re Kowalczyk (A162977)