February 26, 2018

The Honorable Tani G. Cantil-Sakauye, Chief Justice

and Associate Justices
Supreme Court of the State of California
350 McAllister Street
San Francisco, CA 94102-4797

RE: Request for Depublication of Opinion (Rule 8.1125) in

In re Kenneth Humphrey (January 25, 2018, A152056) ___
Cal.App.5th ___ Court of Appeal, First Appellate District, Division
Two, Case No. A152056, San Francisco City and County Superior
Court, Case No. 17007715

Dear Chief Justice Cantil-Sakauye and Associate Justices:

Pursuant to California Rules of Court, rules 8.1125, 8.387(b), and

8.490(b),1 the California District Attorneys Association (CDAA) urges the
California Supreme Court to depublish In re Kenneth Humphrey (Jan. 25,
2018, A152056) ___ Cal.App.5th ___, (2018 WL 550512) (“Humphrey”
and “Slip Opn. A152056”).2 The Humphrey decision has upended the

1
Within 30 days after a decision is final in the Court of Appeal, any
person may request this court to order a published opinion be depublished.
(Cal. Rules of Court, rule 8.1125(a)(1) and (a)(4).) Within 30 days after a
decision is final in the Court of Appeal, any person may request this court
to order a published opinion be depublished. (Cal. Rules of Court, rule
8.1125(a)(1) and (a)(4).) A Court of Appeal decision in a habeas corpus
proceeding is final in that court 30 days after filing. (Cal. Rules of Court,
rules 8.387(b) & 8.490(b).) The Humphrey decision was issued on January
25, 2018, and will be final on February 24, 2018.
2
Contemporaneous with this letter requesting the Humphrey
decision be depublished, the CDAA is lodging a separate letter requesting
921 11th Street, Suite 300, Sacramento, CA 95814 • 916.44.2017 • www.cdaa.org
California bail system by legislating new bail procedures not contemplated
by our statutes or the California Constitution, that conflicts with other case
law, and that are impractical to implement. Depublication is necessary to
avoid the inequities and inconsistencies the Humphrey decision will create
within our criminal bail system.

The California District Attorneys Association (CDAA) is the

statewide organization of California prosecutors. CDAA is a professional
organization that has been in existence for over 90 years and was
incorporated as a non-profit public benefit corporation in 1974. CDAA has
more than 3,000 members, including elected and appointed district
attorneys, the Attorney General of California, city attorneys principally
engaged in the prosecution of criminal cases, and attorneys employed by
these officials.

CDAA is not opposed to changing the current bail system, however,

changes to the system should come from the Legislature, and the
Legislature needs time to initiate a coherent and orderly restructuring of the
existing bail system or adoption of an entirely new system. No matter the
ultimate legislative result, forcing premature change will not result in a
system that is just for all.

To allow Humphrey to remain binding precedent is a risk to public

safety. The opinion was neither necessary nor constitutionally mandated.
“Bail reform” may be called for, but Humphrey answered this call in a
manner that leads to an unworkable new process. It seeks to undo an entire
system, which is based upon intertwined constitutional and statutory
provisions, with a court opinion that lacks specifics or sufficient guidance
to cogently put in place a new framework; thus leaving 58 lower courts to
remake this important cog in the criminal justice system haphazardly and
ineffectively. Depublication is necessary to cure this harm.

STATEMENT OF FACTS AND THE CASE

San Francisco police officers arrested petitioner Kenneth Humphrey

for entering a 79-year-old resident’s apartment to rob that resident. The
petitioner threatened to put a bag over the resident’s head, threw the

the court grant review of the decision pursuant to California Rules of Court,
rule 8.1125. The separate request for review of the decision is filed in the
event the court declines to depublish Humphrey.
2
resident’s cellular telephone on the floor, took $2 from the resident, and
stole $5 and a bottle of cologne before leaving the apartment. (Humphrey,
Slip Opn. A152056, at p. 3.) The petitioner was a third-striker, charged
with first degree robbery (Pen. Code, § 211), first degree residential
burglary (Pen. Code, § 459), inflicting injury on an elder adult (Pen. Code,
§ 368, subd. (c)), and misdemeanor theft from an elder adult (Pen. Code, §
368, subd. (d)). (Id. at p. 3, 5.)

The arraignment judge initially imposed a $600,000 bail after the

defendant requested release on his own recognizance, because of the
seriousness of the underlying crime, the victim’s vulnerability, and the
pretrial services’ recommendation. The court later reduced that amount to
$350,000 after defendant again objected and trial counsel told the lower
court the defendant was too poor to pay even the reduced bail amount.
(Humphrey, Slip Opn., A152056, at pp. 4–5.)

On habeas review, the appellate court reversed the trial court’s order,
holding that setting an amount of bail impossible for a defendant to pay
constituted a sub rosa or de facto detention. (Humphrey, Slip Opn.,
A152056, at pp. 2, 17, 24.) The court noted that before a trial court could
impose such a detention order, due process protections required a bail
inquiry in which the court would consider the defendant’s individualized
ability to pay and possible imposition of non-monetary condition as an
addition or alternative to money bail being paid. (Id. at pp. 16, 24.)

ARGUMENT

THE NEW PROCEDURES ESTABLISHED IN HUMPHREY CONFLICT

WITH THE CALIFORNIA PENAL CODE AND CONSTITUTION,
AS A RESULT OF IMPROPER LEGISLATING BY THE HUMPHREY
COURT.

Impatient with the democratic legislative process, the Humphrey

court improperly legislates new bail procedures that lead to poor public
safety. The fallout and direct harm to public safety posed by Humphrey is
keenly felt in cases like the recent unpublished decision of Sanchez v.
Superior Court (February 15, 2018, A153380)3 (Sanchez). Following the

3
CDAA recognizes that uncertified California opinions must not be
cited or relied upon in any other action except when the opinion is relevant
3
philosophy of Humphrey, the Sanchez court directed the trial court to
vacate a $1,000,000 bail for a charged murderer (who also had various drug
and firearm charges), because the charged murderer claimed he was unable
to pay the amount of bail ordered. Without a single word about the danger
this charged murderer poses to public safety, the Sanchez court’s only
direction to the trial court was for it to consider the charged murderer’s
ability to pay bail and alternative methods to ensure the charged murderer
appeared for trial. The alarming result from application of Humphrey’s
philosophy here is a charged murderer walking public streets.

Cases like Sanchez, supra, show that application of the Humphrey

decision to real world bail situations result in conflicts with the Penal Code
and California Constitution, and allows persons charged with violent and
serious crimes to walk public streets—a danger not intended by our
legislators. According to Humphrey, once a court determines bail should be
set, public safety is no longer a consideration for money bail. This approach
directly conflicts with the legislatively enacted Penal Code section 1275,
subdivision (a), which emphasizes public safety and provides: “(1) In
setting, reducing, denying bail, a 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 trial or at a hearing of the case. The public safety
shall be the primary consideration.” (Pen. Code, § 1275, subd. (a), italics
added.) “Within the bail statutory framework is the Legislature’s overriding
theme; the safety of the public is of paramount importance.” (In re
McSherry (2003) 112 Cal.App.4th 856, 862.) And it has long been held that
for purposes of bail, the charges are assumed to be true. (Ex parte Duncan
(1879) 53 Cal. 410, 411; Ex parte Horiuchi (1930) 105 Cal.App. 714, 715.)

Moreover, section 28 of the California Constitution, adopted by the

voters of this state, specifically requires that victims of crime have a right to
have their safety and the safety of their families “considered in fixing the
amount of bail and release conditions for the defendant.” It specifically
provides that “[i]n setting, reducing or denying bail … [p]ublic safety and

under the doctrines of law of the case, res judicata, collateral estoppel, or
when the opinion is relevant to a criminal action because it states reasons
for a decision affecting the same defendant or respondent in another such
action. (Cal. Rules of Court, rule 8.1115 [citation of Sanchez opinion is
relevant, because it states reasons for a decision affecting the same
respondent, the People of the State of California, in another such action].)
4
the safety of the victim shall be the primary considerations.” (Cal. Const.,
art. I, § 28, subd. (f)(3).) Our very Constitution acknowledges that criminal
defendants may be released on bail, with conditions, but public safety and
the safety of victims in particular, must be of utmost importance when
setting that bail amount; bail is not simply an amount a criminal defendant
can afford to pay to assure appearance in court as mandated by Humphrey.
(See Humphrey, Slip Opn. A152056, at p. 21 [once admitted to bail, public
and victim safety are not the proper inquiry, but the inquiry should be the
amount a criminal defendant can afford to pay to secure his return to
court].)

The Humphrey court improperly legislates new procedures that

contravene the statutory bail framework adopted into law by our
lawmakers—the Legislature. Any reform to California’s bail system must
be considered and adopted by the legislators who have been voted into
office for the exact purpose of lawmaking. The judiciary must not encroach
upon that role as the Humphrey court does here. Crafting statutes to
conform with policy considerations is a job for the Legislature, not the
courts; a court’s role is to interpret statutes, not to write them. (People v.
Mendoza (2015) 241 Cal.App.4th 764, 790, citing Fort Bragg Unified
School Dist. v. Colonial Amer. Cas. & Surety (2011) 194 Cal.App.4th 891,
909-910; People v. White (1954) 122 Cal.App.2d 551, 554; Code Civ.
Proc., § 1858 (construction of statutes; duty of judge).) Humphrey’s
holding that trial courts must inquire about a defendant’s ability to pay a
bail amount or conditions as an alternative to payment of bail only to
ensure a defendant’s return to court, is a ruling in excess of the court’s
jurisdiction encroaching into the Legislature’s purview.

Significantly, the above constitutional provisions and Penal Code

statutes do not authorize a court to impose conditions in addition, or
alternatively, to felony money bail when the defendant is unable to pay.
“No court has inherent authority to ignore or violate the statutory bail
scheme.” (In re Webb (Jan. 31, 2018, D072981) ___ Cal.App.5th ___ (2018
WL 635962) (Slip Opn. at p. 7), [the Legislature makes no mention of a
court or magistrate's authority to impose conditions for a person released on
the scheduled amount of bail for a felony offense].) That the Humphrey
decision instructs trial courts to do so when a defendant is unable to pay a
scheduled felony bail amount exceeds the court’s jurisdiction and statutory
mandate to interpret law and not to legislate them. (People v. Mendoza,
supra, 241 Cal.App.4th at p. 790.) The fact the court anticipated its ruling
would present “practical problems” in its attempt “to correct a deformity”
in the state’s pre-trial bail system, shows the court realized its decision
5
legislated rather than interpreted California’s laws. (Id. at p. 24.)4
Humphrey should be depublished.

II

HUMPHREY CONFLICTS WITH PEOPLE V. WEBB

WHICH HOLDS THAT TRIAL COURTS HAVE NO AUTHORITY
TO IMPOSE CONDITIONS OUTSIDE OF THE STATUTORY BAIL
SCHEME

On January 31, 2018, two days after Humphrey was decided, the
Fourth District Court of Appeal issued its decision in In re Webb (Jan. 31,
2018, D072981)
___ Cal.App.5th ___ (2018 WL 635962) (“Webb” or “Slip Opn.
D072981”), holding a court has no authority to impose a condition of
release outside of the statutory framework for imposing bail. According to
Webb, that statutory bail framework allows conditions of bail in only two
situations: 1) pursuant to Penal Code section 1270, which permits
misdemeanants to receive conditions in addition to money bail; and 2)
pursuant to Penal Code section 1269c, which permits money bail and
conditions prior to arraignment. Humphrey’s requirement that trial courts
impose conditions in addition or as alternatives to a felony money bail
amount, outside of the two exceptions identified by Webb, directly conflicts
with the Webb holding.

In Webb, the defendant posted a $50,000 felony bond and at

arraignment the trial court imposed a Fourth Amendment waiver condition
in addition to the bond. (Webb, Slip Opn., D072981, at pp. 1–2.) Unlike the
Humphrey court, the majority in Webb responded to the defendant’s
challenge to the imposition of that condition by holding that a trial court
does not possess inherent authority to impose bail conditions outside the
statutory felony bail scheme in addition to the bail bond once the defendant
is released on bail, because that amount satisfies the certainty of the
defendant’s future court appearance and the court’s consideration of the
public’s safety. (Id. at p. 5.) In a concurring opinion, a justice of that court
disagreed with the majority reasoning and opined “that a trial court has

4
The text of the pending Senate Bill No. 10 to create the reform act is
available at the California Legislation Information website
https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720
180SB10.
6
inherent authority to impose conditions on a defendant’s release” even
when a defendant posts the monetary bail amount set forth in the bail
schedule. (Webb, Slip Conc. Opn., D072981, at p. 1.)

Contrary to Webb, Humphrey holds that, when a felony-charged

defendant is unable to meet a scheduled felony bail amount, the trial court
is to conduct a bail inquiry to determine the defendant’s ability to pay the
bail amount and, if unable to pay, to determine what bail conditions may be
imposed to assure the defendant’s appearance at future court hearings and
the public’s safety. The majority in Webb impliedly held that no condition
may be imposed once a felony-charged defendant posts the scheduled bail
because that amount implicitly assures the defendant’s appearance at future
court hearings and the public’s safety. (See Webb, Slip Opn., D072981, at
p. 5, citing In re York (1995) 9 Cal.4th 1133.) Plainly stated, the conflict
between the two cases is this: in the context of determining a felony bail
amount, Humphrey can be read as a court having authority to impose
conditions in addition or alternatively to that bail whereas Webb rejects a
court having that authority unless that authority is contained in the statutory
bail scheme. Depublication should be ordered to cure this conflict and
secure uniformity of decision.

III.

HUMPHREY’S PROCEDURAL CHANGES TO CALIFORNIA’S

STATUTORY BAIL FRAMEWORK ARE IMPRACTICAL TO
IMPLEMENT;
AND THE CASE FAILS TO PROVIDE CLEAR GUIDANCE HOW ITS
PROCEDURAL CHANGES SHOULD BE IMPLEMENTED

Although the Humphrey court describes the new bail rules in broad
strokes, it fails to provide actual workable procedures for a trial court to
follow. It provides no guidance regarding acceptable conditions of bail,
what is considered an “ability to pay,” what evidentiary requirements are
necessary at bail hearings, or the timing of bail hearings. Humphrey should
be depublished because this detrimental lack of guidance will cause
inequities and inconsistencies within the criminal bail system.

First, the appellate court fails to provide trial courts clear instruction
about what conditions would qualify as acceptable additions or alternatives
to money bail. Rather, the Humphrey court directed trial courts to rely on
Penal Code section 1275, subdivision (c) (setting, reducing, denying bail;
considerations) and United States v. Salerno (1987) 481 U.S. 739, 743-744
7
(Salerno), to discern conditions suitable as additions or alternatives to
assuring the defendant’s continued appearances in court and the public’s
safety. (Humphrey, Slip Opn., A152056, at pp. 21–22.) That reference,
however, provides trial courts with inadequate guidance when deciding
what condition should be imposed additionally or alternatively to money
bail. Penal Code section 1275, and Salerno addressed a trial court’s
consideration of factors pertinent to deciding if a defendant is a danger to
public safety or likely to commit future crimes; neither section 1275 nor
Salerno addressed or suggested conditions a trial court was to impose in
addition or alternatively to a bail amount if a defendant was unable to pay
that amount. (Pen. Code, § 1275; Salerno, supra, 481 U.S. at pp. 743-744.)

Moreover, the Humphrey court requires a trial court to consider a

defendant’s ability to pay but does not further define “ability to pay” or
how a court should evaluate that ability. It does not provide for what
records may be submitted or what level of proof need be met to show an
ability or inability to pay. This lack of definition or specificity is
particularly profound because Humphrey adds wholly new rules, outside of
the statutory bail system, on this one concept of “ability to pay,” without
any guidance to trial courts for how to assess such ability.

Further, the Humphrey decision provides no guidance whether a bail

hearing requires a full evidentiary proceeding with witnesses and cross-
examination, or whether a summary proceeding with offers of proof and
documentary evidence would be sufficient to meet the clear and convincing
standard mandated by the Humphrey court. It would be impractical to
expect a full evidentiary proceeding within the short time frames that bail
hearings normally occur, but some courts may require such full evidentiary
proceedings whereas others may require only documentary evidence.

And finally, Humphrey does not address the timing of the bail
hearing. Although the appellate court recognized that the “timeliness
within which bail determinations must be made are short,” the opinion does
not specify a particular time within which bail review must occur.
(Humphrey, Slip Opn. A152056, at p. 24.)

These missing details described above are the very same that would
have been properly vetted by the Legislature before implementing those
changes into law. These missing details show why legislating should be left
to the Legislature. Even the Humphrey court acknowledges, “We are not
blind to the practical problems our ruling may present. The timeliness
within which bail determinations must be made are short, and judicial
8
officers and pretrial service agencies are already burdened by limited
resources.” (Humphrey, Slip Opn. A152056, at p. 24.) Humphrey does not
“fix” a bail system the appellate court finds lacking but continues to create
inequities and inconsistencies in the application of bail to criminal
defendants. As a result, public safety will be all the poorer for it.

For all the reasons stated, CDAA urges this court to depublish the
Humphrey decision.

Dated: February 26, 2018 Respectfully submitted,

MARK ZAHNER, SBN 137732

Chief Executive Officer
California District Attorneys Association

9
 CERTIFICATE OF COMPLIANCE

I certify that the attached REQUEST FOR DEPUBLICATION uses a

13-point Times New Roman font and contains 3,089 words.

Dated: February 26, 2018

MARK ZAHNER, SBN 137732

Chief Executive Officer
California District Attorneys Association

10
 DECLARATION OF SERVICE

I am over the age of 18 years and am employed by the California District

Attorneys Association. I am not a party to this action. On February 26,
2018, I served the within

“Letter to the Honorable Chief Justice Tani Cantil-Sakauye, and the

Honorable Associate Justices of the California Supreme Court, RE:
Request for Depublication of Opinion (Rule 8.1125) in In re
Kenneth Humphrey (January 25, 2018, A152056) 19 Cal.App.5th
1006 Court of Appeal, First Appellate District, Division Two, Case
No. A152056 San Francisco City and County Superior Court, Case
No. 17007715”

by placing true and correct copies thereof in a sealed envelope, with

postage fully prepaid, addressed as follows:

Paul Joseph Myslin Office of the District Attorney

Office of the Public Defender 850 Bryant Street
555 7th Street San Francisco, CA 94103
San Francisco, CA 94103

Alec Karakatsanis Superior Court of San Francisco

Civil Rights Corps 850 Bryant Street
910 17th Street NW Suite 500 San Francisco, CA 94103
Washington, DC 20006

Office of the Attorney General First District Court of Appeal

455 Golden Gate Avenue, #11000 350 McAllister Street
San Francisco, CA 94102-7004 San Francisco, CA 94102

I declare under penalty of perjury that the foregoing is true and correct, and
was executed on February 26, 2018, at Sacramento, California.

_____________________________
Laura Bell
11