The Supreme Court in In re White today holds a superior court did not abuse its discretion in denying bail to a man arrested on suspicion of aiding the attempted kidnapping and assault with intent to commit rape of a 15-year-old girl.  The trial court said it was “extremely unusual” to deny bail in a noncapital case, but, finding the arrestee was a threat to the victim and to other children, it relied on the state constitution’s authorization to do so in sexual assault cases “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.”

The court’s opinion by Justice Mariano-Florentino Cuéllar says the “odd terminology” of “when the facts are evident or the presumption great” means there must be “evidence that would be sufficient to sustain a hypothetical verdict of guilt on appeal,” and the question on appeal, which it answers affirmatively, is “whether a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  Similarly, the court concludes the likelihood-of-great-bodily-harm finding is reviewed for substantial evidence, not de novo.  Based on “the deferential standard of review,” the court upholds the future-danger finding, even though recognizing it as “a close question on this record.”

The court also holds the constitutional requirement that the trial court’s likelihood-of-great-bodily-harm finding be based on clear and convincing evidence affects appellate review — “we consider whether any court could have found clear and convincing evidence that the person’s release on bail posed a substantial likelihood of great bodily harm to others.”  This result might presage how the court will resolve a similar issue in a different context in a case argued two days ago, Conservatorship of O.B. (see here and the analysis of the argument in Horvitz & Levy’s blog, California Punitive Damages).

Justice Leondra Kruger (with Justice Goodwin Liu) separately concurs.  White is a moot case — the defendant has pleaded guilty to being an accessory to a felony — and, for that reason, Justice Kruger thinks the majority opinion gives too much information.  She agrees the court acted properly in deciding — and says it correctly decided — the appropriate standard of review for the bail denial, but asserts there shouldn’t be a discussion of “whether the Court of Appeal correctly applied that standard to the facts here.”  It’s a marginal case with unusual facts, Justice Kruger says, and “[b]y unnecessarily delving into the facts of a marginal case, we run the risk of confusing the law more than we clarify it.”

The court had asked for supplemental briefing regarding the “effect, if any,” on the case of Senate Bill 10, 2018 legislation — on hold for a November referendum vote — that Chief Justice Tani Cantil-Sakauye called a “transformative” overhaul of an “outdated, unsafe, and unfair” money bail scheme.  (Related:  here.)  Apparently, SB 10’s effect is not any, because neither the majority nor the concurrence mentions it.

The court affirms the Fourth District, Division One, Court of Appeal.