When the Supreme Court last year issued its landmark In re Humphrey opinion holding that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional” and that completely refusing pretrial release for public or victim safety reasons must be based on “clear and convincing evidence that no condition short of detention could suffice” (In re Humphrey (2021) 11 Cal.5th 135, 143), it specifically left unresolved an issue regarding the interpretation of two possibly conflicting state constitutional provisions. Yesterday, the court indicated the time for addressing the question — at least in the Courts of Appeal — is approaching.

The Humphrey court said, “we leave for another day the question of how two constitutional provisions addressing the denial of bail — article I, sections 12 and 28, subdivision (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).” (11 Cal.5th at p. 155, fn. 7.) When the court granted review in the case, it expressly asked for briefing on that question.

Section 12 provides a right to release on bail “except for . . . (b) Felony offenses involving acts of violence on another person, or 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; or (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence 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.”

Subdivision (f)(3) of section 28 says in part, “A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. . . . 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.”

At its Wednesday conference this week, the court made grant-and-transfer orders in two habeas corpus proceedings that directed Courts of Appeal to take a look at the issue Humphrey didn’t address.

In In re Kowalczyk, the court directed the First District, Division Three, Court of Appeal “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.” Division Three had issued an order to show cause, but then dismissed the habeas petition as moot after the defendant entered a plea and was sentenced to county jail. (Here.) The defendant requested that the petition be decided anyway because it presented issues of continuing public interest, but Division Three declined, “noting that many of the issues raised in this petition were resolved in our opinion in In re Harris (2021) 71 Cal.App.5th 1085.” The Supreme Court granted review in Harris three months ago. (See here.)

Similarly, in In re O’Connor, the court told the Sixth District to issue an order to show cause “why relief should not be granted on the grounds (1) petitioner has not been charged with ‘[f]elony offenses involving acts of violence on another person, or felony sexual assault offenses on another person’ (Cal. Const., art. I, § 12, subd. (b)); and (2) if it is the case she has not been charged with any such qualifying offenses, she ‘shall be released on bail’ (id., § 12; but see id., § 28, subd. (f)(3)).” The Sixth District had summarily denied the defendant’s habeas petition.

There’s a good chance the Supreme Court will grant review again in Kowalczyk and/or O’Connor after the Courts of Appeal issue their opinions in the cases, but that’s not a certainty. (See: The Supreme Court doesn’t decide all important issues.)