Provided by CPOA Legal Counsel James R. Touchstone, Esq., Jones & Mayer
As part of California’s response to the COVID-19 crisis, the Judicial Council, on April 6, 2020, adopted Emergency Rule 4, which establishes a statewide Emergency Bail Schedule that sets bail for all misdemeanor offenses, many felony offenses, and violations of post-conviction supervision at zero dollars ($0 bail), except as specified in the rule.
On April 29, 2020, in Ayala v. Superior Court, 2020 Cal. App. LEXIS 351 (4th Dist. Apr. 29, 2020), the California Fourth District Court of Appeal found that a superior court’s order implementing the Judicial Council’s Emergency Rule 4 was not inconsistent with the rule. In reaching its conclusion, the Court explained that the history and language of the rule showed that the Judicial Council intended to adopt a statewide bail schedule, which, like countywide bail schedules, sets the presumptive bail amount for the covered offenses and violations. In adopting the rule, the Judicial Council did not intend to suspend other statutes governing bail, as well as the superior court’s inherent authority to depart from the scheduled bail amount or impose bail conditions in individual cases under appropriate circumstances.
As noted by the Court, a state of emergency exists in the State of California as a result of the ongoing COVID-19 pandemic. In response, the Governor of California issued Executive Order N-38-20, which conferred on the Judicial Council of California unprecedented authority to promulgate rules governing court administration, practice, and procedure as necessary to address the emergency. The executive order provides that, to the extent any such rule adopted by the Judicial Council would be inconsistent with any statute concerning civil or criminal practice or procedure, the relevant statute or portion thereof is suspended to resolve the inconsistency. The executive order states: “The purpose of this paragraph is to afford the Judicial Council and its Chairperson maximum flexibility to adopt any rules concerning civil or criminal practice or procedure they may deem necessary to respond to the COVID-19 pandemic, while ensuring that the rules adopted ‘shall not be inconsistent with statute,’ as provided in Article VI, section 6 of the California Constitution.”
Pursuant to this authority, and its constitutional obligation to “adopt rules for court administration, practice and procedure” (Cal. Const., art. VI, section 6, subd. (d)), the Judicial Council considered and adopted eleven emergency rules covering various aspects of civil and criminal practice, including Emergency Rule 4.
Emergency Rule 4 established a statewide Emergency Bail Schedule which sets bail for all misdemeanor offenses, felony offenses, and violations of postconviction supervision at zero dollars ($0 bail), except as specified in the rule. The San Diego County Superior Court, through its presiding judge, implemented Emergency Rule 4 in General Order No. 041320-42. General Order No. 041320-42, among other things, established a procedure for handling persons arrested prior to implementation of the Emergency Bail Schedule. A consolidated group of persons in pretrial custody and individuals arrested for violating their postconviction supervision petitioned a challenge to the superior court’s general order as inconsistent with Emergency Rule 4. A more detailed explanation of these events follows.
Emergency Rule 4
In a report to the Judicial Council recommending adoption of the emergency rules, the chairs of the Judicial Council’s six internal committees noted that the pretrial custody decisions of trial courts can affect the spread of COVID-19. The report stated, “During the COVID-19 pandemic, trial courts have a vital role to play in balancing public safety and public health by assisting to safely reduce jail populations in a manner that protects the health of inmates, jail staff, those who transport defendants to courts, and others as individuals leave jail and return to their communities. The courts can assist by permitting more persons accused of misdemeanors and other lower-level offenses to be released from jail custody prior to arraignment, which in turn will reduce the immediate burden on the courts to conduct arraignments and preliminary examinations within compact timeframes.”
Prior to the Governor’s executive order, the Chief Justice of the California Supreme Court recommended that trial courts reduce the incarcerated population by adopting emergency bail schedules that would result in fewer people in custody based on their inability to post bail. Her recommendation advised courts to “[r]evise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses—for all misdemeanors except for those listed in Penal Code section 1270.1 and for lower-level felonies.”
Citing a “need for greater uniformity throughout the state,” the committee chairs’ report recommended that the Judicial Council “adopt an emergency rule of court that provides for a statewide Emergency Bail Schedule.” The emergency rule would adopt an Emergency Bail Schedule “to set bail at $0 for misdemeanors and certain felonies … .” The Emergency Bail Schedule would apply “[p]ursuant to Penal Code section 1269b … to any accused currently held in county jail custody charged with an offense covered by the schedule.” The regularly adopted countywide bail schedule would apply to any other offenses. The emergency rule would require “[b]ail to be set at $0 for violations of misdemeanor probation, whether the arrest is made with or without a bench warrant. For violations of felony probation, parole, post release community supervision, or mandatory supervision, bail must be set in the same amount as bail for the underlying substantive charge of conviction under the Emergency Bail Schedule.”
The Judicial Council adopted the recommended rule as Emergency Rule 4. It provides, “Notwithstanding any other law, this rule establishes a statewide Emergency Bail Schedule, which is intended to promulgate uniformity in the handling of certain offenses during the state of emergency related to the COVID-19 pandemic.” (Emergency Rule 4(a).) “Under the statewide Emergency Bail Schedule, bail for all misdemeanor and felony offenses must be set at $0, with the exception of only the offenses listed below … .” (Emergency Rule 4(c).) Likewise, “[u]nder the statewide Emergency Bail Schedule, bail for all violations of misdemeanor probation, whether the arrest is with or without a bench warrant, must be set at $0.” (Emergency Rule 4(f)(1).) “Bail for all violations of felony probation, parole, post-release community supervision, or mandatory supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the bail amount in the court’s countywide schedule of bail for charges of conviction listed [in the exceptions to the statewide Emergency Bail Schedule].” (Emergency Rule 4(f)(2).) Even for covered offenses, Emergency Rule 4 does not affect the constitutional authority of superior courts to deny bail altogether in limited circumstances: “Nothing in the Emergency Bail Schedule restricts the ability of the court to deny bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution.” (Emergency Rule 4(d).) In sum, Emergency Rule 4 established a statewide Emergency Bail Schedule which sets bail for all misdemeanor offenses, certain felony offenses, and violations of postconviction supervision at zero dollars (zero bail), except as specified in the rule.
Emergency Rule 4 directed the superior courts to apply the Emergency Bail Schedule, by no later than 5 p.m. on April 13, 2020, to every accused person arrested and in pretrial custody and to every accused person held in pretrial custody. (Emergency Rule 4(b).) The rule remains in effect “until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.” (Emergency Rule 4(g).)
San Diego Superior Court’s General Order
On April 13, 2020, the San Diego County Superior Court implemented Emergency Rule 4 in General Order No. 041320-42. The order provided that the superior court should apply the Emergency Bail Schedule “in the same manner as the regularly adopted San Diego County Bail Schedule” except as specified in the order. (Emphasis added.) The order stated, “For persons arrested prior to the effective date and time of this order, bail shall be set in accordance with the [Emergency Bail Schedule]. However, the court retains the traditional authority in an individual case to depart from the bail schedule or impose conditions of bail to assure the appearance of the defendant or protect public safety.” (Emphasis added.)
To preserve that authority, the order set forth a procedure for making individualized assessments regarding persons held in custody: “Persons whose bail is reduced to zero by the [Emergency Bail Schedule] shall be released from custody at 5:00 p.m. on April 15, 2020, or as soon thereafter as is feasible, unless prior to 5:00 p.m. on April 15, 2020, the prosecuting agency notifies the Sheriff that it will be requesting an increase in bail, a ‘no bail’ hold, or imposition of conditions of release.” (Emphasis added.) If the prosecuting agency notifies the court of its request to seek higher bail, additional steps follow.
For newly arrested persons, the order provides that bail must be set in accordance with the Emergency Bail Schedule. However, as with persons already in custody, the order adopted a procedure for considering departures from the Emergency Bail Schedule and bail conditions: “Requests for a modification of the bail amount, or for conditions of release, shall be made to the daytime or after-hours duty judge. If bail is modified, or conditions imposed, the court will notify the Sheriff’s Watch Commander at the detention facility where the defendant is housed, and the Sheriff shall note the change on defendant’s paperwork, including any release papers.”
The San Diego County Public Defender filed an objection to the Court’s order. After a hearing, the presiding judge, in a written opinion, overruled the public defender’s objection.
Pursuant to the Court’s implementation order, the prosecuting agencies identified between 100 and 200 persons in pretrial custody for whom the agencies sought a bail increase or bail conditions. These individuals, represented by the public defender, petitioned the California Fourth District Court of Appeal for a writ of mandate directing the superior court to rescind its implementation order, arguing that Emergency Rule 4 mandates zero bail for any covered offense or violation, with the only exception being the court’s constitutional authority to deny bail altogether. Under their interpretation, the superior court would not be permitted to increase bail above zero dollars or impose conditions on bail. In a second petition, three individuals arrested for violating their post-conviction supervision also challenged the superior court’s implementation of Emergency Rule 4. They alleged that they were being held in custody without bail and that the superior court refused to apply Emergency Rule 4 to them.
The Fourth District consolidated the proceedings on the two petitions and issued an order to show cause. The consolidated petitioners challenged the superior court’s implementation order as inconsistent with Emergency Rule 4. They argued that bail for offenses and violations covered by the rule must be set at zero dollars, and that the superior court had no authority to increase bail or impose conditions in an individual case. They also contended that the implementation order, including the remote hearings contemplated therein, violated various constitutional protections.
The Fourth District Court of Appeal explained that the California Constitution provides that a defendant “shall be released on bail by sufficient sureties” unless an exception applies. (Cal. Const., art. I, section 12.) The superior court judges in each county are required by statute to adopt a “countywide schedule of bail” for bailable felony, misdemeanor, and infraction offenses (except Vehicle Code infractions). (Penal Code section 1269b, subd. (c).) “The countywide bail schedule shall contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate.“ (Id., subd. (f).) The countywide bail schedule sets out the “presumptive” amount of bail for the identified offenses. (In re Christie (2nd Dist. 2001) 92 Cal.App.4th 1105, 1109.) In general, before a defendant’s appearance in court, “the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant is required to appear … .” (Penal Code section 1269b, subd. (b).)
If conditions warrant, a peace officer may apply for bail in excess of the scheduled amount: “If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to ensure the defendant’s appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence,” the officer may apply for an order setting a higher bail. (Penal Code section 1269c.)
The court need not adhere to the scheduled amount, but rather has the discretion to make individualized determinations as appropriate. “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.” (Cal. Const., art. I, section 28, subd. (f)(3).) The bail statutes set out these factors to guide the court’s discretion as well. (Penal Code section 1275, subd. (a).)
In addition to the amount of bail, courts have the authority to impose conditions related to public safety on persons released on bail. (Cal. Const., art. I, section 28, subd. (b)(3).) “Any condition must be reasonable, and there must be a sufficient nexus between the condition and the protection of public safety.” In re Webb, 7 Cal.5th 270, 278 (2019).
As mentioned, the Judicial Council adopted Emergency Rule 4, which declares that under the statewide Emergency Bail Schedule, “bail for all misdemeanor and felony offenses must be set at $0” unless the defendant is charged with certain excepted offenses. (Emergency Rule 4(c).) Under the statewide Emergency Bail Schedule, “bail for all violations of misdemeanor probation, whether the arrest is with or without a bench warrant, must be set at $0” and “[b]ail for all violations of felony probation, parole, post-release community supervision, or mandatory supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the bail amount in the court’s countywide schedule of bail for” excepted offenses. (Emergency Rule 4(f)(1)–(2).)
Petitioners argued that the plain language of Emergency Rule 4 (e.g., bail “must be set”) established that the superior court could not deviate from the zero dollar bail amount in the statewide Emergency Bail Schedule. Petitioners argued, “In no uncertain terms, the Chief Justice of the California Supreme Court and the Judicial Council ordered that bail ‘must’ be set at $0 unless certain exceptions apply.”
The Fourth District disagreed, explaining that Emergency Rule 4 did not just mandate zero bail for the covered offenses, irrespective of the particular facts of each defendant’s case. Instead, it adopted a schedule, the statewide Emergency Bail Schedule, under which bail for the covered offenses was zero dollars. The Court declared that the rule could reasonably be interpreted to preserve the court’s existing authority to increase bail from the scheduled zero dollar bail amount if the circumstances and existing statutes permitted such a deviation.
The Fourth District determined that the history and structure of the rule demonstrated that this interpretation was the correct one. The Judicial Council report had emphasized that the Chief Justice had issued an advisory to trial courts to “[r]evise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses … .” The Fourth District explained that because the trial courts did not have the power generally to suspend existing statutes or court rules, the recommended emergency countywide bail schedules would necessarily function in the same way as existing regularly adopted bail schedules. Specifically, trial courts applying such emergency countywide bail schedules could, in appropriate circumstances, increase bail from zero dollars in individual cases or impose reasonable conditions on release.
The Court noted the emphasis on “uniformity” in the Judicial Council report and in the rule. The first subdivision of Emergency Rule 4, entitled “Purpose,” states: “Notwithstanding any other law, this rule establishes a statewide Emergency Bail Schedule, which is intended to promulgate uniformity in the handling of certain offenses during the state of emergency related to the COVID-19 pandemic.” (Emergency Rule 4(a), italics added.) The Fourth District concluded that the Judicial Council report and the express purpose of the rule demonstrated that Emergency Rule 4 was intended to mandate that the Chief Justice’s recommendation be adopted by every trial court in the state in the same manner, i.e., the same offenses would be subject to the same zero dollar scheduled bail amount in every county. The Court explained that the focus on uniformity undermined the petitioners’ argument that the statewide Emergency Bail Schedule in the rule was intended to function differently from existing countywide bail schedules—by depriving trial courts of their established authority to depart from the scheduled bail amount and impose bail conditions. Instead, the focus on uniformity demonstrated that the Judicial Council intended the statewide Emergency Bail Schedule to operate as if each court had adopted it—uniformly—as a countywide bail schedule.
The Court further noted that the report specifically invoked Penal Code section 1269b, which mandates the adoption of countywide bail schedules. The report stated, “Pursuant to Penal Code section 1269b, [the rule would require] the application of the statewide Emergency Bail Schedule to any accused currently held in county jail custody charged with an offense covered by the schedule.” The Court explained that the report thus contemplated that the statewide Emergency Bail Schedule established by the rule was intended to fit comfortably within existing statutes governing the setting of bail, rather than supersede them.
Moreover, the Court found the use of the term “schedule” in the rule supported this interpretation, observing that the rule established a statewide bail schedule to be applied by trial courts. Emergency Rule 4, the Court explained, did not anywhere indicate that the term should be given anything other than its established meaning and significance. The rule directed trial courts to “apply the statewide Emergency Bail Schedule” to certain categories of persons in custody. (Emergency Rule 4(b).) It then described the substance of the schedule, i.e., zero bail for the covered offenses. (Emergency Rule 4(c).) For excepted offenses, the rule directed trial courts to apply their regularly adopted countywide bail schedules, and courts retained the authority to modify those schedules as needed. (Emergency Rule 4(e).) The Court concluded that by establishing a statewide bail schedule and directing courts to apply it, while continuing to apply their countywide bail schedule to excepted offenses, the rule embodied the Judicial Council’s intent to create a uniform schedule for the covered offenses—but not to alter the normal function of bail schedules in setting bail for individual defendants under existing statutes.
Petitioners contended that this interpretation would produce “absurd results” because it would not promote a reduction in the jail population. However, the Court pointed to the record, including the papers submitted by the petitioners, which showed that many individuals in custody in San Diego County had been released under this interpretation of the statewide Emergency Bail Schedule, including dozens of defendants in pretrial custody and two of the three named post-conviction petitioners. The Court maintained that the effect of the statewide Emergency Bail Schedule was to set the presumptive bail amount at zero dollars for the covered offenses. If bail was to be set above that amount—for example, in the amount previously specified in the countywide bail schedule—it must be justified. (See Section 1269c; Christie, supra, 92 Cal.App.4th at p. 1110.) The Court found that the petitioners had not shown that interpreting the statewide Emergency Bail Schedule as imposing a new scheduled bail amount of zero dollars was so ineffective as to be absurd.
Petitioners also argued that because the Emergency Rule expressly confirmed a trial court’s ability to deny bail altogether, the inclusion of this exception showed the Judicial Council intended no other exception, e.g. for bail increases under existing bail statutes. The Court rejected this argument, explaining that constitutional authority to deny bail was an exception to the application of bail schedules generally, and that the constitutional authority to deny bail altogether was not in the same category as the statutory authority to depart from a scheduled bail amount. The Court stated that the rule’s preservation of the countywide bail schedule reflected a limitation of the scope of the statewide Emergency Bail Schedule to certain covered offenses; it did not reflect a limitation on the trial court’s power to depart from the scheduled bail amount—whether in the statewide schedule or the countywide schedule—under existing bail statutes.
The Fourth District also did not find Rule 4(a)’s ‘Notwithstanding any other law’ clause to present a problem, as the petitioners argued, because the statutes governing departures from scheduled bail amounts were complimentary and thus readily harmonized with Emergency Rule 4 for the reasons already discussed. Moreover, the Court found that the procedure implemented by the superior court to determine which defendants would be released on zero bail and which would not was a reasonable exercise of the superior court’s inherent supervisory and administrative powers.
In summary, the Fourth District denied the petitioners’ contention that the superior court could not depart from the zero bail amount in the statewide Emergency Bail Schedule in any individual case. To the contrary, the history and structure of Emergency Rule 4 demonstrated that the Judicial Council intended the statewide Emergency Bail Schedule to function in the same manner as the countywide bail schedule in each court. Under the rule, the superior court retains the ability to depart from the scheduled zero bail amount or impose bail conditions under appropriate circumstances in an individual case. The Court similarly concluded that the petitioners had not demonstrated that the superior court’s implementation order was unauthorized or unconstitutional. Emergency Rule 4 required the application of the statewide Emergency Bail Schedule to defendants already held in pretrial custody. (Emergency Rule 4(b).) The implementation order created a reasonable process for delineating those defendants who could be released on the scheduled zero dollar bail, and those defendants for whom individualized bail decisions would be made after the prosecution requested an upward departure in the scheduled amount or conditions of release.
The Court also concluded that the petitioners had not shown the implementation order or its procedures violated any guarantees of the federal or state constitutions, at least on the current record. The Fourth District Court of Appeal accordingly denied the petitions.
HOW THIS AFFECTS YOUR AGENCY
With this case, agencies may be reassured that the Emergency Rule 4 did not supersede existing schedules and processes as it pertains to bail modifications in appropriate circumstances. Agencies should also observe that if bail is to be set above the amount in Emergency Rule 4 (i.e. nonzero), it must still be justified, as before, under Penal Code section 1269c or other applicable statutory or constitutional provisions. The Ayala decision confirms that these well-recognized avenues to modifying bail remain in place subsequent to adoption of Emergency Rule 4.
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 The emergency rules related to the COVID-19 pandemic, including Emergency Rule 4, are set out in the California Rules of Court, Appendix I.
 The exceptions to the statewide Emergency Bail Schedule, set forth in Emergency Rule 4(e)(1), are not at issue here.
 The order also required that the prosecuting agency provide a list of such objections to defense counsel by the same date and time. Under the order, the prosecution and defense counsel must meet and confer regarding the objections within 24 hours. If the parties subsequently agree that a person could be released on zero bail under the Emergency Bail Schedule, he or she shall be released by the sheriff. If the parties agree that a person could be released on increased bail, or subject to conditions, the parties shall submit a stipulation and proposed order to the court to that effect and notify the sheriff. If the parties cannot agree, and the defendant has not yet been arraigned, “the prosecuting agency shall put the matter on the video-court calendar commencing Monday, April 20, 2020, or as soon as practical thereafter, for arraignment and bail review.” In all other cases where the parties cannot agree, “the matter will be reviewed by a judicial officer via telephone conference as soon as practical.”