San Francisco Criminal Lawyer BlogA court must set pretrial bail in an amount that is reasonable given a noncapital defendant’s constitutional right to release on bail pending trial
In re GERALD JOHN KOWALCZYK on Habeas Corpus. (Cal., Apr. 30, 2026, No. S277910) 2026 WL 1175320, at *1–2
Summary: California’s state and federal laws presume that a person charged with a crime will not be detained prior to trial. The California Constitution has recognized a right to release on bail since 1849. (Cal. Const. of 1849, art. I, § 7.) California’s Constitution continues to guarantee such a right, providing that a defendant “shall be released on bail by sufficient sureties,” subject to specifically delineated exceptions. (Cal. Const., art. I, § 12 (section 12).) For noncapital offenses, these exceptions are set forth in subdivisions (b) and (c) of section 12, which limit the right to release on bail in certain felony cases involving violence, sexual assault, or threats of great bodily harm where a court makes required findings by “clear and convincing evidence” of a “substantial likelihood” of specified harms if the defendant is released. (§ 12, subds. (b), (c).) Section 12 also prohibits the requiring of excessive bail.
In In re Humphrey (2021) 11 Cal.5th 135 (Humphrey), the California Supreme Court recognized that many criminal defendants who might otherwise be entitled to pretrial release were being detained “ ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” (Id. at p. 143.) In Humphrey, we held that the common practice of detaining criminal defendants based solely on their financial condition violated state and federal equal protection and due process principles. The Court held that courts may not condition release on posting bail unless they “consider an arrestee’s ability to pay alongside the efficacy of less restrictive alternatives” to money bail. (Id. at p. 152.) We also held that while constitutional principles did not “categorically prohibit the government from ordering pretrial detention, … ‘[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ ” (Id. at p. 155.)
Unresolved issues in Humphrey
The Court did not decide whether section 12 “can or should be reconciled” with a more recently amended provision of the Constitution, article I, section 28, subdivision (f)(3) (section 28(f)(3)). (Humphrey, supra, 11 Cal.5th at p. 155, fn. 7.) Section 28(f)(3) also pertains to bail and provides in part, “A person may be released on bail by sufficient sureties” for noncapital offenses. It also mandates that, in making bail determinations, “[p]ublic safety and the safety of the victim shall be the primary considerations.” (Ibid.) Consistent with section 12, section 28(f)(3) also prohibits the requiring of excessive bail.
The Court granted review in this matter to consider the question regarding the two state constitutional bail provisions (§ 12, subds. (b), (c) and § 28(f)(3)) not decided in Humphrey, and to resolve a conflict that has arisen in the Courts of Appeal in the wake of that decision concerning whether it is ever constitutionally permissible for a trial court to set bail above a defendant’s ability to pay.
The Court concluded that section 12, subdivisions (b) and (c) and section 28(f)(3) can be reconciled: In noncapital cases, a trial court has the authority to deny bail only as to offenses specified in section 12, subdivisions (b) and (c). Section 28(f)(3) refers to the possibility that a defendant “may” be released on bail and mandates that a trial court place primary importance on public and victim safety in making bail determinations. However, section 28(f)(3) does not expand the list of offenses for which release on bail may be denied beyond those delineated in section 12, subdivisions (b) and (c).
A court must set pretrial bail in an amount that is reasonable given a noncapital defendant’s constitutional right to release on bail pending trial, the purposes of bail, and the defendant’s individual circumstances. Bail must be set in an amount reasonably attainable for the defendant. Due process principles prohibit the detention of criminal defendants based solely on their indigency. Where pretrial detention is not warranted under section 12, subdivisions (b) or (c), and a court finds it necessary to condition pretrial release on posting monetary bail, a court must set bail in a reasonable amount based on an individualized assessment of the totality of the circumstances. These circumstances include “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.) The totality of the circumstances also includes a defendant’s financial situation.
This does not mean that bail may only be set in an amount that is easily affordable or convenient to the defendant, or that the court must accept unsupported, conclusory assertions of indigency or an inability to pay. Bail must generally be set in an amount that is reasonably attainable, in order to effectuate the defendant’s constitutional right to pretrial release on bail.
Facts:In January 2021, petitioner Kowalczyk entered a fast-food restaurant to buy a hamburger. Petitioner tried to use six credit cards, the first five credit cards were declined. After the sixth credit card was approved, petitioner received a hamburger. He then sought a refund, which the restaurant manager declined to issue. Petitioner left the restaurant without the hamburger and was subsequently taken into custody. The People filed a complaint charging petitioner with felony vandalism (Pen. Code, § 594, subd. (b)(1)), three counts of felony identity theft (id., § 530.5, subd. (a)), one count of misdemeanor identity theft (id., § 530.5, subd. (c)(1)), and one count of misdemeanor petty theft of lost property (id., § 485). At his arraignment, the trial court denied petitioner’s motion to be released from custody on his own recognizance and set bail at $75,000.
Overview of Bail Provisions in California State Constitution
Article I, section 7 of the California Constitution of 1849 provided: “All persons shall be bailable, by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great.” Article I, section 6 of that same Constitution provided: “Excessive bail shall not be required ….” The two provisions were consolidated in article I, section 6 of the Constitution of 1879.
Historically, this court interpreted these provisions as providing criminal defendants with a right to pretrial release subject to very limited exceptions. After the decision in Humphrey, concluding that it violates state and federal equal protection and due process principles to detain defendants solely because they lack financial resources (Humphrey, supra, 11 Cal.5th at pp. 149–150), the Courts of Appeal have reached conflicting decisions as to whether it is permissible to set bail above a defendant’s ability to pay. (
The Proper Interpretation of Section 12, Subdivisions (b) and (c) and Section 28(f)(3)
Petitioner maintains that section 12, subdivisions (b) and (c) and section 28(f)(3) can be reconciled. In petitioner’s view, bail can only be denied outright in noncapital cases to those eligible for pretrial detention under section 12, subdivisions (b) and (c). Section 28(f)(3), according to petitioner, refers to the possibility that a defendant may be released on bail and mandates that courts regard public and victim safety as the primary considerations when making bail determinations.
Section 28(f)(3) does not abrogate, and instead may be harmonized with, the principle of the right to release on bail set forth in section 12.
Setting Bail in Relation to a Defendant’s Financial Circumstances
Pretrial “ ‘liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ ” (Humphrey, supra, 11 Cal.5th at p. 155.) A court may order the pretrial detention of a noncapital defendant only in the circumstances specified in subdivisions (b) and (c) of section 12. A court may not condition release on the posting of bail unless the court has assessed the defendant’s financial situation and determined by “clear and convincing evidence” that no nonfinancial conditions of release will “reasonably vindicate [the state’s] interests” in ensuring public safety and the defendant’s appearance; and stated its findings to that effect in the record. (Id. at p. 156.) If the court finds it necessary to condition release on monetary bail, the court must set bail in an amount that is reasonable, considering the purposes of bail and based on an individualized assessment of the totality of the circumstances in a case, including the defendant’s financial situation. The amount of bail need not be easily affordable or convenient to the defendant, but the court must set bail in an amount that is consistent with, and designed to effectuate, a defendant’s general right to pretrial release, subject only to the exceptions set forth in section 12.
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