GEORGE GASCON

District Attorney

State Bar No. . 182345 ENDORSED

Omid Talai \C?Jmty Superior Court
Assistant District Attorney San Franc'sco 9

State Bar No. 252131 JUN 10 191 
850 Bryant Street, Suite 322 0F TH coUR
San Francisco, California 94103 RQN R053. 1 WK
Telephone: (415) 553-1754 BY: Hf- 03"? 

Email: omid.talai@sfgov.org
Fax: (415) 575?88 1 5

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
PEOPLE OF THE STATE OF CALIFORNIA, Court No. 19008917 19008914
Plaintiff,
NOTICE OF MOTION AND
vs. MOTION TO DETAIN WITHOUT
BAIL (Cal. Const, art. I, 12, 28)
DOUGLAS JAMES LOMAS,
STEPHANIE CHING Date: June 710, 2019
ALSO, KNOWN AS Time: 1:30pm
STEPHANIE LOMAS Dept: 9
Defendants.

 

 

TO THE HONORABLE COURT AND DEFENDANTS, BY AND THROUGH HIS
ATTORNEY:
PLEASE TAKE NOTICE that on 'June 10, 2019 at 1:30pm, oras soon thereafter as

counsel may be heard in Department 9 of the above?entitled court, located at 850 Bryant
Street, San Francisco, California, 94103, the People of the State of California will move to

detain Defendants without bail under the California Constitution.

This motion will be based on this notice of motion, on the following memorandum
of points and authorities, and on any exhibits lodged or ?led with the Court, on such
supplemental memoranda of points and authorities as may hereafter be ?led with the Court
or stated orally at the conclusion of the hearing on the motion, on all thepapers and

records on ?le in this action, and on such oral and documentary evidence as may be

 



presented at the hearing of the motion. 

Dated: June 10, 2019

 

?Omit? Talai.
Ass1stant Attorney

OF POINTS AND AUTHORITIES
INTRODUCTION

This Court may detain Defendant without bail under the following provisions:

Articlel Isection 12
DE Felony Offense involving Violence;

Felony sexual assault;
Felony offense where the defendant threatened another with great bodily

harm.

Article I. section 28
Felony offense causing victims to suffer direct, or threatened physical,

or ?nancial harm,
Felony offense where the defendant poses a serious danger to the safety of

the victim or public safety;
X1 Felony offense where the defendant poses a serious ?ight risk.

STATEMENT OF THE CASE

In summary, the charging documents allege that the Defendants committed the

following substantive felony offense: 1 count of Murder for each Defendant.
STATEMENT OF THE FACTS OF THE MURDER

Defendants Ching and Lomas moved into Victim Benedict Ching?s home at 161
Del Monte Street San Francisco, California in ebruary. 2019. Defendants lived in Mr.
Ching?s home with Mr. Ching and their tvvo young children.

Police investigation, including video surveillance and photographic evidence, has
documented the following events that took place between May 15, 2019 and ,May 20,
20719:

On ?May 15, 2019 Mr. Ching did- not report to his job and was unreachableiby
phone. Witnesses report that this behavior was. unusual and uncharacteristic of Mr. Ching.

At approximately 2:30 pm. on May 19, 2019, Mr. Ching?s employer, William?Stei-

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ner, and sister, Lilia Ching, went to Mr. Ching?s reSidence to check on his well-being. Mr.
Steiner knocked at the front door of the residence and was met by a man he identi?ed to
law enforcement as Defendant Lomas. - Defendant Lomas only cracked the door 
ajar to address Mr. Steiner, telling Mr. Steiner that the family had all become ill. Defend-
ant Lomas also informed Mr. Steiner that Mr. Ching had left earlier that day, although Mr.
Steiner noticed Mr. Ching?s vehicle parked in front of his residence. Defendant Lomas ab-
ruptly?shut the front door and refused to allow Mr. Steiner or Ms. L. Ching to enter. After
Mr. Steiner and Ms. L. Ching left the residence, they each attempted to contact Mr. Ching
and Defendant Ching with no success. Video surveillance obtained from a neighbor?s se-
curity camera con?rms that Defendant Lomas? vehicle was present in front of Mr. Ching?s

heme on May 19, 2019, as well as two people matching descriptions of Defendants Ching

and Lomas.

Police were called to conduct a welfare check on Mr. Ching at his residence on May
20, 2019. Of?cer Aguirre arrived 'on?scene and met Ms. L. Ching, who had a key to Mr.
Ching?s residence. Of?cer Aguirre used Ms. L. Ching?s key to enter the residence through
the front door. The home was observed as unkempt and suspiciously messier than Mr.
Ching usually kept it. Of?cer Aguirre also observed a large cardboard blockade at the en?
trance to the kitchen, which needed to be moved in order to aCCess that area of the home.
Of?cer Aguirre entered the bathroom and observed cardboard and plastic lining the walls
and bathtub, an unknown red liquid'and circular saw inside the bathtub, and unknown bio-
logical matter in the Open toilet bowl. Mr. Ching was not found inside the residence. Ms.

L. Ching informed Officer Aguirre she wished to ?le a missing person?s report.

. Of?cer Aguirre contacted Sergeant Tam, who later obtained a search warrant for
Mr. Ching?s residence. During the authorized search on May 20, 2019, CSI personnel
found human body parts, including a severed head, inside the refrigerator. Traces of human
blood were identi?ed inside the bathtub and on the circular saw. Medical Examiner?s Of-
?ce Investigators conducted a walk-through of the residence with Sergeant McWilliams,
during which additional plastic sheeting, rolls of 7, duct tape, latex gloves, and other tools

were observed. Investigators declared the incident to be a homicide.

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Early that morning at approximately 2:00 am. on May 20, 2019, Defendants Ching
and Lomas,? along with their two children, boarded a ?ight bound for China. After ?eeing

and upon their arrival in China they were arrested and returned to the United States.

REQUEST FOR JUDICIAL NOTICE-

The People request that this Court take judicial notice Of the statutes listed in the
charging documents and court records offered as exhibits. (Cal. Evid. Code 451, subd.
452, 'subd. The People notice their intent to request that this Court take judicial
notice of the court records attached as exhibits to this motion. (Cal. Evid. Code 453.)

ARGUMENT

DETENTION WITHOUT BAIL Is .WARRANTED UNDER ARTICLE 1, SECTION 12.

Article 1, section 12, subdivisiOn allows a court to detain a person without bail
for felony offenses involving violence or felony sexual assault ?when the facts are evident
or the presumption great and the court ?nds based on clear and convincing evidence that
there is a substantial likelihood the person?s release would?result in great bodily harm to
(Cal. Const., art. I, 12, subd. Article 1, section 12, subdivision (0) allows a
court to detain a person without bail'for Offenses when the facts are evident and
the presumption great ?and the court ?nds by 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.? (Cal. Const., art. I, 12, subd. 

In White, the complaint charged the defendant with attempted kidnapping to commit
rape [Pen. Code 209], assault with intent to commit rape [Pen. Code 220], contact with

'a minor to Commit a sexual Offense. [Pen. Code 288.3], and false-imprisonment [Pen.

Code 236]. (In re White (2018) 21 Cal.App.5th 18 review granted May 23, 2018.)1 The

court in White concluded that the defendant was highly dangerous, even as an aider'and

abettor, because he encouraged and planned a deliberate attack that occurred during the

 

1 (Cal. Rules. Of Court, rule [pending'review with the Supreme Court, a
published opinion of the Court of Appeal in the matter has no binding orprecedential

effect, but may be cited for potentially persuasive value].)
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1heavily traf?cked street, targeting a vulnerable stranger. The defendant also
worked in concert with the co-defendant ?to increase the odd of the attack?s success.? (Id.
at p. 30.) Although the co-defendant had not completed the attack, the court of appeal ruled
that the trial court reasonably inferred that, the defendant knew that the co-defendant
intended to rape the victim, ?a devastatingly harrn?rl (Id) The court
acknowledged that the defendant did not have a criminal record, denied the allegations
during interviews withthe police, and that no' great bodily injury had been in?icted. 
Yet, based on the circumstances of the case, the White court concluded that the trial court
could reasonably ?nd that the defendant ?acted so brazenly, so inexplicably, and so
without regard for the laws and norms of society that there would be a substantial
likelihood that his release would result in great bodily harm to others.? (Id. at p. 31.)
Thus, the White court concluded that suf?cient evidence supported the trial court?s
detention order. 

. . Here, as in Wine, the two co-defendants have exhibited a complete disregard for
the ?norms of society,? as exhibited in their ruthless killing and dismemberment of Mr.
Ching. The circumstances of the present case indicate that both Defendant Ching' and
Defendant Lomas are capable of in?icting excessive means of bodily harm, or of aiding in
the process. The body parts found in the re?igerator are a prime indicator- of their disregard
for human life. Further, the defendants exhibited no remorse or concern for the death of the
victim, and hastily ?ed to China as family members began to question the victim?s
whereabouts This evidence shoWs that both Defendant Ching and Defendant Lomas

should be detained.
II. DETENTION Is ALSO WARRANTED UNDER ARTICLE 1, SECTION 28.

Beforel2008, section 12 provided the sole means to preventatively detain a defendant
before trial. That landscape changed, however, with the enactment of Marsy?s Law under

Proposition 9 in 2008. Currently, both sections 12 and 28, as reconciled, provide the means

'to deny bail in noncapital cases and preventatively detain those defendants that pose

serious safety risks.

A. California?s Provisions for Pretrial Detention

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Understanding California?s current pretrial detention landscape requires a "review of
both the text of the applicable constitutional and statutory provisions and the historical
backdrop against which they wereenabted. (Cal. Redevelopment Ass ?n v. Matosantos
(2011) 53 Cal.4th 231, 265 (Matosantos).)

1. 1982 Election: Competing Bail and Detention Provisions

In 1982, the ballot provided-voters with two competing provisions regarding
detention'and bail, namely Proposition. 4, which addressed section 12, and Proposition 8,
which addressed section 28 of the California Constitution.

Initially, section 12 provided that all persons shall be released on bail, excepting
capital crimes when the factsa're evident and the presumption great. Proposition 4 sought
to expand detention to noncapital cases to include felony offenses involving acts of
violence and felony offenses where the defendant threatened another with great bodily
harm. (Ballot Pamp., Primary Elec., (June 8, 1982) text of Prop. 4, p. 17 (1982-Ballot
Pamp. Prop. Cal. Const, art. I, 12, subds.-' (Section 12 was later amended
in 1994 to include felony sexual offenses.)

Proposition 8, on the other hand, sought to enact ?comprehensive provisions and
laws? and ?safeguards in the criminal justice system? to fully protect the rights of victims
of crime, as ?a matter of grave statewide concern.? (Ballot Pamp., Primary Elec., (June 8,
1982) text of Prop; 8, p. 33 (1982 Ballot Pamp. Prop. PrOposition 8 also specifically
sought to provide courts with broader discretion to preventatively detain those persons who
pose a serious danger to public safety (italics foradditions and underline for emphasis):

The rights of victims pervade the criminal justice system, encompassing
not only the right to restitution from the wrongdoers for financial losses
su?iered as a result of criminal acts, but also the more basic expectation that
persons who commit felonious acts causing iniu: to innocent victims will be
appropriately detained in custodv. tried by the courts, and su??icientbz punished
so?that the public satiety is protected and encouraged as a goal of hi chest

importance;
(1982 Ballot Pamp. Prop. 8, supra, p. 33.) Proposition 8 would have also provided

a tool ?to stop extremely dangerous offenders from being released on bail to,
comniit more violent crimes.? 1982 Ballot Pamp. Prop. 8, supra, p. .34.)

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Proposition 8 therefore supplanted ?ight risk with public safety as the primary
consideration in denying bail. Lastly, Proposition 8 expressly sought to repeal

section 12. (1982 Ballot Pamp. Prop. 8, supra, p. 33.)

2. Amendment by the Legislature
Following the 1982 election, the Legislature amended Penal Code'section 1275 in?

1987 to mirror the bail-related provisions of Proposition 8. The amendment to section
1275 also included mandatory factOrs to Consider in assessing the seriousness of the
offense charged, including injury to the victim, threats made to the victim or witnesses,
and the use of a' ?rearm or other deadly weapon.

The 1987 amendments to section 1275 were drawn verbatim from the ?Public
Safety Bail? previsions of Proposition 8. (Cone. Sen. Amend. to Assem. Bill No. 630
(1987-1988. Reg. Sess.) Aug. 27, 1987.) Abeording to the author of the bill to amend 
section 1275, the amendment ?codi?e[d] existing provisions of the Vietim?s Bill of Rights
which provide that public safety shall be the primary consideration in regard to bail? and
noted that the United States Supreme Court upheld public safety as ?a valid basis upon
which to set? or deny bail.? (Rep. Larry Sterling, sponsor of Assem. Bill No. 630? (1987?
1988 Reg. Sess.) letter to Governor, Sep. 1.987 (italics added).) Presumably, the author
referred to the United States Supreme Court decision in United States v. Salerno (1987)
481 US. 739, which?upheld federal public safety detention provisions under the Bail
Reform Act of 1984 against the defendant?s due process challenge. (481 US. at pp. 741,

748, 749, 752.)

3. Bail and Detention Provisions of Section 12 Prevail Over Those
Contained in Section 28

Following the 1982 election and the Legislature?s amendment to section 1275,
courts assessed. the two competing constitutional provisions?one which sought to repeal
the other?enacted in the same election. Ultimately, the Court held that the bail and
detention provisions of section 12 prevailed over those contained in section 28 because

section 12 received more votes. (People v. StandiSh (2006) 38 Ca1.4th 858, 87 6-878

 






 

 

(Standish); York, supra, 9 Ca1.4th at p. 1140, fn. 4; see also Cal. Const, 4; see

also Brosnahan v. Brown (1982) 32 Cal.3d 236, 255 (Brosnahan).)

Standish, more so than York, conducted a ?section?by-section? comparison between
sections .12 and 28 and concluded that a direct con?ict existed. (Standish, supra, 38
Ca1.4th at pp. 877?878.) First and foremost, section 28 sought to repeal section 12
outright. (Id. at p. 877.) Section 28 would have also prohibited own recognizance release
for any serious felony, while section 12 left intact at court?s discretion to grant release for
all offenses. (Id. at p. 877.) Last, sectionl2 stated that all persons, subject to limitations,
?shall? be admitted to bail, while section 28 proVided courts with discretion to release
persons on bail in all cases subject to enumerated factors; (See id.) Because the provisions
contained competing measures related to bail, release, and detention and section 12
received more votes than section 28, the Court concluded that the bail. provisions of section
28 did not take effect. (Id. at pp. 877-878.)

In his dissent, Justice Chin identified how the 1982 amendments changed section
12. (Standish, supra, 38 Ca1.4th at pp. 888, 892-893 (cenc. dis. opn. of Chin, Prior
to 1982, section 12 ?gave a defendant an absolute right to bail in noncapital cases and gave
no discretion to the court to deny bail, even where public safety was at stake.? (Id. at p.
893 (italics in The amendment to section 12, however, ??broaden[ed] the
circumstances under which courts may deny and provided judges with a
necessary legal tool to protect the public from repeat violent offenders.? (Id. at p. 892
quoting 1982 Ballot Pamp. Pr0p. 4, supra, pp. l6, 18.) Thus, section 12 allowed ?courts to
deny release on bail in the interest of public safety[]? and placed ?express public safety
limitations on the constitutional bail (Standish, supra, 38 Cal.4th at p. 892.)

4. 2008 Election: Marsy?s Law
The 2008 election presented quite a different scenario than the 1982 election had.

Unlike 1982, the 2008 ballot contained just one provision relatedto bail and detention:
Proposition 9, also known as the ?Victim?s'Bill of Rights Act of 2008: Marsy?s Law.?
(Ballot Pamp., Gen. 2008) text of Prop. 9, p. 128 (2008 Ballot Pamp. Prop.

 

 






 

 

 

Proposition 9 added to Section 28 that ?[c]riminal activity has a Serious impact on the
citizensof California. 'The rights of victims of crime and their families in criminal
prosecutions are a subject of grave statewide concern.? (2008 Ballot Pamp. PrOp. 9, supra,

p. 129.) As to the ?ndings to support theamendments, seetion 28' stated (with italics for

additions and strike-throughs for deletions):

Victims of crime are entitled to have the criminal justice system view.
criminal acts as serious threats to the safety and welfare of the people of
California. that?the The enactment of comprehensive provisions and laws
ensuring a bill of rights for victims of crime, including safeguards in the
criminal justice system to fully protect?protecting those rights and ensuring that
crime victims are treated with respect and dignity, is a matter of grave
statewide?66m high public importance. California ?s victims of crime are
largely dependent upon the proper functioning of government, upon the
criminal justice syStem and upon the expeditious enforcement of the rights of
victims of crime described herein, in order to protect the public safety and to
secure justice when public safety has been compromised by criminal activity.

(2008 Ballot *Pamp. Prop. 9, supra, p. 129 [text of proposed law]; Cal. Const., art. I, 28,
subd. The amendment also broadened enforceable rights to

encompass the expectation shared with all of the people of California that
persons who commit felonious acts causing injury to innocent victims will be
appropriately and thoroughly investigated, appropriately detained in custody,
brought before the courts of California even if arrested outside the State, tried
by the courts in a timely manner, sentenced, and sufficiently punished so that
the public safety is protected and encouraged as a goal of highest importanCe.

(2008 Ballot Prop. 9, supra, p. 129; Cal. Const., art. I, 28, subd. 
Proposition 9' further amended the public safety subdivision to add ?the safety of the

victim? as an additional,- but primary consideration in ?setting, reducing, or denying
(2008 Ballot Pamp. Prop. 9, supra, p. 130.) As to own recognizance release, the
amendment to section 28 removed the language that prohibited release for aperson
charged with a serious felony. (2008 Ballot Pamp. Prop. 9, supra, p. 130.)

The impetus for Proposition 9 was a young woman named Marsy Nicholas, who
was murdered by her former boyfriend. Proposition 9 noted that, the family 'was shocked to
encounter the defendant after his arrest, later ?learning that he had been released on bail

without any notice to Marsy?s family and without any opportunity for her family'to state

9

 

 

this analysis, a court must ?ascertain the intent cf the electorate? so as to ?effectuate that

 

 

their opposition-t0 his release.? (2008 Ballot Pamp. Prop. 9, supra, p. 129, 2 (italics
added).) Proposition 9 also sought to enforce those rights-including public safety bail and

detention?that had not been enforcedunder 1982?s Proposition 8:

[T]he ?broad reform? of the criminal justice system intended to grant these
basic rights mandated in the Victims? Bill of Rights initiative measure passed
by the electorate as Proposition 8 in 1982 had not occurred as envisioned by the
people. Victims 'of crime continue to be denied rights to justice. and due

process.
(2008 Ballot Pamp. Prop. 9, supra, p. 128, 2.)

B.. Section 28 Can Be Reconciled with Section 12 to Provide Additional
Exceptions to the General Right to Bail and Provides Courts. with the
Discretion, to Detain Those Individuals Who Pose a Serious Safety or

Flight Risk

Although. sections 12 and 28 directly con?icted when the electorate initially passed
them in 1982, the .2008. amendment to section 28 presented a- considerably different
scenario,-Which permits reconciliation. Ultimately, both provisions delineate exceptions to
the general rule providing for bail andown recognizance release and permit courts to
preventatively detain those defendants?that pose serious Safety risks.

The presumption against implied repeal requires courts ??to maintain the integrity
of both [enactments] if they may stand together?? (Lance - W., supra, 37 Cal.3d at p. 887
quoting Warne v. Harkness (1963) 60 Cal.2d 579, 588.) Thus, when faced with two
provisiOns, an obligation rests with the courts ?to reconcile con?icts between . . .

constitutional provisions to avoid implying that a laterenacted provision repeals another

 

existing . . . provision.? (Lance W., supra, 37 Cal.3d at p. 886.)Cln that vein, this Court
has emphasized the importanceof harmonizing potentially inconsistent statutes and
making a finding of implied repeal "??only where there is no rational basis for
harmonizing the two potentially con?icting statutes (State Dept. Of Public Health 
Superior Court (2015) 60 Cal.4th' 940,- 955 (State Dept. of Public Health).) Foremost in

intent.? (Arias v. Superior Court (2009) 46 Cal.4th 969, 978-979 (Arias); Lance W,
supra, 37 Cal.3d at p. 889.) Further, the initiative and referendum of the

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most precious rights of our democratic drafted under the powers reserved by
the people. (Brosnahan, supra, 32 Cal.3d at p. 262.) As a result, courts jealously guard
this precious'right and liberally construe the terms of an initiative, ?resolving reasonable
doubts in faVOr of the people?s exercise of their reserved power.? (Ibid)

How section 28 may be harmonized with section 12 depends, in part, upon the
canons of interpretation. ?In interpreting the scope of constitutional provisiOn, [the
court applies] ??the same principles that govern statutory construction,?? beginning with
the text as the best indicator of-intent.? (Matosantos, supra, 53 Cal.4th at p. 265; People v.
Rizo (2000) 22? Cal.4th'68l, 685- [voter initiatives] .) Courts must ?rst look to the'language

itself, ?giving the words their ordinary meaning and construing this language in the context

Cal.4th 564, 571 (Pearson).) If the language is unambiguous, the inquiry ends, as courts
?presume the voters intended the meaning apparent from the language? itself. (Pearson,
supra, 48 Cal.4th at p. 571 .) If, however, the text is ambiguous, courts look to extrinsic
aids to determine the voters? intent. (Matasantbs, supra, 53 Cal.4th at p. 265.)Extrinsic
aids may include the ?historical backdrop against which the provision was drafted and,
adopted? (Matosantos, supra, 53 Cal.4th at p, 265), ballot explanations-by the Legislative
Analyst (Lance W., supra, 37 Cal.3d at p. 888), ballot summaries (Pearson, supra, 48
Cal.4th at 571), and pamphlet arguments (People v, Floyd (2003) 31 Cal.4th 179, 187).
Beginning with the text (State Dept. of Public Health, supra, 60' Cal.4th at p. 856.),
section 28 expressly requires courts to consider the protection of the public and the safety
of the victim in ?denying bail,? amongst other enumerated factors. Indeed, the text of
section 28 requires Courts to make public safety and the safety of the victim their primary
considerations in deciding whether to deny bail. True, the2008 amendment made a few
changes to the public safety subdiVision itself. But, the amendment made signi?cant
changes throughout seetion 28, including those directly preceding the public safety
subdivision. (Cal. Const., art. I, 28, subd. Proposition 9 also presented these-
ainendments to the electorate as part of a logical and coherent whole and they could not be

understood without the remaining provisions. (Raven v. Deukmejian (1990) 52 Cal.3d

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336, 349; Pearson, supra, 48 Cal.4th at p. 57-1; Valencia, supra, 3 Cal.5th 347 at p. 357.)
Ultimately, section 28, by its own words, permits cOurt to deny bail in noncapital cases.

In reconciling the respective texts of sections 12 and 28, the excepticins Under
section 12 would still exist, but they would nOt provide the?exclusive means for a court to
deny bail in noncapital cases. Rather, courts could also look to section 28?s exceptions. In
the context of detention, section 28 references those defendants who commit felonious acts
that cause injury to innocent victims, along with the specific. need to protect public safety
as the chief goal. (Cal. Const, art. I, 28, subd. Salerno, supra, 481 US. at pp.
747,? 750.) Similarly, the public safety subdivision of section 28 designates victim and
public safety as the primary considerations in denying bail, which further indicates the
intent?that section 28 applies to felony offenses where the defendant poses a serious danger
to the victim or public safety. art. I, 28 subd. As to felonious acts
causing injury to victims, section 28'limits those offenses to acts where the victim ?suffers
direct or threatened physical, or ?nancial harm as a result of the
commission or attempted commission of a crime or delinquent act.? (Cal. Const, art I, 
28, subd. [de?ning Finally, section 28 includes ?ight risk as. one of the
factors to consider in denying bail. 5(Cal. Const, art. I, 28, subd. If a defendant
poses an unreasonable and unmanageable ?ight risk, but the Court cannot-detain that
defendant, the court cannot ensure an expeditious enforcement of the victim?s rights or
honor the victim?s right to a Speedytrial.? (See Cal. Const, art. I, subd. In
sum, section 28 provides additional exceptions when a defendant is arrested for: l)
felonious offenses Causing victims to suffer direct or threatened physical, or
financial harm as the result of the commission or attempted commission of a crime or
delinquent act; 2) felonious offenses where the defendant poses a serious danger to. the
safety of the victim or public safety; and 3) feloniOus offenses where the defendant poses a
serious ?ight risk. (Cal. Const, art. I, 28, subds. 

Furthermore, the history behind section ?12 itself con?rms that sections 12'and 28 can
be reconciled in this manner. Prior to 1982, section 12 gave a defendant charged with a
noncapital 'offense the absolute right to bail. Section 12 thus gave no discretion to a court
to deny bail in noncapital cases. With the 1982 amendment, however, section 12 provided

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?public safety limitations? on the general right to bail and bestowed some discretion?on
courts, based on the factors added relative to public safety. (See Standish, supra, 38
Ca1.4th at pp. 892-893 (dis. opn. of Chin, In 2008, the amendments to section 28 did
the same. While section 28 still used the word ?may?. as opposed to ?shall,? the
amendmentladded further exceptions, subject-to enumerated factors. So, section 28, as
amended, did not completely repeal the right to bail, but rather imposed public safety.
limitations, just as section 12 had in 1982. Thus, both sections 12 and 28 provide courts
with the means to deny bail in noncapital, cases when victim or public safety is at stake.

Moreover, the signi?cant con?icts between sections 12 and 28 present in. 1982 were
no longer present in 2008, making reconciliation possible when it had not been before. For
example, section 28 in 1982 speci?cally sought to repeal section 12, while the 2008
amendment to section 28 madeno mention of repeal or section 12. I In 1982, section 28
sought to prohibit courts from releasing defendants charged with serious felomes on their
own recognizance, while the amendment in 2008 removed that restrictive provision.
Instead, the amendment permitted release for all. offenses, subject to the factors to be
considered in setting, reducing, or denying bail. 

Aside from the text, the intent behind the amendment to section 28 shOws the
electorate intended to furnish judges with additional means to detain persons who pose an
unmanageable safety risk to either the Victim or the public. Indeed, the ballot arguments in
favor of Proposition 9 focused speci?cally on the concerns felt by the family of Marsy
Nicholas when they saw her murderer free on bail at a local grocery store. The argument
in-favor 0f the proposition promised to prevent such events because judges would be
required to consider the victim?s safety and the safety of the victim?s family in making
release decisidns._ (2008 Ballot Pamp. Prop. 9, supra, p. 62; seealso p. 129, 2.) Under
this backdrOp, Marsy?s Law Sought to expand judicial authority to detain when necessary
to protect victims and the public. (See Lance W., supra, 37 Cal.3d at p. 887 [?The general
rule is that courts assume from a new enactment a purpose to change existing By
bestowing this authority on the court, the amendment to section 28 provided an additional
and necessary tool to protect safety, as section 12 did in 1982. The 2008 amendment also
placed public safety limitations on the constitutional bail provision, but did not eliminate

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that right entirely, just like section 12.
The timing of Proposition 9?two years after the Supreme Court?s decision in

Standish?further solidifies the electorate?s intent to reenact the bail and detention
provisions of Proposition 8 previously held inoperative by'the Court. In fact, .Marsy?s Law
sought to institute the bread reform that had not occurred as envisioned by the Victims?
Bill of Rights in 1982. (2008 Ballot Pamp. Prop. 9, supra, p. 128.) Of course, one of the
broad reforms that had not occurred in light of Standish was the modi?cationto
Califomia?s constitutional bail and detention provisions. ?Although Marsy?s Law did not
directly address article 1, section 12 of the Constitution, it did reenact, as section 
Prop. 8?s provisions addressing bail and [own recognizance] release. in nearly identical
form.? (Pretrial Detention Reform, supra, at p. 23.) Proposition 9 resurrected the dormant
bailand detention provisions of section 28 and they can be reconciled as set forth above.

C. Section 28, as Enacted, Satisfies Due Process Under?Salerno Because
Its Application Is Limitedto Defendants Arrested for Serious
Offenses Where the Defendant Poses a Serious Safety orFlight Risk

The preventative detentiOn provisions 'of section 28 serve compelling, legitimate
regulatory interests, including preventing danger to the community and preventing future
criminal conduct by arrestees. (Salerno, supra, 481 U.S. at pp. 747, 749; Schall, supra,
467 US. at p. 264.) Such interests are plain'not only from the language of amended -
section 28, but from the contents of the ballot pamphlet. By, its own words, section 28
places public safety and the safety of the victim above all other considerations when
denying bail and seeks to do so because criminal activity compromises public safety. (Cal.
Const, art. I, 28, subds. Section 28 furthermore references "the need to
protect public safety as the ultimate goal and the expectation that victim?s rights are to be 
enforced expeditiOusly. (Cal. Const, art. I, 28, Additionally, the
report of the Legislative Analyst and the of?cial arguments in favorvof the proposition
show that the amendment to sectiOn 28 scught to empower Victims by allOwing them to

provide input in pre-trial release decisions, particularly for those defendants who pose a

serious danger to the community. (2008 Ballot Pamp. Prop. 9, supra, pp. 58?59, 62.)

Pretrial con?nement under section 28 is also rationally related to those government

14

 






 

 

 

 

 

objectives and is not excessive. (Salerno, supra, 481 US. at p. 747; Bell 12. Wol?sh (1979)
441 U.S. 520, 538-539.) Section 28?s application, as set forth above, is limited to serious

felony crimes where the victim suffers director threatened physical, or

?nancial harm, where the defendant poses a serious danger to victim or public safety, or
where the defendant poses a serious ?ight risk. While these categories of offenses may be
somewhat broader than those in section 12, they are still speci?c and more restrictive than
those upheld under the federal Bail Reform Act. - (See Salerno, supra, 481 U.S. at pp. 747,
750 [which included, among others, ?serious drug offenses? and ?certain repeat
Accordingly, section 28 ?carefully limits the circumstances under which
detention may be sought to the most serious crimes? and ?narrowly focuses?.? on the
?overwhelming? interestsof protecting safety and ensuring that a defendant appears in

court. (See Salerno, supra, 481 US at pp. 747,- 750.)
Seetion 28 further guides courts with enumerated factors to consider when deciding

. whether detention is appropriate in an individual case, just as the. Bail Reform Act does.

(18 U.S.C. 3141, subd. Salerno, supra, 481 U.S. at pp. 751-752; of Schall, supra,
467' U.S. mp. 279.) These factors include the prote?ction'of the public, the safety of the
victim,- the seriousness of the offense charged, the defendant?s prior criminal record, and
the'likelihood that the defendant will appear in' court as required. (Cal. Const., art. I, 28,
subd. Section 12, however, limits these factors to ?xing a bail amount, and they do
not serve as a guide in making?detention decisions. (Cal. Const., art. I, Section
1275, in conjunction with section 28, provides further guidance because section 1275
mandates that a Court must consider any injury, threats made, or use of a deadly Weapon in
assessing the seriousness of the crime. (Pen. Code 1275, subd. 

Section 28, Coupled with other censtitutional and statutory provisions, also limits the
duration of a defendant?s pretrial Salerno, supra, 481 U.S. at p. 747; U.S.
Const., 6th Amend; Cal. Const., art. I, 15; Pen. Code ?~859b; Pen. Code 1382; see also
Cal. Const., art. I subd. [speedy trial fundamental rightfor victims].)

Furthermore, seetion 28, unlike section 12, requires courts to state the reasons for the

15

 

 






 

 

decisiondenying bail on the record, which provides an adequate record for appellate
review. (Salerno, supra, 481 US. at p. 752 [written statement of reasons]; Cal. Const, art.
I, 28, subd. 4th pan; see also Pen. Code 1270.1, subd. Pen. Code 1270.2.)

While section 28 states no burden of proof, the clear and convincing standard can
apply to section 28, whiCh is the standard imposed by section 12. (See, Santosky v.
Kramer (1982) 455 US. 745, 756-757, .769 [clear and convincing evidencestandard for
important rights]; Addington v. Texas (1979) 441 US. 418, 425-427, 433 [signi?cant -
deprivation of liberty requires clear and convincing standard]; Evid. Code? 160; see also
Brosnahan, supra, 32 Cal.3d at p. 262 [any reasonable doubts should be Construed in favor
of Inherent in a ?nding of clear and convincing evidence, of course, is
the Conclusion that no other means can protect public safety.

The People ?irther note that ?defendants are not entitled to trial-type evidentiary
standards at pre?trial detention hearings.? (Reem v. HennesSy (N .D, Cal. Mar. 12, 2018,
Case No. l7-cv-06628-CRB) 2018 U.S. Dist. LEXIS 40385, *8 (Reem 

A court may rely on proffers, and may require evidence to be produced only
selectively. However, due "process requires courts to employ procedures that
meet minimum standards of reliability.
(Reem supra, 2018 US. Dist. LEXIS 40385 at p. *8 citing United States v. LaFontaine
(2d Cir. 2000) 210 F.3d 125, 13 see also Salerno, supra, 481-U.S. at p. 743 United

States v. Winsor (9th Cir. 1986) 785 .2d 755, 756?757; Portes, supra, 786 F.2d at p. 767.)

Date: June 10, 2019 Respectfully submitted,

 

Omid Talai
Assistant District Attorney

 

2 Federal courts, however, have concluded that decisions to detain based on ?ight risk are
subject to a preponderance of the evidence standard. (See, e. United States v. Santos?
Flores (9th Cir. 2015) 794 F.3d 1088, 1090, [detention order]; United States v. Aitken (9th
Cir. 1990) 898 .2d 104, 107; United States v. .McConnell (5th Cir. 1988) 842 .2d 105,
1 10.)

1 6