SAN FRANCISCO — In a bail motion hearing June 2, Judge Justine Cephus ordered an accused person held on $100,000 bail despite arguments from defense counsel that the amount was arbitrary and unaffordable.
During the hearing, Deputy District Attorney Tanisha Gooch argued that the California Supreme Court’s decision in In re Kowalczyk should not apply in this case because the charges fell under Section 12, which would deny the accused bail. Gooch stated that she wanted the accused detained because the alleged crime involved internet use, which could not be regulated if he were released. Judge Cephus denied that request.
“Under Kowalczyk, the court’s hands are tied,” Judge Cephus said. She told counsel that she could not find that the charges fell under Section 12, which applies only in a very specific set of circumstances, and therefore an attainable bail amount had to be set for the accused.
In response, defense attorney Martina M. Avalos argued that the court must consider the least restrictive alternatives, suggesting a possible internet ban as a condition of release.
Gooch continued to argue that the accused should remain detained on bail.
“I don’t believe there are any less restrictive options,” Gooch said.
Gooch asked the court to set bail at $115,000, in accordance with the county bail schedule, prompting further argument between the attorneys.
Gooch also told the court that because the accused’s family was able to afford a private attorney, they were therefore capable of contributing to his bail. She requested that, if bail were met, conditions of release include no weapons, electronic monitoring, a strict curfew and restricted access to social media.
A financial declaration submitted by the accused and his family showed that expenditures exceeded the accused’s income of $1,500 and that the business he operated was not generating any income. Avalos stated that her client receives aid from CalWORKs and participates in a food assistance program.
“We’re talking hundreds of dollars, not thousands, not hundreds of thousands,” she said, referring to the amount of bail her client could afford.
Judge Cephus stated that the court would tentatively consider setting bail at $100,000 because she did not find any nonmonetary alternatives sufficient at that point in the hearing.
“It appears he has other resources available to him,” Judge Cephus said, citing expenditures that exceeded the reported income of $1,500 in the financial declaration.
Avalos continued to argue that the court cannot require a client to seek financial assistance from friends, family members or community members to secure release. She also argued that it was unjust to use the hiring of a private attorney as a factor in bail considerations. If not for his family, Avalos argued, her client would be unable to afford an attorney and would qualify as indigent and be assigned a public defender.
She argued that “$2,000 in monthly bills does not equal $100,000 bail” and reiterated that her client was receiving government assistance because he struggled to pay his bills and did not have access to that kind of money.
Gooch objected, arguing that because the accused allegedly had cash and marijuana in the vehicle at the time of arrest, he might be selling drugs and therefore had access to more money than he disclosed.
Avalos responded that treating alleged past criminal income as future income available for bail was legally improper and that the district attorney was relying on “gross hypotheticals.”
Judge Cephus stated that, “based on the totality of circumstances” presented during the hearing, a reasonably attainable bail amount would be set at $100,000. She further explained that she believed $100,000 was reasonable because, “Historically, bail has been set very high in this county because you only have to pay 10% or even less to a bail bond company.”
Notably, the judge did not mention that the percentage paid to a bail bond company is generally nonrefundable and cannot be recovered by the accused or family members.
The decision contrasted sharply with how some other judges have applied Kowalczyk. In a June 8 bail hearing, Judge Christopher Hu reviewed a bail amount of $200 that he had previously set, believing it to be reasonably attainable for an indigent accused person.
During that hearing, Hu noted that although he initially believed the amount was affordable, the fact that the accused remained in custody and had not posted bail indicated that the amount was still too high.
Hu considered setting bail at $25 before reflecting that even that amount might still be unattainable. Citing Kowalczyk, Hu ultimately declined to impose monetary bail and ordered the accused released on less restrictive alternatives.
The differences between the cases and the judges’ decisions highlight the complexity of post-Kowalczyk bail determinations, where both the facts of a case and the financial circumstances of the accused play a role in how bail is assessed.
Ultimately, the Kowalczyk decision suggests that a person accused of a crime should not remain in jail before trial solely because of an inability to pay. Many supporters of the ruling have argued that wealthier defendants often have the ability to secure release, which not only allows them to avoid pretrial detention but also gives them a greater ability to assist in preparing their defense than someone with limited contact from jail.
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