Filed 2/8/18 (unmodified opn. attached)
                                  CERTIFIED FOR PUBLICATION

                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                             DIVISION ONE

                                          STATE OF CALIFORNIA


                                                      D072981

In re BETTIE WEBB                                     (San Diego County Super. Ct. Nos.
                                                       HC11619 & SCS293150)
        on Habeas Corpus.
                                                     ORDER MODIFYING OPINION

                                                     NO CHANGE IN JUDGMENT

THE COURT:

        It is ordered that the opinion filed herein on January 31, 2018, be modified as

follows:

        1. On page 1, the comma at the end of the first sentence of the counsel listing is

deleted and replaced with a period.

        2. On page 4, the quotation mark before the word "shall" is deleted in the first

sentence of the first paragraph.

        3. On page 4, footnote 4, an opening quotation mark is inserted before the words

                 "A person shall . . . ."

        4. On page 5, the full citation to People v. Standish (2006) 38 Cal.4th 858, 884

following the first sentence in the first full paragraph is deleted and replaced with:

                 People v. Standish, supra, 38 Cal.4th at p. 884;
       5. On page 7, the first sentence of footnote 5 is deleted and replaced with:

            See Gray v. Superior Court, supra, 125 Cal.App.4th at page 642; In re
       McSherry, supra, 112 Cal.App.4th at pages 861-862.

       6. On page 12, the word "support" is deleted and replaced with the word

"supports" in the second line of the first sentence of the first paragraph.

       7. On page 14, the closing quotation mark following the word "bail" in the last

full sentence of the second paragraph is deleted.

       There is no change in the judgment.


                                                                        BENKE, Acting P. J.




                                              2
Filed 1/31/18 (unmodified version)

                                     CERTIFIED FOR PUBLICATION

                  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                           DIVISION ONE

                                       STATE OF CALIFORNIA



In re BETTIE WEBB                                   D072981

        on Habeas Corpus.                           (San Diego County
                                                     Super. Ct. Nos. HC11619
                                                     & SCS293150)


        ORIGINAL PROCEEDING in habeas corpus. Petition granted with directions.

        Angela Bartosik and Robert Louis Ford for Petitioner,

        Summer Stephan, District Attorney, Mark A. Amador and Marissa A. Bejarano,

Deputies District Attorney, for Respondent.

        Bettie Webb was arrested and eventually charged in a felony complaint with

knowingly bringing controlled substances into a state prison (Pen. Code,1 § 4573) and

unauthorized possession of a controlled substance in a prison (§ 4573.6). She posted a

$50,000 bond in accordance with the bail schedule and was released. At her arraignment,

Webb pleaded not guilty to the charges, but over her objection the magistrate imposed a

condition that she would be subject to a Fourth Amendment waiver, finding it had




1       Undesignated statutory references are to the Penal Code.
inherent authority to do so.2 She petitioned for a writ of habeas corpus in the superior

court challenging the search condition. Pointing out the magistrate had not made a

verified showing of facts, the superior court denied the petition, citing facts developed at

Webb's preliminary hearing.3

       Webb files the present petition for a writ of habeas corpus contending the

magistrate lacked statutory or inherent authority to impose the bail search condition, and

imposition of the condition constitutes a pretrial restraint without due process protections

such as notice and a hearing or any showing that she poses a heightened risk of

misbehaving while on bail. Webb has properly sought habeas relief on this issue.

2      The magistrate recited the waiver terms as follows: "You will be the subject of a
Fourth Amendment waiver, which means you must submit your person, property,
vehicle, personal effects to search at any time and any place, with or without a warrant,
with or without reasonable cause when required by a pretrial services officer, a probation
officer, or any other law enforcement officer." Thereafter, Webb moved the court to
reconsider the condition. The magistrate denied the motion. It explained its reasoning in
part: "I believed then and I still believe that when you are dealing with a drug-related
case, and more specifically a smuggling case, that it would suggest to the court that Ms.
Webb had to get those drugs from somewhere. That means that she has connections and
contacts. She herself may be involved in drug dealing. And it's—the whole idea then is
to make sure that while she is out, that she can be—that she is subject to a Fourth
Amendment waiver, which allows her person—everything that the Fourth Amendment
waiver allows her to do to make sure that society is protected from the further drug
dealing, which, obviously is harmful to society."

3      In denying the habeas petition, the court stated: "Here, it does not appear there
was a 'verified showing' of the facts relied upon by the magistrate who imposed the
Fourth Amendment waiver condition; at least not at the arraignment or at the hearing of
the reconsideration motion. Nonetheless, a preliminary hearing was held after the
condition was imposed, and after the instant petition was filed (but before the [informal
response] and Reply were filed). At that preliminary hearing, there was testimony that
petitioner smuggled into the prison a substance stipulated to be heroin in a useable
amount. This is sufficient to support the magistrate's imposition of the Fourth
Amendment waiver condition." (Footnotes omitted.)
                                              2
(People v. Standish (2006) 38 Cal.4th 858, 884 ["it is settled that defendants may correct

error in the setting of bail by seeking a writ of habeas corpus . . . ordering reconsideration

of custody status or release"]; In re Douglas (2011) 200 Cal.App.4th 236, 247.) We

issued an order to show cause, and conclude the trial court had no authority to condition

Webb's bail on a waiver of her Fourth Amendment rights. Accordingly, we grant Webb's

petition and order the search condition stricken from her bail order.

                                       DISCUSSION

                                    I. Review Standard

       On this habeas corpus appeal, " '[o]ur standard of review is de novo with respect

to questions of law and the application of the law to the facts.' " (In re Hansen (2014)

227 Cal.App.4th 906, 914.) Here, the basic facts are undisputed, and the question before

us is primarily one of law. Additionally, the trial court did not conduct an evidentiary

hearing in denying Webb's habeas petition below, but, as stated, merely cited testimony

from her preliminary hearing. When, as here, a superior court considers a petition for

habeas corpus without an evidentiary hearing, " 'the question presented on appeal is a

question of law, which the appellate court reviews de novo. [Citation.]' [Citation.]

Similarly, when a trial court makes findings 'based solely upon documentary evidence,

we independently review the record.' " (Cf. In re Stevenson (2013) 213 Cal.App.4th 841,

857, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 677; In re Zepeda (2006) 141

Cal.App.4th 1493, 1497 [deferential review unwarranted where trial court holds no

evidentiary hearing on habeas petition and court grants petition based solely upon

documentary evidence].)

                                              3
                                      II. Legal Principles

       The California Constitution provides, with exceptions not applicable here, that "[a]

person "shall be released on bail by sufficient sureties . . . ." (Cal. Const., art. I, § 12;4

see In re York (1995) 9 Cal.4th 1133, 1139 & fn. 4 (York).) It prohibits excessive bail.

(Ibid.) The Constitution further provides that the primary considerations of bail shall be

"[p]ublic safety and the safety of the victim . . . ." (Cal. Const., art. I, § 28, subd. (f), par.

(3); Gray v. Superior Court (2005) 125 Cal.App.4th 629, 642; In re McSherry (2003) 112

Cal.App.4th 856, 861.) California's Legislature has codified this principle in section

1275, which lists the factors to be considered in issuing a bail order. That section

provides in part: "In setting, reducing, or denying bail, a judge or magistrate shall take

into consideration the protection of the public, the seriousness of the offense charged, the

previous criminal record of the defendant, and the probability of his or her appearing at

trial or at a hearing of the case. The public safety shall be the primary consideration."




4      Section 12 of article I of the Constitution provides in full: A person shall be
released on bail by sufficient sureties, except for: [¶] (a) Capital crimes when the facts
are evident or the presumption great; [¶] (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. [¶] Excessive bail may
not be required. In fixing the amount of bail, the court shall take into consideration 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. [¶] A person may
be released on his or her own recognizance in the court's discretion."
                                                4
(§ 1275, subd. (a)(1); see People v. Accredited Sur. & Cas. Co., Inc. (2004) 125

Cal.App.4th 1, 7 ["The unambiguous purpose of section 1275 is public safety"].)

       A person charged with a bailable offense who seeks pretrial release from custody

typically may either post bail, or alternatively seek the privilege of release on his or her

own recognizance (OR). (York, supra, 9 Cal.4th at p. 1141; People v. Standish (2006) 38

Cal.4th 858, 884; § 1270, subd. (a) ["Any person who has been arrested for, or charged

with, an offense other than a capital offense may be released on his or her own

recognizance by a court or magistrate who could release a defendant from custody upon

the defendant giving bail, including a defendant arrested upon an out-of-county

warrant"].) As for the option of bail, superior court judges of each county are required to

adopt and annually revise a uniform countywide bail schedule for bailable felony and

misdemeanor offenses, as well as non-Vehicle Code infractions, and in doing so, they

"shall consider the seriousness of the offense charged." (§ 1269b, subds. (c), (e).) For an

accused who has not yet appeared in court, 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 . . . ." (§ 1269b, subd. (b); see

People v. Lexington National Insurance Corporation (2015) 242 Cal.App.4th 1098,

1102.) The law provides without qualification that upon posting bail, "the defendant or

arrested person shall be discharged from custody as to the offense on which the bail is

posted." (§ 1269b, subd. (g).) Under this statutory bail scheme, a court that sets bail

after having made the required section 1275 assessments has effectively determined that



                                              5
releasing the accused person pending trial does not present an unreasonable public safety

risk.

        An accused who bargains for OR release, on the other hand, is statutorily required

to, among other things, "obey all reasonable conditions imposed by the court or

magistrate." (§ 1318; York, supra, 9 Cal.4th at p. 1141.) Hence, when an accused person

seeks to be released from custody on OR, the Legislature is deemed to have granted

courts or magistrates broad discretion to require that person to comply with all reasonable

OR release conditions, including, in appropriate cases, a promise to comply with

warrantless searches and seizures that may implicate a defendant's constitutional rights.

(York, at pp. 1144-1147.) "Unlike [a person who has posted reasonable bail], a defendant

who is unable to post reasonable bail has no constitutional right to be free from

confinement prior to trial and therefore lacks the reasonable expectation of privacy

possessed by a person unfettered by such confinement." (York, at p. 1149.)

        In contrast, the Legislature makes no mention of a court or magistrate's authority

to impose conditions for a person released on the scheduled amount of bail for a felony

offense. (See Gray v. Superior Court, supra, 125 Cal.App.4th at p. 641.) Section 1275,

pertaining to setting of bail generally, does not refer to conditions. (Gray v. Superior

Court, at p. 642.) Bail conditions are referenced in only two Penal Code sections, one of

which—section 1270—governs persons charged with misdemeanors.5 The other, section



5      (See Gray v. Superior Court, supra, 125 Cal.App.4th at p. 642; In re McSherry,
supra, 112 Cal.App.4th at pp. 861-862.) Section 1270 provides in part: "A defendant
who is in custody and is arraigned on a complaint alleging an offense which is a
                                              6
1269c, sets forth procedures (a peace officer declaration or application by the accused

personally or through another) by which a court may depart from the bail schedule by

either increasing or decreasing the bail amount. (§ 1269c; see People v. Lexington

National Insurance Corporation, supra, 242 Cal.App.4th at p. 1103.) On such an

application, the magistrate or commissioner "is authorized to set bail in an amount that he

or she deems sufficient to assure the defendant's appearance or to assure the protection of

a victim [or family members]," and "to set bail on the terms and conditions that he or she,

in his or her discretion, deems appropriate . . . ." (§ 1269c.)

  III. There is No Statutory Basis for the Court's Imposition of the Fourth Amendment

                                   Waiver Bail Condition

       Here, as the People admit, Webb posted the scheduled amount of bail; she did not

seek to decrease it, and neither the court nor any law enforcement officer suggested an

increased amount was appropriate. No other scenario in which the Legislature authorized

imposition of appropriate bail conditions—for misdemeanants or departures from the bail

schedule—applies, and we will not insert text to the statutory scheme to accomplish a

purpose that does not appear on its face. (Doe v. City of Los Angeles (2007) 42 Cal.4th

531, 545; Aqua Vista Homeowners Association v. MWI, Inc. (2017) 7 Cal.App.5th 1129,


misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-
county warrant arising out of a case involving only misdemeanors, shall be entitled to an
own recognizance release unless the court makes a finding on the record, in accordance
with Section 1275, that an own recognizance release will compromise public safety or
will not reasonably assure the appearance of the defendant as required. Public safety
shall be the primary consideration. If the court makes one of those findings, the court
shall then set bail and specify the conditions, if any, whereunder the defendant shall be
released." (§ 1270, subd. (a).)
                                              7
1140.) The best indication of Legislative intent are the words of the statutes the

Legislature has enacted (People v. Toney (2004) 32 Cal.4th 228, 232) and though the

Legislature knows how to write statutes granting a court or magistrate authority to

impose bail conditions, it has not done so in this circumstance. This is a sufficient

indication of the Legislature's intent. (Cf. Staniforth v. Judges' Retirement System (2016)

245 Cal.App.4th 1442, 1454; County of San Diego v. San Diego NORML (2008) 165

Cal.App.4th 798, 825 ["Where statutes involving similar issues contain language

demonstrating the Legislature knows how to express its intent, ' "the omission of such

provision from a similar statute concerning a related subject is significant to show that a

different legislative intent existed with reference to the different statutes" ' "].) In their

return, the People concede no specific statute addresses a trial court's authority to impose

a bail condition on a defendant who has posted reasonable bail for a felony offense.

Under the circumstances, the magistrate lacked statutory authority to impose the Fourth

Amendment waiver bail condition on Webb.

   IV. The Court Did Not Possess Inherent Authority to Impose a Fourth Amendment

                                       Waiver Condition

       The magistrate here nevertheless issued the Fourth Amendment waiver condition

on the theory that it had inherent authority to impose reasonable conditions under In re

McSherry, supra, 112 Cal.App.4th 856 and Gray v. Superior Court, supra, 125

Cal.App.4th 629. It stated that "a [Fourth] Amendment waiver condition is a reasonable

condition of release when you are dealing with drug-related offenses."



                                                8
       We conclude the magistrate had no such authority to deprive Webb of her Fourth

Amendment right, and her right under article I, section 13 of the California Constitution,

to be free from unreasonable searches and seizures as a condition to her release after she

posted the scheduled amount of bail. She is a pretrial releasee who has not been tried or

convicted of a crime, she retains a reasonable expectation of privacy in her home, and she

has a right to be free from confinement. (See York, supra, 9 Cal.4th at p. 1149; Gray v.

Superior Court, supra, 125 Cal.App.4th at p 644; Cruz v. Kauai County (9th Cir. 2002)

279 F.3d 1064 ["one who has been released on pretrial bail does not lose his or her

Fourth Amendment right to be free from unreasonable seizures"].) Persons who are

released pending trial "have suffered no judicial abridgment of their constitutional

rights." (U.S. v. Scott (9th Cir. 2006) 450 F.3d 863, 872.)

       York informs our conclusion. In York, on a habeas writ filed by petitioners facing

one or more felony drug charges, the California Supreme Court held that a trial court was

not prohibited from conditioning OR release on the releasee's agreement to submit to

random drug testing and warrantless searches and seizures. (York, supra, 9 Cal.4th at

pp. 1137-1138.) The law setting forth requirements for an OR release agreement, section

1318, subdivision (a)(2), specifically authorized imposition of "all reasonable conditions"

in connection with such release. (York, at p. 1146.) The court rejected the petitioners'

argument that imposition of the conditions violated their Fourth Amendment and state

constitutional right to be free from unreasonable searches and seizures, and their




                                             9
California constitutional rights to privacy and due process. (Id. at pp. 1148-1149, 1151.)6

It held the conditions did not violate Fourth Amendment protections, distinguishing the

rights of a person who bargained for OR release and cannot post bail from persons who

have posted reasonable bail: "[P]etitioners' contention that the OR release conditions . . .

inevitably violate the Fourth Amendment rights of OR releasees rests upon the flawed

premise that a defendant who seeks OR release has the same reasonable expectation of

privacy as that enjoyed by persons not charged with any crime, and by defendants who

have posted reasonable bail. Unlike persons in these latter categories . . . , a defendant

who is unable to post reasonable bail has no constitutional right to be free from




6       In York, the petitioners further contended that the OR release conditions infringed
on their right to be presumed innocent. (York, supra, 9 Cal.4th at p. 1147.) The court
rejected the contention, relying on United States Supreme Court authority holding that
the presumption of innocence had " 'no application to a determination of the rights of a
pretrial detainee during confinement before his trial has even begun.' " (Id. at p. 1148,
italics omitted, quoting Bell v. Wolfish (1979) 441 U.S. 520, 533.) Though Bell v.
Wolfish involved the rights of persons who were placed in a custodial facility before trial
(Bell, at p. 523), according to York, its holding "mirrors established California law."
(York, at p. 1148 [characterizing Ex parte Duncan (1879) 53 Cal. 410, 411 as holding "no
presumption of innocence attaches to a pretrial determination of the amount of bail to be
set"].) York also relied on a District of Columbia case that stated "[t]he presumption of
innocence . . . has never been applied to situations other than the trial itself. To apply it
to the pretrial bond situation would make any detention for inability to meet conditions of
release unconstitutional." (York, at p. 1148, quoting Blunt v. United States (D.C.App.
1974) 322 A.2d 579, 584, superseded by statute on other grounds as stated in Best v. U.S.
(D.C.App. 1994) 651 A.2d 790, 792.) York concluded, "Clearly, whether a pretrial
detainee is released OR with—or without—conditions has no bearing upon the
presumption of innocence to which that person is entitled at trial." (York, at
p. 1148.) We fully appreciate that under York, the presumption of innocence doctrine is
not a consideration in imposing or not imposing bail conditions, contrary to the
suggestion of our concurring colleague.
                                             10
confinement prior to trial and therefore lacks the reasonable expectation of privacy

possessed by a person unfettered by such confinement." (Ibid., italics added.)7

       York's import is that once a person has posted the required amount of bail, they

have a constitutional right to be free from confinement, and maintain a reasonable

expectation of privacy for purposes of Fourth Amendment protections. (Robey v.

Superior Court (2013) 56 Cal.4th 1218, 1224 [" 'The touchstone of Fourth Amendment

analysis is whether a person has a "constitutionally protected reasonable expectation of

privacy" ' "].) Though York did not reach the propriety of a Fourth Amendment waiver in

felony cases, we do so here, and accept York's reasoning as a persuasive indication that

such an infringement of Webb's constitutional rights after she has posted reasonable bail

is unwarranted. " ' "[E]ven if properly characterized as dictum, statements of the

Supreme Court should be considered persuasive." ' " (Bigler-Engler v. Breg, Inc. (2017)

7 Cal.App.5th 276, 330; see also State v. Continental Insurance Company (2017) 15

Cal.App.5th 1017, 1033.)




7       York also held that the conditions were not unconstitutional because the person on
OR release "is not required to agree to such restrictions, but rather is subject to them only
if he or she consents to their imposition, in exchange for obtaining OR release." (York,
supra, 9 Cal.4th at p. 1150.) York went on to reject the argument that the conditions
violated equal protection principles, but declined to reach the propriety of the Fourth
Amendment waiver condition on a person who has posted reasonable bail: "[W]e
assume, without deciding, that petitioners are correct in asserting that warrantless drug
testing and search and seizure conditions could not be imposed upon a defendant who is
able to, and does, post reasonable bail . . . ." (York, at p. 1152.) It held the suggestion
that section 1318 created an impermissible wealth-based classification was essentially a
challenge that the bail process itself was unconstitutionally discriminatory, a contention it
had previously rejected. (Ibid.)
                                             11
       Neither of the two cases relied upon by the magistrate presiding over Webb's

arraignment, and the superior court on Webb's habeas petition, support imposition of a

Fourth Amendment waiver bail condition under these circumstances. In re McSherry,

supra, 112 Cal.App.4th 856 did not determine the propriety of bail conditions, much less

a Fourth Amendment waiver condition, for an accused charged with a felony. Nor did it

purport to recognize a court's inherent authority to set bail conditions in such a

circumstance. In McSherry, the trial court imposed stay-away orders and an order

prohibiting driving upon a defendant who had been convicted of misdemeanors (loitering

around schools) and sentenced to custody. (Id. at p. 859.) The defendant, who had a

lengthy criminal history of sexually abusing minors, sought to post bail pending appeal,

which was expressly authorized as a matter of right in section 1272.8 (Id. at pp. 858-

860.) The question on his habeas writ was whether the trial court could also impose

reasonable bail conditions. (Id. at p. 858.) Though the court did not clearly articulate

petitioner's habeas arguments, the petitioner relied on authority holding that public safety

was not a consideration in imposing bail conditions. (Id. at p. 861.) In addressing that

point, the appellate court in McSherry observed that section 1270 permitted it to specify

bail conditions for a person charged with a misdemeanor who is denied OR release, but

that under section 1275 as amended in 1987, public safety was the primary consideration.



8      In part, section 1272 provides: "After conviction of an offense not made
punishable with death, a defendant who has made application for probation or who has
appealed may be admitted to bail: [¶] . . . [¶] 2. As a matter of right, before judgment
is pronounced pending application for probation in cases of misdemeanors, or when the
appeal is from a judgment imposing imprisonment in cases of misdemeanors."
                                             12
(Id. at p. 861.) It found "nonsensical" the proposition that the law authorized a court to

impose bail conditions on a person merely charged with a misdemeanor, but the court

was powerless to do so after a defendant had been found guilty of such a crime and

deserving of the maximum sentence. (Id. at pp. 861-862.)

       In obiter dictum, the McSherry court expanded on the petitioner's unspecified

arguments and their presumed consequences: "Petitioner's arguments also lead to the

conclusion that even though a court can set bail conditions for an unconvicted

misdemeanant, it could not do so for a person charged with a violent or serious felony

because 'conditions' are not mentioned in section 1270.1. Likewise, if a defendant has

been convicted of a felony, under petitioner's view, even though the right [to] bail is

discretionary, the court is powerless to impose bail conditions even though the

defendant's conviction may present a significant legal issue which could lead to a reversal

and even though sections 1272 and 1272.1 require the judge to state on the record the

reasons for or against granting bail. This cannot be what the legislature intended." (In re

McSherry, supra, 112 Cal.App.4th at p. 862.) Ultimately, the court held that given the

constitutional right to reasonable bail, the Legislature's statutory framework and focus on

public safety, the bail conditions in the circumstances presented were statutorily

authorized: that section 1272 granted a trial court the right to place restrictions on the

right to bail of a convicted misdemeanant as long as they related to public safety. (Id. at

p. 863.)

       We decline to rely upon McSherry's dictum. But McSherry nevertheless cannot

properly be read as granting courts or magistrates authority to impose conditions in

                                              13
felony cases beyond that envisioned by the Legislature in its comprehensive bail scheme.

Such a reading constitutes an impermissible amendment of the statutory scheme, contrary

to the Legislature's expressed intent. The Legislature has not authorized bail conditions

in such cases; but unconditionally requires that a person who has posted bail "shall be

discharged from custody . . . ." (§ 1269b, subd. (g).)

       Nor does Gray convince us to uphold the superior court's order. The court's

decision in Gray rested on McSherry's dictum, as well as a criminal law treatise citing

section 1269c,9 to posit a "general understanding that the trial court possesses inherent

authority to impose conditions associated with release on bail." (Gray v. Superior Court,

supra, 125 Cal.App.4th at p. 642.) In Gray, the trial court at the request of the California

Medical Board conditioned a medical doctor's release on bail on the surrender of his

medical license. (Id. at p. 636.) The appellate court recognized that the court's bail

condition lacked express statutory authority, as the physician was charged with felony

counts. (Id. at pp. 641-642.) It nevertheless suggested, citing McSherry's dictum, that the

court could impose the condition so long as it was reasonable and intended to ensure

public safety: "In McSherry, the court reasoned that if a trial court is statutorily

authorized to impose bail conditions on a person charged with a misdemeanor [citation],

then the Legislature surely intended similar conditions could be imposed when a

defendant facing felony charges is released on bail." [Citation.] There appears to be little



9      (See Criminal Law Procedure and Practice (Cal CEB), § 5.35 ["Magistrates have
the authority to set bail on conditions that they consider appropriate. Pen. [Code,]
§ 1269c"].)
                                              14
dispute that a trial court may impose conditions associated with release on bail; the

question is whether and to what extent the court's authority is limited. [¶] . . . [T]he

court in McSherry concluded that because public safety is the Legislature's overriding

theme in the bail statutory framework, and because the trial court has inherent power to

impose bail conditions, it follows that the trial court may impose bail conditions intended

to ensure public safety. [Citation.] [¶] Bail conditions intended for public protection

must be reasonable, however." (Gray v. Superior Court, supra, 125 Cal.App.4th at

p. 642.)

       Gray ultimately held the license suspension condition was not per se unreasonable,

but rather was unreasonable because it violated the physician's procedural due process

rights to a noticed hearing, which he otherwise would have gotten had he appeared before

the Medical Board. (Gray v. Superior Court, supra, 125 Cal.App.4th at pp. 638-639,

643.) Citing York's distinction between a person on OR release and release on bail in

conducting its reasonableness analysis, Gray concluded: "Here, Gray was able to post

bail and therefore had a right to be free from confinement. The trial court cannot justify

imposing bail conditions in a manner depriving Gray of due process or other

constitutional rights on the ground that Gray would otherwise be confined and effectively

deprived of those rights. Under the circumstances presented here, it was unreasonable to

deprive Gray of his due process rights in connection with his professional license after he

was able to post reasonable bail." (Id. at p. 644.)

       Gray's holding as to a court's inherent authority to impose a license suspension

bail condition, to the extent it is at all relevant to the search condition imposed here, is

                                              15
premised on McSherry's unpersuasive dictum. And Gray, like McSherry, is inapposite,

and does not support the court's imposition of Webb's Fourth Amendment waiver bail

condition. Neither case permits a court to use its inherent "equity supervisory, and

administrative powers" to exercise reasonable control over proceedings (see In re Reno

(2012) 55 Cal.4th 428, 522) or " 'create new forms of procedures' " (People v. Lujan

(2012) 211 Cal.App.4th 1499, 1507) so as to infringe Webb's fundamental Fourth

Amendment rights against warrantless searches and seizures in this context. (Accord,

Innes v. Diablo Controls, Inc. (2016) 248 Cal.App.4th 139, 143, fn. 5 ["Our inherent

power to adopt litigation procedures [under In re Reno, supra, 55 Cal.4th 428] does not

authorize us to create substantive shareholder rights beyond those expressed in the

Corporations Code"; quoting Doe v. City of Los Angeles, supra, 42 Cal.4th at p. 545.) No

court has inherent authority to ignore or violate the statutory bail scheme.

       In its return, the People point to this court's statement in People v. Internat.

Fidelity Insurance Company (2017) 11 Cal.App.5th 456, that "[t]he trial court has

discretion to 'set bail on the terms and conditions [it] deems appropriate' " and the "power

to impose reasonable bail conditions intended to ensure public safety." (Id. at p. 462.) In

making the referenced remarks concerning the court's discretion to set bail conditions,

this court cited to section 1269c, governing departures from the bail schedule. (Id. at

p. 462.) Fidelity did not discuss or recognize a court's "inherent power" to set bail

conditions; it involved an insurer's claim that bail conditions materially increased its risk

under the bond, requiring the bond be exonerated. (Id. at p. 459.) In fact, as Webb points

out, this court found Fidelity had forfeited its argument, made in reply, that the bail

                                              16
conditions waiving the defendant's constitutional rights were unauthorized by law, and

expressly declined to address it. (Id. at p. 464, fn. 2.) Fidelity does not purport to address

the scenario facing us, in which an accused facing felony charges has posted scheduled

bail.

        Having concluded the trial court possessed neither statutory nor inherent authority

to impose the Fourth Amendment waiver bail condition, we order the condition vacated.

We need not reach Webb's contention that the court denied her due process rights to

notice and a fair hearing in imposing the bail condition.

                                        DISPOSITION

        The trial court is directed to vacate the portion of its bail order imposing the

warrantless search condition, and ensure that the modification of bail is communicated to

all relevant law enforcement agencies forthwith. The opinion will be final as to this court

10 days after the date of filing. (Cal. Rules of Court, rule 8.387(b)(3)(A).)



                                                                                O'ROURKE, J.

I CONCUR:



HUFFMAN, J.




                                              17
BENKE, Acting P.J.

       I concur in the result.

       I agree with my colleagues that, on this record, the trial court erred in imposing, as

a condition of bail, a requirement that Webb waive her Fourth Amendment right to be

free of warrantless or unreasonable searches of her person, property, vehicle, and

personal effects. However, unlike my colleagues, I agree with the courts in In re

McSherry (2003) 112 Cal.App.4th 856, 861 (McSherry) and Gray v. Superior Court

(2005) 125 Cal.App.4th 629, 642 (Gray), that a trial court has inherent authority to

impose conditions on a defendant's release, even when a defendant is able to post the

amount of bail set forth in the court's bail schedule. As the court in Gray stated:

"[A]lthough the statutory authority is limited, there is a general understanding that the

trial court possesses inherent authority to impose conditions associated with release on

bail. (See [McSherry]; 1 Criminal Law Procedure and Practice (Cont.Ed.Bar 7th

ed.2004) § 4.26, p. 76 ['Magistrates have the authority to set bail on conditions that they

consider appropriate. [Citation.]'].) In McSherry, the court reasoned that if a trial court is

statutorily authorized to impose bail conditions on a person charged with a misdemeanor

(see Pen. Code,1 § 1270, subd. (a)), then the Legislature surely intended similar




1      All further statutory references are to the Penal Code.
conditions could be imposed when a defendant facing felony charges is released on bail.

(McSherry, supra, 112 Cal.App.4th at p. 862.) There appears to be little dispute that a

trial court may impose conditions associated with release on bail; the question is whether

and to what extent the court's authority is limited." (Gray, supra, 125 Cal.App.4th at

p. 642.)

       Significantly, the inherent power recognized in McSherry and Gray has also been

expressly recognized by the voters and the Legislature. In adopting Proposition 8 in

1982, the voters plainly recognized such an inherent authority and placed in our

constitution the requirement that crime victims have the right to have "the safety of the

victim and the victim's family considered in fixing the amount of bail and release

conditions for the defendant." (Cal. Const., art. 1, § 28, subd. (b)(3), italics added.) The

Legislature expressly recognized a trial court's inherent authority to impose conditions on

release, even when a defendant is able to post cash bail. When a peace officer believes a

bail higher than is set in a bail schedule is required or a defendant believes a lower bail is

sufficient, section 1269c permits a magistrate to "set bail in an amount that he or she

deems sufficient to ensure the defendant's appearance or to ensure the protection of a

victim . . . and to set bail on the terms and conditions that he or she, in his or her

discretion, deems appropriate, or he or she may authorize the defendant's release on his

or her own recognize." (Italics added.) As the court's in McSherry and Gray noted,

section 1270 subdivision (a) also expressly recognizes a trial court's inherent power to set

bail conditions when a defendant has been charged only with misdemeanors.



                                               2
       I think we must recognize the practical necessity that in particular cases, in order

to assure a defendant's appearance and protect the public from harm, a trial court has the

power to impose conditions which restrain the behavior or provide monitoring of a

defendant while criminal proceedings are pending—even where as here, the defendant

has the ability to post cash bail. In this regard, I note an accused felon's right to bail

arises in the context of probable cause to believe the accused has committed a felony and

has been detained. Where there is probable cause to believe a defendant has committed a

felony and criminal proceedings are pending, a trial court must assure the defendant's

appearance and consistent with the right to bail, protect the public; the presumption of

innocence, which will operate at trial, has no application. (In re York (1995) 9 Cal.4th

1133, 1147–1148 (York).)2

       In any event, given the recognition by both the voters and the Legislature of the

inherent power of trial courts to add conditions when releasing a defendant on bail and


2       In finding that trial courts have no inherent power to place conditions on bail, the
majority opinion requires that trial courts turn a blind eye to the risks a particular accused
felon may present so long as the defendant has the wherewithal to post bail. In doing so
the majority not only expressly departs from McSherry and Gray, but reaches a result that
appears to place emphasis on the absence of any determination of guilt. That implication
is of course at odds with the views expressed by the court in York with respect to the
presumption of innocence.
        In addition, while not dispositive here, I note that in providing defendants who
have access to wealth with freedom from any pretrial restraint, the majority opinion
reinforces the disparate treatment of wealthy and poor defendants in our bail system, a
recent subject of some concern. (See Pretrial Detention Reform, Recommendations to
the Chief Justice, Pretrial Detention Reform Workgroup (October 2017), p. 1:
"California's current pretrial release and detention system unnecessarily compromises
victim and public safety because it bases a person's liberty on financial resources rather
than the likelihood of future criminal behavior and exacerbates socioeconomic disparities
and racial bias.")
                                               3
the practical necessity that trial courts have such power in particular cases, unlike my

colleagues I am unwilling to diverge in any respect from the opinions in McSherry and

Gray.

        Although trial courts have the power to impose conditions on defendants who post

cash bail, I also agree with the court in Gray, that a court's power to do so is fairly

narrow. (Gray, supra, 125 Cal.App.4th at pp. 642–643.) Clearly, a trial court's inherent

power is not coextensive with a court's power when, as in York, supra, 9 Cal.4th at

pp. 1148–1149, a defendant has asked for release, not as a matter of right, but under a

trial court's discretionary power. As the court in York took some pains to explain, when a

defendant is asking for relief from detention under circumstances in which he or she has

no right to release, a trial court has fairly broad power to impose conditions on his or her

release. (Ibid.) A trial court also has fairly broad powers when a defendant's guilt has

been established either by plea or verdict and the defendant has asked to avoid custody

and be released on probation. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 1194.)

In the procedural setting presented here, however, a court's inherent power must be

carefully constrained. A trial court's inherent power is limited by, among other matters,

the principle that public safety concerns do not permit the outright denial of bail where

no specific constitutional provision permits it. (See art. 1, § 12, Cal. Const.; People v.

Standish (2006) 38 Cal.4th 858, 877; In re Underwood (1973) 9 Cal.3d 345, 351.) Thus,

any condition on bail may not be so onerous that it amounts to the denial of bail or places

an unnecessary burden on the defendant's liberty.



                                               4
       Here, where Webb has exercised her constitutional right to bail and where at this

stage of the proceedings her guilt has not been established, any invasion of her other

constitutional rights must be closely connected to a risk of flight or a risk of harm to the

community and based on a factual record which supports such an intrusion. Importantly,

where a condition of bail invades a constitutional right, trial courts must consider whether

the extent of the invasion is warranted by the nature and imminence of the risk, and

whether, as the court in Gray determined, there are alternative means of protecting the

public's interests. (See Gray, supra, 125 Cal.App.4th at pp. 642–644.) While it is true,

as the trial court stated, that given the circumstances which gave rise to the charges

against Webb, there is some likelihood she is a habitual drug user and associates with

other drug users and distributors, on this record which comes to us only after her

arraignment, I am not convinced the fairly intrusive remedy of imposing a Fourth

Amendment waiver on her is appropriate. Such a waiver is unrelated to any flight risk

and only indirectly related to preventing harm to the community, as opposed to Webb

herself. A waiver certainly can be imposed as a condition of probation, when and if her

guilt has been established, and the focus of the proceedings is no longer on her guilt or

innocence but on rehabilitation and the prevention, over the long term, of future

criminality.



       Thus, I concur in the majority's direction that on remand the Fourth Amendment

waiver imposed by the trial court be stricken. I would, however, do so without prejudice



                                              5
to the right of the People to present a factual basis for imposing other conditions on

Webb's bail.



I CONCUR IN THE RESULT:



BENKE, Acting P. J.




                                             6
