        IN THE SUPREME COURT OF
               CALIFORNIA

             In re CHRISTOPHER LEE WHITE
                     on Habeas Corpus.

                           S248125

           Fourth Appellate District, Division One
                         D073054

              San Diego County Superior Court
                        SCN376029



                         May 21, 2020

Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, and
Groban concurred.

Justice Kruger filed a concurring opinion, in which Justice Liu
concurred.
                           In re WHITE
                             S248125


               Opinion of the Court by Cuéllar, J.


      Under California’s current system of pretrial detention, a
felony arrestee’s release pending trial is often conditioned on
whether the arrestee posts money bail. To do so, an arrestee
pays or secures a bond for a certain amount of money, as
determined by the court, which may be forfeited if the arrestee
later fails to appear. But an arrestee’s “absolute right to bail”
guaranteed by article I, section 12 of the California Constitution
(In re Law (1973) 10 Cal.3d 21, 25) can be overcome by two
exceptions the voters approved in the early 1980s and 1990s.
Decades later and well into a new century, we review for the
first time a trial court’s denial of bail under one of these
exceptions.
       Petitioner Christopher Lee White was arrested on
suspicion that he was involved in the attempted kidnapping and
assault with intent to commit rape of a 15-year-old girl. The
trial court denied bail after making two findings: (1) there was
substantial evidence that White aided and abetted his friend,
Jeremiah Owens, in the charged crimes; and (2) a “substantial
likelihood” existed, supported by clear and convincing evidence,
that White’s release would result in great bodily harm to others.
(Cal. Const., art. I, § 12, subd. (b) [“A person shall be released on
bail by sufficient sureties, except for: [¶] . . . [¶] (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

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                  Opinion of the Court by Cuéllar, J.


clear and convincing evidence that there is a substantial
likelihood the person’s release would result in great bodily harm
to others”].) When White challenged the no-bail order by filing
a petition for writ of habeas corpus, the Court of Appeal upheld
the trial court’s findings and denied relief.
     The Court of Appeal applied a deferential standard of
review to the trial court’s factual findings. Applying that
standard, the appellate court found that the trial court acted
within its discretion when it denied bail. We affirm.1
                                  I.
     White and his codefendant Owens were arrested and
charged with attempted kidnapping with intent to commit rape

1
       Shortly after this court granted review to decide whether
the Court of Appeal erred in affirming the trial court’s denial of
bail, defense counsel informed us that White had pleaded guilty
to being an accessory to a felony in violation of Penal Code
section 32. Whether pretrial bail should have been granted is
now a moot question as to White, but we have exercised our
discretion to retain the matter for decision not only because it
presents important issues that are capable of repetition yet may
evade review (see In re Webb (2019) 7 Cal.5th 270, 273-274;
accord, Gerstein v. Pugh (1975) 420 U.S. 103, 110, fn. 11
[“Pretrial detention is by nature temporary, and it is most
unlikely that any given individual could have his constitutional
claim decided on appeal before he is either released or
convicted”]), but also “to provide guidance for future cases” by
reviewing application of the substantive legal standard to a
specific set of facts for the first time. (Costa v. Superior Court
(2006) 37 Cal.4th 986, 994; see id. at pp. 1013-1029; cf. Webb, at
p. 274 [declining to decide whether the record supported the bail
condition because “[t]he district attorney expressly did not seek
review of the specific question”].) Decisions concerning pretrial
detention arise every day in our courts, so we “embrace the
opportunity,” as the Attorney General requested at oral
argument, to “provide instruction to the trial courts.”


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                   Opinion of the Court by Cuéllar, J.


(Pen. Code, § 209, subd. (b)), assault with intent to commit rape
(id., § 220, subd. (a)(1)), contact with a minor with intent to
commit a sexual offense (id., § 288.3, subd. (a)), and false
imprisonment (id., §§ 236, 237, subd. (a)). All of the crimes
involved the same victim: 15-year-old J.D. (In re White (2018)
21 Cal.App.5th 18, 21 (White).) White was arraigned, pleaded
not guilty, and was held without bail.
      The facts underlying the charges, as well as the trial
court’s decision to deny bail, come from the preliminary hearing.
That evidence consisted primarily of J.D.’s testimony, White’s
recorded interviews with law enforcement, and testimony from
members of the San Diego County Sheriff’s Department.
        White, 27, and his friend and roommate Owens went to
the beach in Encinitas one day in July 2017. Owens spent much
of the day pointing out girls and talking about “grabbing” them.
According to White, Owens “was like you know maybe I grab her
. . . caveman style.” Owens at one point wanted to leave the
beach to follow a girl who had been sitting near them. When
White complained that Owens had already had “plenty of
chance” to chat with her “while we were here” at the beach,
Owens responded, according to White, by saying “something
about what about the screams?” At some point that day, while
the two were talking about girls, Owens also asked White, “if I
was gonna do something would you stop me? . . . He made like if
he’s like, if I get out of hand . . . . [I]f I was taking things too far
would you stop me?” White claimed to have been “confused” by
his friend’s statements and believed he was “joking.” He also
claimed he replied to this question by saying “yeah I’d stop you.”
     Later in the afternoon, the two men left the beach but
remained on and around White’s truck, which was parked on an


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                  Opinion of the Court by Cuéllar, J.


access route to the beach. That’s when 15-year-old J.D. showed
up on her bike to go surfing. J.D., who lived in Encinitas, was
on that day staying with close family friends in Carlsbad while
the rest of her family was out of town. As she rode down the hill
to her home, she noticed White’s truck and the two men across
the street from her neighbor’s house. The two men, whom she
later identified as Owens and White, “[l]ooked a little bit out of
place” and gave her a “weird feeling.” “[C]reepy” was the word
used by a woman nearby who’d been loading her car. The
woman’s son felt the same way. He worried, in particular, that
these men wanted to kidnap his younger brothers, which
prompted him to take a short video of Owens and White with his
cell phone. As J.D. retrieved her surfboard from the family
house and came back outside, she felt the two men were staring
at her and watching her every movement.
      In fact, J.D. became so uncomfortable that she left the
board in the driveway and went back inside the gate. At that
point, she “didn’t really know what to do.” But she was also
worried the men might take her board, so she grabbed her wax
and went back outside. “I started waxing just to let them know
that I am there.” When a woman walked by with her kids, and
a fellow surfer stopped to borrow some wax, J.D. relaxed and
started to feel safe. Getting ready to wax the nose of her board,
she even turned her back on the men across the street.
       But White and Owens remained interested in J.D. In a
taped interview, White admitted he may have remarked that
J.D. was “pretty cute” and “[s]eems cool,” and Owens may have
said, “surfer chick; I think that’s hot.” White recalled that
Owens may have added, “I think I’m going to go up and get that
girl,” at which point White encouraged him to “go and get her.”
White claimed in the interview that he thought Owens was just

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                  Opinion of the Court by Cuéllar, J.


going to talk to her. But he also admitted that Owens had asked
White to “look out for me, or whatever, keep an eye or something
like that.” J.D. confirmed that White seemed “kind of like the
lookout guy, I guess you could explain it. He was kind of keeping
his eye up and down the street.”
      What Owens did next is not in dispute. He crossed the
street and grabbed J.D. by the neck “like in a pressure lock,” and
sought to push her face into the pavement. J.D. testified that
he would have succeeded if she had not put both hands on the
concrete to brace herself. Owens then said, “All right. Let’s do
this” and tried to pull her back up and towards the truck. That’s
when J.D. “kind of figured it out” and managed to pull away.
The whole time, she had been saying “No. No. Stop. Stop.”
When she fought him off and managed to get away, Owens and
White seemed startled and confused — apparently surprised
that she had escaped Owens’s grip. She told them, “That’s not
cool. You can’t do that.”
      As she sped to reenter her house, J.D. thought she heard
White say “sorry.” Yet White also told Owens to “[g]o in the
house,” as she was backing up through the gate. J.D. testified
that White was looking at Owens as he directed Owens to follow
her into the house, “[a]nd so I was just trying to lock the gate as
fast as I could.” The neighbor’s dog remained at the gate,
barking, which indicated to J.D. that Owens must have lingered
on the other side for a time. She eventually saw Owens run
across the street and into the passenger side of the truck, which
then sped off up the hill. J.D. spent about 10 minutes in the
house, crying and hyperventilating, and tried to contact her
parents by phone. Eventually, at her father’s direction, she
called 911.



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                  Opinion of the Court by Cuéllar, J.


      In the truck, White asked Owens “what was that about.”
According to White, Owens said, “I don’t know, it was some
primal instinct came over me. And it just happened.” Owens
also said that if White hadn’t stopped him,2 he “may have drug
[sic] her through the gate.” White suspected, in that event,
Owens “probably would have tried taking advantage of her and
raping her.” White told the interviewing officers he was “not
okay” with Owens’s behavior — and assumed J.D. was going to
call the police — but took no steps himself to contact law
enforcement. He claimed he “probably” would have done so “if
this situation got any worse.”
      The browser history on White’s cell phone revealed an
Internet search the day after the attack for “why would someone
act on their primal instincts” and, on the following morning, for
“How can you tell if someone you know is being brain washed
[sic]” and “What to do if someone you know is being
brainwashed.” Owens’s prior girlfriend and White each told law
enforcement they believed Owens was being brainwashed by
someone at work.
       The court ordered both Owens and White bound over for
trial on each of the charged offenses. It found probable cause to
believe that Owens was the direct perpetrator and that White
had aided and abetted him.
     Following their arraignment, the court considered White’s
motion for reasonable bail. The motion noted that White was a
high school graduate, was gainfully employed, and had no
criminal record. It also summarized numerous letters from

2
      White claimed that as soon as he “realized what was
happening, I’m like yo, stop.” He denied telling Owens to “take
her in the [house].”


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                  Opinion of the Court by Cuéllar, J.


family, friends, and members of the community attesting to his
good character. The prosecutor argued that White “did, in fact,
aid and abet, encouraged this very violent crime. And I believe
that the Court is on sound legal ground to deny bail to him. I’ll
submit to the Court as to whether you would like to set bail,
given the fact that he is not as culpable perhaps as Mr. Owens
in being the direct perpetrator.”
      The trial court acknowledged that “the presumption” in a
noncapital case is “that bail be set” and that “it would be an
unusual case, in fact, it would be the quite rare case where
someone was held on a non-capital offense without bail.” But
this case struck the court as sufficiently exceptional: “In looking
at this case and the facts of this case, I do believe the facts are
evident, the presumption is great. I do find by clear and
convincing evidence that one defendant inflicted the acts of
violence, the other person aided and abetted in that. The Court
finds on the basis of the clear and convincing evidence that there
is substantial likelihood that the release of either of these
gentlemen would result in great bodily harm to others. I think
the individuals at threat would be J.D. herself. I also think
other children, who are the most vulnerable members of our
society, would be at risk based on the conduct in this case and
what’s alleged to have occur[red] in this case. So it is extremely
unusual, but I do find under these particular facts that the
burden is met.”
      White sought a new bail hearing by filing a petition for
writ of habeas corpus in the Court of Appeal. After issuing an
order to show cause, the Court of Appeal denied relief in a
published opinion. (White, supra, 21 Cal.App.5th 18.) The court
found first that “the facts are evident [and] the presumption
great” (Cal. Const., art. I, § 12, subd. (b) (hereafter article I,

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                  Opinion of the Court by Cuéllar, J.


section 12(b))) because there was substantial evidence that
White had aided and abetted Owens’s crimes against J.D.
(White, at p. 26.) The court then upheld the trial court’s finding
of “a substantial likelihood the person’s release would result in
great bodily harm to others.” (Art. I, § 12(b).) In making the
latter determination, the court reasoned that the likelihood of
bodily harm was a factual question, one subject to substantial
evidence review. (White, at p. 29.) And because the exception
in article I, section 12(b) requires “clear and convincing
evidence” of great bodily harm, it declared that “[t]he ultimate
question for a reviewing court is whether any reasonable trier of
fact could have made the challenged finding by clear and
convincing evidence.” (White, at p. 30.)
       The Court of Appeal deemed the question a close one in
this case. What it ultimately concluded is that the trial court
“could reasonably find that White and Owens deliberated over
the attack over an extended period of time, that White agreed to
act as a lookout during the attack, that White encouraged
Owens to continue attacking J.D. by telling him to ‘[g]et in the
house’ even after she fought Owens off, and that White
facilitated Owens’s flight after the attack occurred.” In addition
to these facts, the appellate court emphasized that the trial
court “could reasonably view the circumstances of the attack as
highly unusual.” Owens and White, after all, “loitered on a well-
trafficked street near the beach while watching J.D. It was
daytime. People passed by, including one surfer who talked with
J.D. Unrelated witnesses saw Owens and White, described
them as ‘creepy,’ and worried that they would kidnap children.
Despite the likelihood that someone would see them, they
perpetrated a brazen attack on J.D. — and White specifically
wanted the attack to continue. The trial court could reasonably


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                   Opinion of the Court by Cuéllar, J.


find that the criminal impulse shared by Owens and White was
so strong that White, either alone or in concert with another,
would attack again if he were released.” (White, supra, 21
Cal.App.5th at p. 31.)
       We granted review to decide what standard of review
applies to a trial court’s denial of bail under article I, section
12(b), and whether the Court of Appeal erred in affirming the
trial court’s denial of bail in this case.
                                  II.
       Our cases have recognized that defendants charged with
noncapital offenses are generally entitled to bail. (In re Law,
supra, 10 Cal.3d at p. 25; see Cal. Const., art. I, § 12.) But article
I, section 12 provides for exceptions in particular circumstances
when a defendant is charged with at least one felony offense.
(Cal. Const., art. I, § 12, subds. (b), (c).) When the trial court
denied bail here, it relied on the exception set forth in section
12(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.”
      White does not dispute that he was charged with one or
more qualifying felonies involving acts of violence or sexual
assault. What he challenges instead is the trial court’s findings
under article I, section 12(b) that “the facts are evident [and] the
presumption great” with respect to any qualifying charged
offense and that “there is a substantial likelihood the person’s
release would result in great bodily harm to others.” The Court
of Appeal was unpersuaded. We find no error.


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                   Opinion of the Court by Cuéllar, J.


                                   A.
      Like most states, California allows courts to deny bail
when the facts underlying the qualifying charge are “evident” or
the “presumption great.” (Art. I, § 12(b); see Hegreness,
America’s Fundamental and Vanishing Right to Bail (2013) 55
Ariz. L.Rev. 909, 922-923.) This peculiar phrasing predates the
Union, originating in the Pennsylvania Frame of Government of
1682: “ ‘That all prisoners shall be bailable by sufficient
sureties, unless for capital offenses, where the proof is evident,
or the presumption [of guilt] great.’ ” (Hegreness, supra, 55 Ariz.
L.Rev. at p. 920; see id. at p. 923, fn. 36.) Our court, in step with
the broad consensus that has since emerged in other states, has
interpreted this odd terminology to require evidence that would
be sufficient to sustain a hypothetical verdict of guilt on appeal.
(See In re Weinberg (1917) 177 Cal. 781, 782; In re Troia (1883)
64 Cal. 152, 153; In re Nordin (1983) 143 Cal.App.3d 538, 543
(Nordin); see generally 8A Am.Jur.2d (2019) Bail and
Recognizance, § 62, pp. 398-399.)3
       Whether that evidentiary threshold has been met is a
question a reviewing court considers in the same manner the
trial court does: by assessing whether the record, viewed in the
light most favorable to the prosecution, contains enough

3
      This standard is more stringent than mere “sufficient
cause,” which is the showing required to hold a defendant to
answer for an offense. (Pen. Code, § 872, subd. (a); see People v.
Slaughter (1984) 35 Cal.3d 629, 637 [“the burden on the
prosecution before the magistrate is quite distinct from that
necessary to obtain a conviction before a judge or jury”].) The
term “sufficient cause” means “ ‘such a state of facts as would
lead a man of ordinary caution or prudence to believe, and
conscientiously entertain a strong suspicion of the guilt of the
accused.’ ” (Slaughter, at p. 636.)


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                  Opinion of the Court by Cuéllar, J.


evidence of reasonable, credible, and solid value to sustain a
guilty verdict on one or more of the qualifying crimes. (See
People v. Zaragoza (2016) 1 Cal.5th 21, 44 (Zaragoza).) The
record in this case includes the testimony elicited at the
preliminary hearing –– including the sworn testimony of the
victim herself — as well as White’s recorded interviews with law
enforcement. Even if a hypothetical fact finder might find the
evidence susceptible to two interpretations, one of which
suggests guilt and the other innocence, the relevant inquiry here
is whether, in light of all the evidence, any reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.
(Zaragoza, at p. 44.) That the circumstances might also
reasonably be reconciled with the defendant’s innocence does
not render inadequate the evidence pointing towards guilt. (See
People v. Proctor (1992) 4 Cal.4th 499, 529.)
      White contends that while there was “no doubt” Owens
attacked J.D., “there was not substantial evidence [he] aided
and abetted Owens.” To be guilty as an aider and abettor, a
person must have knowledge of the direct perpetrator’s unlawful
purpose; have the intent or purpose of committing, encouraging,
or facilitating the commission of the direct perpetrator’s offense;
and by act or advice aid, promote, encourage, or instigate the
commission of that offense. (People v. Nguyen (2015) 61 Cal.4th
1015, 1054.) In our view, the record contains substantial
evidence to support a finding that White aided and abetted
Owens’s assault with intent to rape.
      What a reasonable fact finder could conclude is that White
not only was aware of Owens’s intent to rape, but acted to
further it. As their day together progressed, Owens repeatedly
spoke to White about “grabbing” girls “caveman style” and sent
out feelers to gauge whether White would intervene if Owens

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                   Opinion of the Court by Cuéllar, J.


“was taking things too far.” Although White claimed to have
told his friend “yeah I’d stop you,” a reasonable trier of fact could
easily conclude that his actual conduct belied that claim. When
Owens announced, “I think I’m going to go up and get that girl”
— and asked White to “keep an eye” out — White did not stop
his friend. A reasonable fact finder could conclude he did the
opposite: he encouraged Owens to “go and get her” and,
according to J.D., was “keeping his eye up and down the street”
and acting as the “lookout guy.” When Owens grabbed J.D. by
the neck, at no time did White endeavor to pull his friend away
or otherwise physically intervene to stop the attack. To the
contrary: even after J.D. had broken free of the initial assault,
White reportedly instructed Owens to “[g]o in the house” as J.D.
was moving towards the gate. After J.D. got through the gate,
White helped Owens flee by driving him away from the scene.
Had Owens been able to follow J.D. through the gate, White
admitted that his friend “probably would have tried taking
advantage of her and raping her.” To insist, as White does, that
“[t]here is no evidence White knew Owens planned to attack J.D.
or agreed to assist Owens in the attack” is not an accurate
reading of the record.
      True: the record also includes certain evidence tending to
exculpate White. But that consisted mainly of White’s own
statements, and a fact finder would not be obliged to credit his
assertion that he meant for Owens merely to “ ‘get her’ like ‘talk
to her’ ” — which is hardly the kind of encounter for which
Owens would have needed White to “keep an eye” out. Nor
would a jury be compelled to believe White’s uncorroborated
statement that he told Owens “like yo, stop” or to infer that
White instructed J.D. to “[g]o in the house.” According to J.D.,
White was looking directly at Owens when he gave the


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                   Opinion of the Court by Cuéllar, J.


instruction to “[g]o in the house,” and she herself was already
“at the gate, getting in the gate” and needed no outside
encouragement. Moreover, Owens seems to have understood
that White was talking to him, since he remained at the gate for
some time after J.D. escaped into the house. During that time,
J.D. was “really worried” Owens was “going to either hop the
fence . . . or somehow open the gate because it’s an older gate. I
didn’t know if the lock really worked or not.”
      In any event, what counts under the standard for
upholding the trial court’s decision here is not whether there’s
any evidence at all supporting the defendant’s contention. It’s
whether a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. Viewing the whole record — as we
must (see People v. Cuevas (1995) 12 Cal.4th 252, 260-261) —
we agree with the trial court that this element of article I,
section 12(b) was satisfied.
                                   B.
       To deny bail under article I, section 12(b), a trial court
must also find, by clear and convincing evidence, “a substantial
likelihood the person’s release would result in great bodily harm
to others.” (Art. I, § 12(b).) This is a fact issue, as detailed below.
On review, we consider whether any reasonable trier of fact
could find, by clear and convincing evidence, a substantial
likelihood that the person’s release would lead to great bodily
harm to others.
      White points out, correctly, that this court has never
articulated the standard by which we review a trial court’s
finding that an arrestee’s release would likely result in great
bodily harm to others. In materially similar inquiries, however,
California courts have time and again invoked the substantial


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                  Opinion of the Court by Cuéllar, J.


evidence standard. Consider, for instance, the Sexually Violent
Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq.): it
authorizes civil commitment for sexually violent predators who
have completed their prison sentences. In that context, we
apply substantial evidence review to the factual finding that
these individuals are “a danger to the health and safety of
others” in that they are “likely” to reoffend. (Welf. & Inst. Code,
§ 6600, subd. (a)(1); see Cooley v. Superior Court (2002) 29
Cal.4th 228, 257-260; People v. McCloud (2013) 213 Cal.App.4th
1076, 1088-1090.) Similarly, other courts have reviewed for
substantial evidence the factual finding that “not guilty by
reason of insanity” (NGI) acquittees who have completed their
maximum term of commitment continue to represent a
substantial danger of physical harm to others. (People v.
Kendrid (2012) 205 Cal.App.4th 1360, 1362-1363, 1370; People
v. Bowers (2006) 145 Cal.App.4th 870, 878.) Whether an
arrestee poses a substantial likelihood of great bodily harm to
others is a determination similar to what must be found under
these statutory schemes — and each of these schemes involves
the decision whether to restrict a person’s liberty. What we
conclude is that the danger posed by an arrestee if released on
bail is likewise a question of fact we review for substantial
evidence.
      White, along with his amici curiae, presses us to embrace
a standard of independent, de novo review. What they
misapprehend, though, is the nature of the inquiry under article
I, section 12(b). White simply assumes that the likelihood of
future harm amounts to a mixed question of law and fact, but
offers no reason why. And he fails to grapple with how
California courts review similar future-harm determinations
under various civil commitment schemes. So his reliance on


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                  Opinion of the Court by Cuéllar, J.


People v. Cromer (2001) 24 Cal.4th 889 is unpersuasive. In that
case, we held that whether a prosecutor exercised due diligence
in attempting to secure the attendance of an absent witness in
criminal proceedings was subject to independent review because
it was a mixed question of law and fact. (See id. at p. 901.) But
Cromer offers a poor analogy. Pretrial detention determinations
are more similar to detention determinations under the SVPA
and NGI commitment schemes than to determinations
concerning the diligence of prosecutorial efforts to secure
attendance of an absent witness in a criminal case. Our courts
have consistently treated the likelihood of future harm as a
question of fact in SVP and NGI proceedings, and the resulting
systems for making those determinations have proved
workable. Pretrial detention decisions that pivot on an
arrestee’s likelihood of future harm call on trial courts to play a
similar role; such determinations are likewise best
characterized as questions of fact, subject to deferential review.4
      We find further support for our conclusion in closely
analogous decisions of our sister states and the federal courts.
These courts, too, characterize the danger an arrestee’s release
may pose to the community as a factual question to be reviewed
deferentially. (See U.S. v. Hir (9th Cir. 2008) 517 F.3d 1081,
1086 [“The district court’s factual findings concerning the


4
      White also contends that an arrestee’s presumption of
innocence mandates an independent standard of review. While
we agree that release on bail generally safeguards the
presumption of innocence principle (see Stack v. Boyle (1951)
342 U.S. 1, 4), the presumption does not itself restrict a court’s
authority to order pretrial detention in appropriate cases. (See
Bell v. Wolfish (1979) 441 U.S. 520, 533; accord, In re York (1995)
9 Cal.4th 1133, 1148.)


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                  Opinion of the Court by Cuéllar, J.


danger that [the defendant] poses to the community are
reviewed under a ‘deferential, clearly erroneous standard’ ”];
U.S. v. Smith (D.C. Cir. 1996) 79 F.3d 1208, 1209 [“We review
the district court’s finding of fact regarding the safety of the
community for clear error”]; U.S. v. Maull (8th Cir. 1985) 773
F.2d 1479, 1488 [“the individual characteristics of the defendant
and the nature and seriousness of the danger to any person or
the community that would be posed by the person’s release
involve primarily factual issues”]; U.S. v. Hurtado (11th Cir.
1985) 779 F.2d 1467, 1472 [“factual questions pertaining to
individual characteristics of the defendant and the threat posed
by his release . . . . are subject to the clearly erroneous standard
of review”]; U.S. v. Chimurenga (2d Cir. 1985) 760 F.2d 400, 405;
Bradshaw v. United States (D.C. 2012) 55 A.3d 394, 397 [“We
defer to the trial court’s factual findings, including
‘dangerousness’ ”]; Wheeler v. State (Md.Ct.Spec.App. 2005) 864
A.2d 1058, 1065-1066 [“We shall therefore determine whether
the circuit court was clearly erroneous in finding that appellant
was too dangerous to be released pending trial”]; see generally
People v. Cromer, supra, 24 Cal.4th at p. 894 [“an appellate court
reviews findings of fact under a deferential standard
(substantial evidence under California law, clearly erroneous
under federal law)”].)
       These authorities are fully consistent with our embrace of
a substantial evidence standard for review of a trial court’s
finding that an arrestee’s release would trigger the requisite
likelihood of great bodily harm to others. (Art. I, § 12(b).) Our
state Constitution nonetheless imposes an additional hurdle:
that the likelihood of great bodily harm be established by “clear
and convincing evidence.” (Ibid.) Clear and convincing evidence
requires a specific type of showing — one demonstrating a “ ‘high


                                  16
                            In re WHITE
                  Opinion of the Court by Cuéllar, J.


probability’ ” that the fact or charge is true. (Broadman v.
Commission on Judicial Performance (1998) 18 Cal.4th 1079,
1090; see In re Angelia P. (1981) 28 Cal.3d 908, 919; Nordin,
supra, 143 Cal.App.3d at p. 543.) So, on review, we consider
whether any court could have found clear and convincing
evidence that the person’s release on bail posed a substantial
likelihood of great bodily harm to others. (See Conservatorship
of Wendland (2001) 26 Cal.4th 519, 552; cf. Zaragoza, supra, 1
Cal.5th at p. 44 [“whether, in light of all the evidence, ‘any
reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt’ ”].)
      The crimes White stands accused of aiding and abetting
were attempted kidnapping and assault with intent to commit
rape on a minor. They bore what a reasonable observer would
surely call a substantial likelihood of great bodily harm to J.D.
Owens grabbed J.D. by the neck with a “super tight” grip and
would have forced her face into the concrete had she not braced
herself. And if J.D. had not successfully, and unexpectedly,
fought off her attacker, White acknowledged that Owens
“probably” would have forcibly raped her.
       In White’s view, the trial court had no basis to conclude
that he poses any risk of harm to others because what his friend
did was “sudden and unexpected.” In light of the deferential
standard of review, though, we are constrained to agree with the
Court of Appeal: there was sufficient evidence to support the
trial court’s finding that White would cause great bodily harm
to this victim or others, if released. An examination of the whole
record reveals credible evidence that Owens deliberated about
sexual assault of a random victim for a substantial period — and
that White was well aware of this and aided him nonetheless.



                                  17
                            In re WHITE
                  Opinion of the Court by Cuéllar, J.


      White’s taped statements supported a finding that Owens
had been exploring his interest in abducting a girl the entire day.
While they were at the beach, Owens asked White whether
White would stop him if he were to “get out of hand” or “was
taking things too far” with a girl. When asked at the beach why
he wanted to approach a girl now that she was no longer sitting
next to them, Owens replied, “what about the screams?” J.D.
arrived after these exchanges and after the two men had
finished their day at the beach. They gave her “a bad feeling.”
A nearby adult called the men “creepy.”
      It was in this context that White allegedly chose to ratchet
things up. White was the first to spot J.D. and remarked to
Owens that she was “pretty cute” and seemed “cool.” After
Owens “may have mentioned . . . something about her,” White
coaxed his friend to “go and get her.” In his interview, White
claimed he meant “[g]et her . . . like go get her, talk to her. Get
her information.” Yet the record tends to support a finding that
harmless verbal flirting was not the type of encounter Owens
had spent the day discussing with White. When Owens talked
with White about women that day, he was imagining taking
them “caveman style” and was contemplating how best to avoid
drawing attention to “the screams” or having White “stop” him.
Under the circumstances, the trial court could reasonably have
concluded that Owens did as he was encouraged to do — he
grabbed her, asserted control, and would have raped her, if she
had not managed to escape — while White acted as a lookout
and directed his friend to take J.D. in the house. The trial court
was not compelled to find that White’s behavior was a one-off,
an unusual situation that was unlikely to recur. Indeed, White
acted as the getaway driver, never contacted police about the
attack on an unaccompanied girl barely half his age, and, even


                                  18
                            In re WHITE
                  Opinion of the Court by Cuéllar, J.


when interviewed by law enforcement, allowed that he
“probably” would have done so only “if this situation got any
worse.”
      White emphasizes here the same point he pressed in the
trial court and in the Court of Appeal: that he had no prior
criminal record and had the support of his family and the
community in Arizona, where he intended to reside. Those
supporters described him as “non-violent, responsible, and
respectful.” White also contends that he was as surprised as
anyone by Owens’s behavior, as evidenced by his Internet
searches in the days after the attack about “primal instincts”
and “being brainwashed.” Yet the trial court was not obligated
to accept the most benign version of White’s involvement.5
Moreover, the opinions of White’s friends and family offered only
a piece of the puzzle. The trial court, after all, could not ignore
the most recent evidence of White’s behavior as it bore on his
character and his likelihood of reoffending.
      White makes much of the fact that J.D.’s injuries were
“minor” and that the entire encounter was “brief.” But the 15-
year-old victim’s injuries were minor only because the plan
White allegedly assisted was thwarted early. Had the incident
unfolded as Owens had intended, the injuries would have been
anything but minor. J.D. testified that Owens would have
smashed her face into the concrete if she “didn’t catch” herself,
and White acknowledged that Owens would have raped her if
she hadn’t escaped.



5
      Indeed, the detective who participated in White’s second
interview believed “there was plenty of evasion” in White’s
account of the events.


                                  19
                             In re WHITE
                   Opinion of the Court by Cuéllar, J.


      So the trial court’s finding of future danger, while
presenting a close question on this record, did not rest “merely
on the fact of arrest for a particular crime,” but on an
“individualized determination” that White’s release threatened
others with a substantial likelihood of great bodily harm. (U.S.
v. Scott (9th Cir. 2006) 450 F.3d 863, 874.) Given the deferential
standard of review, we conclude that the trial court’s
determination finds sufficient support in the record. (See
Nordin, supra, 143 Cal.App.3d at p. 543 [“the superior court had
before it an ample record to support the denial of bail”].)
                                   C.
      That the trial court found as it did, of course, does not
mean it was required to deny bail. A person who falls within the
article I, section 12(b) exception does not have a right to bail, yet
may nonetheless be granted bail — or release on the person’s
own recognizance — in the trial court’s discretion. (See Ballot
Pamp., Primary Elec. (June 8, 1982) analysis of Prop. 4 by Legis.
Analyst, p. 16 [“The proposal . . . would broaden the
circumstances under which the courts may deny bail” (italics
added)]; cf. People v. Tinder (1862) 19 Cal. 539, 542.) Because
this determination calls for an exercise of judgment based on the
record before the court, we review a trial court’s ultimate
decision to deny bail for abuse of discretion. (See Richardson v.
Superior Court (2008) 43 Cal.4th 1040, 1047; People v. Jordan
(1986) 42 Cal.3d 308, 316; accord, Lathan v. State (Ga.Ct.App.
1988) 373 S.E.2d 388, 389; Fischer v. Ball (Md. 1957) 129 A.2d
822, 827; State v. S.N. (N.J. 2018) 176 A.3d 813, 824; People ex
rel. Shapiro v. Keeper of City Prison (N.Y. 1943) 49 N.E.2d 498,
501; Com. v. Pal (Pa.Super.Ct. 2013) 34 Pa.D. & C.5th 524, 539;
Ex parte Shires (Tex.Ct.App. 2016) 508 S.W.3d 856, 860; Fisher
v. Commonwealth (Va. 1988) 374 S.E.2d 46, 51; State v. Pelletier

                                   20
                            In re WHITE
                  Opinion of the Court by Cuéllar, J.


(Vt. 2014) 108 A.3d 221, 223.) Under this standard, a trial
court’s factual findings are reviewed for substantial evidence,
and its conclusions of law are reviewed de novo. (See Haraguchi
v. Superior Court (2008) 43 Cal.4th 706, 711-712.) An abuse of
discretion occurs when the trial court, for example, is unaware
of its discretion, fails to consider a relevant factor that deserves
significant weight, gives significant weight to an irrelevant or
impermissible factor, or makes a decision so arbitrary or
irrational that no reasonable person could agree with it. (See
People v. Knoller (2007) 41 Cal.4th 139, 156; People v. Carmony
(2004) 33 Cal.4th 367, 377; accord, State v. S.N., at p. 815.)
       In exercising that discretion, a trial court must consider,
at a minimum, “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 the
trial or hearing of the case” — and among those factors, “public
safety shall be the primary consideration.” (Pen. Code, § 1275,
subd. (a).) The trial court did so here, after hearing sworn
testimony from the victim herself and an audio recording of
White’s interviews with the investigating detectives — and after
White had the opportunity to cross-examine witnesses and offer
evidence. In light of how the court chose to exercise its
discretion, we cannot say its decision to detain White was so
arbitrary or irrational that no reasonable person could agree
with it. (See People v. Carmony, supra, 33 Cal.4th at p. 377.)
      That said, there’s quite a bit we’re not deciding today. A
different part of the California Constitution — subdivision (f)(3)
of article I, section 28 — directs courts to take into account the
“safety of the victim” when “setting, reducing, or denying bail”
and to make it, along with public safety, “the primary
considerations.” Because concerns about victim safety would

                                  21
                            In re WHITE
                  Opinion of the Court by Cuéllar, J.


only reinforce the trial court’s decision to deny bail here, we need
not decide what role, if any, this provision has in the decision to
deny bail under article I, section 12(b). Nor do we decide how
section 12(b) and section 28, subdivision (f)(3) interact more
broadly. In addition, we did not grant review — and do not
resolve here — whether, before denying bail, a court must first
determine that no condition or conditions of release can
adequately protect public or victim safety. Our opinion should
not be read as reaching that question. Likewise, we do not
resolve what constraints, if any, Penal Code section 12716
imposes on a trial court’s authority to deny bail in noncapital
cases. Neither party cited that provision.
      Finally, we recognize that a defendant in custody
naturally has a greater incentive to plead guilty than does a
defendant on pretrial release, especially if the time to trial
roughly matches the defendant’s potential sentence exposure.
(See Pretrial Detention Reform Workgroup, Pretrial Detention
Reform: Recommendations to the Chief Justice (Oct. 2017) p.
14; Bibas, Plea Bargaining Outside the Shadow of Trial (2004)
117 Harv. L.Rev. 2463, 2492-2493.) In weighing whether a
defendant should be detained, trial judges should be mindful
that pretrial detention has a practical impact on even an
innocent defendant’s decision whether to negotiate a plea.
                                 III.
      To deny bail under article I, section 12(b), a court must
satisfy itself that the record contains not only evidence of a
qualifying offense sufficient to sustain a hypothetical verdict of

6
      Penal Code section 1271 provides: “If the charge is for any
other offense, he may be admitted to bail before conviction, as a
matter of right.”


                                  22
                           In re WHITE
                 Opinion of the Court by Cuéllar, J.


guilt on appeal, but also clear and convincing evidence
establishing a substantial likelihood that the defendant’s
release would result in great bodily harm to others. In
reviewing a denial of bail, an appellate court must determine,
too, whether the record contains substantial evidence of a
qualifying offense — and, if so, whether any reasonable fact
finder could have found, by clear and convincing evidence, a
substantial likelihood that the defendant’s release would result
in great bodily harm to one or more members of the public.
Where both elements are satisfied and a trial court has
exercised its discretion to deny bail, the reviewing court then
considers whether that denial was an abuse of discretion.
       White was charged with felony offenses involving acts of
violence and sexual assault. A reasonable fact finder could
conclude, based on the evidence presented at the adversarial
hearing, that White was guilty of at least one of these offenses
beyond a reasonable doubt. A court could also conclude, by clear
and convincing evidence, there was a substantial likelihood that
White’s release could result in great bodily harm to others. The
trial court’s decision to order White detained on this basis was
no abuse of discretion. We therefore affirm the judgment of the
Court of Appeal.
                                                       CUÉLLAR, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
GROBAN, J.




                                 23
                          In re WHITE

                            S248125



             Concurring Opinion by Justice Kruger



      This case is moot. Christopher Lee White challenges his
pretrial detention without bail, but he has already pleaded
guilty to one of the crimes charged. His pretrial detention is now
long over, and there is no longer any effective relief this court
can provide. (See maj. opn., ante, at p. 2, fn. 1.)
      That is not, of course, the end of the matter. While courts
ordinarily avoid deciding moot cases (e.g., Consol. etc. Corp. v.
United A. etc. Workers (1946) 27 Cal.2d 859, 863–865), we do
have the power to do so—a power we generally exercise only to
decide issues “ ‘of broad public interest’ ” that are “ ‘likely to
recur’ ” (Ballard v. Anderson (1971) 4 Cal.3d 873, 876). This
case presents such a question: What standard of review applies
to a trial court’s denial of bail under article I, section 12,
subdivision (b) of the California Constitution? This is an issue
that “ ‘is likely to recur, might otherwise evade appellate review,
and is of continuing public interest.’ ” (People v. DeLeon (2017)
3 Cal.5th 640, 646.) I thus agree with the majority’s decision to
reach this question, as well as with the majority’s decision
affirming the standard of review articulated by the Court of
Appeal in this case.
       I would not, however, go on to decide whether the Court of
Appeal correctly applied that standard to the facts here. The
critical contested issue was whether the evidence supported the
                             In re WHITE
                         Kruger, J., concurring


trial court’s finding that White posed a likelihood of causing
great bodily harm if released on bail. (See Cal. Const., art. I,
§ 12, subd. (b).) As the Attorney General acknowledged at oral
argument, the facts of this case are unusual. The issue posed is
unlikely to recur with any frequency. Nor does addressing the
issue provide particularly helpful guidance for how to apply the
standard to more typical cases. This case, by the Court of
Appeal’s own reckoning, is a marginal one. As that court put it:
“[E]ven given our deferential standard of review, this record
tests the bounds of what would sustain an order remanding a
defendant without bail under the California Constitution.” (In
re White (2018) 21 Cal.App.5th 18, 31.)
       We are certainly under no obligation to reach the now-
moot question whether the record was sufficient to support the
trial court’s no-bail order in this particular case. (See, e.g., In re
Webb (2019) 7 Cal.5th 270, 278 [declining to decide moot
question whether specific bail condition was valid].) And there
are good reasons not to reach it. The answer to that fact-specific
question is no longer of interest to the parties, nor will it provide
much meaningful guidance to courts or the public. By
unnecessarily delving into the facts of a marginal case, we run
the risk of confusing the law more than we clarify it.
      While I agree with the majority’s answer to the standard
of review question, I do not join in its application of that
standard to these facts and concur in the judgment only.


                                                      KRUGER, J.
I Concur:
LIU, J.



                                   2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re White
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 21 Cal.App.5th 18
Rehearing Granted

__________________________________________________________________________________

Opinion No. S248125
Date Filed: May 21, 2020
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Robert J. Kearney

__________________________________________________________________________________

Counsel:

Boyce & Schaefer, Laura Schaefer, Robert E. Boyce and Benjamin Kington for Petitioner Christopher Lee
White.

Rita Himes for Legal Services for Prisoners with Children as Amicus Curiae on behalf of Petitioner
Christopher Lee White.

Sanger Swysen & Dunkle, Robert M. Sanger and Stephen K. Dunkle for California Attorneys for Criminal
Justice as Amicus Curiae on behalf of Petitioner Christopher Lee White.

Kathleen Guneratne, Micaela Davis, Peter Eliasberg and David Loy for American Civil Liberties Union
Foundation of Northern California, Inc., American Civil Liberties Union Foundation of Southern
California, Inc., and American Civil Liberties Union Foundation of San Diego and Imperial Counties, Inc.,
as Amici Curiae on behalf of Petitioner Christopher Lee White.

Summer Stephan, District Attorney, Jesus Rodriguez, Assistant District Attorney, Peter Quon, Jr., Mark A.
Amador, Linh Lam, Lilia E. Garcia and Daniel Owens, Deputy District Attorneys, for Respondent the
People.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Laura Schaefer
Boyce & Schaefer
934 23rd Street
San Diego, CA 92102-1914
(619) 232-3320

Daniel Owens
Deputy District Attorney
330 W. Broadway, Suite 860
San Diego, CA 92101
(619) 685-6639
