McIntosh v. Municipal Court

124 Cal.App.3d 1083 (1981) 177 Cal. Rptr. 683 CONNIE McINTOSH et al., Petitioners,

v.

THE MUNICIPAL COURT FOR THE SAN LUIS OBISPO COUNTY MUNICIPAL COURT DISTRICT OF SAN LUIS OBISPO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. In re JEFFERY STEIN et al., on Habeas Corpus.

Docket Nos. 6721, 5846. Court of Appeals of California, Fifth District.

October 2, 1981. [1084] COUNSEL

Andrew Thomas Sinclair and Kathleen V. Fisher for Petitioners.

No appearance for Respondent Court.

Christopher G. Money, District Attorney, and Daniel A. Hilford, Deputy District Attorney, for Real Party in Interest and Respondent.

[1085] OPINION

THE COURT.[*]

(1) Respondent municipal court (hereinafter respondent court) offered to release petitioners[1] upon their own recognizance upon condition that petitioners sign a written statement agreeing not to trespass, blockade or fail to disperse at the Diablo Canyon nuclear plant. Some petitioners accepted the condition and were released, some chose to remain in custody rather than sign the agreement, and some pleaded nolo contendere to obtain release from custody without signing the agreement.

Petitioners contend in substance that respondent court abused its discretion by imposing the above stated condition upon their release. We agree. (See Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579 [114 Cal. Rptr. 106, 522 P.2d 666].)

In Van Atta v. Scott (1980) 27 Cal.3d 424, 438 [166 Cal. Rptr. 149, 613 P.2d 210], our Supreme Court held, "The sole issue at the OR hearing is whether the detainee will appear for subsequent court proceedings if released OR." (Italics added.) The court also specifically held that preventive detention is not a proper consideration at a pretrial OR hearing. (Id., at p. 445.) Although the court recognized that the trial judge retains discretion in granting an OR release (Id., at p. 452), the express holdings stated above mean that respondent court's discretion to impose conditions upon an OR release is limited to conditions which are reasonably related to and attempt to insure subsequent court appearances.