In Re Weiner

Opinion

BENKE, Acting P. J.

Does the filing of an appeal by the People constitute a changed circumstance entitling the defendant to a bail review under Penal Code

1

section 1275? Under the facts of this case, we answer that question in the negative and deny the petition.

[443]

Background

After jury trial with Judge Napoleon Jones presiding, Murray Weiner (Weiner) was convicted of first degree murder with personal use of a firearm. After arraignment, bail had been set at $250,000. Weiner posted bail and later failed to appear at his preliminary examination. The court issued a no-bail bench warrant and shortly thereafter Weiner appeared on the warrant and was held without bail. After a bail review hearing, bail was set at $2 million.

After Weiner’s conviction, the trial court on its own motion remanded Weiner to custody without bail. One month later, Weiner moved for new trial on the basis of newly discovered evidence, i.e., a third party confession to the murder. Judge Jones granted a new trial. At Weiner’s next court appearance, he requested a bail review. The presiding judge heard the motion and set bail at $2 million.

The People later appealed the grant of new trial. Weiner moved to set “reasonable bail” pending the People’s appeal. The People opposed the motion, inter alla, on the grounds the only change of circumstances was their having filed an appeal. Judge Jones concluded an appeal by the People was not a changed circumstance allowing the court to reconsider bail, stating:

“This court is not convinced that there has in fact been a change in circumstance. The fact that the People choose and elect to pursue a remedy by statute they are entitled to pursue does not, in my opinion, create a change of circumstance that was intended by the statute.

“Indeed, if in fact this court had not granted the defendant’s motion for a new trial, Mr. Weiner, in any event, would be serving time in custody, so to argue because the motion is granted, that the People then should be penalized because of the granting does not make sense to this court.