In Re Berman

California Court of Appeal Apr 17, 1930 No. Docket No. 1959.Published

Before: Craig

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Holding. The court held that while the trial judge did not abuse their discretion in setting aside a prior order releasing the defendant on his own recognizance, the court was required to restore the previously established bail amount of $10,000 rather than increasing it to $250,000 without good cause.

Issues

Whether the trial court abused its discretion in setting aside an order releasing the defendant on his own recognizance.
Whether the trial court was authorized to increase bail to $250,000 without showing good cause for an amount exceeding the previously established $10,000.

Disposition. remanded

Quotations verified verbatim against the opinion

“An order altering its amount not based on a- showing of such good cause is an arbitrary exercise of judicial power, unauthorized by section 1289 of the Penal Code”

“The petitioner is entitled to have this amount remain without increase except upon good cause shown.”

“the order of September 11, 1928, fixing bail at $10,000 should have been restored.”

CRAIG, Acting P. J.

The return to the writ of

habeas corpus

issued upon the petition of Berman recites that at the time of the issuance and service of the writ upon the sheriff, that official held petitioner in custody by virtue of an order of the Superior Court made by Hon. Marshall McComb, one of its judges. It appears that this order was made in open court on the eleventh day of April, 1930, without notice to either the defendant or the district attorney, and under the following circumstances alleged in the petition, and not controverted: On the nineteenth day of May, 1927, an indictment was returned by the grand jury of Los Angeles County, charging Berman with forgery and embezzlement. At that time he was out of the state of California. Bail was fixed at $250,000. On the twelfth day of September, 1927, Berman voluntarily returned to California, and was released on his own recognizance. Thereafter from time to time he appeared as directed by the court, and on the tenth day of September, 1929, the case was placed off calendar to be restored on notice of ten days. It appears that on September 11, 1928, the case was set for trial, and bail was fixed at $10,000. This bail was exonerated when the indictment was ordered off calendar on September 10, 1929. The next action in the matter occurred on April 11, 1930, when the court entered the following order: “Cause ordered restored to calendar for trial April 23, 1930—de-fendant remanded—bail fixed at $250,000.” During the period covered by these proceedings the petitioner has been made defendant in other criminal prosecutions in both the state and federal courts. He is now at liberty on bail under such charges, the total amount of which is $45,000.

If no other facts appeared than the foregoing, it is clear that under the authority of

In re Aydelotte,

97 Cal. App. 163 [275 Pac. 510], the petitioner would be entitled to relief upon this application. It was there held in effect that a defendant having been admitted to bail, the court may not without good cause being shown increase or decrease

[272]

the bail. An order altering its amount not based on a- showing of such good cause is an arbitrary exercise of judicial power, unauthorized by section 1289 of the Penal Code, and this is the provision conferring upon the Superior Court authority to alter the amount of bail. But in this case at the time of entering the order above quoted, the court said:

In Re Berman

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