Supreme Court of California Justia
Docket No. S247074
In re Webb

on Habeas Corpus
Fourth Appellate District, Division One
San Diego County Superior Court
HC11619 & SCS293150
May 23, 2019
Justice Chin authored the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,
Kruger, and Groban concurred.

Opinion of the Court by Chin, J.
Bettie Webb, defendant in the underlying criminal matter,
was arrested and charged with two felony counts. She posted
bail and was released from custody. At arraignment, the court
imposed, as an additional condition of release, that she waive
her Fourth Amendment right to be free of warrantless or
unreasonable searches. We granted review to decide whether,
when a criminal defendant posts bail, the court has authority to
impose additional release conditions. We conclude that the
court does have authority to impose reasonable conditions
related to public safety. Because the question has become moot
as to defendant, we do not decide whether the court properly
imposed the specific condition.
As the Court of Appeal summarized, defendant “was
arrested and eventually charged in a felony complaint with
knowingly bringing controlled substances into a state prison
(Pen. Code, § 4573)[1] 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
All further statutory citations are to the Penal Code.
Opinion of the Court by Chin, J.
waiver, finding it had inherent authority to do so.” (In re Webb
(2018) 20 Cal.App.5th 44, 47, fns. omitted (Webb).) Specifically,
the court ordered defendant to “ ‘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.’ ” (Id. at p. 47, fn. 2.
Defendant challenged the search condition by a petition
for writ of habeas corpus in the superior court, which that court
denied. She then filed the instant “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, supra, 20 Cal.App.5th at pp. 47-48; see People v.
(2006) 38 Cal.4th 858, 884 [“defendants may correct
error in the setting of bail by seeking a writ of habeas corpus or
other extraordinary writ ordering reconsideration of custody
status or release”].
The Court of Appeal issued an order to show cause.
Ultimately, the majority concluded the trial court had neither
statutory nor inherent authority to condition defendant’s bail on
a Fourth Amendment waiver, and it ordered the condition
vacated. It disagreed with language in Gray v. Superior Court
(2005) 125 Cal.App.4th 629 (Gray) and In re McSherry (2003
112 Cal.App.4th 856 (McSherry) that concluded that, even when
a defendant posts bail, the court has inherent authority to
impose reasonable bail conditions. Because the majority
concluded the court had no authority to impose the condition at
Opinion of the Court by Chin, J.
all, it did “not reach Webb’s contention that the court denied her
due process rights to notice and a fair hearing in imposing the
bail condition.” (Webb, supra, 20 Cal.App.5th at p. 57.
Acting Presiding Justice Benke authored a concurring
opinion. Relying heavily on Gray, supra, 125 Cal.App.4th 629,
and McSherry, supra, 112 Cal.App.4th 856, she argued “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.” (Webb,
supra, 20 Cal.App.5th at p. 57 (conc. opn. of Benke, Acting P.J.).
However, noting that this authority is “fairly narrow” (id. at p.
59), she agreed that the court erred in imposing the search
condition under the circumstances. She argued that when
defendant had posted bail and her guilt had 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 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 . . . there are alternative
means of protecting the public’s interests. [Citation.] 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
Opinion of the Court by Chin, J.
and only indirectly related to preventing harm to the
community, as opposed to Webb herself.” (Id. at pp. 59-60.
The San Diego County District Attorney petitioned for
review, raising a single issue: “Do trial courts possess inherent
authority to impose reasonable bail conditions related to public
safety on felony defendants who are released on monetary bail?”
We granted the petition to resolve the conflict between the
majority opinion in the Court of Appeal and the opinions in
Gray, supra, 125 Cal.App.4th 629, and McSherry, supra, 112
Cal.App.4th 856.
The district attorney informs us that, after the petition for
review was filed, the underlying matter was resolved by a guilty
plea and probation disposition. Accordingly, this question is
moot as to defendant. Nevertheless, the district attorney urges
us to decide “the issue presented because it presents a question
of statewide general public concern.” We agree. “We have
discretion to decide otherwise moot cases presenting important
issues that are capable of repetition yet tend to evade review.”
(Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1.
Questions involving release on bail especially tend to evade
review. Accordingly, we will decide the issue presented even
though it is moot as to defendant.
Regarding the merits, we note preliminarily what the
issue does not involve. The petition for review presented only
the broad question of whether trial courts have authority to
impose conditions on felony defendants who are released on bail,
i.e., the point on which the majority below disagreed with Gray,
supra, 125 Cal.App.4th 629, and McSherry, supra, 112
Cal.App.4th 856. The district attorney expressly did not seek
Opinion of the Court by Chin, J.
review of the specific question “of whether the bail condition
imposed in this case was a proper exercise of the trial court’s
inherent authority.” Additionally, this question has become
moot as to defendant. Accordingly, we need not and do not
decide the narrow question.
We are also aware that recent legislation, titled “Pretrial
release or detention: pretrial services,” makes major changes in
California’s pretrial release procedures. (§§ 1320.7 et seq.; Sen.
Bill No. 10 (2017-2018 Reg. Sess.).) If and when that legislation
becomes the law, the issue here will become moot, as release
procedures will be governed by statute. By its terms, the new
legislation was to be effective October 1, 2019. (§ 1320.6; Stats.
2018, ch. 244, § 3.) Following its enactment, this legislation was
suspended pursuant to a referendum petition. Now, it will only
be effective if approved as a referendum measure at the
November 2020 election. Accordingly, the issue before us
remains important.
Finally, defendant did post bail. For this reason, the
issues regarding the propriety of requiring bail as a condition of
release raised in In re Humphrey (2018) 19 Cal.App.5th 1006,
review granted May 23, 2018, S247278, are not presented. We
express no opinion regarding the recent legislation or the issues
raised in Humphrey.
In In re York (1995) 9 Cal.4th 1133 (York), we held that
a trial court could condition the release of an accused on his or
her own recognizance on “the defendant’s agreement to submit
to random drug testing and warrantless search and seizure
during that period.” (Id. at p. 1137.) In doing so, however, we
distinguished between persons released on their own
recognizance and those released after posting bail. We said that
Opinion of the Court by Chin, J.
the petitioner’s challenge to the release condition “rests upon
the flawed premise that a defendant who seeks [own
recognizance] 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.” (Id. at p.
The majority below believed that York’s distinguishing
between those released on their own recognizance and those
released on bail in this way was a “persuasive indication” that
such a condition could not be placed on a person who, like
defendant, has posted bail. (Webb, supra, 20 Cal.App.5th at p.
53.) But York did not confront — let alone decide — the question
now before us: whether any release conditions may be imposed
on felony defendants who post money bail at the scheduled
Two cases postdating York, however, considered whether
a court may impose release conditions on a person who has
posted bail. In McSherry, supra, 112 Cal.App.4th 856, a case
involving misdemeanor charges, the court held that “a trial
court may impose reasonable bail conditions on the granting of
that bail,” but it also cautioned that “the conditions have to be
reasonable and related to public safety.” (Id. at p. 858.) The
court modified the conditions the trial court had imposed. As
modified, it upheld conditions that the petitioner — who had
been convicted in the past of sex-related crimes involving
children and a vehicle — (1) not drive a motor vehicle, (2) stay
at least 200 yards away from children under the age of 17, and
(3) stay at least 200 yards from specified places where children
were present. (Id. at pp. 859, 863.
Opinion of the Court by Chin, J.
In Gray, supra, 125 Cal.App.4th 629, the petitioner, a
medical doctor charged with various felony counts, was released
on bail. The court ordered, as a release condition, that the
petitioner be prohibited from practicing medicine. The Court of
Appeal held that, procedurally, the order violated the
petitioner’s due process rights. (Id. at pp. 636-641.) But, citing
McSherry, supra, 112 Cal.App.4th 856, the court also held that
a trial court may impose reasonable conditions even if the
person has been released on bail, and that the condition imposed
in that case is not necessarily unreasonable. (Id. at pp. 642-
In reaching this conclusion, the Gray court explained that
“[t]here is no explicit statutory authority for the trial court to do
what it did here. Penal Code section 1269c authorizes a
magistrate to ‘set bail on the terms and conditions that he or
she, in his or her discretion, deems appropriate’ in the case of a
defendant arrested without a warrant.[2] In addition, Penal
Code section 1270, subdivision (a) authorizes a court to ‘set bail
and specify the conditions’ after the court makes the requisite
Section 1269c permits a peace officer to seek higher bail
than that set forth in the bail schedule when the defendant is
arrested without a warrant and permits a defendant to apply for
lower bail or own recognizance release. It also provides: “The
magistrate or commissioner to whom the application is made is
authorized 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, or family member of a victim, of domestic
violence, 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
Opinion of the Court by Chin, J.
findings that a defendant charged with a misdemeanor is not
entitled to an own recognizance (OR) release.[3] Here, because
Gray surrendered voluntarily pursuant to a warrant setting bail
and because he is charged with felony counts, the statutes
expressly authorizing bail conditions do not apply.
Nevertheless, although 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. [Citing, inter alia, McSherry, supra, 112 Cal.App.4th
856.] 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, § 1270, subd. (a)),
then the Legislature surely intended similar conditions could be
imposed when a defendant facing felony charges is released on
bail. (McSherry, supra, 112 Cal.App.4th at p. 862.)” (Gray,
supra, 125 Cal.App.4th at pp. 641-642.
The Gray court also explained that “[b]efore legislative
amendments to the Penal Code in 1987, the only permissible
purpose of bail was to ensure the defendant’s presence in court.
Section 1270, subdivision (a), provides, as relevant: “A
defendant who is in custody and is arraigned on a complaint
alleging an offense which is a 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 . . . 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
Opinion of the Court by Chin, J.
(McSherry, supra, 112 Cal.App.4th at p. 860.) Now, ‘public
safety . . . is . . . the primary factor for the court to consider in
the setting of bail.’ (Id. at p. 861; see Pen. Code, § 1275, subd.
(a).)” (Gray, supra, 125 Cal.App.4th at p. 642.) The court noted
that the specific statute relied on to impose the condition of that
case (§ 1275, subd. (a)) did not refer to bail conditions. But it
agreed with McSherry “that because public safety is the
Legislature’s overriding theme in the bail statutory framework,
and because the trial court has the inherent power to impose
bail conditions, it follows that the trial court may impose bail
conditions intended to ensure public safety.” (Gray, at p. 642,
citing McSherry, at pp. 861-863.
The concurring justice below agreed with Gray and
McSherry in this respect. She believed that “we must recognize
the practical necessity that in particular cases, in order to
assure a defendant’s appearance and protect the public from
, 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.” (Webb, supra, 20
Cal.App.5th at p. 58 (conc. opn. of Benke, Acting P.J.).
The majority below found Gray and McSherry
“unpersuasive.” (Webb, supra, 20 Cal.App.5th at p. 56.) It noted
(as did the Gray court) that the references to bail conditions in
sections 1269c and 1270 involved situations other than this
one — deciding whether to increase or decrease bail for a person
arrested without a warrant (§ 1269c) or a misdemeanor charge
(§ 1270). “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.”
Opinion of the Court by Chin, J.
(Webb, at p. 50.) The majority found no express statutory basis
for imposition of bail conditions. “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.” (Id. at p. 51.) It also found no inherent authority to
impose the Fourth Amendment waiver condition or, apparently,
any condition. (Id. at pp. 51-56.
We agree with McSherry, Gray, and the concurring
opinion below that the trial court does have authority to impose
reasonable release conditions even when the person has posted
bail. Several statutes provide for release conditions on bail. In
addition to the two statutes cited in Gray and the majority below
(§§ 1269c, 1270), others include sections 646.93, subdivision (c),
and 1506. None of these statutes govern this precise situation.
But nothing in them suggests that bail conditions were unique
to the situations they governed. As McSherry and Gray
indicated, it would be illogical for the Legislature to authorize
conditions of release on bail for those charged with a
misdemeanor but prohibit such conditions for those charged
with a felony. (Gray, supra, 125 Cal.App.4th at p. 642;
McSherry, supra, 112 Cal.App.4th at p. 862.) Instead, these
statutes imply that courts do have authority to impose release
conditions even if the defendant has posted bail.
Moreover, after McSherry and Gray were decided, the
voters amended California’s Constitution to make clear that
trial courts do have authority to impose reasonable release
conditions on persons who post bail. California Constitution,
article I, section 28, subdivision (b)(3), as amended in November
Opinion of the Court by Chin, J.
2008 by an initiative measure, provides that a victim has the
right “[t]o have the safety of the victim and the victim’s family
considered in fixing the amount of bail and release conditions for
the defendant.” (Italics added.
In Townsel v. Superior Court (1999) 20 Cal.4th 1084, we
encountered a similar situation. There, the trial court issued
orders to protect jurors’ privacy that went beyond what the
statutes had expressly authorized. Recognizing that “trial
courts have always possessed the inherent power to protect
jurors’ physical safety and privacy,” we upheld the orders. (Id.
at p. 1087.) We explained that the protective measures the trial
court imposed were within its authority in part because they
were “fully consistent” with the purpose of protecting juror
safety — a purpose reflected in the relevant statutes. (Id. at p.
The same is true for bail: reasonable conditions generally
further, rather than undermine, the important legislative
purpose of protecting public safety. (See § 1275, subd. (a)(1) [“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
.” (Italics added.)].) Authorizing courts to
impose reasonable conditions of release on bail is fully
consistent with this legislative policy.
Accordingly, we conclude that trial courts have authority
to impose reasonable conditions related to public safety on
persons released on bail. We need not here consider in detail
the exact contours of this authority. We stress, however, that,
as the concurring justice noted below, this authority is “fairly
Opinion of the Court by Chin, J.
narrow.” (Webb, supra, 20 Cal.App. 5th at p. 59 (conc. opn. of
Benke, Acting P.J.).) Any condition must be reasonable, and
there must be a sufficient nexus between the condition and the
protection of public safety.
We disagree with the reasoning of the Court of Appeal
majority to the extent it held that trial courts have no authority
to impose release conditions on persons who post bail. Because
the question is moot as to defendant, we need not decide whether
the specific condition was valid. Instead, we reverse the
judgment of the Court of Appeal and remand the matter to that
court with directions to discharge the order to show cause and
deny the petition for writ of habeas corpus as moot.
We Concur:


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Webb

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 20 Cal.App.5th 44
Rehearing Granted
Opinion No.
Date Filed: May 23, 2019

County: San Diego
Judge: Stephanie Sontag

Angela Bartosik, Chief Deputy Public Defender, and Robert Louis Ford, Deputy Public Defender, for
Petitioner Bettie Webb.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, James Atkins, Lilia E. Garcia and
Marissa A. Bejarano, Deputy District Attorneys, for Respondent the People.

Xavier Becerra, Attorney General, Edward C. DuMont, State Solicitor General, Jeffrey M. Laurence,
Assistant Attorney General, Katie L. Stowe, Deputy Attorney General, and Joshua A. Klein, Deputy State
Solicitor General, for Attorney General as Amicus Curiae on behalf of Respondent the People.

Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert Louis Ford
Deputy Public Defender
450 B Street, Suite 1100
San Diego, CA 92101
(619) 338-4831
Marissa A. Bejarano
Deputy District Attorney
330 West Broadway, Suite 860
San Diego, CA 92101
(619) 531-4040

Opinion Information
Date:Docket Number:
Thu, 05/23/2019S247074