McCone v. Super. Ct.

Filed 6/26/08 McCone v. Super. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Thomas J. Borris, Judge. Petition granted.

Deborah A. Kwast, Interim Public Defender, Kevin J. Phillips, Assistant Public Defender, and Scott Van Camp, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Tony Rackauckas, District Attorney, and Jessica Bingham, Deputy District Attorney, for Real Party in Interest.

THE COURT:^*

Petitioner, Steven Matthew McCone, was charged in a complaint with residential burglary. When his preliminary hearing was continued, he was released on his own recognizance. When the original complaint was dismissed and refiled, the court set bail in the amount of $50,000. According to petitioner, the order setting bail should be vacated because subdivision (c) of Penal Code^[1]section 1388 requires that he be released on his own recognizance. Real party concedes the issue and we agree the petition should be granted.

On April 3, 2008, petitioner, Steven Matthew McCone, was arraigned in custody and pleaded not guilty to a felony complaint alleging one count of residential burglary in superior court case number 08WF0381. According to petitioner, after he announced ready for his preliminary hearing on the morning of April 17, day 10 of 10 pursuant to subdivision (b) of section 859, real party advised the court they were not ready to proceed and needed more time to obtain DNA evidence. When asked, real party stated they agreed with the defense that McCone should be released on his own recognizance, and as a result, Judge Bromberg released McCone on his own recognizance.

In the afternoon on April 17, real party returned the matter to court for the purpose of dismissing the complaint in superior court case number 08WF0381 and refiling the case under superior court number 08WF0693. Real party explained, There was a case, Steven McCone, case number 08WF0381, that was on its 10th day for prelim today. The People previously had chosen to proceed by ORing the defendant on that case and resetting a prelim date; however, the People have since then chosen to dismiss that case and we have refiled a new case 08WF0693, and will be asking the court to set bail on that case consistent with the bail that has been set on the previous case and prelim dates within the statutory period.

Over counsels objection, the court, Judge Marks, set bail stating, . . . [real party] has offered the court this afternoon additional information that may or may not be a basis for increasing bail or deviating from bail, and the bail schedule of $50,000, based upon Mr. McCones criminal history. Im choosing not to take that into account at this time, but simply relying upon the bail schedule for residential burglary and setting bail in the appropriate amount of $50,000.

Because McCone had not yet been held to answer, counsel filed a petition for a writ of mandate in the superior court. Judge Borris denied the petition and explained that McCones release on his own recognizance on the original complaint was the result of a stipulation between the parties, and [w]hen the dust settle[d] [ ], isnt this truly just an instance where the People reneged?

The court continued to explain, I think this is basically a situation where were talking form over real substance. I dont really see that this is an instance where somebody was deprived of their freedom in this case. I think this statute was meant so that there could not be a person whos walking through the front door every single day and then the People dismiss and re-file the case and they want that person taken into custody. I dont see that the law meant for this sort of technicality to take place. I think it meant that they were affecting the freedom of an individual. [] In this persons case his freedom was never affected in any way, shape, or form because he was originally held in custody for bail for $50,000. They dismissed and re-filed the case. He was held on the re-filing in custody for $50,000. He wore the jail uniform the entire time. He was in handcuffs the entire time. He was locked in a cell in the building the entire time. So it is not like he was being deprived of any sort of rights by the fact that he would have been technically or allegedly O.R.d on the case that ultimately got dismissed that he was requesting to be re-filed on and then held in bail. The same bail, in the same courthouse, with the same handcuffs, in the same jail outfit that he was wearing only hours earlier when the court technically, I guess, by order upon the stipulation of the parties, release him on his own recognizance.

Subdivision (c) of section 1388 provides that [i]f the defendant was released on his own recognizance on the original charge, he shall, if he appears as provided in subdivisions (a) and (b), be released on his own recognizance on the refiled charge unless it is shown that changed conditions require a different disposition, in which case bail shall be set at the discretion of the judge.

Real party concedes the issue and states, . . . the People have reconsidered our position and do not oppose the petition for a peremptory writ of mandate. We agree. McCones release in this case is not the result of fraud or clerical error, but a tactical decision by real party when it acquiesced that McCone should be released on his own recognizance. The statute is not conditioned on whether the defendant was originally released on his own recognizance, whether he was physically released from custody before the case is refiled, or whether the defendant is in the same jail uniform, same handcuffs, or the same cell when the case is refiled to be entitled to release. The plain language of the statute states that if the defendant is released on his own recognizance on the original charge, as McCone was in this case, the defendant shall be released on his own recognizance on the refiled charge unless it is shown that changed conditions require a different disposition.

For the foregoing reasons, the petition for a writ of mandate is GRANTED. Respondent court is ordered to vacate its order denying the petition for a writ of mandate in superior court case number M11821. The superior court is further ordered to grant the petition and order the court in case number 08WF0693 to vacate its order setting bail in the amount of $50,000 and to release petitioner on his own recognizance pursuant to Penal Code section 1388.

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^*Before Sills, P. J., Rylaarsdam, J., and Ikola, J.

^[1]All further references are to the Penal Code.