Denial of Bail in a 3-Count Felony Identity Theft Case?

As the reader of this article may know, the posting of bail in California has been addressed frequently in the last few years, beginning with In re Humphrey (2021) 11 Cal. 5th 135 and several local ballot measures that proposed eliminating money bail (which failed) and recent emergency measures taken during the COVID-19 pandemic to reduce jail populations by reserving bail for only certain crimes.

It can be difficult to understand what the current state of the law on bail is now that the COVID-19 emergency procedures have largely ended in most counties and the Humphrey case has yet to be applied to other cases with fact patterns that test its holdings, leading other courts to explain the right to bail and the setting of bail with Humphrey in mind.

The following case does that.

In 2021, Gerald Kowalczyk was charged in San Mateo County Superior Court with three counts of felony identity theft (Penal Code § 530.5(a)), one count of misdemeanor identity theft (Penal Code § (c)(1)), one count of felony vandalism (Penal Code § 594(b)(1)) and one count of misdemeanor petty theft or lost property (Penal Code § 485). Mr. Kowalcyzk had “an extensive RAP sheet” according to the prosecutor assigned to the case.

The judge set bail at $75,000 and Mr. Kowalczyk did not post bail. Prior to his preliminary hearing, he filed a motion seeking release on his own recognizance (OR) with drug conditions and electronic monitoring (as endorsed by Humphrey) arguing that he posed no danger to the alleged victims or the community and was a minimal risk for nonappearance at future hearings.

At the hearing for reduction of bail and to allow OR release, the judge denied bail altogether. The judge explained that he was not worried about the safety of the victims of his crimes, but he was worried about the protection of the public. The judge observed that Mr. Kowalczyk was a “chronic reoffender whose RAP sheet documented 64 prior convictions and was over 100 pages long.” Among the prior convictions were at least four convictions for driving under the influence.

The judge also indicated its concern that Mr. Kowalczyk may abscond, noting his convictions spanned multiple states and multiple counties in California. Furthermore, Mr. Kowalczyk owned no home and had no job. The judge found that given his “level of recidivism,” there was no financial or nonfinancial conditions (such as suggested by Humphrey) that could accomplish the goal or protecting the public or ensuring Mr. Kowalczyk’s appearance at future court appearances.

After the case went to a preliminary hearing and another judge was assigned to the case, Mr. Kowalczyk renewed his motion for a reduction of bail or for OR release, contending he posed no risk to specific victims or the public and nonfinancial terms could be used to secure his appearance. He claimed the change in circumstance allowing him to renew the motion was that at the preliminary hearing, he was not held to answer on the felony vandalism charge.

The judge denied the motion, stating it declined to disturb the no bail order due to the absence of changed circumstances, suggesting dismissal of the felony vandalism charge was not a sufficient changed circumstance.

Shortly thereafter, Mr. Kowalczyk filed a petition for writ of habeas corpus in the First Appellate District Court, challenging the denial of bail on various grounds. The First Appellate District affirmed the trial court and Mr. Kowalczyk then appealed to the California Supreme Court.

The California Supreme Court granted review and transferred the matter back to the First Appellate District with directions to “issue an opinion that addresses which constitutional provision governs the denial of bail in noncapital cases – article I, section 12, subdivisions (b) and (c) (permitting bail and pretrial release in noncapital cases, stating “shall be released on bail by sufficient sureties”), or article I, section 28, subdivisions (f)(3) of the California Constitution (stating “may be released on bail by sufficient sureties”) – or, in the alternative, whether these provisions can be reconciled.”

The First Appellate District then issued an order to the litigants for further briefing on this issue, to reconcile the two sections of the California constitution, and received such briefs. Before issuing a ruling, however, the court was advised that the issue was moot because Mr. Kowalczyk entered into a plea bargain, resolving the case.

Nonetheless, the First Appellate District published an opinion stating that article I, section 28, subdivision (f)(3) should be first and foremost considered because it states that public safety and the safety of the victim shall be the primary considerations in bail and OR release determinations. This means that bail can be denied in noncapital cases, such as in Kowalczyk’s case when, as in his case, an extensive criminal history suggests it is not a question of whether the detained person will commit a new crime, but when.

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