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Court of Appeals Enforces Humphrey

Posted by Dmitry Gorin | Jun 08, 2024

The appeals court continues to enforce Humphrey by requiring individualized determinations for pretrial detention and bail. Obtaining pretrial release for clients subject to a criminal arrest is crucial to preparing a defense to the criminal charges.

Humphrey Hearing

A defense counsel's first priority with a new criminal matter is immediately obtaining a client's release by posting a bail bond, if possible.

While out on bail, the client can more readily assist counsel in reviewing discovery, developing the case strategy and investigation, and assisting in trial preparation.

However, some state court clients are financially unable to post the required cash amount to obtain release. The Yedinak decision, discussed below, reinforces previous cases holding that a court may not allow a defendant to remain in custody solely because of financial inability to post bond absent an individualized risk determination.

In our firm's experience, most clients are released with bail conditions. Only clients facing the most serious criminal allegations and where there is substantial evidence of possible flight are subject to pretrial detention without bail.

Even in these situations, bail and release are obtainable after litigating the issue during a bail hearing. Our firm has secured bail and release for clients charged with murder, sexual abuse, drug trafficking, and even international child abduction, but only after satisfying the court on the issues of public safety and flight.

In re Humphrey

The 2021 California Supreme Court decision in In re Humphrey announced a "general framework" for bail determinations and pretrial detention orders, meaning denial of the ability for a defendant to post bail at all.

Under the California constitution, only defendants charged with certain violent felonies may ultimately be denied bail, absent other unusual circumstances such as threats to witnesses.

Before Humphrey, the common practice in most counties was to set cash bail in the amount established for a given offense in the county bail schedule. Humphrey found that a court's failure to consider the defendant's ability to pay in setting a bail amount violated the Constitution.

As relevant here, Humphrey also held that pretrial detention was authorized only after an individualized determination that no less restrictive conditions of release could adequately protect public safety or ensure the defendant's future appearance in court.

Yedinak v. Superior Court of Riverside County

The recent case of Yedinak v. Superior Court of Riverside County (4th App. Dist. No. E080685) illustrates how the Courts of Appeal continue to police the application of Humphrey in the trial courts.

Yedinak v. Superior Court of Riverside County

Yedinak was charged with two counts of felony child abuse based on allegations that he intentionally injured his six-week-old son. Those offenses meet the constitutional exception for violent felonies, allowing the trial court to consider outright pretrial detention at least.

At arraignment, it did not do so, however. Yedinak was released on cash bail and continued to make his court appearances as required for the next two years and nine months, during which time he lived in the community without incident.

Following the preliminary hearing at which probable cause for the charges was found and Yedinak was bound to the trial court, the judge reversed course and ordered Yedinak detained without bail.

The trial court reasoned that other children, not Yedinak's, would probably not be safe in the community if he remained out on pretrial release. Yedinak filed a petition for a writ of mandate.

Court of Appeals Identified Errors

In granting mandamus against the trial court, the Court of Appeals identified four separate errors. First, the trial court failed to make a finding that the evidence against Yedinak was sufficient for a jury to find him guilty after trial as required under the violent felony exception to the California constitution's bail guarantee.

Second, the court's public safety rationale was entirely speculative. Where the constitution requires a defendant to pose a substantial likelihood of great bodily harm, the trial judge found that the community would probably not be safe.

California Court of Appeals

The Court of Appeals noted that while the trial court paid lip service to the Humphrey decision, it only cited the severity of the charges.

While that is a relevant factor in making a detention decision, Humphrey also required consideration of other factors, including prior criminal history and history of compliance with court orders. Yedinak had no record and had complied with bail conditions for over two years before being remanded.

Third, the Court of Appeals rejected the government's invitation to infer that the trial court had made its findings with clear and convincing evidence as required by the Constitution, as the trial court failed to state the standard it was applying.

While affirming that no "magic words" are required, a trial court must make findings with sufficient clarity and specificity to permit a meaningful review of the court's evaluative process.

Finally, the trial court appeared to have considered only one less restrictive alternative to pretrial detention. It considered and rejected an order restricting Yedinak from having unsupervised contact with minors.

Humphrey requires that no less restrictive alternative be adequate to vindicate the state's compelling interests in safety and preventing flight, not that any one alternative be found inadequate.

As the Court of Appeals pointed out, considering multiple alternatives is especially important in a case such as Yedinak's, where the defendant had been out on bail for almost three years without incident.


In sum, Yedinak confirms that the Courts of Appeal continue to enforce the Humphrey decision against trial courts that either ignore the need for a specific, coherent, individualized public safety determination entirely or, as here, gesture at the Humphrey factors and the constitution's limitations on pretrial detention while ignoring essential requirements such as the clear and convincing evidence standard and the need to consider and find inadequate all less restrictive conditions.

Defense counsel will want to cite Yedinak, along with the other post-Humphrey decisions, as further support for the principle that a court may not simply short-cut the individualized risk determination demanded by the constitution, which results in pretrial detention of their client based on the inability to meet the financial demands of the county bail schedule.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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