In re Kowalczyk

IN THE SUPREME COURT OF
                CALIFORNIA

             In re GERALD JOHN KOWALCZYK
                     on Habeas Corpus.

                           S277910

            First Appellate District, Division Three
                           A162977

              San Mateo County Superior Court
                     21-SF-003700-A



                         April 30, 2026

Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Evans, and
Wiley* concurred.

Justice Groban filed a concurring opinion, in which Justices
Liu and Evans concurred.

Justice Wiley filed a concurring opinion.




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                       In re KOWALCZYK
                             S277910


             Opinion of the Court by Guerrero, C. J.


       Our state and federal laws generally presume that a
person charged with a crime will not be detained prior to trial.
The California Constitution has recognized a right to release on
bail since 1849. (Cal. Const. of 1849, art. I, § 7.) Our state
Constitution continues to guarantee such a right, providing that
a defendant “shall be released on bail by sufficient sureties,”
subject to specifically delineated exceptions. (Cal. Const., art. I,
§ 12 (section 12).) For noncapital offenses, these exceptions are
set forth in subdivisions (b) and (c) of section 12, which limit the
right to release on bail in certain felony cases involving violence,
sexual assault, or threats of great bodily harm where a court
makes required findings by “clear and convincing evidence” of a
“substantial likelihood” of specified harms if the defendant is
released. (§ 12, subds. (b), (c).) As it has since 1849, section 12
also prohibits the requiring of excessive bail.
       This court has previously addressed the operation of our
state’s system of bail and the implications of how bail
determinations have evolved over time. In In re Humphrey
(2021) 11 Cal.5th 135 (Humphrey), we recognized the reality in
California that many criminal defendants who might otherwise
be entitled to pretrial release were nonetheless being detained
“ ‘solely because’ the arrestee ‘lacked the resources’ to post bail.”
(Id. at p. 143.) In Humphrey, we held that the common practice
of detaining criminal defendants based solely on their financial
condition violated state and federal equal protection and due

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process principles. To protect against this violation, we held
that courts may not condition release on posting bail unless they
“consider an arrestee’s ability to pay alongside the efficacy of
less restrictive alternatives” to money bail. (Id. at p. 152.) We
also held that while constitutional principles did not
“categorically prohibit the government from ordering pretrial
detention, . . . ‘[i]n our society liberty is the norm, and detention
prior to trial or without trial is the carefully limited exception.’ ”
(Id. at p. 155.)
      We left some questions unresolved in reaching our holding
in Humphrey. We did not decide whether section 12 “can or
should be reconciled” with a more recently amended provision of
our Constitution, article I, section 28, subdivision (f)(3)
(section 28(f)(3)). (Humphrey, supra, 11 Cal.5th at p. 155, fn. 7.)
Section 28(f)(3) also pertains to bail and provides in part, “A
person may be released on bail by sufficient sureties” for
noncapital offenses. (Italics added.) It also mandates that, in
making bail determinations, “[p]ublic safety and the safety of
the victim shall be the primary considerations.”           (Ibid.)
Consistent with section 12, section 28(f)(3) also prohibits the
requiring of excessive bail.
      We granted review in this matter to consider the question
regarding the two state constitutional bail provisions (§ 12,
subds. (b), (c) and § 28(f)(3)) we reserved in Humphrey, and to
resolve a conflict that has arisen in the Courts of Appeal in the
wake of that decision concerning whether it is ever
constitutionally permissible for a trial court to set bail above a
defendant’s ability to pay.
      We conclude that section 12, subdivisions (b) and (c) and
section 28(f)(3) can be reconciled in the following manner: In


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                Opinion of the Court by Guerrero, C. J.


noncapital cases, a trial court has the authority to deny bail only
as to offenses specified in section 12, subdivisions (b) and (c).
Section 28(f)(3) refers to the possibility that a defendant “may”
be released on bail and mandates that a trial court place
primary importance on public and victim safety in making bail
determinations. However, section 28(f)(3) does not expand the
list of offenses for which release on bail may be denied beyond
those delineated in section 12, subdivisions (b) and (c).
      In response to the second question, we conclude that a
court must set pretrial bail in an amount that is reasonable
given a noncapital defendant’s constitutional right to release on
bail pending trial, the purposes of bail, and the defendant’s
individual circumstances — which, as a general matter, means
that bail must be set in an amount reasonably attainable for the
defendant. This response is largely dictated by our holding in
Humphrey that equal protection and due process principles
prohibit the detention of criminal defendants based solely on
their indigency. To this end, where pretrial detention is not
warranted under section 12, subdivisions (b) or (c), and a court
finds it necessary to condition pretrial release on posting
monetary bail, a court must set bail in a reasonable amount
based on an individualized assessment of the totality of the
circumstances. These circumstances include “the protection of
the public as well as the victim, the seriousness of the charged
offense, the arrestee’s previous criminal record and history of
compliance with court orders, and the likelihood that the
arrestee will appear at future court proceedings.” (Humphrey,
supra, 11 Cal.5th at p. 152.) The totality of the circumstances
also includes a defendant’s financial situation and resources
available to satisfy a monetary bail order. This does not mean
that bail may only be set in an amount that is easily affordable


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                Opinion of the Court by Guerrero, C. J.


or convenient to the defendant, or that the court must accept
unsupported, conclusory assertions of indigency or an inability
to pay. Rather, consistent with our constitutional framework
regarding bail determinations and our prior precedent, bail
must generally be set in an amount that is reasonably
attainable, in order to effectuate the defendant’s constitutional
right to pretrial release on bail.1
    I. FACTUAL AND PROCEDURAL BACKGROUND
       In January 2021, petitioner Gerald John Kowalczyk
entered a fast-food restaurant to buy a hamburger. Petitioner
tried to use six credit cards, three of which belonged to people
who had lost them. After the first five credit cards were
declined, petitioner discarded them on the floor. When the sixth
credit card was approved, petitioner received a hamburger. He
then sought a refund, which the restaurant manager declined to
issue. Petitioner left the restaurant without the hamburger and
was subsequently taken into custody. The People filed a
complaint charging petitioner with felony vandalism (Pen. Code,
§ 594, subd. (b)(1)), three counts of felony identity theft (id.,
§ 530.5, subd. (a)), one count of misdemeanor identity theft (id.,
§ 530.5, subd. (c)(1)), and one count of misdemeanor petty theft
of lost property (id., § 485). At his arraignment, the trial court
denied petitioner’s motion to be released from custody on his
own recognizance and set bail at $75,000.
    Petitioner filed a written motion seeking release on his
own recognizance subject to certain conditions, or, in the


1
       The general framework governing the setting of pretrial
bail which we outline in this opinion does not address marginal
hypothetical scenarios which are not before us (see, e.g., fn. 21,
post).


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alternative, a lowering of his bail. He argued that he was
indigent, did not pose a danger to the victims or the community,
and posed a minimal flight risk.
       At the hearing on the motion, the People requested that
bail remain set at $75,000.         The prosecutor referenced
petitioner’s lengthy criminal history and argued that “less
restrictive nonfinancial conditions of release” would not be
sufficient to protect the public.       The trial court denied
petitioner’s motion, noting that petitioner had suffered 64 prior
convictions and had failed to comply with supervision while
released on his own recognizance within the past five years.2
The court also stated it had concerns about whether petitioner
would appear at future court proceedings, noting that petitioner
had convictions in multiple counties and several states. Rather
than leaving bail at $75,000, the court entered a new order that
denied bail altogether and ordered petitioner detained.
     Thereafter, the trial court held a preliminary hearing and
held petitioner to answer on all counts except for the felony
vandalism count. During the preliminary hearing, petitioner
made an oral motion to set bail according to the bail schedule,
which the court denied. Shortly after the preliminary hearing,
the People filed an information alleging that petitioner had
committed the offenses for which the court had held him to
answer and that he had suffered a prior strike conviction.




2
      The record reflects that two of these prior convictions were
for felony attempted robbery and felony burglary, and the
majority of the remaining prior convictions were for
misdemeanors, including DUIs, drug possession, vandalism,
and nonviolent property theft.


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      Petitioner then filed an additional motion to set bail or to
release him on his own recognizance. The People opposed the
motion, and the trial court denied it after a hearing.
      Petitioner filed a petition for writ of habeas corpus in the
Court of Appeal challenging the denial of bail. The Court of
Appeal issued an order to show cause. While his petition was
pending, petitioner entered into a plea agreement under which
he pled no contest to one count of misdemeanor identity theft in
exchange for time served, resulting in his release from custody.
The People filed a motion to dismiss the petition as moot. The
Court of Appeal discharged the order to show cause and
dismissed the petition as moot.
      Petitioner sought review in this court. We granted his
petition for review and transferred the matter back to the Court
of Appeal with directions to vacate its dismissal order, conduct
further proceedings, and issue an opinion on the question that
we reserved in Humphrey, i.e., the potential reconciliation of the
bail provisions in our state Constitution.
      The Court of Appeal did so, and its published opinion also
addressed the issue of whether a trial court may set bail above
a defendant’s ability to pay. The Court of Appeal’s treatment of
this latter issue conflicted with the analysis in In re Brown
(2022) 76 Cal.App.5th 296 (Brown). (See In re Kowalczyk (2022)
85 Cal.App.5th 667, 690 (Kowalczyk).)3 We granted review


3
      In its disposition, the Court of Appeal again dismissed the
petition for writ of habeas corpus as moot. (Kowalczyk, supra,
85 Cal.App.5th at p. 692.) While we agree with the Court of
Appeal that the petition is moot, we address the merits of the
petition because it “raises important issues capable of repetition



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                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


limited to the following two issues: (1) Which constitutional
provision governs the denial of bail in noncapital cases —
section 12, subdivisions (b) and (c), or section 28(f)(3), of the
California Constitution — or, in the alternative, can these
provisions be reconciled? (2) May a trial court ever set pretrial
bail above a defendant’s ability to pay?
 II. OVERVIEW OF BAIL PROVISIONS IN OUR STATE
                CONSTITUTION
      Since before statehood, the California Constitution has
guaranteed a right to pretrial bail for most defendants.4 That
right remained essentially unchanged for nearly 125 years.
Article I, section 7 of the California Constitution of 1849
provided: “All persons shall be bailable, by sufficient sureties,
unless for capital offenses, when the proof is evident or the
presumption great.”         Article I, section 6 of that same
Constitution provided:         “Excessive bail shall not be
required . . . .” The two provisions were consolidated in article I,
section 6 of the Constitution of 1879.
      Historically, this court interpreted these provisions as
providing criminal defendants with a right to pretrial release
subject to very limited exceptions. In In re Underwood (1973)
9 Cal.3d 345, 350 (Underwood), we explained that the right to


but likely to evade review.” (Conservatorship of Eric B. (2022)
12 Cal.5th 1085, 1094, fn. 2; see In re White (2020) 9 Cal.5th
455, 458, fn. 1 (White) [explaining that, in light of the temporary
nature of pretrial detention, we would exercise our discretion to
consider a moot question pertaining to a defendant’s bail as an
important recurring issue likely to evade review].)
4
      The issues in this case pertain to pretrial bail. Different
principles apply to bail pending appeal. (See, e.g., In re Podesto
(1976) 15 Cal.3d 921, 925.)


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pretrial release was guaranteed for all noncapital defendants.
We further explained that, under the bail provisions as they
existed at the time, the purpose of setting bail was solely to
secure a defendant’s appearance in court, not to impose
punishment or protect public safety. (Id. at p. 348.) As such, we
disapproved of court decisions that had read a “ ‘public safety’
exception” into the general right to release on bail. (Ibid.)
      This was the state of the law when voters enacted the first
modern amendments to the bail provisions through the passage
of Proposition 7 in 1974. Proposition 7 relocated the bail
provisions to section 12 and added a sentence specifying that, as
an alternative to setting bail, a trial court has discretion to
release a person on his or her own recognizance. (See Ballot
Pamp., Gen. Elec. (Nov. 5, 1974) text of Prop. 7, § 22, p. 71 [“A
person shall be released on bail by sufficient sureties, except for
capital crimes when the facts are evident or the presumption
great. Excessive bail may not be required. [¶] A person may be
released on his or her own recognizance in the court’s
discretion”].)
      Over the next few decades, the constitutional landscape
governing bail in California became considerably more dynamic.
In June of 1982, the voters passed two “competing initiative
measure[s] on the same ballot” that contained provisions
pertaining to bail — Propositions 4 and 8 (Primary Elec.
(June 8, 1982)). (People v. Standish (2006) 38 Cal.4th 858, 875
(Standish).) The voters enacted these provisions against the
backdrop of our decision in Underwood, which held there was no
public safety exception to a noncapital defendant’s right to bail.
(Underwood, supra, 9 Cal.3d at p. 348.) Proposition 4 and
Proposition 8 both addressed public safety concerns, but in
different ways.

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                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


       Proposition 4 restructured section 12, adding two
categories of defendants (aside from capital defendants) who
could be denied bail altogether under certain circumstances:
those charged with violent felonies (see § 12, subd. (b)) and those
charged with felonies who had threatened violence (see § 12,
subd. (c)). (Ballot Pamp., Primary Elec. (June 8, 1982) text of
Prop. 4, p. 17 (1982 Ballot Pamphlet).) Proposition 4 also added
language to section 12 providing that, “In fixing the amount of
bail, the court shall take into consideration the seriousness of
the offense charged, the previous criminal record of the
defendant, and the probability of his or her appearing at the
trial or hearing of the case.” (1982 Ballot Pamp., at p. 17.) In
the 1982 Ballot Pamphlet for Proposition 4, the analysis
prepared by the Legislative Analyst informed voters that, under
then-current law, “courts may deny bail only for those who are
accused of crimes punishable by death” and that Proposition 4
would “broaden the circumstances under which the courts may
deny bail” to those cases where defendants were charged with
noncapital felonies under the circumstances described above.
(1982 Ballot Pamp., at p. 16.)
      Proposition 8, known as the “Victims’ Bill of Rights” (1982
Ballot Pamp., supra, text of Prop. 8, § 1, p. 33), enacted reforms
pertaining to numerous criminal justice matters. With respect
to bail, rather than amend section 12, as Proposition 4 had done,
Proposition 8 proposed to repeal section 12 in its entirety and to
add what is now former section 28, subdivision (e) to the state
Constitution.5 (See 1982 Ballot Pamp., supra, text of Prop. 8,

5
     Former section 28, subdivision (e) provided:  “Public
Safety Bail. A person may be released on bail by sufficient



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§§ 2, 3, p. 33.) Further, in contrast to section 12’s mandate that
a defendant “shall be released on bail by sufficient sureties”
(1982 Ballot Pamp., supra, text of Prop. 4, p. 17, italics added),
former section 28, subdivision (e) provided that a “person may
be released on bail by sufficient sureties, except for capital
crimes when the facts are evident or the presumption great.”
(See 1982 Ballot Pamp., text of Prop. 8, p. 33, italics added.)
Like section 12, former section 28, subdivision (e) provided that
excessive bail could not be required and listed factors for trial
courts to consider in setting bail; however, former section 28,
subdivision (e) included an additional factor for courts to
consider in setting bail, namely “the protection of the public,”
and also instructed that this be the “primary consideration.”
(See 1982 Ballot Pamp., at p. 33.)



sureties, except for capital crimes when the facts are evident or
the presumption great. Excessive bail may not be required. In
setting, reducing or denying bail, the 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
the trial or hearing of the case. Public safety shall be the
primary consideration. [¶] A person may be released on his or
her own recognizance in the court’s discretion, subject to the
same factors considered in setting bail. However, no person
charged with the commission of any serious felony shall be
released on his or her own recognizance. [¶] Before any person
arrested for a serious felony may be released on bail, a hearing
may be held before the magistrate or judge, and the prosecuting
attorney shall be given notice and reasonable opportunity to be
heard on the matter. [¶] When a judge or magistrate grants or
denies bail or release on a person’s own recognizance, the
reasons for that decision shall be stated in the record and
included in the court’s minutes.” (1982 Ballot Pamp., supra, text
of Prop. 8, § 3, p. 33.)


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                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


      In 1994, the voters enacted Proposition 189, which once
more amended section 12 by expanding the exception contained
in subdivision (b) of that section to include persons who have
committed “felony sexual assault offenses on another person”
under specified circumstances. (Ballot Pamp., Gen. Elec.
(Nov. 8, 1994) text of Prop. 189, p. 18, italics omitted (1994
Ballot Pamphlet).)6
      Then in In re York (1995) 9 Cal.4th 1133, in the course of
considering whether courts could impose conditions on the
release of persons on their own recognizance without violating

6
       As amended last by Proposition 189, section 12 now
provides:
       “A person shall be released on bail by sufficient sureties,
except for:
       “(a) Capital crimes when the facts are evident or the
presumption great;
       “(b) Felony offenses involving acts of violence on another
person, or felony sexual assault offenses on another person,
when the facts are evident or the presumption great and the
court finds based upon clear and convincing evidence that there
is a substantial likelihood the person’s release would result in
great bodily harm to others; or
       “(c) Felony offenses when the facts are evident or the
presumption great and the court finds based on clear and
convincing evidence that the person has threatened another
with great bodily harm and that there is a substantial likelihood
that the person would carry out the threat if released.
       “Excessive bail may not be required. In fixing the amount
of bail, the court shall take into consideration the seriousness of
the offense charged, the previous criminal record of the
defendant, and the probability of his or her appearing at the
trial or hearing of the case.
       “A person may be released on his or her own recognizance
in the court’s discretion.”


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                 Opinion of the Court by Guerrero, C. J.


various statutory and constitutional provisions (see id. at
p. 1137), we considered the legal validity of the constitutional
provisions pertaining to bail and own recognizance release
enacted through Propositions 4 and 8. After noting that the two
propositions were enacted “in the same election,” we explained
that, “[b]ecause Proposition 4 received more votes than did
Proposition 8, the bail and [own recognizance] release provisions
contained in Proposition 4 are deemed to prevail over those set
forth in Proposition 8.” (York, at p. 1140, fn. 4, citing, inter alia,
Cal. Const., art. II, § 10, subd. (b).)7
      A little more than a decade later, in Standish, supra,
38 Cal.4th at pages 877–878, we “adhere[d] to the view
[provided in York] that the amendments to article I, section 12
proposed by Proposition 4 took effect, and that the provisions of
article I, [former] section 28, subdivision (e) proposed by
Proposition 8 did not take effect.” In explaining our reasoning,
we “drew a distinction between the situation of two competing
or alternative initiative measures, only one of which could
prevail, and that of two measures presented to the voters as
complementary or supplementary.” (Id. at p. 876.) We noted
that Propositions 4 and 8 “were not presented to the voters as
complementary.” (Standish, at p. 877.) For example, the
opponents of Proposition 8 expressly contrasted it to
Proposition 4, warning that Proposition 8 would enact “radical
changes,” including eliminating the right to bail. (Standish, at
p. 877.) Similarly, we observed, based on ballot materials, the

7
     California      Constitution       article II,    section 10,
subdivision (b) provides, “If provisions of two or more measures
approved at the same election conflict, the provisions of the
measure receiving the highest number of affirmative votes shall
prevail.”


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“[p]roponents of Proposition 8 would have eliminated the
general right to bail, substituting a provision granting courts
greater discretion to deny bail.” (Ibid.)
      In Standish, we further reasoned, “A section-by-section
comparison of Propositions 4 and 8 demonstrates the direct
conflict between the two measures.”           (Standish, supra,
38 Cal.4th at p. 877.) First, “Proposition 8 would have repealed
California Constitution, article I, section 12 [citation], while
Proposition 4 amended that provision.” (Ibid.) In addition,
“Proposition 4 stated that all accused persons ‘shall,’ be
admitted to bail, subject to certain limitations [citation], while
Proposition 8 would have rendered bail discretionary in all
cases . . . .” (Ibid.) Because the two propositions were directly
at odds, and Proposition 4 received a greater number of votes,
we again concluded, as we had in York, that Proposition 8’s
addition of former section 28, subdivision (e) never took effect.
(Standish, at p. 878.)
      In 2008, the voters adopted another proposition containing
constitutional provisions pertaining to bail, this time by passing
Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s
Law.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2008) text
of Prop. 9, § 1, p. 128 (Voter Information Guide for
Proposition 9).) Proposition 9 contains the second of the
constitutional provisions governing bail that we consider here,
section 28(f)(3).8 As did former section 28, subdivision (e),

8
      Proposition 9 also amended section 28 by granting crime
victims     various     rights,     including,      in section 28,
subdivision (b)(3), having “the safety of the victim and the
victim’s family considered in fixing the amount of bail and
release conditions for the defendant.” (Voter Information Guide
for Prop. 9, supra, text of Prop. 9, § 4.1, p. 129.)


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section 28(f)(3) provides that “[a] person may be released on bail
by sufficient sureties.” (Italics added.) Section 28(f)(3) also
mandates that, in “setting, reducing or denying bail,” courts
must take into consideration various factors and that “[p]ublic
safety and the safety of the victim shall be the primary
considerations.” (Ibid.)9 Unlike Proposition 8 in 1982, however,
Proposition 9 did not expressly repeal section 12.
      On several occasions after the passage of Proposition 9, we
have reserved the question of “how the two constitutional
provisions addressing the denial of bail [sections 12 and 28(f)(3)]
can or should be reconciled.” (In re Harris (2024) 16 Cal.5th 292,


9
       Section 28(f)(3) provides:
       “Public Safety Bail. A person may be released on bail by
sufficient sureties, except for capital crimes when the facts are
evident or the presumption great. Excessive bail may not be
required. In setting, reducing or denying bail, the judge or
magistrate shall take into consideration the protection of the
public, the safety of the victim, the seriousness of the offense
charged, the previous criminal record of the defendant, and the
probability of his or her appearing at the trial or hearing of the
case. Public safety and the safety of the victim shall be the
primary considerations.
       “A person may be released on his or her own recognizance
in the court’s discretion, subject to the same factors considered
in setting bail.
       “Before any person arrested for a serious felony may be
released on bail, a hearing may be held before the magistrate or
judge, and the prosecuting attorney and the victim shall be
given notice and reasonable opportunity to be heard on the
matter.
       “When a judge or magistrate grants or denies bail or
release on a person’s own recognizance, the reasons for that
decision shall be stated in the record and included in the court’s
minutes.”


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308, fn. 2 (Harris); see Humphrey, supra, 11 Cal.5th at p. 155,
White, supra, 9 Cal.5th at pp. 470–471.) Pursuant to our
transfer order, the Court of Appeal here considered that
question, concluding that the two provisions “are easily
reconciled.” (Kowalczyk, supra, 85 Cal.App.5th at p. 685.)
According to the Court of Appeal, “the most natural reading of
article I, section 28(f)(3)’s phrase, ‘[a] person may be released on
bail by sufficient sureties’ ” is that “a person may or may not be
released on bail, consistent with the dictates in article I,
section 12 that a person is generally entitled to bail release in
noncapital cases except under the circumstances articulated in
article I, section 12, subdivisions (b) and (c).” (Id. at pp. 683–
684.)
      Finally, in the wake of our decision in Humphrey,
concluding that it violates state and federal equal protection and
due process principles to detain defendants solely because they
lack financial resources (Humphrey, supra, 11 Cal.5th at
pp. 149–150), the Courts of Appeal have reached conflicting
decisions as to whether it is permissible to set bail above a
defendant’s ability to pay.           (Compare Brown, supra,
76 Cal.App.5th at p. 309 [“If the court finds money bail is
reasonably necessary to ensure [the petitioner’s] future court
appearances and the safety of the public and the victims, then
bail must be set for an amount [the petitioner] can afford”] with
Kowalczyk, supra, 85 Cal.App.5th at pp. 691–692 [disagreeing
with Brown and stating, “Though excessive bail cannot be
imposed, courts are not required to set bail at an amount a
defendant will necessarily be able to afford”].)




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                       III. DISCUSSION
      A. The Proper Interpretation of Section 12,
         Subdivisions (b) and (c) and Section 28(f)(3)
      Petitioner maintains that section 12, subdivisions (b) and
(c) and section 28(f)(3) can be reconciled. In petitioner’s view,
bail can only be denied outright in noncapital cases to those
eligible for pretrial detention under section 12, subdivisions (b)
and (c). Section 28(f)(3), according to petitioner, refers to the
possibility that a defendant may be released on bail and
mandates that courts regard public and victim safety as the
primary considerations when making bail determinations.
      The People contend that section 12, subdivisions (b) and
(c) and section 28(f)(3) conflict and that section 28(f)(3)
prevails.10 In the People’s view, the voters’ enactment of
section 28(f)(3) provides trial courts with “broader discretion” to
deny bail beyond the “express exceptions” to the right to bail
provided in section 12, subdivisions (b) and (c).
      We agree with petitioner.
         1. Principles of constitutional interpretation
      In interpreting section 12, subdivisions (b) and (c) and
section 28(f)(3), we apply principles of interpretation “similar to
those governing statutory construction.”              (Professional
Engineers in California Government v. Kempton (2007)
40 Cal.4th 1016, 1037 (Professional Engineers).)            “ ‘[O]ur
paramount task is to ascertain the intent of those who enacted
[the constitutional provisions]. [Citation.] To determine that

10
      The People are represented by the District Attorney of San
Mateo County. The Attorney General does not represent the
People in this case and has not filed an amicus curiae brief in
this court.


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                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


intent, we “look first to the language of the constitutional text,
giving the words their ordinary meaning.” [Citation.] If the
language is clear, there is no need for construction. [Citation.]
If the language is ambiguous, however, we consider extrinsic
evidence of the enacting body’s intent.’ ” (Ibid.) “Similarly, ‘[i]n
interpreting a voter initiative . . . , we apply the same principles
that govern statutory construction. [Citation.] Thus, “we turn
first to the language of the [initiative], giving the words their
ordinary meaning.” . . .’ ‘Absent ambiguity, we presume that
the voters intend the meaning apparent on the face of an
initiative measure [citation] and the court may not add to the
statute or rewrite it to conform to an assumed intent that is not
apparent in its language.’ [Citation.] Where there is ambiguity
in the language of the measure, ‘[b]allot summaries and
arguments may be considered when determining the voters’
intent and understanding of a ballot measure.’ ” (Ibid.)
      Two     additional     well-established    principles     of
interpretation are particularly relevant to our resolution of this
case. First, “ ‘in the absence of irreconcilable conflict among
their various parts, [constitutional provisions] must be
harmonized and construed to give effect to all parts.’ ” (County
of Los Angeles v. State of California (1987) 43 Cal.3d 46, 58; see
Greene v. Marin County Flood Control & Water Conservation
Dist. (2010) 49 Cal.4th 277, 290 [“ ‘[r]udimentary principles of
construction dictate that when constitutional provisions can
reasonably be construed so as to avoid conflict, such a
construction should be adopted’ ”].)
       Second, and relatedly, we must seek to “avoid the implied
repeal of one provision by another.” (City and County of San
Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 563.)
“ ‘So strong is the presumption against implied repeals’ that we

                                  17
                          In re KOWALCZYK
                 Opinion of the Court by Guerrero, C. J.


will conclude one constitutional provision impliedly repeals
another only when the more recently enacted of two provisions
constitutes a revision of the entire subject addressed by the
provisions.” (Ibid.) An implied repeal will not be found unless
“ ‘(1) “the two acts are so inconsistent that there is no possibility
of concurrent operation,” or (2) “the later provision gives
undebatable evidence of an intent to supersede the earlier”
provision.’ ” (Wishnev v. The Northwestern Mutual Life Ins. Co.
(2019) 8 Cal.5th 199, 211 (Wishnev).)
         2. Section 12, subdivisions (b) and (c) and
            section 28(f)(3) can be harmonized
       According to the People, the following text of the two
constitutional provisions pertaining to bail is in conflict:
section 12 states that a person “shall be released on bail by
sufficient sureties,” while section 28(f)(3) provides that a person
“may be released on bail by sufficient sureties.” (Italics added.)
       The People reason that “section 12’s mandate that bail
‘shall’ be set for all but the most violent offenders [stands] in
direct conflict with section 28’s grant of discretion to trial courts
to set or deny bail.” The People further claim that, through their
use of the word “may” in section 28(f)(3), the voters intended to
vest trial courts with discretion to deny bail outside of
exceptions to the right to release on bail set forth in section 12’s
subdivisions.
      The People’s view is consistent with the fact that “ ‘the
word “shall” . . . is ordinarily deemed mandatory and “may”
permissive.’ ” (Standish, supra, 38 Cal.4th at p. 869.) However,
as the Court of Appeal recognized, “ ‘[m]ay’ is a term that also
refers to an expression of possibility.” (Kowalczyk, supra,
85 Cal.App.5th at p. 684, citing Black’s Law Dict. (11th ed. 2019)


                                   18
                          In re KOWALCZYK
                 Opinion of the Court by Guerrero, C. J.


p. 1172, col. 2; see, e.g., Saint Francis Memorial Hospital v.
State Dept. of Public Health (2020) 9 Cal.5th 710, 724 [“ ‘may’
here means possibility, and not just permission”].) Thus, the
phrase “[a] person may be released on bail by sufficient sureties”
in section 28(f)(3) may simply refer to the possibility that a
defendant may or may not be released on bail, without
authorizing a trial court to deny bail with respect to offenses
other than those described in section 12.
      Our case law recognizes that the word “ ‘[m]ay’ is a
common grammatical term encompassing multiple meanings”
such that its connotation can be ambiguous. (People v. Ledesma
(1997) 16 Cal.4th 90, 95 [stating that in light of its “definitional
diversity, it is impossible to conclude with sufficient certainty
what the Legislature intended by its use of ‘may’ if we consider
the word in isolation”].) “We must therefore focus more broadly
on the language, context, and history” (ibid.) to understand the
way the voters used the word “may” in section 28(f)(3).
      We first consider the historical context. As noted, ante,
the right to release on bail, as currently codified in section 12,
has been a constitutional right since our state’s founding. (Cal.
Const. of 1849, art. I, § 7; see People v. Tinder (1862) 19 Cal. 539,
542 (Tinder) [“The Constitution [of 1849] . . . secures . . . the
right to bail in all cases, except when charged with a capital
offense, and even then, unless the proof of guilt is evident or the
presumption of it is great”].) Such a right was included in our
state’s earliest Constitution “to abrogate the common law rule
that bail was a matter of judicial discretion by conferring an
absolute right to bail except in a narrow class of cases.” (In re
Law (1973) 10 Cal.3d 21, 25 (Law); see Underwood, supra,
9 Cal.3d at pp. 349–350 [“Our constitutional language expressly
providing that all persons shall be bailable except for a capital

                                   19
                          In re KOWALCZYK
                 Opinion of the Court by Guerrero, C. J.


offense was consciously added to the ‘no excessive bail’ language
adopted from the Eighth Amendment [of the federal
Constitution] in order to make clear that, unlike the federal
rule, all except the one class of defendants were to be bailable”].)
      And yet, unlike in 1982 when the voters were asked to
repeal article I, section 12,11 nothing in Proposition 9, including
section 28(f)(3), expressly repeals “the right to pretrial release
on bail” guaranteed by section 12. (Harris, supra, 16 Cal.5th at
p. 301.) We are reluctant to conclude that the voters who passed
Proposition 9, without enacting any text directly repealing the
long-standing right to bail contained in section 12, intended to
authorize courts to exercise broad “judicial discretion” in
deciding whether to grant bail, given that such discretion has
never been part of our state’s law. (Law, supra, 10 Cal.3d at
p. 25.)
      The text and structure of section 12 further suggest that
we should be cautious of finding an intent to create an exception
to the right to release on bail outside of section 12’s provisions.
Section 12 first prescribes a broad right to release on bail and
then identifies, in list format, specific exceptions from that right.
(§ 12 [“A person shall be released on bail by sufficient sureties,
except for: [subds. (a)–(c)]”.) Under the interpretive canon of
expressio unius est exclusio alterius — “ ‘the expression of one
thing in a statute ordinarily implies the exclusion of other
things’ ” (Needham v. Superior Court (2024) 16 Cal.5th 333,
366) — we should not lightly infer an intent to create additional
exceptions to the right to release on bail outside of those

11
      Standish, supra, 38 Cal.4th at page 874; see 1982 Ballot
Pamphlet, supra, text of Proposition 8, section 2, page 33
(“Section 12 of Article I of the Constitution is repealed”).


                                   20
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


expressly listed in section 12. As this court explained in Lopez
v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 635–636 (Lopez),
“ ‘if exemptions are specified in a statute,[12] we may not imply
additional exemptions unless there is a clear legislative intent
to the contrary.’ ” While “the expressio unius inference properly
arises only when there is reason to believe a[n] . . . omission was
intentional, such as when the [provision] contains a ‘specific
list,’ ” here “there is [such] a list” provided in subdivisions (a),
(b) and (c) of section 12. (Lopez, at p. 636.)
       Nor does Proposition 9 establish a “clear . . . intent”
(Lopez, supra, 5 Cal.5th at p. 636) to broaden section 12’s list of
exceptions to the right to release on bail. To the contrary, the
language of section 12 and section 28(f)(3) suggests the voters
intended for the two provisions to operate together. Section 12
defines the circumstances under which a defendant is eligible
for a denial of bail. Specifically, as petitioner observes,
section 12 “provides a series of procedural requirements” that
must be satisfied before bail may be denied. (See § 12, subds.
(b), (c) [listing specific categories of offenses and standards of
proof].) In contrast, section 28(f)(3) lacks any such provisions.
      Thus, in Humphrey, rather than concluding that
section 28(f)(3) operated as a stand-alone provision authorizing
the denial of bail, we held that trial courts are to apply
section 12 in conjunction with section 28(f)(3) in “ ‘setting,
reducing or denying bail.’ ” (Humphrey, supra, 11 Cal.5th at
p. 152.) Specifically, we explained that a court is to apply the
standard of proof provided in section 12 when considering

12
      The canon is applicable when interpreting constitutional
as well as statutory provisions. (See Howard Jarvis Taxpayers
Assn. v. Padilla (2016) 62 Cal.4th 486, 514.)


                                  21
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


whether public or victim safety concerns referred to in
section 28(f)(3) support pretrial detention. (See Humphrey, at
p. 153 [“look[ing] to the standard of proof set forth in article I,
section 12 of the California Constitution” for determining
whether “our Constitution . . . bar[s] a court from causing an
arrestee to be detained pretrial based on concerns regarding the
safety of the public or the victim” under § 28(f)(3)].) The
Humphrey court’s reliance on section 12’s standard of proof in
explaining the proper application of section 28(f)(3) is consistent
with the view that the voters did not repeal section 12 in
enacting section 28(f)(3).
      Moreover, if the voters’ intent in enacting Proposition 9
was to create a new category of circumstances under which the
right to release on bail in section 12 was to be inapplicable, the
natural place to have evinced such intent would have been in
section 12 itself. Indeed, when the voters wanted to limit the
right to release on bail provided in section 12 in the past, they
did just that — i.e., amended section 12. For example, in 1982,
in enacting Proposition 4, the voters amended section 12 to add
subdivisions (b) and (c), limiting the right to bail for those
charged with violent felonies or those charged with felonies who
had threatened violence. (1982 Ballot Pamp., supra, text of
Prop. 4, p. 17.) Similarly, in 1994, in adopting Proposition 189,
the voters amended section 12, subdivision (b) to limit the right
to bail for those charged with felony sexual assault offenses
under certain circumstances. (1994 Ballot Pamp., supra, text of
Prop. 189, p. 18.) Thus, the fact that, in 2008, when the voters
passed Proposition 9 and enacted section 28(f)(3), they did not
expressly amend section 12, suggests that we should be wary of
reading Proposition 9 as impliedly amending that provision.



                                  22
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


      Furthermore, as noted ante, we will not find an implied
repeal unless there is either “ ‘ “no possibility of concurrent
operation” ’ ” of the two laws or “ ‘ “undebatable evidence of an
intent to supersede the earlier” provision.’ ” (Wishnev, supra,
8 Cal.5th at p. 211.) Neither circumstance is present here.
      First, the Court of Appeal’s harmonization of section 12
and section 28(f)(3) makes clear that concurrent operation is
possible. (Kowalczyk, supra, 85 Cal.App.5th at p. 683.) As the
Court of Appeal explained, sections 12 and 28(f)(3) can be
reconciled by “interpret[ing] the first sentence of article I,
section 28(f)(3) as a declarative statement . . . [of] existing law”
(Kowalczyk, at p. 686), at least for noncapital cases. (See id. at
p. 684 [§ 28(f)(3)’s phrasing “acknowledges that a person may or
may not be released on bail, consistent with the dictates in
article I, section 12 that a person is generally entitled to bail
release in noncapital cases”].)        “Under this construction,
article I, section 12’s general right to bail remains intact, while
full effect is accorded to section 28(f)(3)’s mandate that the
rights of crime victims be respected in bail and [own
recognizance] release determinations.” (Id. at p. 686; see Nunez-
Dosangos v. Superior Court (2024) 107 Cal.App.5th 283, 291
[applying Kowalczyk].)13
      In addition, far from “ ‘ “undebatable evidence” ’ ” of an
intent to supersede (Wishnev, supra, 8 Cal.5th at p. 211), there
is nothing in Proposition 9’s ballot materials that evinces the
voters’ intent to have the enactment of section 28(f)(3) repeal
section 12’s right to bail. The Attorney General’s official title

13
      Notwithstanding their contrary interpretation, the People
acknowledge that the Court of Appeal’s reconciliation of the
constitutional provisions is “a reasonable outcome.”


                                  23
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


and summary mentioned the word “bail” just twice, and never
referred to the circumstances under which a court was
authorized to deny bail.14 As the Court of Appeal correctly
observed, “the Legislative Analyst offered no view that the
measure would completely eliminate the historic right to bail
which has existed in the California Constitution since 1849. Nor
did the arguments for and against Proposition 9 suggest that the
measure would expand judicial discretion to deny bail release
beyond the exceptions in article I, section 12, subdivisions (b)
and (c).” (Kowalczyk, supra, 85 Cal.App.5th at p. 685, citing
Voter Information Guide for Prop. 9, supra, argument in favor
of Prop. 9 and rebuttal to argument in favor of Prop. 9, pp. 62–
63.)
     For all these reasons, we conclude that section 28(f)(3)
does not abrogate, and instead may be harmonized with, the
contours of the right to release on bail set forth in section 12.
        3. Contrary arguments are unpersuasive
     The People and their supporting amici curiae offer several
contrary arguments, but we find none to be persuasive. First,
while acknowledging that “Proposition 9 did not contain an
express provision to repeal section 12,” the People argue that
Proposition 9 impliedly repealed section 12’s right to bail based
on our holding in Standish that section 12 and former


14
      The two references to bail in the Attorney General’s
summary of the proposition were as follows: “[r]equires
notification to victim and opportunity for input during phases of
criminal justice process, including bail, pleas, sentencing and
parole,” and “[e]stablishes victim safety as consideration in
determining bail or release on parole.” (Voter Information
Guide for Prop. 9, supra, official title and summary of Prop. 9,
p. 58.)


                                  24
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


section 28, subdivision (e) were in “direct conflict” and could not
be reconciled. (Standish, supra, 38 Cal.4th at p. 877; see id. at
pp. 874–878.)
       Our reasoning in Standish does not control here. Unlike
in Standish, we are not asked to consider whether two different
propositions enacted at the same election are complementary or
competing. (Standish, supra, 38 Cal.4th at p. 876.) Rather, we
must consider whether section 12 was impliedly repealed by
Proposition 9, which was enacted independently by the voters in
2008 more than a decade after the voters last amended
section 12 in 1994. And, most importantly, unlike in Standish,
we are not interpreting a proposition that proposed to expressly
repeal section 12. Given Proposition 8’s proposed express repeal
of section 12, the Standish court reasonably interpreted
Proposition 8’s use of “may” in the permissive sense of making
“bail discretionary in all cases.” (Standish, at p. 877.) However,
Standish provides little insight into how we should understand
section 28(f)(3)’s use of the phrase “may be released on bail”
(italics added), in light of section 12’s continuing guarantee that
a defendant “shall be released on bail” (italics added).15
      Nor are we persuaded by the People’s argument that we
should find an implied repeal of section 12 because “[t]he timing
of Proposition 9” suggests that the proposition “ ‘constitute[d] a
revision of the entire subject.’ ”        (Quoting Professional
Engineers, supra, 40 Cal.4th at p. 1038.) While Proposition 9
was enacted approximately two years after this court’s decision
in Standish, none of the Proposition 9 ballot materials
mentioned Standish or suggested that the initiative was a

15
      Nothing in the ballot materials for Proposition 9 explains
the reason for the use of the word “may” in section 28(f)(3).


                                  25
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


response to that case.16 The timing of the enactment of
Proposition 9 is plainly an insufficient basis to conclude that the
proposition impliedly repealed section 12.
       The People additionally raise the following argument:
“Because section 28(f)(3) begins with a complete prohibition of
bail for the most serious crimes, the term, ‘may,’ expresses only
a possible deviation from that most restrictive position. In
essence, the operative clause states that bail is sometimes
prohibited and never guaranteed,” and that “[s]uch a reading
places section 28(f)(3) in conflict with section 12.”        This
argument, too, is unpersuasive.
      To begin with, the first sentence of section 28(f)(3) does not
expressly prohibit the granting of bail for any noncapital crimes.
Instead, it affirmatively states when bail may be granted: “A
person may be released on bail by sufficient sureties, except for
capital crimes when the facts are evident or the presumption
great.” (Ibid.) Further, any prohibition on the granting of bail
in capital cases contained in section 28(f)(3), arising by negative
implication, occurs only “when the facts are evident or the

16
      The Court of Appeal noted “the ballot materials
accompanying Proposition 9 made no mention of [this court’s]
decision [in Standish, supra, 38 Cal.4th 858] holding that
Proposition 8’s similar bail provisions were inoperative; nor did
the materials otherwise indicate the voters were being asked to
‘re-enact’ or effectuate the inoperative bail provisions.”
(Kowalczyk, supra, 85 Cal.App.5th at p. 680.) While the Court
of Appeal concluded that these omissions were not sufficient to
deem section 28(f)(3) inoperative (see Kowalczyk, at p. 680) — a
conclusion that petitioner does not challenge in this court and
we thus have no occasion to consider — they further reinforce
the conclusion that there is nothing in the ballot materials
accompanying Proposition 9 suggestive of an intent to reenact
Proposition 8’s repeal of section 12.


                                  26
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


presumption great.” Thus, we disagree that section 28(f)(3)
establishes a “complete prohibition of bail for the most serious
crimes.”
      Moreover, we have long interpreted section 12 as
providing no barrier to legislation prohibiting the granting of
bail in capital cases where the proof is evident or the
presumption great. As this court explained in 1862, “The
admission to bail in capital cases, where the proof is evident or
the presumption is great, may be made a matter of discretion,
and may be forbidden by legislation . . . .” (Tinder, supra,
19 Cal. at p. 542, italics added.) Even if we were to accept the
People’s argument that upon its enactment, current
section 28(f)(3) prohibits the granting of bail in certain capital
cases, where section 12 does not guarantee a right to bail, it does
not follow that section 28(f)(3) permits the denial of bail in
instances in which section 12 does guarantee the right to bail.17
      The People also maintain that we should adopt their
interpretation of section 28(f)(3) because it is consistent with
Proposition 9’s focus on ensuring victims’ rights. However, our


17
      As a separate textual argument, the People briefly
reference a provision in Proposition 9 that states, “It is the
intent of the People of the State of California in enacting this act
that if any provision in this act conflicts with an existing
provision of law which provides for greater rights of victims of
crime, the latter provision shall apply.” (Voter Information
Guide for Prop. 9, supra, text of Prop. 9, § 7, p. 132, italics
added.)     The People argue this provision indicates that
Proposition 9 is “intended to be the controlling provision” when
it conflicts with another law (such as § 12). Contrary to the
People’s argument, this provision indicates that Proposition 9 is
to be superseded by any conflicting law under the circumstances
described.


                                  27
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


harmonization of section 12 and section 28(f)(3) creates no
conflict with the requirement that courts consider victim safety
in making bail determinations.           As we emphasized in
Humphrey, “The voters amended the Constitution to grant the
people of this state the right to have the safety of the victim and
the victim’s family considered in the bail determination
process.” (Humphrey, supra, 11 Cal.5th at p. 152; see id. at
pp. 153–156 [repeatedly referring to the government’s strong
interest in protecting the safety of victims in making bail
determinations].) Nothing in our holding contradicts these
principles.
      Amicus curiae California District Attorneys Association
(CDAA) notes that section 28(f)(3) discusses the factors courts
should consider in “setting, reducing, or denying bail.” (Italics
added.) The CDAA contends that the reference to “denying” bail
in section 28(f)(3) would be surplusage unless it is interpreted to
provide trial courts with “broad discretion” to deny bail to those
who would otherwise be ineligible for such denial under
section 12. However, we have previously interpreted section 12,
subdivision (b) as permitting — but not requiring — the denial
of bail to those persons whose offense(s) fall within that
exception. (See White, supra, 9 Cal.5th at p. 469 [“[a] person
who falls within the article I, section 12 [subdivision] (b)
exception does not have a right to bail, yet may nonetheless be
granted bail — or release on the person’s own recognizance — in
the trial court’s discretion”].) Because section 28(f)(3) may
reasonably be interpreted as instructing a court to take public
and victim safety factors into consideration in determining
whether to deny bail to a defendant eligible for such denial
pursuant to section 12, our interpretation does not render
section 28(f)(3) surplusage.


                                  28
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


      Finally, the People and their supporting amici curiae
advance various policy arguments contending that there are
many defendants who should not be released on bail for public
safety reasons who might not qualify for a denial of bail under
section 12. In particular, the People express concern that “[i]f
Humphrey prohibits the setting of unaffordable bail, and
section 12 is held controlling over section 28(f)(3), we [will] see
a sudden and uncontemplated right to release emerge for all
detainees not charged with an offense expressly set forth in
section 12’s subsections.”
      Conversely, in response to the amicus curiae briefing in
this case, petitioner identifies numerous policy reasons that
counsel against using section 28(f)(3) as a stand-alone basis for
denying bail based on public safety concerns. For example,
petitioner points to harms caused by pretrial detention on
defendants and their families, as compared to the success
pretrial detention alternatives have shown in improving
criminal justice outcomes.18 This court has also previously
addressed the significant potential harms associated with
pretrial detention. (See Humphrey, supra, 11 Cal.5th at p. 147
[discussing the “immense and profound” disadvantages of
pretrial detention to defendants, including hampering the
ability to prepare a defense, the risk of losing one’s job, home, or
custody of a child, the possible connection to reoffending, and
costs to the taxpayers of incarcerating defendants].)



18
      Among other organizations, the Alameda County District
Attorney’s Office filed an amicus curiae brief in support of
petitioner in this matter. However, the Alameda County
District Attorney has since advised this court that it no longer
takes the position espoused in its amicus curiae brief.


                                  29
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


      The People’s policy arguments do not persuade us to adopt
their interpretation of section 28(f)(3) or to find a repeal of
section 12’s right to release on bail where the voters have
declined to do so. Instead, we conclude section 12 itself provides
the governing framework for protecting the public. Section 12,
subdivision (b) authorizes trial courts to order the detention of
individuals charged with violent felonies and felony sexual
assault offenses. And section 12, subdivision (c) allows courts to
order the detention of individuals charged with other felony
offenses who have threatened people with great bodily harm.
These subdivisions already provide courts with significant
latitude to order the detention of dangerous defendants. These
protections are bolstered by the highly deferential standard of
review that applies when a court’s assessment of a defendant’s
dangerousness and its findings under subdivisions (b) and (c) of
section 12 are challenged. (See, e.g., White, supra, 9 Cal.5th at
p. 465 [a trial court’s decision to deny bail under § 12, subd. (b)
should be upheld when “any reasonable trier of fact could find,
by clear and convincing evidence, a substantial likelihood that
the person’s release would lead to great bodily harm to
others”].)19
      We are unable to disregard this framework merely
because the People would prefer a more expansive authority to
detain individuals charged with offenses beyond those set forth
in section 12, subdivisions (b) and (c). As this court has noted

19
      In White, we upheld the detention of a defendant with no
prior criminal record charged with aiding and abetting a friend’s
attempt to commit a felony sexual assault. (White, supra,
9 Cal.5th at pp. 467–469; see also In re O’Connor (2022)
87 Cal.App.5th 90, 105–106 [upholding detention order based on
indirect participation in an act of felony child endangerment].)


                                  30
                          In re KOWALCZYK
                 Opinion of the Court by Guerrero, C. J.


specifically in this context, “ ‘If the constitutional guaranties are
wrong, let the people change them — not judges or legislators.’ ”
(Underwood, supra, 9 Cal.3d at p. 350.)
         4. Conclusion
      The voters have shown a willingness to reconsider the
breadth of section 12’s bail guarantee on several occasions. To
the extent they wish to revisit section 12’s framework for
making pretrial release determinations, that is certainly their
prerogative. However, there is no evidence to suggest the
electorate intended to repeal the right to release on bail
guaranteed in section 12 through the enactment of
section 28(f)(3). Rather, the constitutional bail provisions may
be read in harmony, as described above.
      In light of this holding, we conclude the trial court in this
case erred in denying bail to petitioner without determining
whether it could make the findings required for ordering
pretrial detention, as set forth in section 12, subdivisions (b)
through (c). (See White, supra, 9 Cal.5th at p. 471 [specifying
findings court must make to deny bail under § 12, subd. (b)].)
      B. Setting Bail in Relation to a Defendant’s
         Financial Circumstances
      With respect to the second question on which we granted
review — whether a trial court may ever constitutionally set
pretrial bail above a defendant’s ability to pay — petitioner
contends that setting bail in an amount beyond a defendant’s
ability to pay offends section 12’s20 guarantee of release on bail,
as well as equal protection principles.


20
       Petitioner does not argue that section 28(f)(3) bars setting
bail in an amount greater than a defendant’s ability to pay.


                                   31
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


       Based on our constitutional framework, which prioritizes
pretrial liberty by mandating that nearly all noncapital criminal
defendants have a general right to release on bail, combined
with the equal protection and due process principles announced
in Humphrey, we conclude that bail determinations (including
the amount of bail that is set) must be reasonable under the
totality of the circumstances. As a general rule, the right to
reasonable bail means that the court may not set bail in an
amount that is objectively unattainable for the defendant. That
is to say: The right to release on bail generally cannot be
conditioned on financial payments that are set at amounts
known to be insurmountable or objectively unachievable based
on the defendant’s demonstrated financial circumstances. What
constitutes reasonable bail in noncapital cases where pretrial
detention is not authorized under section 12, subdivisions (b)
and (c), is necessarily an individualized assessment which will
depend on numerous factors. When it comes to considering
monetary bail, the defendant must do more than present
conclusory assertions of indigency or an inability to pay. The
Constitution and our precedent reflect a balancing process,
where “the state has a compelling interest in assuring the
arrestee’s appearance at trial and protecting the safety of the
victim as well as the public.” (Humphrey, supra, 11 Cal.5th at
p. 142.) But courts cannot use artificially high or objectively
unattainable bail as an end run to effectuate pretrial detention
where such detention is not authorized under section 12.21


21
      In describing the rule that generally governs the setting of
bail, we do not address marginal hypothetical scenarios that
may raise different questions about what constitutes reasonable



                                  32
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


      Section 12 provides for the right to be “released on bail by
sufficient sureties,” and prohibits setting bail that is
“[e]xcessive.” (Ibid.; see also § 28(f)(3) [containing an identical
prohibition on the requiring of “[e]xcessive bail”].) This
framework read as a whole, together with the due process and
equal protection principles we recognized in Humphrey,
supports the general rule that bail may not be set in an amount
that is objectively unattainable given the defendant’s financial
situation and the totality of other circumstances.
      First, ordering unattainable bail in noncapital cases
outside of the circumstances authorized by section 12,
subdivisions (b) and (c), is generally contrary to section 12’s
guarantee of the right to be “released on bail by sufficient
sureties.” Such pretextual detentions run afoul of the plain
language of section 12 read as a whole. As noted, section 12
first provides that a person “shall be released on bail by
sufficient sureties” and then specifies, in subdivisions (a), (b),
and (c), the exceptions to this general mandate of release, i.e.,
the specific circumstances in which a court may order a
defendant detained. To interpret the phrase “by sufficient
sureties” as a broad grant of authority to deny release to
defendants outside of these specified circumstances would
render meaningless the limited list of circumstances under


bail under the circumstances; for example, our decision today
does not reach a case in which a wealthy defendant who is facing
a significant term of imprisonment on a felony charge but is not
subject to detention under section 12 is found to present a threat
to public or victim safety or a credible and significant risk of
flight. Such hypothetical scenarios are beyond the scope of the
issues presented in this case. We believe the soundest course is
to allow courts to address these questions, and for the law to
develop, as the issues arise.


                                  33
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


which detention is authorized. (See In re J.W. (2002) 29 Cal.4th
200, 209 [in construing a statute, we assume that “every part of
a statute serves a purpose and that nothing is superfluous” and
that “the expression of one thing in a statute ordinarily implies
the exclusion of other things”].) As we held in White, detention
may be ordered under subdivision (b) of section 12 only when
the record contains “evidence of a qualifying offense sufficient
to sustain a hypothetical verdict of guilt on appeal” and “clear
and convincing evidence establishing a substantial likelihood
that the defendant’s release would result in great bodily harm
to others.” (White, supra, 9 Cal.5th at p. 471.) If a trial court
could generally deny release by setting unattainable bail
without making these findings (or findings supporting
detention under § 12, subd. (c)), these limits would have no real
force or effect. A trial court could effectively order a defendant
detained where there was not sufficient evidence of the charged
crime or where there was little evidence of risk of great bodily
harm. Indeed, a court could deny release to a defendant who
was charged with an offense — such as a misdemeanor or a
nonviolent felony where the detainee had not made any threat
of violence — that does not fall under the exceptions
enumerated in section 12. Such an interpretation is contrary
to section 12’s clear mandate that a person “shall be released
on bail” except in one of the enumerated circumstances.22


22
      As the Kowalczyk court observed, there is a dearth of
California case law “expressly interpreting the phrase ‘sufficient
sureties.’ ”  (Kowalczyk, supra, 85 Cal.App.5th at p. 687.)
However, the historical context of that term does not support the
detention of defendants through the use of an objectively
unattainable amount of cash bail. As one of the amicus curiae



                                  34
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


      Second, some meaning must also be given to the
prohibition against excessive bail. In Ex parte Duncan (1879)
54 Cal. 75, 79, we considered whether bail was excessive
because it was “disproportionate to the amount which the
prisoner is alleged to have obtained as the fruits of his crimes.”
Consistent with the totality of the circumstances approach we
adopt here, we reasoned with respect to excessiveness:
“Undoubtedly the extent of the pecuniary ability of a prisoner
to furnish bail is a circumstance among other circumstances to
be considered in fixing the amount in which it is to be required,
but it is not in itself controlling. [Otherwise], . . . the fact that
the prisoner had no means of his own, and no friends who were
able or willing to become sureties for him, even in the smallest
sum, would constitute a case of excessive bail, and would entitle
him to go at large upon his own recognizance.” (Id. at p. 78.)
However, bail that is objectively unattainable or artificially
high under the relevant circumstances, including the
defendant’s financial situation and the purposes of bail, would
also be excessive. Although a defendant cannot rely on
conclusory assertions of excessiveness to prevail in every case,


briefs explains, at the time of section 12’s adoption, the term
“surety” did not even mean “money bail” but instead meant a
person to whom the defendant would be released, and who
would pledge to forfeit property and otherwise answer for a
defendant who did not appear in court. (See Funk & Mayson,
Bail at the Founding (2024) 137 Harv. L.Rev. 1816, 1823 [“A
surety was an individual — typically a family member, friend,
or employer — who also pledged to forfeit a specified sum if the
defendant failed to appear. The pledges by the defendant and
his sureties, . . . were the ‘security’ offered for the defendant’s
appearance. They were promises only; they were not themselves
secured by any transfer or collateral or legal right (like a lien)”
(fn. omitted)].)


                                  35
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


courts likewise cannot evade the requirements of section 12,
subdivisions (b) and (c) through bail amounts that bear no
relation to a defendant’s actual financial circumstances and
lack due regard for the purposes of bail, but instead are
designed to functionally detain defendants who fall outside the
specified limits of section 12. Bail is excessive when it is higher
than reasonably necessary to promote those purposes of bail.
      Third, we have already held that the “common practice of
conditioning freedom solely on whether an arrestee can afford
bail is unconstitutional” based on equal protection and due
process principles. (Humphrey, supra, 11 Cal.5th at p. 143.) As
detailed below, Humphrey supports our conclusion that, to
ensure a criminal defendant’s equal protection and due process
rights, courts generally must set bail in an amount that is
reasonable and objectively attainable based on an
individualized assessment of the totality of the circumstances
in a given case, including the defendant’s financial situation.
     In Humphrey, we considered whether it “violates the state
and federal Constitutions to hold an arrestee in custody solely
because the arrestee cannot afford bail.” (Humphrey, supra,
11 Cal.5th at p. 149.) In answering that question in the
affirmative, we first explained that “[n]either this court nor the
United States Supreme Court has yet held that a judge must
consider what an arrestee can pay when fixing the amount of
money bail.” (Ibid.) However, we explained that “cases
resolving analogous questions” revealed “a theme.” (Ibid.)
     For instance, we found guidance in the high court’s
decision in Bearden v. Georgia (1983) 461 U.S. 660, 665
(Bearden), which addressed whether it was constitutionally
permissible to revoke a defendant’s probation due to the


                                  36
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


defendant’s inability to pay certain fines and restitution that
were part of his sentence. The Bearden court observed the
difficulty in applying the traditional equal protection rubric in
the context of indigency, explaining, “When the court is initially
considering what sentence to impose, a defendant’s level of
financial resources is a point on a spectrum rather than a
classification. Since indigency in this context is a relative term
rather than a classification, fitting ‘the problem of this case into
an equal protection framework is a task too Procrustean to be
rationally accomplished.’ ” (Id. at p. 666, fn. 8.) The Bearden
court found the “more appropriate question” was “whether
consideration of a defendant’s financial background in setting
or resetting a sentence is so arbitrary or unfair as to be a denial
of due process.” (Ibid.) The court concluded this question was
“substantially similar” to the equal protection inquiry (id. at
p. 666) and that, in the context of the case, “[d]ue process and
equal protection principles converge” (id. at p. 665). The court
went on to conclude that the convergence of these principles
prohibited revoking a defendant’s probation for failure to pay
unless the defendant had “willfully refused to pay or failed to
make sufficient bona fide efforts legally to acquire the resources
to pay,” or the defendant could not pay “despite sufficient bona
fide efforts” and alternative measures are not “adequate to
meet the State’s interests in punishment and deterrence.” (Id.
at p. 672.)
     In Humphrey, we explained that “[p]rinciples of equal
protection and substantive due process likewise converge in the
money bail context.” (Humphrey, supra, 11 Cal.5th at p. 150.)
And we agreed with the petitioner’s objection that “the method
by which his bail was determined” was unconstitutional
because “the trial court failed to consider his ability to pay or


                                  37
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


the efficacy of less restrictive conditions of release.” (Id. at
p. 151, fn. 4.) Accordingly, we held that where a court concludes
that a financial condition is necessary to satisfy the state’s
interests in assuring the defendant’s appearance at trial and
protecting public and victim safety, “the court must consider
the arrestee’s ability to pay the stated amount of bail — and
may not effectively detain the arrestee ‘solely because’ the
arrestee ‘lacked the resources’ to post bail.” (Id. at p. 143, citing
& quoting Bearden, supra, 461 U.S. at pp. 667, 668.)
      Finally, “[i]n light of our conclusion that courts must
consider an arrestee’s ability to pay alongside the efficacy of less
restrictive alternatives when setting bail,” we “sketch[ed] the
general framework governing bail determinations” (Humphrey,
supra, 11 Cal.5th at p. 152) in part by stating: “In those cases
where the arrestee poses little or no risk of flight or harm to
others, the court may offer [own recognizance] release with
appropriate conditions. [Citation.] Where the record reflects
the risk of flight or a risk to public or victim safety, the court
should consider whether nonfinancial conditions of release may
reasonably protect the public and the victim or reasonably
assure the arrestee’s presence at trial. If the court concludes
that money bail is reasonably necessary, then the court must
consider the individual arrestee’s ability to pay, along with the
seriousness of the charged offense and the arrestee’s criminal
record, and — unless there is a valid basis for detention — set
bail at a level the arrestee can reasonably afford. And if a court
concludes that public or victim safety, or the arrestee’s
appearance at trial, cannot be reasonably assured if the
arrestee is released, it may detain the arrestee only if it first
finds, by clear and convincing evidence, that no nonfinancial
condition of release can reasonably protect those interests.” (Id.


                                  38
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


at p. 154.)23 We further held that, to facilitate review, ensure
due process, and promote public confidence in decisionmaking,
courts should state their findings with respect to bail
determinations in the record. (Id. at pp. 155–156.)
      The issue presented in Humphrey was largely a challenge
to “the method by which [the petitioner’s] bail was determined,”
specifically a failure by the trial court to “consider” the
petitioner’s ability to pay, which resulted in the petitioner being
“detained without adequate justification.” (Humphrey, supra,
11 Cal.5th at p. 151, fn. 4.) Thus, in Humphrey we were not
tasked with determining whether there was a further limit on
the amount of bail a trial court could order, as we are here.
     Today, we hold that a reasonableness analysis —
considering the totality of the circumstances — is the
appropriate limiting principle which naturally flows from the
constitutional framework outlined above and our prior
precedent.    (See Underwood, supra, 9 Cal.3d at p. 351
[requiring the posting of “reasonable bail”].) As a threshold
matter, a court must determine whether monetary bail is
reasonably necessary, as in many instances, nonfinancial


23
      Our statement in Humphrey that a court “may detain the
arrestee only if it first finds, by clear and convincing evidence,
that no nonfinancial condition of release can reasonably protect
[state] interests” (Humphrey, supra, 11 Cal.5th at p. 154, italics
added) preceded our holding in this case that a court generally
may not order pretrial detention except as set forth in the
exceptions to section 12. (See Humphrey, at p. 155 [“Even when
a bail determination complies with the above prerequisites, the
court must still consider whether the deprivation of liberty
caused by an order of pretrial detention is consistent with state
statutory and constitutional law specifically addressing bail —
a question not resolved here”].)


                                  39
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


alternatives, such as ankle monitoring bracelets and court-
ordered check-ins, suffice to ensure public safety and the
defendant’s appearance at trial. Assuming monetary bail is
required based on clear and convincing evidence, in order to
ensure that criminal defendants are not detained solely as a
result of their inability to post bail, courts must set bail at an
amount that is necessary to effectuate the purposes of bail, i.e.,
“public or victim safety, or the arrestee’s appearance in court”
(Humphrey, supra, 11 Cal.5th at p. 154), and reasonable based
on a case-specific assessment of the totality of the
circumstances. These circumstances include, “the protection of
the public as well as the victim, the seriousness of the charged
offense, the arrestee’s previous criminal record and history of
compliance with court orders, and the likelihood that the
arrestee will appear at future court proceedings.” (Id. at
p. 152.) Per Humphrey, the totality of the circumstances also
includes the defendant’s financial situation and available
income, assets, and other resources. (See id. at p. 156.)24
     This does not mean that, once a court determines that
setting monetary bail is necessary to vindicate state interests,
it must set bail in an amount that is easily affordable or
convenient to the defendant, or that a court should accept a
defendant’s conclusory allegations regarding indigency,
excessiveness, or an inability to pay. That is, if a defendant
alleges the inability to pay a certain bail amount, the burden is




24
     This list of circumstances is not intended to be exhaustive.
For instance, a court might consider whether available
nonfinancial alternatives could be used in combination with a
lower bail amount to meet state interests in a given case.


                                  40
                         In re KOWALCZYK
                Opinion of the Court by Guerrero, C. J.


on the defendant to support that allegation with reliable
evidence.25
      In determining what constitutes a reasonable amount of
bail under the circumstances, however, a court must effectuate
a criminal defendant’s general right to release on bail, subject
only to the exceptions set forth in section 12. (See Underwood,
supra, 9 Cal.3d at p. 350.) As a general matter, a bail amount
that is not reasonably attainable for the defendant, despite
“bona fide efforts to acquire the resources” to pay it (Bearden,
supra, 461 U.S. at p. 672) does not effectuate this right and
threatens to detain the defendant based “solely on whether [the
defendant] can afford bail” (Humphrey, supra, 11 Cal.5th at
p. 143).     The Legislature may, within constitutional
parameters, provide further guidance to trial courts making
individualized, case-by-case reasonableness determinations.
     Our holdings with respect to fixing bail may be
summarized as follows: First, we start with the premise, as we
did in Humphrey, that pretrial “ ‘liberty is the norm, and
detention prior to trial or without trial is the carefully limited
exception.’ ” (Humphrey, supra, 11 Cal.5th at p. 155.) As we
have held, a court may order the pretrial detention of a
noncapital defendant only in the circumstances specified in
subdivisions (b) and (c) of section 12. Second, a court may not


25
      Placing the burden on the defendant to demonstrate
inability to pay is consistent with the law in other contexts.
(See, e.g., Gov. Code, §§ 68632, 68633 [requiring a litigant
seeking court fee waivers to submit an application supported by
documentation of financial status], 27707 [providing that courts
may require defendants requesting to be represented by the
public defender to submit financial statements under penalty of
perjury].)


                                  41
                          In re KOWALCZYK
                 Opinion of the Court by Guerrero, C. J.


condition release on the posting of bail unless the court has
assessed the defendant’s financial situation and determined by
“clear and convincing evidence” that no nonfinancial conditions
of release will “reasonably vindicate [the state’s] interests” in
ensuring public safety and the defendant’s appearance; and
stated its findings to that effect in the record. (Id. at p. 156.) If
the court finds it necessary to condition release on monetary
bail, the court must set bail in an amount that is reasonable,
considering the purposes of bail and based on an individualized
assessment of the totality of the circumstances in a case,
including the defendant’s financial situation. While the amount
of bail need not be easily affordable or convenient to the
defendant, the court must set bail in an amount that is
consistent with, and designed to effectuate, a defendant’s
general right to pretrial release, subject only to the exceptions
set forth in section 12.
      Our Constitution reflects a balance between a criminal
defendant’s general right to pretrial release and the
governmental interest in protecting public safety and ensuring
the integrity of the criminal justice process while the defendant
awaits trial. To the extent the voters desire to adjust that
balance, it remains in their power to do so.




                                   42
                        In re KOWALCZYK
               Opinion of the Court by Guerrero, C. J.


                      IV. DISPOSITION
     The Court of Appeal dismissed the petition for writ of
habeas corpus as moot. We affirm the judgment of the Court of
Appeal but disapprove of its reasoning to the extent it is
inconsistent with this opinion.

                                             GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
WILEY, J.*




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


                                 43
                       In re KOWALCZYK
                              S277910


             Concurring Opinion by Justice Groban


       Today’s opinion clarifies that the California Constitution
prohibits a court from ordering a person detained pending trial
outside of the circumstances specified in article I, section 12
(article I, section 12). (Maj. opn., ante, at pp. 2–3, 30–31.) As
the majority explains, article I, section 28(f)(3) (article I, section
28(f)(3)) contemplates that courts may, when necessary, set
reasonably attainable bail; section 28(f)(3) does not authorize
courts to order outright detention or to set bail at an
unattainable level for the purpose of effecting pretrial detention.
(Maj. opn., ante, at pp. 30–31, 35–36.) I fully concur in the
majority.
       Though article I, section 28(f)(3) generally does not allow
for detention, article I, section 12 does. (Maj. opn., ante, at p. 32
& fn. 21.) I write separately to emphasize that, though the
majority rightly curtails the use of section 28(f)(3) as a detention
tool, section 12 provides sufficient latitude for courts to order the
pretrial detention of those who would pose a clear danger to
victims or the public if they were released. I also write to
highlight that, as to those who are not subject to detention under
section 12, courts may impose pretrial release conditions
designed to protect public and victim safety and guard against
flight risk.




                                  1
                        In re KOWALCZYK
                       Groban, J., concurring


                                 I.
      Respondent, represented by the San Mateo County
District Attorney’s Office, and the San Francisco District
Attorney and the California District Attorneys Association, as
amici curiae, worry that if trial courts may not order pretrial
detention outside of the circumstances specified in article I,
section 12 and also may not use unattainable bail to effect
detention, they will have insufficient authority to ensure public
and victim safety and to guard against flight risk. Based on this
concern, the District Attorneys urge us to interpret article I,
section 28(f)(3) as authorizing the practice of intentionally
setting unattainable bail to effect pretrial detention when
detention is not authorized under section 12.
      But as today’s opinion makes clear, this practice, however
common and longstanding it may be,1 is generally inconsistent
with the constitutional right to pretrial release and with
principles of equal protection and due process. (Maj. opn., ante,
at pp. 31–42 & fn. 21.) What the district attorneys’ proposed
interpretation fails to account for is the fact that a court that
intentionally sets objectively unattainable bail inevitably does
so for the purpose of detention. (See Karnow, Setting Bail for


1
  Committee on Revision of the Penal Code, Annual Report and
Recommendations (Dec. 2022) pp. 64–67 <https://clrc.ca.gov/
CRPC/Pub/Reports/CRPC_AR2022.pdf> (as of April 30, 2026)
(CRPC 2022 Report); Human Rights Watch, “Not in it for
Justice”: How California’s Pretrial Detention and Bail System
Unfairly Punishes Poor People (2017) pp. 5–6 (Not in It for
Justice)     <https://www.hrw.org/sites/default/files/report_pdf/
usbail0417_web_0.pdf> (as of April 30, 2026). All internet
citations in this opinion are archived by year, docket number,
and case name at <https://courts.ca.gov/opinions/cited-supreme-
court-opinions>.


                                 2
                        In re KOWALCZYK
                       Groban, J., concurring


Public Safety (2008) 13 Berkeley J. Crim. L. 1, 19–20
[characterizing use of “artificially high” bail as a “sub rosa”
means of preventative detention].) For courts and defendants
alike, a bail amount intentionally set high enough to ensure the
defendant cannot satisfy it is the “functional equivalent of a
pretrial detention order.” (In re Humphrey (2021) 11 Cal.5th
135, 151 (Humphrey); see maj. opn., ante, at pp. 32, 35–36.) The
intentional setting of bail at an objectively unattainable level is
thus inconsistent with the right to release on bail that is
generally guaranteed by article I, section 12. (Maj. opn., ante,
at pp. 32, 35–36.) As the majority opinion concludes, article I,
section 28(f)(3) does not expand the categories of cases in which
pretrial detention is authorized.         The district attorneys’
preference for “a more expansive authority to detain individuals
charged with offenses beyond those set forth in section 12,
subdivisions (b) and (c)” does not provide a basis for disregarding
the framework our Constitution sets out. (Maj. opn., ante, at
p. 30.)

                                II.
      It may be tempting to entertain the fiction that an order
intentionally setting objectively unattainable bail is not a
detention order if doing so were necessary to protect society. But
Article I, section 12 provides courts with sufficient latitude to
order the detention of those whose release would present a clear
danger to public or victim safety. And when detention is not
authorized by section 12, conditions of pretrial release may be
used to minimize any risks the defendant may pose and to guard
against flight risk. There is no need to contort section 28(f)(3)
into an alternative authority for detention.



                                 3
                         In re KOWALCZYK
                        Groban, J., concurring


      Article I, section 12, subdivisions (b) and (c) carve out for
outright detention categories of defendants that courts and
prosecutors are rightly most concerned about: those charged
with violent felonies or felony sexual assaults who present a
substantial risk of causing “great bodily harm to others” if
released (art. I, § 12, subd. (b)), as well as others — charged with
any felony — who have threatened great bodily harm, where
there is a “substantial likelihood that the person would carry out
the threat if released” (id., subd. (c)). This is a powerful tool. If
the prosecution proves that a noncapital defendant meets the
requirements of section 12, subdivision (b) or (c), the defendant
can be detained without being afforded any opportunity for
release on bail.
       Moreover, appellate courts give trial courts considerable
discretion in making these determinations, applying a
“deferential standard of review.” (In re White (2020) 9 Cal.5th
455, 468 (White); see maj. opn., ante, at p. 30.) Under this
standard, a detention order is valid unless no court could
reasonably have found by “clear and convincing evidence” either
a “substantial likelihood” that “the person’s release would result
in great bodily harm to others” or “that the person has
threatened another with great bodily harm and that there is a
substantial likelihood that the person would carry out the threat
if released,” as long as the prosecution has put forward sufficient
evidence for an appellate court to uphold a hypothetical guilty
verdict on the charged offense. (Art. I, § 12, subds. (b) & (c); see
White, at pp. 463, 467.)
      The district attorneys identify a handful of situations in
which, they speculate, dangerous defendants who are ineligible
for detention under article I, section 12 could remain at large
and free to re-offend pending trial. They rightly worry about

                                  4
                        In re KOWALCZYK
                       Groban, J., concurring


domestic abusers, defendants charged with extreme child
neglect, and felons found in possession of firearms. The San
Francisco District Attorney fears that drug dealers released
pending trial will “continue to peddle deadly fentanyl” on the
city’s sidewalks, picking up additional charges. Others may be
concerned about the release of those accused of nonviolent
felonies that impact large groups of victims, such as financial
crimes, cybercrimes, or environmental crimes.
      The potential dangers presented by situations like these
can be significantly mitigated using conditions of release.
Respondent cites the example of a “domestic abuser who
torments a victim through unrelenting attempts at contact,” but
who stops short of threatening the victim, so is not detainable
under article I, section 12, subdivision (c). Courts may use stay-
away orders and electronic monitoring to address the dangers
posed by such conduct. (Pen. Code, § 646.93, subds. (c)(1) & (2).)
Stay-away orders and, where appropriate, removing the child
from the home may protect the child from a person accused of
“extreme child neglect” that does not involve violence. A prior
violent offender found in possession of firearms can be required
to surrender the firearms and to submit to random searches.
(Pen. Code, § 646.93, subd. (c)(3).) Before a fentanyl dealer is
released, the drugs are invariably seized, and search conditions,
monitoring, curfews, mandatory check-ins, drug programming,
drug testing, and stayaway orders may be imposed. And the
dangers posed by releasing defendants charged with financial
crimes, cybercrimes, and environmental crimes — charges more
routinely brought in federal courts — may be mitigated by
conditions of release that bar access to the means of committing
them.



                                 5
                         In re KOWALCZYK
                        Groban, J., concurring


      Further, in many of the examples provided by the district
attorneys, outright detention may well be authorized under
article I, section 12. When defendants are accused of felonies
involving domestic abuse, child neglect, or drug trafficking,
detention may be authorized under section 12 if the charges
involve violence or threatened violence.      In some cases,
detention may be authorized even when the defendant was not
the direct perpetrator. (See White, supra, 9 Cal.5th 455; In re
O’Connor (2022) 87 Cal.App.5th 90.)
      It is also important to recall that any new crimes
committed on pretrial release carry their own consequences.
The defendant may be arrested for the new offense and new
conditions may be set for release, including, where necessary,
monetary bail. (Pen. Code, §§ 1310, subd. (c), 1311, 1314.)
Additional charges may be brought, and a new felony committed
while the defendant is on release pending trial may trigger a
sentence enhancement. (Pen. Code, § 12022.1, subd. (b).) And
of course, if the new charge involves violence, sexual assault, or
a threat of violence, the defendant may be subject to detention
under article I, section 12 upon a sufficient evidentiary showing.
      The district attorneys also express concern that
individuals not detainable under article I, section 12 could fail
to appear for their court dates or flee the state. But again, courts
have tools short of detention available to address these risks.
When the concern is that defendants will not appear, courts can
provide reminders and transportation vouchers, and they can
connect defendants to social services that address barriers to
their ability to return to court, such as mental health providers,




                                  6
                         In re KOWALCZYK
                        Groban, J., concurring


substance abuse programs, housing, and childcare.2 And when
a defendant fails to appear, the court may issue a bench
warrant. (Pen. Code, § 978.5, subds. (a)(2) & (3).)
       In the unusual case where a court is concerned that a
defendant will flee California or the United States to avoid
prosecution, a court may order home detention, GPS monitoring,
or the surrender of travel documents. In such a case, requiring
the defendant to post monetary bail, which is subject to
forfeiture if the defendant fails to appear, may be justified. (Pen.
Code, § 1305, subd. (a)(1).) A defendant who flees California to
avoid prosecution may be forced to return to the state. (See Pen.
Code, § 1318, subd. (a)(4) [requiring defendant’s agreement to
“waive extradition if the defendant fails to appear as required
and is apprehended outside of the State of California” as a
condition of release].) And the willful failure to appear in court
after being released pending trial can be charged as a separate
crime. (Pen. Code, §§ 1320, 1320.5.)
      Out of the thousands of detention and bail determinations
being made every week in our trial courts, the district attorneys’
hypotheticals concern a small and atypical subset: cases in
which the defendant is not accused of any act of violence or
sexual assault, or even accused of threatening violence, but still
poses such a serious and imminent threat to public safety that
there are no pretrial release conditions that could adequately
mitigate this threat. As noted, trial courts have at their disposal


2
  See Judicial Council of Cal., Pretrial Pilot Program: Final
Report to the Legislature (July 25, 2023) pp. 12–13
<https://courts.ca.gov/sites/default/files/courts/default/2024-
12/pretrial-pilot-program_final-report.pdf> (as of April 30,
2026).


                                  7
                        In re KOWALCZYK
                       Groban, J., concurring


a range of effective tools for preventing criminal defendants who
are released while awaiting trial from harming the public or
their victims or from fleeing to evade prosecution. Today’s
decision may lead to the expansion of these tools’ use and to the
allocation of resources away from detention and towards
programs that facilitate pretrial release, while working to
ensure that defendants who are released pending trial appear
in court so that pretrial release does not result in increased risk
to victims or the public.3 We need not adopt a strained reading
of article I, section 28(f)(3) when article I, section 12 provides
the necessary framework for outright detention and where
courts can impose conditions of pretrial release to protect the
public and victims.
      This is not to suggest that it is possible to eliminate all
risks associated with pretrial release. But a system in which a
person’s right to liberty turns on financial resources
compromises public safety and raises equal protection and due
process concerns. (Humphrey, supra, 11 Cal.5th at pp. 150–151;
Workgroup Recommendations, supra, at p. 5.) In most cases, it
is possible for a court to make a rough determination of what is
an attainable amount of bail, accounting for the arrestee’s
individual financial circumstances; if that amount turns out to
be too high, it may be adjusted downward under existing
procedures. (See Pen. Code, § 1289 [providing for motion for
reduction of bail].) However, if the goal were to prevent the
release of a person whom the court has determined to be a

3
 See Pretrial Detention Reform Workgroup, Pretrial Detention
Reform: Recommendations to the Chief Justice (Oct. 2017)
(Workgroup Recommendations),<https://courts.ca.gov/sites/def
ault/files/courts/default/2024-08/pdrreport-20171023.pdf> (as of
April 30, 2026).


                                 8
                        In re KOWALCZYK
                       Groban, J., concurring


danger or a flight risk by setting bail in an unattainable
amount, it is unclear how that amount could be accurately
determined. Through the assistance of friends or family or bail
bonds, or due to a miscalculation by the court, an amount
thought to be unattainable may become attainable — and the
defendant will be free on bail despite the court’s intention to
detain the defendant.       (Workgroup Recommendations, at
pp. 34–35, 39.) The practice of setting bail in an amount the
defendant cannot afford without first determining whether the
defendant is subject to detention under article I, section 12
therefore not only risks unconstitutionally detaining a person
based on inability to afford bail but also risks inadvertently
allowing the release of a person who presents a danger to public
or victim safety. No such concerns are present when an eligible
defendant is detained by denying release on bail under section
12.

                                III.
      While I have so far focused on the risks of pretrial release,
it seems important also to acknowledge the well-documented
ways in which pretrial detention can cause harm. Many people
who are detained are never convicted of any crime; a substantial
proportion of detainees is never even charged with one.
(Workgroup Recommendations, supra, at p. 13; Not in It for
Justice, supra, at pp. 3, 42–50.) Many others accept unfavorable
plea offers, with potentially devastating repercussions for their
employment, education, housing, access to public benefits,
immigration status, and family stability.             (Workgroup
Recommendations, at p. 14; Not in It for Justice, at pp. 4, 51–
54.) And some, forced to choose between remaining detained or
pleading guilty to an offense they did not commit, choose to


                                 9
                         In re KOWALCZYK
                        Groban, J., concurring


plead guilty to secure their release. (Not in It for Justice, at
pp. 4, 54–55.)
       Individuals who are released from custody pending trial
have significantly lower rates of conviction. (Petersen, Do
Detainees Plead Guilty Faster? A Survival Analysis of Pretrial
Detention and the Timing of Guilty Pleas (2020) vol. 31, no. 7,
Crim. Justice Policy Review, 1017; Not in It for Justice, supra,
at p. 4.) This is unsurprising, since being out of custody reduces
time pressure and enables defendants to participate more
effectively in their defense. (Not in It for Justice, at pp. 65–67.)
Individuals who are out of custody are also in a better position
to negotiate plea deals; they have an opportunity to demonstrate
to the court and the prosecution that they are productive
members of their communities and can comply with court orders
and therefore deserve more lenient treatment. (Id., at pp. 4, 67.)
      A person who is detained, by contrast, is unable to go to
work, attend school, participate in programming, or perform
family duties. (Petersen, at p. 1018.) Detention can result in
loss of work, housing, educational opportunities, access to
medical care, public benefits, and child custody. (Workgroup
Recommendations, supra, at p. 13; CRPC 2022 Report, supra, at
pp. 69–70.) When individuals suffer such losses, it inevitably
impacts their family members and communities. (Wiseman,
Pretrial Detention and the Right To Be Monitored (2014) 123
Yale L.J. 1344, 1357.)
      The risk that a defendant who is released pending trial
may flee or reoffend is the price of any framework that presumes
innocence and that treats liberty as the norm. (See Humphrey,
supra, 11 Cal.5th at p. 154.) The district attorneys’ fear that our
constitutional framework may not provide courts with adequate


                                 10
                         In re KOWALCZYK
                        Groban, J., concurring


tools to protect public and victim safety and ensure against
flight risk is not a basis for disregarding that framework. (Maj.
opn., ante, at pp. 29–30.) As the majority opinion explains, the
people of California have chosen to address these risks by
authorizing courts to order the pretrial detention, upon a
sufficient evidentiary showing, of noncapital defendants
charged with violent crimes or sexual assaults, or who have
made a credible threat of violence. (Maj. opn., ante, at pp. 29–
30; art. I, § 12, subds. (b) & (c).) Outside of these circumstances,
our state has instead chosen to address these risks by allowing
courts to impose appropriate conditions of release, which may
include, when necessary, reasonably attainable bail. (Maj. opn.,
ante, at pp. 39–40 & 32, fn. 21.) The imposition of bail in an
amount that is not reasonably attainable upsets this balance by
depriving those accused of crimes of their freedom based on their
financial circumstances, without any trial or conviction. Today’s
opinion marks the end of that practice in our state.
                                             GROBAN, J.
We Concur:
LIU, J.
EVANS, J.




                                 11
                       In re KOWALCZYK
                             S277910


              Concurring Opinion by Justice Wiley


      Today’s majority opinion, which I join, invites legislative
and executive action. When it comes to large state issues, the
legislative and executive branches have tremendous advantages
over the judiciary.
     The other branches can freely investigate, consult,
compromise, and face the voters on policy platforms.
      Legislative and executive investigations can range widely.
What would an ideal bail system look like?             In other
jurisdictions, are there models California should emulate?
What is the federal approach, and how might California learn
from it?
       The investigations can be detailed. What is a third party
custodian? In the experience of federal judicial officers, how
effective are affidavits of surety? Is the federal pretrial services
program more extensive than its state counterpart? If so, would
expansions of state programs be cost-effective? In what
particular ways?
      It is possible to create a new bail system via episodic
constitutional rulings from judges. But judges are bound by the
record the parties compile. Our view is not synoptic. Judges
have no direct pipeline to voters. Judges cannot balance state
priorities, take the initiative on pressing questions of the day, or
enact budgets.



                                 1
                       In re KOWALCZYK
                       Wiley, J., concurring


     Today’s decision invites a legislative and executive
response. I hope the invitation is accepted.

                                               WILEY, J.*




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Eight, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


                                2
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion In re Kowalczyk
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 85 Cal.App.5th 667
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________

Opinion No. S277910
Date Filed: April 30, 2026
__________________________________________________________

Court: Superior
County: San Mateo
Judge: Susan L. Greenberg
__________________________________________________________

Counsel:

Law Offices of Marsanne Weese, Marsanne Weese and Rose Mishaan
for Petitioner Gerald John Kowalczyk.

Carson White, Salil Dudani, Katherine Hubbard; Avram Frey, Mica
Doctoroff, Emi Young; Summer Lacey; Claudia Y. Bautista, Public
Defender (Ventura), and Michael C. McMahon, Deputy Public
Defender, for the Civil Rights Corps, the American Civil Liberties
Southern California, the California Public Defenders Association,
Crime Survivors for Safety and Justice and the Ventura County Public
Defender as Amici Curiae on behalf of Petitioner Gerald John
Kowalczyk.

Complex Appellate Litigation Group, Kelly A. Woodruff; Crowell &
Moring and J. Daniel Sharp for the Bar Association of San Francisco,
the Los Angeles County Bar Association and the Santa Clara County
Bar Association as Amici Curiae on behalf of Petitioner Gerald John
Kowalczyk.
Lisa Maguire; Charles M. Denton; Sujung Kim; and Cynthia Janis for
the California Public Defenders Association, the Alameda County
Public Defender, the San Francisco County Public Defender and the
Los Angeles County Alternate Public Defender as Amici Curiae on
behalf of Petitioner Gerald John Kowalczyk.

Criminal Justice Program, UCLA School of Law and Alicia Virani for
Alicia Virani as Amicus Curiae on behalf of Petitioner Gerald John
Kowalczyk.

UC Berkeley Criminal Law & Justice Center and Chesa Boudin for
Silicon Valley De-Bug as Amicus Curiae on behalf of Petitioner Gerald
John Kowalczyk.

Mary K. McComb, State Public Defender, Teresa DeAmicis, Jason
Gundel, Jennifer Hansen and Ray Ibarra, Deputy State Public
Defenders, for the Office of the State Public Defender as Amicus
Curiae on behalf of Petitioner Gerald John Kowalczyk.

Pamela Y. Price, District Attorney (Alameda), and Cynthia Chandler,
Assistant District Attorney, for the Alameda County District
Attorney’s Office as Amicus Curiae on behalf of Petitioner Gerald John
Kowalczyk.

Keker, Van Nest & Peters, Sophie Hood, Maria F. Buxton, Paul H. Von
Autenried and Eric K. Phung for Kellen R. Funk and Sandra G.
Mayson as Amici Curiae on behalf of Petitioner Gerald John
Kowalczyk.

Keker, Van Nest & Peters, Cody S. Harris, Ian Kanig, Courtney J.
Liss; Santa Clara University School of Law and W. David Ball for
Crime Survivors for Safety and Justice as Amici Curiae on behalf of
Petitioner Gerald John Kowalczyk.

Arnold & Porter Kaye Scholer, Carmen Lo, Jocelyn Porter and Steven
M. Gentine for Human Rights Watch as Amicus Curiae on behalf of
Petitioner Gerald John Kowalczyk.

Martin F. Schwarz, Public Defender (Orange), Laura Jose, Chief
Deputy Public Defender, Adam Vining, Assistant Public Defender, and
Alexander Bartel, Deputy Public Defender, for the Orange County
Public Defender’s Office as Amicus Curiae on behalf of Petitioner
Gerald John Kowalczyk.
Stephen M. Wagstaffe, District Attorney, Bryan Abanto and Joshua
Martin, Deputy District Attorneys, for Real Party in Interest the
People.

Greg D. Totten; and Sean Daugherty, Deputy District Attorney (San
Bernardino), for the California District Attorneys Association as
Amicus Curiae on behalf of Real Party in Interest the People.

Kent S. Scheidegger and Kymberlee C. Stapleton for the Criminal
Justice Legal Foundation as Amicus Curiae on behalf of Real Party in
Interest the People.

Brooke Jenkins, District Attorney (San Francisco), Ana M. Gonzalez,
Chief Assistant District Attorney, Allison Garbutt Macbeth, Assistant
Chief District Attorney, Joseph J. Frislid, Christopher F. Gauger,
Natalie Fuchs and Nicholas J. Hunt, Assistant District Attorneys, for
the San Francisco District Attorney as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Marsanne Weese
Rose Mishaan
Law Offices of Marsanne Weese
255 Kansas Street, Suite 340
San Francisco, CA 94103
(415) 565-9600

Joshua Martin
Deputy District Attorney
400 County Center, 3d Floor
Redwood City, CA 94063
(650) 363-4751