# Nunez-Dosangos v. Super. Ct.

> California Court of Appeal · December 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10757873

## Case

- **Court:** California Court of Appeal
- **Decided:** December 10, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 12/10/24
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOSE NUNEZ-DOSANGOS,
Petitioner,
v.
THE SUPERIOR COURT OF THE A171177
CITY AND COUNTY OF SAN
FRANCISCO, (City & County of San Francisco
Super. Ct. No. 18015815)
Respondent;
THE PEOPLE,
Real Party in Interest.

Jose Nunez-Dosangos filed a petition for a writ of habeas corpus
challenging his ongoing detention in county jail pending trial on a charge of
assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), a felony
offense that carries a potential sentence of three, six, or nine years in state
prison. Petitioner has since been released on his own recognizance after
pleading guilty to a new charge of accessory after the fact (Pen. Code, § 32),
rendering his petition moot, but we elect to decide the case because it
presents an issue of broad public interest that is likely to recur. In
considering the merits of the petition, we take into account the undisputed
allegation that petitioner’s accrual of presentence time-served and conduct
credits has resulted in a total period of pretrial confinement in excess of the
maximum potential sentence for the charged offense, as well as a report of
the probation department that assessed petitioner with a low risk of general

1
recidivism. On this record, we conclude petitioner’s pretrial detention was
excessive in relation to the government’s public safety goals and constituted
impermissible punishment in violation of federal and state due process
principles.
FACTUAL AND PROCEDURAL BACKGROUND
On October 11, 2018, petitioner and codefendant Reno Ramos were
arrested in connection with the shooting death of Anthony Lamar Patton, Jr.,
after police officers identified them in surveillance videos taken from the area
of the shooting. During their interrogations, petitioner and Ramos each
identified themselves in the videos, and petitioner told police he was forced to
carry a gun for Ramos, who took the gun from petitioner’s waistband just
before the shooting.
A first amended felony complaint charged both defendants with
participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)1; count
1); murder (§ 187, subd. (a); count 2); and assault with a semiautomatic
firearm (§ 245, subd. (b); count 3); and petitioner with attempted robbery
(§§ 664, 211; count 4). Enhancements were added to count 1 alleging that a
principal was personally armed with a firearm and that Ramos personally
used a firearm and caused great bodily injury (§§ 12022, subd. (a)(1), 12022.5,
subd. (a), 12022.7, subd. (a)). Enhancements added to counts 2 and 3 alleged
that a principal was personally armed with, used, and discharged a firearm
for the benefit of a street gang and caused great bodily injury and death, and
that defendants committed the above felonies for the benefit of, at the
direction of, and in association with a criminal street gang, and with the
intent to promote, further, or assist in criminal conduct by gang members
(§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c), (d), (e)(1), 186.22,

1 Further unspecified statutory references are to the Penal Code.

2
subd. (b)(1)(C)). Firearm and gang enhancements (§ 12022.53, subd. (b);
§ 186.22, subd. (b)(1)(C)) were also alleged on the attempted robbery count.
On October 16, 2018, petitioner was arraigned on the first amended
felony complaint and denied bail. The case was set for a preliminary hearing
on a general time waiver basis.
At the preliminary hearing in September 2023, the magistrate judge
stated its belief that the prosecution had presented sufficient evidence of
Ramos’s intent, but not enough to show petitioner knew of Ramos’s intent.
The prosecutor acknowledged the positioning of individuals in the
surveillance video footage obscured whether petitioner personally handed the
weapon to Ramos or whether Ramos pulled the firearm from petitioner’s
waistband. Concluding “there really is no evidence” that petitioner knew
Ramos was going to fire the gun at anyone, the magistrate judge dismissed
the murder charge against petitioner “for lack of failure of proof, lack of
evidence.”
In October 2023, the People filed an information charging petitioner
with murder (§ 187, subd. (a); count 1) and assault with a semiautomatic
firearm (§ 245, subd. (b); count 2), with armed principal enhancements on
both counts (§ 12022, subd. (a)(1)). During arraignment on the new
information, petitioner waived his right to a speedy trial.
In January 2024, petitioner filed a motion under section 995 to dismiss
the refiled murder charge, which the trial court granted. In April 2024,
petitioner filed a motion under section 1382 to withdraw his general time
waiver and assert his right to a speedy trial. The court granted the motion
and set June 14, 2024, as the last day for trial. After various continuance
motions were granted, the parties stipulated to a new last day for trial of
September 16, 2024.

3
In June 2024, petitioner filed a motion for a bail hearing and release on
his own recognizance pending trial. The trial court denied the motion.
Petitioner filed additional motions for release in July and August 2024,
arguing that he had been incarcerated for almost six years, that he was
indigent, and that less restrictive conditions of release were adequate to serve
the government’s interests because he was not a flight risk and had no prior
criminal history or failure to appear in court.
At a hearing on August 8, 2024, the trial court noted that petitioner
“has the alleged time in on a [section] 245(b), which is aggravated of nine
years. You had one more year for principal arm[ed], that would be one year.”
In support of his motion for a bail hearing, petitioner’s counsel noted the
preplea report dated June 7th indicated petitioner’s credits and assessed him
with a low risk of general recidivism. The court declined counsel’s offer of a
copy of the report “at this time,” stating “the only thing that matters to the
Court in the pre-plea report is the calculation of credits. The People are not
disputing that he has all of his time in.”
The trial court then inquired as to why petitioner had not been charged
with murder as an aider and abettor, and whether the surveillance video
evidence showed petitioner handing the gun to codefendant Ramos. The
court asked the prosecutor if it was “beyond the realm of possibility that you
will be asking . . . the Information to conform to prove at the conclusion of
evidence to charge him with murder,” and the prosecutor responded it was
not. When petitioner’s counsel insisted that due process barred the court
from detaining petitioner “beyond the maximum term,” the court responded,
“you haven’t shown me any case law that says that the Court doesn’t have
discretion under a case like this to keep someone in custody.” The court
stated it believed it had such discretion because “the facts of this case is that

4
he handed the gun to the murderer. This case has not been resolved.”
Moreover, the court did not “believe there’s a due-process violation” because
“we don’t know what’s going to be the final outcome of this case. . . . [¶] [T]he
People might ask that he be conformed to proof and ask for . . . a 187. I don’t
know. [¶] But also, he is . . . clearly a danger to public safety, given that he
had a gun on his person. That gun led to a murder.” Based on these
considerations, the court denied petitioner’s motion for release.
Petitioner filed a petition for a writ of habeas corpus in this court,
alleging his detention in county jail pending trial violates the Due Process
Clause of the Fifth and Fourteenth Amendments to the United States
Constitution because “he has now accumulated actual days in custody and
custody credits that exceed the maximum term of incarceration to which [he]
could be sentenced should he be convicted of the firearms charge and the
enhancement allegation.” On September 13, 2024, we issued an order to
show cause and established a schedule for the return and traverse.
On September 20, 2024, the People informed us that petitioner had
entered a guilty plea to a felony violation of accessory after the fact (§ 32) and
had been released on his own recognizance.
DISCUSSION
A. Preliminary Matters
1. Mootness
In light of petitioner’s guilty plea and own-recognizance release, the
due process issue raised in this petition is technically moot. Nonetheless,
appellate courts have discretion to decide otherwise moot cases presenting
important issues that are capable of repetition yet tend to evade review. (In
re Webb (2019) 7 Cal.5th 270, 273–274.)

5
The People concede the public importance of the issue raised in this
case but argue it is not likely to recur because most criminal defendants will
demand a speedy trial before their maximum custodial period has passed,
and the delays in this case were largely attributable to the COVID-19
pandemic. We believe there is a reasonable likelihood the due process
question raised here may recur in similar cases, particularly where a more
serious charge (e.g., murder) is ultimately dismissed, but the trial court
prolongs the defendant’s detention pending trial based on the possibility that
the charge will be refiled. Accordingly, we exercise our discretion to reach the
merits of the petition notwithstanding its mootness.
2. Conduct Credits
The People further contend writ review is premature because
petitioner’s due process claim is based on his assumption that he will be
awarded full presentence conduct credits under section 4019, a determination
that has yet to be made. The People urge this court to defer to the sentencing
court on the issue and deny the petition. We decline to do so.
In addition to actual credit for time served in pretrial detention
(§ 2900.5, subd. (a)), “detainees in local institutions are usually able to earn
credit against their eventual sentence for good behavior and work performed.
These ‘ “[c]onduct credit[s]” ’ are authorized by section 4019.” (People v.
Brown (2020) 52 Cal.App.5th 899, 902–903, internal footnote omitted.) For
each four-day period in which a prisoner is confined, one day shall be
deducted from the period of confinement unless it appears by the record that
the prisoner refused to satisfactorily perform assigned labor (§ 4019,
subd. (b)), and another day shall be deducted unless it appears by the record
that the prisoner has not satisfactorily complied with reasonable rules and
regulations (id., subd. (c)).

6
Here, petitioner was detained in county jail and was thus entitled to
conduct credits under section 4019. The People emphasize, however, that
conduct credits are typically determined “at the time of sentencing . . . based
on the sheriff’s report of ‘the number of days that [the] defendant has been in
custody and for which he or she may be entitled to credit,’ and only after
hearing any challenges to the report.” (People v. Lara (2012) 54 Cal.4th 896,
903.) While that is generally the case, petitioner affirmatively raised the
issue of his entitlement to conduct credits in his noticed motions for release,
citing the probation department’s preplea report in support. (See § 1203.7,
subd. (a).) The record contains no indication that the People disputed the
preplea report, which recommended that petitioner be granted credit for time
served and custody credits. Nor did the People oppose petitioner’s release
motions on the basis that he was not entitled to full presentence conduct
credits. Indeed, at the August 8, 2024, hearing, the People stayed silent
when the trial court remarked that the “[t]he People are not disputing that
he has all of his time in.” On this record, we conclude petitioner’s entitlement
to conduct credits for purposes of evaluating his due process claim is not
materially disputed.2
For these reasons, we refuse to deny the petition on prematurity
grounds.
B. Due Process
“In a crucially important respect, California law is in line with the
federal Constitution: ‘liberty is the norm, and detention prior to trial or
without trial is the carefully limited exception.’ ” (In re Humphrey (2021) 11

2 To be clear, we simply hold the issue of petitioner’s conduct credits does
not bar our consideration of his due process claim. Our opinion should not be
understood as making a binding decision on the ultimate calculation of
petitioner’s credits.

7
Cal.5th 135, 156 (Humphrey), citing United States v. Salerno (1987) 481 U.S.
739, 755 (Salerno).) To that end, article I, section 12 of the California
Constitution (hereafter article I, section 12) guarantees an arrestee’s right to
be released on bail except under “narrow” circumstances specified in
subdivisions (a) through (c).3 (In re Harris (2024) 16 Cal.5th 292, 301
(Harris).) Even then, a person who falls within these exceptions “may
nonetheless be granted bail—or release on the person’s own recognizance—in
the trial court’s discretion.” (In re White (2020) 9 Cal.5th 455, 469.) Outside
the circumstances set forth in article I, section 12, subdivisions (a) through
(c), an arrestee has a general right under article I, sections 12 and 28(f)(3) to
be released on bail or on his or her own recognizance in the court’s discretion,
subject to further considerations, including (primarily) the protection of the
public and the safety of the victim. (In re Kowalczyk (2022) 85 Cal.App.5th
667, 691.)
The People maintain there can be no due process violation in this case
because the trial court initially denied petitioner bail on public safety
grounds, and petitioner does not challenge that decision here. 4 We do not

3 Those exceptions are: “(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.” (Cal. Const., art. I, § 12,
subds. (a)–(c).)
4 The record does not reflect the factual and legal bases for the initial no-
bail determination. Nor does the briefing adequately address whether the
charged offense under section 245, subdivision (b), constitutes a qualifying

8
accept this argument for two reasons. First, beginning in June 2024,
petitioner filed a series of motions for a new bail determination and/or own-
recognizance release, essentially asking the trial court to revisit its initial no-
bail determination based on new facts, including the dismissal of the murder
count, petitioner’s accrual of nearly six years of actual days in custody (with
conduct credits), and the probation department’s filing of its preplea report
detailing petitioner’s lack of criminal history and low risk of recidivism. The
initial no-bail determination was not permanent and could be revisited in
light of new facts and evidence. (Harris, supra, 16 Cal.5th at p. 320.)
Second, and more importantly, even when a bail determination
complies with the provisions of article I, sections 12 and 28(f)(3), “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 . . . and with due process.” (Humphrey, supra, 11
Cal.5th at p. 155, internal footnote omitted.) “Even given . . . that pretrial
detention may serve legitimate regulatory purposes, it is still necessary to
determine whether the terms and conditions of confinement . . . are in fact
compatible with those purposes. [Citation.] ‘A court must decide whether the
disability is imposed for the purpose of punishment or whether it is but an
incident of some other legitimate governmental purpose.’ [Citation.] Absent
a showing of an express intent to punish on the part of the State, that
determination generally will turn on ‘whether an alternative purpose to
which [the restriction] may rationally be connected is assignable for it, and
whether it appears excessive in relation to the alternative purpose assigned

felony for purposes of denying bail under article I, section 12, subdivisions (b)
or (c). (See In re O’Connor (2022) 87 Cal.App.5th 90, 104 [interpreting “felony
offenses involving acts of violence on another person” under Cal. Const. art. I,
§ 12, subd. (b), as broader than “ ‘violent felony’ ” under § 667.5, subd. (c)].)

9
[to it].’ ” (Schall v. Martin (1984) 467 U.S. 253, 269 (Schall), quoting Kennedy
v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169.) Thus, the initial no-bail
determination, even if valid, was not dispositive of whether petitioner’s
prolonged deprivation of liberty pending trial ultimately became “excessive in
relation to” its intended purpose.
The People further contend that pretrial detention without bail does
not “morph[] from legitimate government action to unconstitutional
punishment based on the turn of a calendar page.” We acknowledge the
determination may not necessarily be one of precise demarcation, but we also
cannot ignore the due process concerns raised by the length of pretrial
detention in this case.
Although we could find no California decisions addressing this issue,
federal authorities provide useful guidance. Preliminarily, we note the
United States Supreme Court has expressly “intimate[d] no view as to the
point at which [pretrial] detention in a particular case might become
excessively prolonged, therefore punitive, in relation to Congress’ regulatory
goal.” (Salerno, supra, 481 U.S. at p. 747, fn. 4.) However, the Courts of
Appeals have held that the length of pretrial detention may “at some point”
raise a constitutional issue (United States v. Gelfuso (9th Cir. 1988) 838 F.2d
358, 359) and “be challenged under the Due Process Clause” (United States v.
Orena (2d Cir. 1993) 986 F.2d 628, 630 (Orena)).
Orena articulated the following approach for addressing such
challenges: “ ‘[T]he due process limit on the duration of preventive detention
“requires assessment on a case-by-case basis, since due process does not
necessarily set a bright line limit for length of pretrial confinement.”
[Citations.]’ To determine whether the length of a pretrial detention violates
a defendant’s due process rights, [courts] must weigh: (i) the length of

10
detention; (ii) the extent of the prosecution’s responsibility for the delay of the
trial; and (iii) the strength of the evidence upon which the detention was
based,” i.e., “evidence of [the defendant’s] danger to the community.” (Orena,
supra, 986 F.2d at p. 630; accord United States v. Cos (10th Cir. 2006) 198
Fed.Appx. 727, 732 (Cos); United States v. Millan (2d Cir. 1993) 4 F.3d 1038,
1043; United States v. Archambault (D.S.D. 2002) 240 F.Supp.2d 1082, 1085–
1088.) Though these federal authorities are not binding on us, we conclude
their approach to the due process inquiry appears appropriate for this case
and shall apply it.5
Here, the petition alleged, and the return did not deny, that the length
of petitioner’s pretrial detention exceeded the maximum potential sentence
that could be imposed under section 245, subdivision (b).6 Again, we agree
with the federal authorities that have spoken on this issue. One district
court held it “appropriate to consider the potential terms of imprisonment to
which the defendants may be sentenced if ultimately found guilty of the
charges as compared to the prospective length of pretrial detention in
determining whether the due process rights of a person may be violated.”
(United States v. Shareef (D.Kan. 1995) 907 F.Supp. 1481, 1484, reversed on
other grounds in United States v. Shareef (10th Cir. 1996) 100 F.3d 1491; see
Cos, supra, 198 Fed.Appx. at p. 732 [remanding for consideration of due
process argument based on Shareef and Millan].) In another case, the

5 Prior to our issuance of this opinion, we requested and received
supplemental briefing from the parties on the potential applicability of the
three-factor analysis applied in Orena and other federal decisions.
6 We have some reservations about the accuracy of this allegation based
on the limited record before us. (See People v. Culp (2002) 100 Cal.App.4th
1278, 1283 [setting forth the method to calculate section 4019 credits].)
However, the parties do not dispute its correctness and the case before us is
moot, so we do not explore the issue further.

11
district court pointedly concluded that “holding a defendant without bail for
longer than he would serve if tried and convicted” violates due process.
(United States v. Lofranco (N.D. N.Y. 1985) 620 F.Supp. 1324, 1325
(Lofranco).) Although we agree that due process does not ordinarily set a
“ ‘bright line limit for length of pretrial confinement’ ” (Orena, supra, 986
F.2d at p. 630), a comparison of the length of petitioner’s pretrial detention
with his maximum potential sentence provides a compelling measure of the
extent of the deprivation of liberty in this case.
In rejecting petitioner’s argument that due process required his release
because he had “done his maximum time,” the trial court posited that the
prosecution might later seek a murder conviction and ask that the pleadings
be conformed to proof at trial. This conclusion, however, was based on the
legal assumption that such an amendment would be permissible in this case.
That assumption was wrong: “An indictment or accusation cannot be
amended so as to change the offense charged, nor an information so as to
charge an offense not shown by the evidence taken at the preliminary
examination.” (§ 1009.) Such amendment is prohibited “even if [it] would not
prejudice the defendant or if the defendant had notice of the facts underlying
the new charges.” (People v. Rogers (2016) 245 Cal.App.4th 1353, 1360.)
Thus, contrary to what the trial court understood, “ ‘[t]he test applied, when
considering whether to permit an amendment, is whether or not the amended
charge is one supported by evidence taken at the preliminary examination.’ ”
(People v. Winters (1990) 221 Cal.App.3d 997, 1004.)
The record in this case indicates the evidence taken at the preliminary
hearing failed to establish probable cause for the murder charge against
petitioner. The magistrate judge did not hold petitioner to answer for murder
and dismissed the murder count “for lack of failure of proof, lack of evidence.”

12
And when the prosecution refiled the murder charge, the trial court granted
petitioner’s section 995 motion to dismiss it. True, the trial court seemed, at
the August 8, 2024 hearing, to disagree with the magistrate judge’s lack of
probable cause finding, but the record makes reasonably clear the court had
not reviewed the preliminary hearing transcript before denying petitioner’s
release motion. On this record, and in light of section 1009, we conclude the
trial court erred in relying on the possibility of a refiled murder charge as a
basis to continue petitioner’s detention.
In disputing that petitioner’s detention had become unconstitutionally
punitive, the People emphasize that pretrial detention and postadjudication
sentencing serve distinct policy purposes. That is, while the imposition of
postadjudication sentencing is unquestionably punitive in nature (see In re
Nunez (2009) 173 Cal.App.4th 709, 730 [purposes of sentencing include
retribution and rehabilitation]), pretrial detention does not aim to punish but
instead serves to protect public safety and ensure an accused’s return to court
(Humphrey, supra, 11 Cal.5th at p. 142).
We have no quarrel with these general observations. But where, as
here, the parties do not dispute that the length of pretrial detention exceeds
the maximum potential sentence that may be imposed, the distinction all but
disappears in any practical respect. Petitioner has already been deprived of
liberty on a charge of assault with a semiautomatic firearm for longer than a
similarly situated person who is actually convicted of that crime under
aggravating circumstances would serve (§§ 245, subd. (b), 1170, subd. (b)(2)),
taking into account conduct credits available in local and state correctional
institutions for this offense (§§ 2931, 2933.5, 4019, subds. (b), (c)). As such,
petitioner’s confinement has already resulted in the protection of the public
for the period of time that the Legislature has designated to accomplish the

13
public-safety-related aims of punishment and rehabilitation. (See § 1170,
subd. (a)(1) [determinate sentencing law’s goal “is public safety achieved
through punishment, rehabilitation, and restorative justice”].) To hold
petitioner any longer would appear “excessive in relation to” the intended
goal of public safety. (Schall, supra, 467 U.S. at p. 269.) Indeed, as one court
put it, “ ‘a long period of preventative detention without a finding of guilt,
based solely on possible danger to the public, is anathema to American ideals
of due process.’ ” (Lofranco, supra, 620 F.Supp. at p. 1326.) Furthermore,
petitioner’s detention for longer than the upper term set forth under section
245, subdivision (b), runs contrary to the Legislature’s concerns over the
uniformity and proportionality of sentences under the determinate
sentencing law. (See § 1170, subd. (a)(1).)
As previously mentioned, an additional factor used by federal courts to
assess the constitutionality of pretrial detention is the extent to which the
prosecution is responsible for the delay of trial. (Orena, supra, 986 F.2d at
p. 630.) On this score, the People maintain that petitioner’s dilemma was
“largely wrought by his own hands” because he elected to waive his right to a
speedy preliminary hearing and trial at the outset of the case and moved or
stipulated to several trial continuances.
The People are correct that this case initially proceeded on a general
time waiver basis after arraignment. Moreover, the record does not disclose
what exactly transpired during the several years that elapsed between the
arraignment and the preliminary hearing. Even so, we cannot say that
petitioner bears primary responsibility for his prolonged detention. We may
reasonably assume petitioner initially elected to waive his speedy trial right
in order to have more time to prepare a defense to the charge of murder, and
it appears petitioner expended significant time and effort securing the

14
dismissal of that count, not once but twice, during the course of this case.
And though the preplea report confirmed petitioner’s substantial conduct
credits and low recidivism risk, the People persisted in opposing his release
for several months following petitioner’s June 2024 motion for release. The
People also contributed to the trial court’s erroneous belief that the
information could be conformed to proof to permit refiling the murder count.
(See § 1009.) In the apt words of another court, “[i]t suffices for present
purposes to conclude that the Government, even if not deserving of blame,
bears a responsibility for a portion of the delay significant enough to add
considerable weight to [petitioner’s] claim that the duration of detention has
exceeded constitutional limits.” (United States v. Gonzales Claudio (2d Cir.
1986) 806 F.2d 334, 342–343.)
Equally unpersuasive is the People’s contention that petitioner bears
responsibility for his prolonged detention because he could have ensured his
pretrial release by entering into an open plea or pleading guilty to the
charged offense. Petitioner was entitled to pretrial release in accordance
with due process whether or not he was willing to forgo his claim of
innocence.
Finally, we address the third Orena factor, the strength of the evidence
upon which the detention was based. (Orena, supra, 986 F.2d at p. 630.) As
discussed, the record does not disclose the factual and legal bases for the
initial no-bail determination, and as the People repeatedly emphasize,
petitioner has not challenged the validity of that initial decision.
Nevertheless, it is important to recognize that the initial no-bail
determination was made shortly after petitioner’s arrest when he was first
arraigned on several felonies, including murder, and was not permanent (see
Harris, supra, 16 Cal.5th at p. 320). That murder count was eventually

15
dismissed for lack of probable cause, and at the time of petitioner’s motions
for pretrial release, he was being held on a single count of assault with a
semiautomatic firearm. Meanwhile, the probation department filed its
preplea report detailing petitioner’s lack of a prior criminal history and low
risk of recidivism. The report also disclosed facts relevant to petitioner’s low
risk of flight, such as his lifelong residence in San Francisco, his continuing
contact with family, and his history of gainful employment. Thus, even if the
propriety of the initial no-bail determination is outside the scope of this
proceeding, the record amply establishes that as the case wore on, petitioner’s
continued confinement on public safety grounds began to exceed that which
due process will tolerate.
The People advance certain policy arguments against petitioner’s
release, none of which is persuasive. They contend petitioner’s construction
of the law will incentivize prisoners to “age up” their cases to the maximum
prescribed sentence in order to serve the entire term of incarceration in
county jail rather than state prison. Even accepting that a prisoner might be
so motivated (see, e.g., People v. Noyan (2014) 232 Cal.App.4th 657, 665, fn. 7
[state prison sentence is “distinctly different from” and potentially “harsher”
than incarceration in county jail]), trial courts may address such efforts in
the appropriate exercise of their broad discretion to reject continuance
requests that lack good cause. (See People v. Jenkins (2000) 22 Cal.4th 900,
1037.)
The People also emphasize that there is a marked difference between
releasing a defendant before and after a felony conviction, and that public
safety concerns support extended pretrial detention in circumstances such as
these. For instance, the People note, though the law prohibits a convicted
felon from purchasing or possessing a gun, these types of important public

16
safety restrictions are not in place if a defendant such as petitioner is granted
pretrial release. We are not persuaded.
Contrary to the People’s suggestion, there are indeed less restrictive
alternatives that could adequately vindicate the state’s interest in public
safety while respecting petitioner’s due process rights. For example, the trial
court could impose reasonable pretrial release conditions, including
restrictions on purchasing and possessing firearms. (See In re York (1995) 9
Cal.4th 1133, 1137–1138 [court may condition own-recognizance release on
defendant’s agreement to submit to drug testing and warrantless searches
and seizures]; In re McSherry (2003) 112 Cal.App.4th 856, 860–861 [courts
possess inherent authority to impose conditions associated with release on
bail]; see also United States v. Perez-Garcia (9th Cir. 2024) 96 F.4th 1166,
1171 [firearm condition on pretrial release constitutional as applied].) In
sum, we find the People’s contention on this point unavailing.
DISPOSITION
We conclude petitioner’s pretrial detention in excess of his maximum
potential sentence on a charge of assault with a semiautomatic firearm under
section 245, subdivision (b), was excessive in relation to the government’s
public safety goals and thus constituted impermissible punishment in
violation of petitioner’s due process rights. However, as a result of
petitioner’s guilty plea and release on his own recognizance, we need not
provide further relief and instead dismiss the petition as moot. (See In re
Stevens (2004) 119 Cal.App.4th 1228, 1240.)

17
_________________________
Fujisaki, J.

WE CONCUR:

_________________________
Tucher, P.J.

_________________________
Rodríguez, J.

18
Trial Court: City & County of San Francisco Superior Court

Trial Judge: Hon. Eric Fleming

Counsel: Law Office of Cheryl Wallace, Cheryl Wallace for Petitioner

Brooke Jenkins, District Attorney of San Francisco County,
Kathleen McBride, Deputy District Attorney for Real
Party in Interest

In re J. Nunez-Dosangos (A171177)

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10757873. Public record. Not legal advice.