Page 1
Court of Appeal:
Pre-Trial Detention of Almost Six Years Was Unlawful
Panel Indicates Habeas Relief Would Have Been Granted If Petition Had Not Been Rendered Moot
By a MetNews Staff Writer
Div. Three of the First District Court of Appeal held yesterday that there had been a due-process violation in the case of a man charged with assault with a semiautomatic firearm who had been subjected to pretrial incarceration of nearly six years—a period longer than the prison term to which he could have been sentenced, in light of custody credits.
The court dismissed as moot a petition for a writ of habeas corpus because the defendant, Jose Nunez-Dosangos, recently pled guilty and was released on his own recognizance, but said:
“[W]e elect to decide the case because it presents an issue of broad public interest that is likely to recur.”
Nunez-Dosangos had been denied bail because he was charged with murder and it was determined that public safety demanded his detention. However, after a preliminary hearing, the magistrate determined that probable cause was lacking to ascribe to him the trigger-man’s murderous intent, and the murder count was dismissed.
The prosecution refiled the murder charge, and a judge dismissed it pursuant to Penal Code §995.
New Bail Hearing
The defendant, last June, moved for a new bail hearing, seeking a release on his own recognizance. San Francisco Superior Court Judge Eric Fleming at a hearing on Aug. 8, 2024, queried 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 said it was not.
Fleming told Nunez-Dosangos’s lawyer:
“[Y]ou 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.”
He denied a release in light of the prospect that the defendant would be recharged with murder.
The court stated it believed it had such discretion because “the facts of this case is that he handed the gun to the murderer. This case has not been resolved.”
Fujisaki’s Opinion
Justice Carin T. Fujisaki, in yesterday’s opinion, made clear that if the petition had not been rendered moot, it would have been granted.
“[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,” she wrote.
Public safety, she said, did not justify the lengthy detention, explaining:
“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…, taking into account conduct credits available in local and state correctional institutions for this offense…. 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 public-safety-related aims of punishment and rehabilitation….To hold petitioner any longer would appear ‘excessive in relation to’ the intended goal of public safety.”
She went on to add:
“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.”
Fujisaki said that Fleming’s notion that a murder charge might be reinstated “was based on the legal assumption that such an amendment would be permissible in this case.” She set forth:
“That assumption was wrong….”
She quoted Penal Code §1009 as saying:
“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.”
The jurist declared:
“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.”
The prosecution argued that much of the delay in the case was attributable to the COVID-19 pandemic, a circumstance unlikely to recur, there’s no need to decide the merits in light of mootness. Fujisaki responded:
“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.”
The case is In re Nunez-Dosangos, A171177.
Copyright 2024, Metropolitan News Company