People v. Standish (38 Cal. 4th 858, 2006)

Opinion

GEORGE, C. J.

Two principal issues are presented in this case. The first is whether defendant was entitled to be released from custody on his own recognizance (OR), subject to reasonable conditions, when his preliminary examination was continued for good cause beyond the 10-day period specified in Penal Code section 859b.

The second question needs to be reached only if we answer the first question in the affirmative. That question is whether the failure to grant defendant OR release pending his preliminary examination constituted a violation of a substantial right entitling him to have the information set aside pursuant to section 995.

For the reasons explained below, we conclude defendant was entitled to OR release when the preliminary examination was continued for good cause, but that the court’s failure to grant him OR release pending the preliminary examination did not amount to denial of a substantial right at the preliminary examination within the meaning of section 995, in the absence of evidence that the error reasonably might have affected the outcome of that hearing.

I

Testimony introduced at the preliminary examination indicated that, on an occasion during the first week of April 2002, defendant held his two-year-old daughter over a second-floor balcony railing, while neighbors urged him to bring the child to safety. On April 5, 2002, defendant killed his wife’s cat. His daughter witnessed some of the events constituting the assault on the cat. A neighbor, Annette Madison, who had witnessed the child-dangling incident, found the headless body of the cat on her balcony. Madison telephoned the police, and defendant was arrested. The Court of Appeal surmised from an incomplete record that a complaint was filed charging defendant with criminal offenses arising from the two incidents.

After a short time in custody, defendant was released on bail. Upon his return home, he saw Madison as she approached her apartment, and stated, “Whoa, aren’t you scared?” Defendant then attacked his wife, hitting her in the face with his fist. Madison again telephoned for police assistance. Defendant accused Madison of having placed him under a spell, adding that she had broken up his family and that he planned to cut her throat. He accompanied the threat with a gesture, drawing his finger across his throat. Defendant was arrested, and apparently in mid-April a complaint was filed charging new criminal offenses, and the two cases were consolidated.

Defendant was placed in custody at the time of his second arrest in April 2002. He remained in custody, but proceedings on the mid-April complaint were suspended for an evaluation of his mental competency pursuant to section 1368. In late November or early December 2002, he was found competent to stand trial, whereupon criminal proceedings resumed. The complaint was dismissed because the prosecution was unable to proceed without Madison, who was unavailable as a witness. The prosecutor refilled the complaint on December 11, 2002, charging defendant with two felony offenses: cruelty to an animal (§ 597, subd. (a)), and making a criminal threat (§ 422). The complaint also charged a misdemeanor, willful cruelty to a child. (§ 273a, subd. (b).) It is the refiled complaint that is the subject of the present appeal.

On December 24, 2002, the prosecutor moved for a continuance of the preliminary examination. The motion was made on the ninth of the 10 court days within which a preliminary examination must be held if a defendant is in custody. (§ 859b.) The prosecutor reported that, despite having been subpoenaed, Madison was out of the state on vacation and would not be available as a witness until “after the holidays.”

Defense counsel objected to the continuance, asking in the alternative that defendant “be released OR if the court grants a continuance.” Defense counsel referred to various circumstances in support of his request for OR release, including defendant’s having been in custody without a probable cause determination since the previous April—approximately eight months— and defendant’s currently taking medication “that addresse[d] the issues he had before.” The magistrate declined to grant OR release, however, stating “Wight now I’m not inclined to release him on his own recognizance. I might have considered that, I suppose, if this is really a medical issue and I had some sort of competent medical testimony. But the file is replete with incidents that obviously cause great concern.” The magistrate granted a continuance until January 7, 2003, but also set the case for hearing on January 3 in the event Madison should be available then, and also for review of the amount of bail.

On December 31, 2002, another hearing occurred before a different judge. At this hearing, defense counsel moved for dismissal or at least for defendant’s release on OR pursuant to section 859b. The magistrate denied the request for OR release, refusing to overturn the order of another judge. (See In re Alberto (2002) 102 Cal.App.4th 421, 426-428 [125 Cal.Rptr.2d 526].) The magistrate stated he would rule on the motion to dismiss on the date set for the preliminary examination.

On January 7, 2003, the date of the preliminary examination before the original magistrate, defense counsel moved for dismissal pursuant to section 859b, arguing that the prosecution had failed to show good cause for the continuance, because the preliminary examination could have proceeded with the testimony of the arresting officer. Defendant also moved for OR release under the authority of section 859b, stating “his preliminary hearing could have and should have occurred under Proposition 115 within the time period and there should not have been a good cause finding to go outside the period.” The prosecutor responded that the officer who could have testified was not available for the December 24, 2002 hearing.

The magistrate denied the motion for dismissal, stating there had been good cause for the continuance and adding: “I would be at a loss to understand[] how I can grant the motion anyway because I’m the one that found good cause on December 24 to continue today’s date.” At the conclusion of the preliminary examination, the prosecution added a fourth count, felony child abuse (§ 273a, subd. (a)), and a fifth count, spousal battery, a misdemeanor. (§ 243, subd. (e)(1).) The magistrate held defendant to answer. Defense counsel renewed his motion for dismissal or OR release pursuant to section 859b. The prosecutor responded: “I believe 859b was something that needed to be addressed prior to preliminary when the court found good cause. That was an argument that was made at that time. It was subsequently made .... However that particular code section was not cited to this court on December 24. It went back to Judge Ogden on January 3rd. HD Judge Ogden refused to re-hear something this court made a finding on . . . .” The magistrate, evidently agreeing, set bail at $175,000.

An information was filed on January 21, 2003, charging defendant with cruelty to an animal (§ 597, subd. (a)), cruelty to a child (§ 273a, subd. (b)), making criminal threats (§ 422), child abuse (§ 273a, subd. (a)), and battery upon a spouse or cohabitant. (§ 243, subd. (e)(1).) The information also alleged as enhancements that defendant personally used a deadly weapon when committing the offense of cruelty to an animal (§ 12022, subd. (b)(1)), and that the criminal threats and spousal battery occurred while defendant was released from custody on bail. (§ 12022.1.)

On February 27, 2003, defendant moved to set aside the information pursuant to section 995. He contended it was “questionable” whether good cause justified the December 24, 2002 continuance of the preliminary examination, and that he had not been legally committed, because he was held in illegal custody in violation of section 859b. He urged that section 859b required that he be released on the date the continuance was granted. The prosecution countered that defendant had waived his claim by failing to refer to section 859b on December 24, that defense counsel had agreed to the continuance, and that defendant acted improperly in setting the matter for hearing before another judge on December 31 and “did not take all necessary steps to preserve ... the alleged error made on December 24, 2002.” The prosecution’s points and authorities apparently conceded that the magistrate would have been required to grant a timely motion for OR release: “The People concede that had the 859b OR release issue been raised prior to the preliminary hearing and after the continuance was granted consistent with Penal Code Section 1318, the defendant would have been eligible for release and would have been released at that time pending preliminary exam.”

On March 13, 2003, the superior court granted defendant’s motion to set aside the three counts in the information that were based on the December 11, 2002, complaint, concluding that “there was a denial of the defendant’s rights under 859b; that the defendant should have been released on his own recognizance, and that based upon that denial, the 995 motion should be granted.”

At a further hearing held on March 18, 2003, the court set aside the remaining two counts that had been added at the conclusion of the preliminary examination.

The People appealed from the judgment of dismissal, and the Court of Appeal affirmed the judgment rendered by the trial court. We granted the People’s petition for review.

II

A

The present case requires this court to interpret section 859b, which governs the time within which a preliminary examination must be held. The statute provides that with reference to in-custody defendants, the complaint must be dismissed if the preliminary examination is not held within 10 days of arraignment, except that the hearing may be continued with the consent of the defendant or if the prosecution establishes good cause for a continuance. If the defendant is in custody, however, the statute requires that upon continuance of the hearing, the defendant “shall” be released on his or her own recognizance, with specified exceptions where (1) continuance of the preliminary examination beyond the 10-day period is requested by the defendant; (2) the case involves capital charges where the “proof is evident and the presumption great”; (3) a necessary witness is unavailable due to the actions of the defendant; (4) counsel is ill; (5) counsel is required unexpectedly to appear in a jury trial; or (6) unforeseen conflicts of interest require appointment of new counsel.

The history of the enactment assists us in analyzing the questions before us. At one time, section 859b simply called for a preliminary examination to be set after the initial arraignment on the charges. Case law required only that the accused, whether in custody or at liberty, be afforded a preliminary examination without “unreasonable delay.” (People v. Du Bose (1970) 10 Cal.App.3d 544, 550 [89 Cal.Rptr. 134].)

Evidently not satisfied with this vague standard, the Legislature amended the statute in 1970, adding a provision granting accused persons in custody the right to a preliminary examination within 10 days of arraignment or plea. (Stats. 1970, ch. 1371, § 1, p. 2537.) Reasoning that the statute employed mandatory terms, and that the statute expressed a plain policy to protect the liberty of persons who are unable to post bail, an appellate court held that the statute created an absolute right to a preliminary examination within the specified period for in-custody defendants who do not waive the right, and that “in the absence of a waiver this right cannot be impinged upon by the magistrate, even on a showing of good cause.” (Serrato v. Superior Court (1978) 76 Cal.App.3d 459, 464 [142 Cal.Rptr. 882] [interpreting the 1970 version of the statute].) Although the statute did not contain any enforcement mechanism, the court held that failure to conduct the preliminary examination within the mandated period constituted a deprivation of a substantial right requiring dismissal. (Id. at pp. 468-470.)

Effective in 1978, section 859b was amended to provide that both the prosecution and the defendant have a right to a speedy preliminary examination, adding language stating that a preliminary examination could be continued for good cause beyond the 10-day period—but only if the accused was not in custody. (Stats. 1977, ch. 1152, § 1, p. 3698.) The Legislature made clear its intent to establish an absolute rule devoid of exceptions, adding the following language to the statute: “In no instance shall the preliminary examination be continued beyond 10 court days from such arraignment or plea whenever the defendant is in custody at the time of such arraignment or plea and the defendant does not personally waive his right to preliminary examination within such 10 court days.” (Id., pp. 3698-3699, italics added.)

In 1980, the Legislature again amended the statute, authorizing a preliminary examination to be continued beyond the 10-day period for all defendants, including persons in custody, upon a showing of good cause, but expressly requiring dismissal if the preliminary examination was continued beyond the 10-day period without a waiver and without good cause when the defendant is in custody. (Stats. 1980, ch. 938, § 1, p. 2965.)

Also in 1980, section 859b was amended to add a version of the language that is of principal concern in the present case. That amendment provided that if a preliminary examination for an in-custody defendant is delayed beyond the 10-day period for good cause, the defendant “shall” be released on his or her own recognizance (subject to conditions as prescribed by section 1318), except for defendants charged with capital crimes “where the proof is evident and the presumption great.” (Stats. 1980, ch. 938, § 1, p. 2965.) Thus, although under the former law the prosecution would have suffered a dismissal (with the resulting release of tire defendant without conditions) if a continuance were needed, whether the delay was justified by good cause or not, the new provision accommodated the prosecution’s needs in part, by substituting OR release for dismissal when the prosecution establishes good cause for the delay.

B

The People contend that the language of section 859b leaves the magistrate with discretion to deny OR release on public safety grounds to a defendant who is in custody but whose preliminary examination is continued beyond the 10-day period for good cause. According to the People, the magistrate retains such discretion whether or not the defendant’s case comes within the exceptions enumerated by the statute. As we explain, neither the language nor the purpose of the statute supports such an interpretation.

We interpret statutes with the object of ascertaining and effectuating the Legislature’s intent. (People v. Smith (2004) 32 Cal.4th 792, 797 [11 Cal.Rptr.3d 290, 86 P.3d 348].) “In determining such intent, we begin with the language of the statute itself. [Citation.] That is, we look first to the words the Legislature used, giving them their usual and ordinary meaning.” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 [96 Cal.Rptr.2d 463, 999 P.2d 686].)

In the present case, the meaning of the statute appears unambiguous. If an in-custody defendant’s preliminary examination is delayed for more than 10 court days without a waiver or good cause, the complaint must be dismissed, but if the prosecutor shows good cause for postponement, no dismissal is required—but a defendant who is in custody must be released on OR, as long as he or she agrees to be bound by reasonable conditions and to appear at future hearings as provided in section 1318. Indeed, case law and secondary authorities treat as commonplace the rule that OR release is required after the prosecutor secures a continuance for good cause pursuant to section 859b. (See Landrum v. Superior Court (1981) 30 Cal.3d 1, 5-6, fn. 4 [177 Cal.Rptr. 325, 634 P.2d 352]; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 130, p. 332; 1 Levenson, Cal. Criminal Procedure (1999) ch. 10, § 10.02(B), p. 10-8.) It is evident that the Legislature examined its previous policy requiring dismissal in all cases of delay when the accused is in custody, and in part accommodated the prosecution’s needs by providing the lesser remedy of OR release whenever there is good cause for a continuance—presumably in light of the prosecution’s ability to refile a complaint dismissed by the court or itself dismiss and refile the complaint if OR release is ordered.

Ordinarily, the term “shall” is interpreted as mandatory and not permissive. Indeed, “the presumption [is] that the word ‘shall’ in a statute is ordinarily deemed mandatory and ‘may’ permissive.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1143 [43 Cal.Rptr.2d 693, 899 P.2d 79].) There is no reason to believe that the OR-release provision contained in section 859b is merely permissive despite the Legislature’s use of the term “shall.” In every other portion of section 859b, the Legislature has used the term in its mandatory sense, a circumstance undisputed by the People. Terms ordinarily possess a consistent meaning throughout a statute. (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 960 [32 Cal.Rptr.3d 5, 116 P.3d 479].) The People have not suggested any reason to suppose the Legislature intended that the term “shall” in the portion of the statute presently under review means anything different from what that term signifies throughout the remaining portions of the statute.

The evident purpose of section 859b supports the view that its provisions are mandatory, rather than permissive. This enactment is one of a number of statutes “that are supplementary to and a construction of the constitutional right to a speedy trial.” (People v. Luu (1989) 209 Cal.App.3d 1399, 1404 [258 Cal.Rptr. 10].) Section 859b “reflects a clear legislative intention to prevent prolonged incarceration prior to a preliminary hearing.” (Landrum v. Superior Court, supra, 30 Cal.3d at p. 12.) This statute “ ‘manifests a legislative policy to eliminate the possibility that persons charged with felonies might suffer prolonged incarceration without a judicial determination of probable cause merely because they are unable to post bond in order to gain their freedom.’ ” (Blake v. Superior Court, supra, 108 Cal.App.3d 244, 248, italics added.) In many cases, that legislative policy would not be served under the People’s interpretation of the statute.

The People contend that the language of section 859b leaves the magistrate with authority to deny OR release to in-custody defendants for reasons other than the exceptions to the OR-release provision specified in the statute itself. But the presence of express exceptions ordinarily implies that additional exceptions are not contemplated. “[Wjhere exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed” unless a contrary legislative intent is evident. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195 [132 Cal.Rptr. 377, 553 P.2d 537].) In the present case, we are unable to perceive any indication of legislative intent to deviate from that rule of statutory construction.

The People stress that public safety is an interest that should be considered in any decision to release an accused person on OR and that such a concern must be the basis for the exercise of judicial discretion in any OR decision. But the enactment of statutory exceptions to the OR-release provisions of section 859b demonstrates that the Legislature already has considered the public safety interests that might outweigh the interest of an incarcerated defendant in being set at liberty when the preliminary examination is delayed. It has concluded that when good cause for a continuance is lacking, dismissal is required without regard to public safety concerns. As for the lesser remedy of OR release when the prosecution has demonstrated good cause for continuance, the Legislature has identified those instances in which the incarcerated defendant’s interest must give way, for example when there is a capital charge or the defendant has acted to render a witness unavailable. The Legislature has struck a balance between the incarcerated accused person’s interest in liberty and the public’s interest in security. The People evidently wish that a different balance had been struck to cover additional situations, but that did not occur. The Legislature, of course, is free to revise the statute as it wishes within constitutional limits, but the current language of the statute does not support the People’s position.

The People claim that section 859b’s reference to section 1318 affords magistrates full discretion to deny OR release. The latter statute requires persons who are released on OR to sign a release agreement promising to appear at future proceedings and to obey all reasonable conditions—including conditions that serve public safety. (See In re York (1995) 9 Cal.4th 1133, 1145 [40 Cal.Rptr.2d 308, 892 P.2d 804].) The People suggest that, because the OR-release provision of section 859b refers to section 1318, which calls for the magistrate’s exercise of discretion in setting reasonable conditions of OR release, the magistrate also must retain discretion to deny OR release altogether to persons whom the magistrate views as a public safety risk.

Contrary to the People’s argument, however, section 1318 does not govern a magistrate’s exercise of discretion whether to grant OR release. The magistrate’s discretion whether or not to grant OR release is governed by other provisions—provisions to which the Legislature could have referred in section 859b had it intended that OR release pursuant to section 859b be discretionary. (Cf. §§ 1269c [governing applications for increase or decrease in bail and for OR release], 1270 [setting out the general circumstances in which defendants may be granted OR release], 1270.1 [requiring a hearing before scheduled bail may be increased or decreased or OR release granted to defendants charged with specific violent felonies, and specifying factors to be considered by the court]; see also §§ 273.75 and 273.84 [governing OR release in specified domestic violence and spousal abuse cases], 1319 [requiring a hearing prior to OR release in violent felony cases, prescribing circumstances to be considered by the court in such cases, and prohibiting OR release for any person charged with a violent felony who previously failed to appear], 1319.5 [requiring a hearing prior to OR release for parolees, probationers, and persons who previously failed to appear].)

Rather, section 1318 prescribes the terms of the defendant’s OR release agreement, including his or her required promise to obey all reasonable conditions imposed by the court. Section 1318 does not govern the court’s authority to grant or deny OR release.

In addition, as the Court of Appeal explained, the People’s argument, if accepted, would render portions of section 859b a nullity. There would have been no need, for example, for the Legislature to add a specific public safety exception for capital defendants—let alone a qualification that the latter exception be limited to capital offenses in which the proof is evident and the presumption great—if the reference to section 1318 conferred upon the magistrate full authority to deny OR release despite the magistrate’s having granted the prosecution a continuance of a preliminary examination beyond the 10-day period.

The People cite In re Samano (1995) 31 Cal.App.4th 984 [37 Cal.Rptr.2d 491] in support of their claim that section 859b does not require OR release in every instance in which an in-custody defendant’s preliminary examination is continued for good cause beyond the 10-day period at the prosecutor’s request. In that case, however, the request for a continuance came from the defense and not from the prosecution. Two codefendants moved for continuance of the preliminary examination and waived the statutory period, while the other codefendants objected and did not waive time. The reviewing court held that failure to hold the preliminary examination within the statutory period did not compel OR release for the objecting codefendants.

The court acknowledged the general rule that section 859b mandates OR release when the prosecutor secures a continuance for good cause (In re Samano, supra, 31 Cal.App.4th at p. 990), but pointed out that the prosecutor had not requested the continuance. The court emphasized that “[sjection 859b, subdivision (b) is premised on the People as the initiator of the continuance.” (Id. at p. 989, italics added.) The court reasoned that a codefendant’s request for a continuance “should not inure to the detriment of the People with the nonmoving codefendants as unintended third party beneficiaries. The People were ready for the preliminary hearing and wanted to go forward . . . .” (Ibid.) The court also noted that another statute specifies that if the preliminary examination of one defendant is continued for good cause, proceedings for all codefendants may be continued so as to maintain joinder, a strong state interest. (See § 1050.1.) Balancing the interests of the codefendants in not being held in custody for a prolonged period without any determination of probable cause against the state’s interest in joint trials, the court concluded that when it is not the prosecutor but a codefendant who requests the continuance, the request should be attributed to all codefendants.

The decision in In re Samano is distinguishable from the present case, in which it was the prosecution that requested the continuance. That decision does not support the People’s claim that courts retain general discretion to deny OR release when a defendant is in custody and the prosecutor secures a continuance of the preliminary examination for good cause, nor does the decision support the People’s claim that courts have engrafted exceptions onto section 859b for instances in which the prosecutor secures a continuance. Two additional cases are distinguishable on a similar basis, in that the delay in the preliminary examination was attributable to the defense and, indeed, served the defendant’s constitutional interests. (People v. Kowalski (1987) 196 Cal.App.3d 174 [242 Cal.Rptr. 32] [defense counsel’s request for additional time was treated as a defense time waiver although the defendant personally objected, because the request served the defendant’s constitutional right to be represented by competent counsel]; Curry v. Superior Court (1977) 75 Cal.App.3d 221, 226 [141 Cal.Rptr. 884] [§ 859b is subordinated to the defendant’s constitutional right of self-representation and the preliminary examination properly was delayed—over the defendant’s objection—because additional time was needed to assess his mental capacity to represent himself].) By contrast, in the present case it was the prosecutor who sought the continuance, and obviously no constitutional right of defendant was served by denying him OR release.

The prosecutor’s request for a continuance illustrates the very reason section 859b was enacted; that is, to ensure that the prosecution cannot cause delay that results in the prolonged incarceration of a charged individual without a determination of probable cause. The People have not offered any theory under which the request for a continuance could be attributed to defendant in the present case. Nor do the People explain as a general matter how the statute would continue to operate under their interpretation. If section 859b provides that the court should grant OR release only to persons who otherwise would be eligible for OR release under other statutes, section 859b’s OR-release provision never would apply, because the accused person already would be out of custody on OR. Reading the People’s proposed public safety exception into the statute would operate to render its OR provision a dead letter, or at least render superfluous the specific exceptions set out in the statute.

C

The People next contend that provisions of the California Constitution require that a magistrate retain discretion to deny OR release notwithstanding section 859b. The People rely principally upon article I, section 28, subdivision (e) as proposed by Proposition 8 on the June 1982 primary election ballot, entitled the Victims’ Bill of Rights. Under that provision, according to the People, defendant was not entitled to OR release, because he was charged with a serious felony and posed a threat to public safety.

Proposition 8 proposed to repeal article I, section 12 of the California Constitution, which governs bail and OR release and which provided, prior to the June 1982 election: “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.” (Italics added.) The language concerning OR was added to the Constitution as part of a constitutional revision adopted by the voters at the November 5, 1974, General Election. Prior to that time, the bail provisions of the Constitution were contained in article I, section 6, but no mention was made of OR release. There was, however, a “ ‘well-established practice of releasing persons accused of crimes on their own recognizance’ ” in appropriate circumstances as an alternative to requiring the posting of bail—an alternative continued and recognized by the OR provisions that were added in 1974. (Dant v. Superior Court (1998) 61 Cal.App.4th 380, 385 [71 Cal.Rptr.2d 546], quoting Cal. Const. Revision Com., Proposed Revision (1971) p. 19.)

As noted, Proposition 8 proposed to repeal article I, section 12 and substitute article I, section 28, subdivision (e). The proposed subdivision was entitled “Public Safety Bail” and provided in pertinent part: “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 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.” (Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 8, p. 33, italics added.)

In relying on the bail and OR provisions of Proposition 8, the People fail adequately to take account of a series of opinions, including one by this court, that has concluded that the relevant provision of Proposition 8 never became effective, because a competing initiative measure on the same ballot (Proposition 4) garnered more votes than Proposition 8. (In re York, supra, 9 Cal.4th at p. 1140, fn. 4; see also Dant v. Superior Court, supra, 61 Cal.App.4th at pp. 384-385, fn. 6; People v. Cortez (1992) 6 Cal.App.4th 1202, 1211 [8 Cal.Rptr.2d 580]; People v. Barrow (1991) 233 Cal.App.3d 721, 723 [284 Cal.Rptr. 679].)

Proposition 4 added language to article I, section 12 that is relevant to the subject of release on bail. New language permitted courts setting bail to consider factors other than the probability that the defendant would appear at trial. In particular, the measure authorized courts to consider the seriousness of the offense and the previous criminal record of the accused, and the proponents of the measure made it clear they intended that public safety should be a consideration in bail decisions. (Ballot Pamp., Primary Elec. (June 8, 1982) argument in favor of Prop. 4, p. 18.) Proposition 4, however, did not amend the preexisting provision of article I, section 12 of the state Constitution related to OR release. Specifically, Proposition 4 did not amend the language providing that “[a] person may be released on his or her own recognizance in the court’s discretion.” (Cal. Const., art. I, § 12; see Dant v. Superior Court, supra, 61 Cal.App.4th at pp. 384—385, fn. 6; Ballot Pamp., Primary Elec. (June 8, 1982) text of Prop. 4, p. 17.)

In In re York, supra, 9 Cal.4th 1133, the defendant claimed that the magistrate violated section 1318 by placing conditions upon his OR release that were not concerned with guaranteeing his presence at the hearing. We began our discussion as follows: “Article I, section 12, of the California Constitution establishes a person’s right to obtain release on bail from pretrial custody, identifies certain categories of crime in which such bail is unavailable, prohibits the imposition of excessive bail as to other crimes, sets forth the factors a court shall take into consideration in fixing the amount of the required bail, and recognizes that a person ‘may be released on his or her own recognizance in the court’s discretion.’ Penal Code section 1318 sets forth a variety of requirements that an OR release agreement must satisfy.” (In re York, at pp. 1139-1140, fn. omitted.) Having identified the constitutional source of the right to bail and to consideration for OR release, we explained in a footnote that the source of the bail provisions of article I, section 12 was Proposition 4. “The provisions set forth in article I, section 12, of the California Constitution were contained in Proposition 4, enacted by the voters at the June 1982 Primary Election. Proposition 4 received more votes than did Proposition 8, an omnibus initiative that, in the same election, added (among other provisions) article I, section 28, subdivision (e), to the California Constitution, providing in pertinent part: ‘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.’ . . . [][] Because Proposition 4 received more votes than did Proposition 8, the bail and OR release provisions contained in Proposition 4 are deemed to prevail over those set forth in Proposition 8. [Citations.]” (In re York, supra, 9 Cal.4th at p. 1140, fn. 4, italics added, original italics omitted.)

The source of the California Constitution’s bail provisions was significant in the statutory analysis we conducted in In re York. Had the provisions of Proposition 8’s article I, section 28, subdivision (e) taken effect, they quickly would have disposed of York’s claim that the sole legitimate purpose of imposing conditions for OR release was to ensure the defendant’s presence at the hearing, because the language proposed by Proposition 8 specified that considerations other than ensuring a defendant’s presence at the proceeding could be considered in the context of a decision to grant an OR release, just as other considerations were relevant in setting bail. Having determined instead that it was the language of Proposition 4 that prevailed, however, we proceeded to analyze the ambiguities in section 1318 without regard to the directives that would have been controlling under Proposition 8.

Undaunted, the People contend that in In re York, supra, 9 Cal.4th 1133, we were not called upon to consider whether Propositions 4 and 8 might be harmonized and both be given effect, and that we did not consider the applicability of our earlier decision in Yoshisato v. Superior Court (1992) 2 Cal.4th 978 [9 Cal.Rptr.2d 102, 831 P.2d 327]. That decision 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. In the latter situation, the two measures may be compared section by section, giving effect to both so long as there is no direct conflict. (Id. at pp. 987-988, 991-992.) The People insist that Propositions 4 and 8 were complementary, not competing. Contending there is no conflict between each proposition’s bail and OR provisions, the People urge that the provisions of each proposition can be given effect.

Although in In re York we did not analyze at any length the point presently raised, we did cite Yoshisato in support of our conclusion that the provisions of Proposition 4 prevailed over those of Proposition 8. (In re York, supra, 9 Cal.4th at p. 1140, fn. 4.) It is apparent we believed Propositions 4 and 8 contained competing measures respecting bail and OR release that could not both be given effect, and we held that because Proposition 4 had received more votes, that proposition must be given effect over the competing measure. Moreover, our current review of the ballot pamphlet for the 1982 primary election, at which both Propositions 4 and 8 were proposed, demonstrates that the measures were not presented to the voters as complementary. On the contrary, opponents of Proposition 8 (including a member of the Legislature that had voted unanimously in favor of placing Proposition 4 on the ballot) warned that the former measure would enact radical changes that would restrict individual liberty and harm “true efforts to fight crime,” adding: “CONSIDER THESE EFFECTS OF PROPOSITION 8: [