Attorney wins appeal over double-bail requirement

October 21, 2008 - 3:12PM

RYAN ORR Staff Writer

VICTORVILLE • An opinion released by the Court of Appeals may change a policy in the Victorville court that has violated the due process of many defendants and left them paying bail twice.

Hundreds of thousands of dollars in bail premiums have been wasted by defendants and their families since the court scrapped bail hearings and began forfeiting bonds without the defendants having any knowledge of it.

If someone is arrested for a felony and posted bond, but the District Attorney’s office doesn’t quickly file charges, that person’s bond is exonerated. If charges are filed at a later date, that person is rearrested and finds himself in jail having to post a second bond to be released, if they can afford it.

Defense Attorney Rick Ewaniszyk, with an office in Victorville, was granted a writ of mandate overturning the policy on the grounds that it violates due process.

“There’s no question in my mind that it was an illegal policy and it was grossly unfair to every family that posted a bond for someone who had merely been arrested for a crime,” Ewaniszyk said. “If the court does not correct its policy, I’ll go right back to the Court of Appeals for further relief.”

Ewaniszyk fought the policy on behalf of his client, Paul Mencos, who was charged twice for bail, and the 4th Appellate District, Division 2 court in Riverside granted relief solely to Mencos.

However, in the unpublished opinion, the court states, “We express confidence that in the future, the trial court and the judges of that court will give appropriate consideration to the effect of premature exoneration on the individual defendant and will be cognizant of the legislative attempts to ensure fair treatment.”

“What that means is that the court’s policy is illegal,” said Mark Shoup, Victorville’s supervising public defender.

In the past, the court used a “bail calendar,” giving defendants the opportunity to continue their bonds if charges had not been filed.

Victorville’s presiding judge, Eric Nakata, said it was Ewaniszyk who challenged that policy, winning a case that resulted in the court getting rid of the bail calendar. The controversy in the new policy — which started several months ago — stems from Penal Code Section 1305, which deals with when it is appropriate to forfeit a bond.

Ewaniszyk said that most of the defendants are more than willing to voluntarily come to court pursuant to their original bond if it were continued.

The disputed policy would affect roughly 1,000 people a year and result in $25 million to $30 million worth of bonds being exonerated, all because the court doesn’t want to hold a five-minute hearing to continue the bail bond, Ewaniszyk said in a previous interview.

In the month of June alone, more than $2.5 million in bonds was exonerated by the court for 90 defendants who had not yet been formally charged by prosecutors. Out of the 90 defendants in June, more than $250,000 in bond premiums were wasted — assuming they were eventually charged — and only one of the defendants, Mencos, was granted a hearing.

“It’s fundamentally unfair to require a defendant to post bail twice,” Shoup said.

San Bernardino County Presiding Judge Jim McGuire said the court will have to change the way it does things. The policy that wound up double-charging several defendants for bail is not instituted only in Victorville but in all criminal courts throughout the county, McGuire said.

“I sent that case out today to everyone with a note cautioning them of two things,” McGuire said. “You can not exonerate a bond at the first arraignment and you cannot hold the bonding company liable after 15 days.”

Ryan Orr may be reached at 951-6277 or rorr@vvdailypress.com.