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In re Alberto

Court of Appeal of California, Second Appellate District, Division Eight

September 25, 2002, Decided ; September 25, 2002, Filed

No. B158722.


RUBIN,  [**527]  J.

 [*423]  After one judge sets bail for a criminal defendant awaiting trial, may another judge increase the bail solely because the second judge believes the first judge's bail determination at the time was erroneous? We answer this question in the negative, and, therefore, grant the petition.


On August 20, 2001, a felony complaint was filed charging petitioner Wilmer Eduardo Alberto (and a codefendant who is not a party to this writ proceeding) with one count of first degree residential robbery. (Pen Code, §§ 211, 212.5, subd. (a).) Bail was set at $ 35,000. Alberto posted [***2]  it and was released.

The preliminary hearing took place on October 17, 2001. The crime victim testified he was working as an attendant at a parking lot in downtown Los Angeles when Alberto and an accomplice drove into the lot. According to the attendant, Alberto got out of the car, put a gun to his neck, and  [*424]  demanded money. The attendant gave Alberto $ 1,800. However, Alberto's accomplice (who was still in the car) told Alberto to shoot the attendant because the attendant was not giving up all the money. Alberto did not fire his weapon, but his accomplice did. The shot missed the attendant. According to the attendant, Alberto then told the accomplice to shoot again because the attendant had not handed over the money. It appears, however, that no additional shots were fired before Alberto and the accomplice drove away. Police later arrested both men.

Alberto was held to answer, albeit on an amended charge of second degree robbery and an armed with a firearm allegation (Pen. Code, § 12022, subd. (a)(1)). 1 

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102 Cal. App. 4th 421 *; 125 Cal. Rptr. 2d 526 **; 2002 Cal. App. LEXIS 4702 ***; 2002 Cal. Daily Op. Service 9863; 2002 Daily Journal DAR 11205

In re WILMER EDUARDO ALBERTO on Habeas Corpus.

Subsequent History:  [***1]  Order Modifying Opinion September 30, 2002. No Change in Judgment.

Prior History: Superior Court of Los Angeles County, No. BA240229, Ruth A. Kwan, Judge.

Disposition: The petition for habeas corpus is granted with directions to the trial court to conduct a further bail hearing consistent with the views expressed herein or set bail at $ 35,000. Compliance shall be within five court days of the date this decision becomes final. This decision shall become final as to this court five days after it is filed. (Cal. Rules of Court, rule 24(d).)


bail, reconsider, attendant, accomplice, reinstated, robbery, corpus, vacate

Criminal Law & Procedure, Preliminary Proceedings, Bail, Hearings, General Overview, Adjustments & Enhancements, Criminal History, Governments, Courts, Authority to Adjudicate, Trials, Judicial Discretion, Civil Procedure, Judicial Officers, Judges, Search & Seizure, Search Warrants, Judges, Entry of Pleas, Guilty Pleas, Changes & Withdrawals, Plea Bargaining Process, Enforcement of Plea Agreements, Denial of Bail, Judgments, Relief From Judgments, Appeals, Standards of Review