In re Ung

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Filed 8/10/20 In re Ung CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re KALVIN UNG,
on Habeas Corpus.
H048152
(Santa Clara County
Super. Ct. No. C1807777)
Kalvin Ung petitions for a writ of mandate, habeas corpus, or alternative
relief from the trial court’s order denying him release on bail. Ung is in pretrial
custody facing 76 counts of grand theft, petty theft, attempted grand theft,
unauthorized access to computers, and identify theft. He had twice previously
been released on bail but the trial court revoked his bail status and remanded him
into custody after finding he violated the terms of his release.
For the reasons below, we are compelled to conclude Ung has a right to bail
under the California Constitution and the amended bail schedule adopted by the
superior court on June 23, 2020 in response to the COVID-19 pandemic. We will
direct the trial court to vacate its order denying bail and hold a hearing in order to
exercise its discretion in setting bail consistent with the amended bail schedule.
I. FACTUAL AND PROCEDURAL BACKGROUND
The prosecution alleges Ung is part of a network of computer hackers
engaged in theft through “SIM swapping.” Many online accounts allow an
account holder to reset the account password by sending a code to the account
holder’s phone. In a SIM swap, the hacker tricks or persuades the victim’s phone
carrier into switching the victim’s phone number to a SIM card in the hacker’s

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phone. The hacker then attempts to log into the victim’s online account and
prompts the account manager to send a password reset code to the highjacked
phone number. Upon receiving the code, the hacker resets the password and gains
access to the victim’s account.
The prosecution avers Ung engaged in dozens of such SIM swaps,
whereupon he accessed the cryptocurrency accounts of multiple victims and
transferred cryptocurrency (e.g., Bitcoin) worth nearly $2 million to himself. The
current information charges Ung with 76 counts of grand theft, petty theft,
attempted grand theft, unauthorized access to computers, and identify theft. (Pen.
Code, §§ 487, subd. (a), 488, 502, subd. (c)(1)(A), 530.5, subd. (a).) The
information further alleges an aggravated white collar enhancement for the taking
of more than $500,000, and the information alleges three of the offenses were
committed while bail was revoked. (Pen. Code, §§ 186.11, subd. (a)(1), 12022.1.)
Police executed a Ramey1 arrest warrant in September 2018 and
immediately took Ung into custody. Ung was released on $250,000 bail within
hours. The prosecution filed a complaint in December 2018 along with a second
arrest warrant. Ung was taken into custody again, and bail was set at $2,000,000.
Ung moved for a reduction in bail shortly after he was taken into custody.
After multiple hearings on the matter, the trial court reduced bail to $1,006,500
and
imposed various supervised release conditions, including GPS monitoring and a
prohibition on accessing electronic communication devices. In February 2019,
Ung posted bond and was released on these conditions, among others.
The prosecution filed a second amended complaint in May 2019, and after
a preliminary hearing, Ung was held to answer.
1 People v. Ramey (1976) 16 Cal.3d 263.

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In July 2019, the Office of Pretrial Services filed a “Request to Admonish”
on the grounds that Ung had allowed his GPS monitoring device to shut down on
10 separate occasions, rendering the device unable to transmit location data for a
total of about 90 hours between May and July 2019. Ung was remanded into
custody on July 24, 2019.
In September 2019, the trial court held a continued hearing at which the
prosecution presented additional evidence that Ung had violated the terms of his
supervised release. Among other things, the evidence supported findings that Ung
had accessed electronic devices and made further attempts to engage in SIM
swapping while he was on supervised release. Based on this evidence, the trial
court found “[t]here are no orders that the Court can make that will assure the
public is not at risk” and ordered Ung held without bail. While in custody, Ung
was charged with possession of methamphetamine.
In April 2020, in response to the health crisis resulting from the COVID-19
pandemic, the Judicial Council of California adopted Emergency Rule 4
establishing a statewide emergency bail schedule. The rule set bail for offenses
and violations of postconviction supervision at $0 with exceptions in certain cases.
Ung requested a bail hearing and argued the trial court was required to set bail at
$0 under the emergency order. The trial court denied bail and Ung remained in
custody.
On May 22, 2020, Ung filed a petition in this court seeking a writ of
mandate, habeas corpus, or alternative relief. On June 18, after requesting and
receiving informal briefing, we issued an order to show cause why Ung is not
entitled to relief.
After we issued the order, the Judicial Council repealed Emergency Rule 4
while encouraging superior courts to adopt similar rules as necessary. On June 23,
2020, the Santa Clara County Superior Court issued an amended order adopting a

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bail schedule with terms similar to those set forth in Emergency Rule 4.2 We
requested the parties address the relevance of the superior court’s order at oral
argument in this matter.
II. DISCUSSION
Ung asserts the trial court erred by denying him release on bail because he
has a right to bail under article I, section 12 (hereinafter “Section 12”) of the
California Constitution. The District Attorney contends revocation of supervised
release without bail was justified because Ung violated the terms of his release in
multiple ways, demonstrating he presents a threat to the public. The District
Attorney relies on the reference to public safety set forth in subdivision (f)(3) of
article I, section 28 (hereinafter “Section 28(f)(3)”) of the California Constitution.
A. Legal Principles
“ ‘Habeas corpus is an appropriate vehicle by which to raise questions
concerning the legality of bail grants or deprivations.’ ” (In re Humphrey (2018)
19 Cal.App.5th 1006 (Humphrey), quoting In re McSherry (2003) 112
Cal.App.4th 856, 859-860.)3
“In our society liberty is the norm, and detention prior to trial or without
trial is the carefully limited exception.” (U.S. v. Salerno (1987) 481 U.S. 739.)
Under California law, “defendants charged with noncapital offenses are generally
entitled to bail.” (In re White (2020) 9 Cal.5th 455, 462 (White).) Historically, the
California Constitution has conferred “an absolute right to bail except in a narrow
2 We take judicial notice of the superior court’s order. (Evid. Code, § 452,
subd. (e).)
3 The California Supreme Court has granted review in Humphrey as we
discuss infra. (In re Humphrey (2018) 417 P.3d 769.)

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class of cases.” (In re Law (1973) 10 Cal.3d 21, 25.) The California Constitution
delineates certain exceptions under which a defendant may be denied bail.
Under Section 12, defendants in noncapital cases “shall be released on bail
by sufficient sureties” except for “(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.)
Section 28(f)(3) provides, in 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 safety of the victim, 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 and the safety of the
victim shall be the primary considerations.” (Cal. Const., art. I, § 28.) The latter
two sentences of this section are also set forth in Penal Code section 1275,
subdivision (a)(1).
The California Supreme Court has not fixed a standard of review for the
denial of bail under Section 28(f)(3). Under subdivision (b) of Section 12,
however, we review the trial court’s finding on the first element—whether the
defendant committed offenses involving acts of violence on another person, or
felony sexual assault offenses on another person—“by assessing whether the

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record, viewed in the light most favorable to the prosecution, contains enough
evidence of reasonable, credible, and solid value to sustain a guilty verdict on one
or more of the qualifying crimes.” (White, supra, 9 Cal.5th at p. 463.) As to the
second element, “we consider whether any reasonable trier of fact could find, by
clear and convincing evidence, a substantial likelihood that the person’s release
would lead to great bodily harm to others.” (Id. at p. 465.) “[W]e review a trial
court’s ultimate decision to deny bail for abuse of discretion. [Citations.] Under
this standard, a trial court’s factual findings are reviewed for substantial evidence,
and its conclusions of law are reviewed de novo. [Citation.] An abuse of
discretion occurs when the trial court, for example, is unaware of its discretion,
fails to consider a relevant factor that deserves significant weight, gives significant
weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or
irrational that no reasonable person could agree with it. [Citation.]” (Id. at pp.
469-470.)
B. Denial of Bail was Improper
The parties disagree on whether Section 12 or Section 28(f)(3) governs the
outcome in this case. The District Attorney does not contend that Section 12
provided any grounds for the denial of bail here. Ung is not charged with
committing any acts of violence or sexual assault, and he has not threatened any
person with great bodily harm. Ung argues that he therefore had a constitutional
right to bail under Section 12. The District Attorney, however, contends the trial
court properly denied bail based on public safety as set forth in Section 28(f)(3).
The parties are not alone in their disagreement concerning the import of the
two sections. The appropriate application of these constitutional sections to set
bail is not settled in our state. The California Supreme Court granted review in
Humphrey to consider the meaning of the two sections for purposes of setting bail
in non-capital cases, posing the following questions: “Under what circumstances

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does the California Constitution permit bail to be denied in noncapital cases?
Included is the question of what constitutional provision governs the denial of bail
in noncapital cases—article I, section 12, subdivisions (b) and (c), or article I,
section 28, subdivision (f)(3), of the California Constitution—or, in the alternative,
whether these provisions may be reconciled.” (In re Humphrey (2018) 417 P.3d
769.) As Humphrey has not yet been decided, we draw on established principles
of constitutional interpretation to reconcile the provisions.
The parties set their arguments in the context of the electoral history
underlying the competing sections. Ung contends the relevant language in Section
28(f)(3) is inoperative because it was originally enacted by a provision in
Proposition 8 in 1982 that the California Supreme Court later held outvoted by a
competing proposition. (People v. Standish (2006) 38 Cal.4th 858, 875 [“T]he
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 (1995) 9 Cal.4th 1133, 1140, fn. 4.) The District
Attorney asserts that the voters reinstated the relevant language through
Proposition 9 in 2008.
But we need not decide whether the entirety of Section 28(f)(3) is operable
to resolve this matter. As the District Attorney acknowledges, “one constitutional
provision ‘should not be construed to effect the implied repeal of another
constitutional provision.’ [Citation.] Accordingly, if the two provisions can be
construed to apply concurrently, we must do so. [Citation.]” (City and County of
San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 567.) This rule is
particularly pertinent given that the California Supreme Court recently opined at
length on the standard of review applicable to a trial court’s findings under Section
12 in White, supra, 9 Cal.5th 455, thereby implicitly affirming its significance.

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The District Attorney’s proposed construction of Section 28(f)(3)—under
which bail may be denied irrespective of the mandatory conditions set forth in
Section 12—would essentially render Section 12 meaningless. Section 12
expressly states that defendants “shall be released on bail” except under certain
conditions—conduct involving violence, sexual assaults, or threats of violence—
that are nonexistent in this case. If Section 28(f)(3) could be so broadly
interpreted as authorizing the denial of bail under the circumstances presented
here, this construction would swallow Section 12 whole. Based on a plain reading
of the language of both sections taken together, Section 28(f)(3) simply specifies
additional factors that a court must consider in denying or setting bail for a
defendant who falls within the exceptions set forth in Section 12.
Furthermore, even assuming Section 28(f)(3) allows a court to deny bail in
cases that do not fall within the scope of Section 12’s exceptions, it requires that
the trial court give primary consideration to “[p]ublic safety and the safety of the
victim.” There is no evidence that Ung’s release would threaten the victims in this
case. As for the phrase “public safety,” we do not construe it to include the threat
of economic offenses such as those at issue here. Reading the relevant sections in
context, we conclude the phrase “public safety” in Section 28(f)(3) must be
construed in harmony with Section 12 to include offenses that inflict or pose a
threat of physical injury such as those that involve acts of violence, sexual
assaults, and threats of great bodily harm.
Based on the evidence of Ung’s conduct violating the terms of his release,
the trial court found he presented “a threat to the community” and that “[t]here are
no orders that the Court can make that will assure that the public is not at risk.”
But there was no evidence that Ung had committed any acts of violence or sexual
assault, nor that he threatened to commit great bodily harm. Accordingly, there is

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no substantial evidence to support a finding that he falls within the exceptions set
forth in Section 12. The District Attorney conceded this point at oral argument.
Based on the plain language of Section 12 and our fidelity to constitutional
principles, we are compelled to conclude the trial court erred in denying Ung bail.
We acknowledge the evidence demonstrates Ung engaged in flagrant violations of
his release conditions, but the exceptions set forth in Section 12 do not set forth
grounds for a total denial of bail. Furthermore, we do not believe trial courts are
powerless to act under these circumstances, as set forth below.
Ung’s petition alleges he was entitled to be released on $0 bail under the
Judicial Council’s Emergency Rule 4. The District Attorney accurately points out
that Emergency Rule 4 has since been repealed. On June 23, 2020, however, the
Santa Clara County Superior Court issued an amended bail schedule including
much of the same language in Emergency Rule 4. The superior court’s order
provides, “Bail for all misdemeanor and felony offenses must be set at $0” with
the exception of certain offenses not at issue here. The order further provides,
“The court retains discretion to deny bail as authorized by article I, section 12, or
28(f)(3) of the California Constitution, to set a higher bail for any offense,
including those with a bail of $0, and/or to order conditions of release deemed
appropriate for any offense. Setting of bail is at the discretion of the judicial
officer reviewing the case with due consideration of public safety and health
concerns.”
The plain language of the superior court’s June 23, 2020 emergency order
would only allow the trial court to deny bail in accordance with the constitutional
provisions discussed above. However, the plain language of the emergency order
does not require the trial court to set bail for Ung at $0 as it provides the trial court
discretion to set “a higher bail for any offense, including those with a bail of
$0….” We leave to the trial court the determination of what bail is appropriate

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here, noting that it must set bail under the emergency order “with due
consideration of public safety and health concerns,” which, given the order’s
adoption in the current public health crisis, would necessarily include a
consideration of the impacts of COVID-19. We further recognize the trial court’s
authority to consider a wide range of potential conditions on Ung’s release—
including the confiscation of his passport, and perhaps the use of Ung’s own
financial resources—to ensure his appearance at future proceedings and prevent
him from inflicting economic harm on the public.
Accordingly, compelled by the constitutional mandate of Section 12, we
will order the trial court to vacate its prior order and hold a hearing to consider
setting bail consistent with this opinion and the criteria set forth in the Santa Clara
County Superior Court’s bail order of June 23, 2020.
III. DISPOSITION
The Superior Court is directed to vacate its April 30, 2020 order denying
bail and hold a hearing to consider entering a new and different order setting bail
consistent with the June 23, 2020 amended bail order. To prevent further delays in
the Superior Court proceedings, this decision shall be final as to this court five
court days after its filing. (Cal. Rules of Court, rule 8.387(b)(3)(A).)

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____________________________
Greenwood, P.J.
WE CONCUR:
______________________________
Premo, J.
______________________________
Grover, J.
In re KALVIN UNG on Habeas Corpus
H048152

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