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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 925 OPINION

In this case we must determine the criteria that trial and appellate courts in this state may properly consider in passing upon applications by convicted felons for release pending appeal of their convictions.¹ Petitioner, relying on several distinct state and federal *Page 926 constitutional theories, contends that, except in capital cases, all such defendants are entitled to release pending appeal "as a matter of right." As we shall explain, we find this contention untenable and conclude that, as provided by Penal Code section1272, the decision to release a convicted felon pending appeal generally rests in the "discretion" of the court. Although petitioner also complains that section 1272's broad grant of "discretion" invests the court with unbridled authority in this area, we explain that numerous judicial precedents disclose general guidelines for the exercise of such discretion, illuminating the various considerations that courts properly should look to in determining whether to grant release on appeal.

Despite the presence of these judicial guidelines, however, we recognize that appellate courts frequently have had difficulty in ascertaining whether a trial court in ruling upon an application for release pending appeal has focused on the appropriate criteria because a trial court has not been required to articulate the grounds upon which it has relied in denying such an application. In recent years, our court has had occasion to emphasize in a wide variety of contexts that governmental decisions which affect important individual interests should be accompanied by at least a brief statement of reasons explaining the basis for such decision. (See, e.g., In re Sturm (1974)11 Cal.3d 258 [113 Cal.Rptr. 361, 521 P.2d 97]; Topanga Assn. fora Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 [113 Cal.Rptr. 836, 522 P.2d 12].) Applying the reasoning underlying these recent authorities, we have concluded that in the future a trial court in denying an application for bail on appeal should provide a brief statement of reasons for its ruling.

1. The facts of the instant case.

In August 1974, petitioner Alan E. Podesto (hereafter defendant) was stopped for an alleged traffic violation. When a search of the trunk of his automobile disclosed a large quantity of marijuana, he was arrested and charged with possession of marijuana for sale and sale of marijuana. (Health Saf. Code, §§11359, 11360.) Shortly thereafter he filed a pretrial motion seeking to suppress the evidence upon which the charges *Page 927 rested. Defendant claimed that even though the search of the car trunk followed the officer's discovery of a small quantity of marijuana debris in the rear seat of defendant's automobile, the search was nonetheless illegal for lack of probable cause.²

The initial magistrate agreed that the search was improper, suppressing the evidence and dismissing the charges against defendant. The People thereafter refiled the identical charges (see People v. Uhlemann (1973) 9 Cal.3d 662, 669 [108 Cal.Rptr. 657, 511 P.2d 609]) and, after a second hearing before a different magistrate, the second magistrate ruled against defendant and refused to suppress the evidence. Defendant then sought suppression in the superior court; upon the denial of that motion he petitioned for a writ of mandate in the Court of Appeal. The appellate court denied the writ without opinion.

Defendant then entered a plea of guilty to the charge of possession of marijuana for sale and incurred a sentence to state prison for the term prescribed by law. Defendant has appealed from the conviction on the basis of the allegedly illegal search and seizure (see Pen. Code, § 1538.5, subd. (m)); the appeal is presently pending in the Court of Appeal.

Two days after sentencing, after filing his notice of appeal, defendant moved in the superior court for an order releasing him on bail pending appeal. In arguing for release, defense counsel pointed out that throughout the criminal proceedings defendant had made all appearances in court while released on his own recognizance, that defendant had a job opportunity available to him in the community and that counsel believed that there was a strong possibility that the conviction would be reversed on appeal. Nevertheless, the trial court denied the motion for bail on appeal, indicating in very brief fashion that its denial was based in part on the fact that defendant's pretrial petition for a writ of mandamus had been denied and also on the "threat" involved in the matter.³ After defendant's subsequent application for bail pending *Page 928 appeal was summarily denied by the Court of Appeal,⁴ he filed the present petition seeking an order of this court granting release on appeal. We issued an order to show cause in order to explore the question of the continued viability and general clarity of past California decisions addressing the issue of "bail on appeal." *Page 929

2. (1) Penal Code section 1272, providing that bail on appeal is a "matter of discretion" in felony cases in which imprisonment has been imposed, does not violate article 1, section 12 of the California Constitution.

Penal Code section 1272 provides today, as it and its predecessor statutes have for a century and a quarter, that a convicted felon who is sentenced to a term of imprisonment "may be admitted to bail . . . [a]s a matter of discretion."⁵ Defendant contends initially that this clear statutory mandate conflicts with article I, section 12 (formerly art. I, § 6) of the California Constitution, which states in relevant part that "A person shall be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great."⁶ Defendant claims that article I, section 12 ensures to all defendants in non-capital cases the availability of release on bail as a matter of right, bothbefore and after conviction.

Defendant recognizes that in a series of cases reaching back more than 100 years, this court has rejected this identical legal contention and has held that the state constitutional right to bail applies only before *Page 930 conviction. (See, e.g., In re Scaggs (1956) 47 Cal.2d 416, 418 [303 P.2d 1009]; Ex parte Brown (1885) 68 Cal. 176, 177 [8 P. 829]; Ex parte Voll (1871) 41 Cal. 29, 31-33.) Defendant argues, however, that all of these cases were erroneously decided and that their fundamental rationale has been invalidated by more recent pronouncements of this court, particularly In reUnderwood (1973) 9 Cal.3d 345 [107 Cal.Rptr. 401,508 P.2d 721].

In Underwood, this court addressed the question of whether a prisoner who was charged with a non-capital offense could be denied bail on the ground that his release would pose a danger to the public. We answered that question in the negative, holding that the California Constitution granted an absolute right topreconviction bail in non-capital cases, and did not authorize a "public safety" exception to its provisions. BecauseUnderwood did not involve a question of bail pending appeal, that case lends no support to defendant's contention.

In attempting to find support for his broad constitutional interpretation in Underwood, defendant cites one passage of the opinion which states: "The purpose of bail is to assure the defendant's attendance in court when his presence is required,whether before or after conviction." (Italics added.) (9 Cal.3d at p. 348.) As we discuss below, this is an entirely accurate statement, for California courts have long acknowledged that a primary purpose of bail after conviction is to assure that a defendant will not flee the jurisdiction. The quoted passage fromUnderwood does not, however, equate the right of bail pending appeal with the right of preconviction bail and, indeed, a separate portion of the Underwood opinion explicitly recognizes the "substantial differen[ce]" between a defendant's right to bail before and after conviction. (See 9 Cal.3d at p. 347, fn. 1.)

Moreover, even if the language of Underwood could be construed to raise doubts as to the continued validity of the entire line of decisions attacked by defendant, such doubts should properly have been put to rest by this court's subsequent decision in In re Law (1973) 10 Cal.3d 21 [109 Cal.Rptr. 573,513 P.2d 621]. In rejecting a parolee's contention that he enjoyed a constitutional right to release on bail after being detained for an alleged parole violation, we carefully reviewed the language of article I, section 12 (then art. I, § 6) and recognized that the constitutional provision, by its own terms, was clearly intended to apply only to preconviction bail. As we stated in Law: "The constitutional provision, although it first states that `All persons' shall be bailable, then *Page 931 makes an exception `for capital offenses when the proof is evident or the presumption [is] great.' The phrase `the proof is evident or the presumption [is] great' can be relevant only as a limitation on the bailable nature of a charged but unproven capital offense; otherwise the proof and presumption would have been conclusively and finally established. The provision thus purports to deal not with all persons in an unlimited sense but rather with all persons charged with criminal offenses as only then does the whole of the language have relevancy. We have heretofore stated that the purpose served by the provision was `fixing bail before trial.' (People v. Anderson (1972)6 Cal.3d 628, 657, fn. 45. . . .)" (Italics added.) (10 Cal.3d at pp. 25-26.)⁷

Accordingly, we reject defendant's contention that the provisions of section 1272 conflict with article I, section 12 of the California Constitution. (See also People v. Turner (1974) 39 Cal.App.3d 682, 684-686 [114 Cal.Rptr. 372].)

3. (2a) Penal Code section 1272 does not violate the equal protection clauses of the federal or state Constitutions.

Defendant alternatively argues that even if the California Constitution does not independently guarantee release on appeal as a matter of right, Penal Code section 1272 is still unconstitutional as a violation of the equal protection clauses of the federal and state Constitutions. As noted above (fn. 5,ante) section 1272 draws a distinction between convicted misdemeanants facing imprisonment and convicted felons *Page 932 facing imprisonment, providing bail on appeal as a matter of right for the former class but only discretionary bail on appeal for the latter category. Defendant contends that the disparate treatment of these two classes amounts to an invidious discrimination, precluded by the equal protection clauses. As we explain, we find this argument untenable.

(3) "It is basic that the guarantees of equal protection . . . prohibit the state from arbitrarily discriminating among persons subject to its jurisdiction. This principle, of course, does not preclude the state from drawing any distinctions between different groups of individuals, but does require that, at a minimum, classifications which are created bear a rational relationship to a legitimate public purpose. [Citations.] Moreover, `in cases involving "suspect classifications" or touching on "fundamental interests" . . . the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that distinctions drawn by the law are necessary to further its purpose.' [Citations.]" (In re King (1970) 3 Cal.3d 226, 232 [90 Cal.Rptr. 15,474 P.2d 983].)

(2b) In the instant case, defendant claims that the statutory provision must be measured against the "strict scrutiny" equal protection standard, asserting that the classification scheme vitally affects an individual's interest in "liberty," one of the most fundamental personal rights guaranteed by our state and federal Constitutions. Assuming that the "strict scrutiny" standard is the appropriate constitutional guideline in this matter (see, e.g., United States v. Thompson (1971)452 F.2d 1333, 1340 [147 App.D.C. 1]), we nonetheless conclude that the classification scheme at issue here plainly passes constitutional muster.

A variety of compelling justifications demonstrate the reasonableness of the distinction drawn between convicted felons and convicted misdemeanants in this context. In the first place, the Legislature may reasonably have concluded that because of the relative brevity of the permissible term of imprisonment in misdemeanor cases, the entire right to appeal in such cases would be frequently vitiated unless release on appeal was guaranteed as a matter of right. Moreover, as discussed more fully hereafter, a primary consideration in the decision of bail on appeal concerns the likelihood that the defendant will flee the jurisdiction if released; again, because of the shortness of misdemeanor terms, the Legislature may have concluded that a misdemeanant would be unlikely to have much of an incentive to leave the jurisdiction. Finally, the Legislature may also have determined that misdemeanants do not *Page 933 pose a danger to the community comparable to that of particular felons, and accordingly may have concluded that judges should not be accorded the discretion to deny bail in misdemeanor cases on such grounds.

In evaluating the adequacy of these justifications, we note also that the statutory scheme at issue here does not deny bail absolutely to all convicted felons and grant bail as a matter of right to all convicted misdemeanants; on the contrary, the disparity in treatment is much more modest, affording a right to release in one case and a right to the exercise of the court's discretion in the other. Under these circumstances, we hold that the resulting differential treatment is not invidious or unconstitutional.

4. (4) In exercising "discretion" under Penal Code section 1272, courts may consider (1) the likelihood of the defendant's flight, (2) the potential danger to society posed by the defendant's release, and (3) the frivolousness or lack of diligence in defendant's prosecution of his appeal; moreover, to facilitate meaningful review trial courts should provide a brief statement of reasons supporting a denial of release pending appeal.

Finally, defendant claims that even if he is not entitled to release on appeal as a matter of right, the trial court nonetheless abused its discretion under Penal Code section 1272 in denying release in this case. In order properly to analyze this issue, we must determine at the outset what considerations a trial or appellate court may properly weigh in determining whether or not to grant a convicted felon release on appeal.

The statutory language of section 1272 is, in itself, not especially helpful in this regard, for, as we have seen, the statute provides only that release may be ordered "as a matter of discretion." From the earliest cases construing this section, however, our courts have emphasized that the "discretion" referred to in the statutes "is not . . . an arbitrary discretion to do abstract justice according to the popular meaning of that phrase, but is a discretion governed by legal rules to do justice according to law. . . ." (Ex Parte Hoge (1874) 48 Cal. 3, 5.) Throughout the statute's history, the authorities have endeavored to articulate the "legal rules" or appropriate considerations which should properly guide courts in the exercise of their "legal" discretion.

As one jurist-commentator who has devoted considerable time and study to this problem has aptly pointed out, however, the decisions of *Page 934 this court over the past century have not been entirely consistent in this task. (See Molinari, Bail Pending Appeal inCalifornia (1967) 1 U.S.F.L. Rev. 217, 218-222.) From an early decision indicating that judicial discretion under the statute should be liberally exercised in favor of granting release on appeal (Ex Parte Hoge, supra, 48 Cal. 3, 6-7), the court moved to an interpretation which indicated that release on appeal should only be ordered in "extraordinary circumstances." (See, e.g., In re Pantages (1930) 209 Cal. 535, 536-537 [291 P. 831];In re Ward (1900) 127 Cal. 489, 490 [59 P. 894]; Ex ParteSmallman (1879) 54 Cal. 35, 36.)

In In re Brumback (1956) 46 Cal.2d 810, 814-815 [299 P.2d 217], however, our court specifically disavowed the "extraordinary circumstances" standard, recognizing that the rigid limitation on bail on appeal which such a standard imposed found no support in the explicit statutory language. TheBrumback court held instead that the "discretion" authorized by section 1272 "is a sound legal discretion to be exercised in light of all attending circumstances." (46 Cal.2d at p. 813.) Accordingly, since Brumback, the rule has been clear that under section 1272 no presumption against release on appeal arises, and that such release should not be reserved for the "extraordinary" case.⁸ (5) The Brumback decision additionally provides guidance as to the specific matters which a trial court should consider in determining whether to release a defendant pending appeal. TheBrumback court emphasized that a trial judge "should recognize that the primary purpose of bail, before or after conviction, is practical assurance that defendant will attend upon the court when his presence is required." (46 Cal.2d at p. 813.) As numerous out-of-state authorities indicate, a multiplicity of factors relate to the likelihood that an individual defendant will "jump bail": (1) the defendant's ties to the community, including his employment, the duration of his residence, his family attachments and his property holdings; (2) the defendant's record of appearance at past court hearings or of flight to avoid prosecution; and *Page 935 (3) the severity of the sentence defendant faces. (See, e.g.,Harris v. United States (1971) 404 U.S. 1232, 1236 [30 L.Ed.2d 25, 29, 92 S.Ct. 10]; Cohen v. United States (1961) 7 L.Ed.2d 13 [82 S.Ct. 8, 9]; Bandy v. United States (1960) 5 L.Ed.2d 218 [81 S.Ct. 197, 198]; cf. 18 U.S.C. § 3146(b).)⁹ If a defendant can demonstrate that the likelihood of his flight is minimal in light of these criteria, he should be considered as having presented at least a prima facie case for release pending appeal. (See Molinari, Bail Pending Appeal in California (1967) 1 U.S.F.L.Rev. 217, 224.)

Past California decisions additionally make clear, however, that the likelihood of flight is not the only factor that a court may properly consider in deciding whether to release a felon pending appeal. In In re Scaggs, supra, 47 Cal.2d 416, 419, we noted that another "important consideration is whether there is any danger that, if released, [the defendant] would continue to commit crime." Defendant in the instant case asserts that any consideration of the "potential danger" of a convicted defendant is precluded by this court's recent decision in In re Underwood,supra, 9 Cal.3d 345. As we have already pointed out, however,Underwood simply holds that under the California Constitution a defendant charged with a non-capital crime may not be denied preconviction bail on the ground that he poses a danger to the community; Underwood specifically notes that a different rule prevails with respect to bail on appeal. (9 Cal.3d at p. 347, fn. 1; accord Banks v. United States (1969) 414 F.2d 1150, 1152 [134 App.D.C. 254].)

(6) Although Underwood does not support the contention that a defendant's potential "danger to the community" can never be considered in determining release pending appeal, we think thatUnderwood does have some relevance to the manner in which the "danger to the community" criterion should be applied in this context. In Underwood we noted that considerable questions had been raised concerning the ability of courts to predict future criminal conduct (9 Cal.3d at p. 349, fn. 5); in People v.Burnick (1975) 14 Cal.3d 306, 325-328 [121 Cal.Rptr. 488,535 P.2d 352], we recently acknowledged similar uncertainties with *Page 936 respect to the accuracy of comparable predictions made by those who are ostensibly "expert" in the predictive field. Although predictive inquiry may become more manageable once a defendant has in fact been convicted of a criminal act, we believe nonetheless that courts should be somewhat cautious in basing a denial of bail on the alleged dangerous propensities of the defendant. (See, e.g., Harris v. United States, supra,404 U.S. 1232, 1236 [30 L.Ed.2d 25, 29]; Sellers v. United States (1968) 21 L.Ed.2d 64 [89 S.Ct. 36, 38].) When the pattern of a particular defendant's history indicates that additional criminal conduct will probably ensue if the defendant is released, however, a court unquestionably retains the authority to deny release on appeal. (See In re Scaggs, supra, 47 Cal.2d at p. 419; Carbo v. United States (1962) 7 L.Ed.2d 769 [82 S.Ct. 662, 666, 668-669]; United States v. Wilson (2d Cir. 1958)257 F.2d 796, 797.)¹⁰ (7) Finally, inasmuch as the statutory provision for bail on appeal has as its basic purpose the full effectuation of a defendant's right to appeal his conviction, a court may, in its discretion, decline to grant such release if it determines either that the appeal is wholly frivolous or that the defendant is not diligently prosecuting his appeal.¹¹ In this regard, however, a court should not require as a prerequisite to release that the appeal actually appear meritorious (see Ex Parte Hoge, supra, 48 Cal. at pp. 6-7); instead, denial of release on these grounds is only justifiable if "the appeal is so baseless as to deserve to be condemned as frivolous or is sought as a device for mere delay." (Ward v. United States (1956) 1 L.Ed.2d 25, 27 [76 S.Ct. 1063, 1065].) *Page 937 (8) In applying the foregoing criteria, "[i]t is settled that the primary discretion belongs to the trial judge . . . [and] [w]here the trial judge has passed upon the merits of the application his ruling will not be disturbed unless a manifest abuse of discretion appears [citations]. . . ." (In re Brumback,supra, 46 Cal.2d 810, 813-814.) (9) Although a trial court's exercise of discretion is thus clearly subject to a limited review in the appellate courts, such review in the past has been largely frustrated because trial courts have not been required to articulate their reasons for denying an application for release pending appeal.

On a number of occasions in recent years, this court has emphasized that meaningful judicial review is often impossible unless the reviewing court is apprised of the reasons behind a given decision. In In re Sturm (1974) 11 Cal.3d 258, 268-270 [113 Cal.Rptr. 361, 521 P.2d 97], for example, we concluded that the demands of procedural due process required the Adult Authority to support its decision denying a prisoner parole with a statement of reasons. Similarly, in Topanga Assn. for a ScenicCommunity v. County of Los Angeles (1974) 11 Cal.3d 506, 513-518 [113 Cal.Rptr. 836, 522 P.2d 12], we concluded as a matter of statutory interpretation that written findings were necessary to permit meaningful review of quasi-judicial administrative decisions. And, most recently, in Juan T. v.Superior Court (1975) 49 Cal.App.3d 207, 210-211 [122 Cal.Rptr. 405], the Court of Appeal reached an analogous conclusion, holding that the juvenile court must "state its reasons [when it finds] that a minor is not a fit and proper subject for treatment under the juvenile court law." (See, e.g., In re Bye (1974)12 Cal.3d 96, 110 and fn. 14 [115 Cal.Rptr. 382, 524 P.2d 854];Kent v. United States (1966) 383 U.S. 541, 561 [16 L.Ed.2d 84, 97, 86 S.Ct. 1045].)

As these authorities suggest, a requirement of articulated reasons to support a given decision serves a number of interests. In the first place, as we have noted, the statement of such reasons will frequently be essential to any meaningful review of the decision. Secondly, a requirement of articulated reasons acts as an inherent guard against the careless decision, insuring that the judge himself analyzes the problem and recognizes the grounds for his decision. Finally, articulated reasons aid in preserving public confidence in the decision-making process "by helping to persuade the parties [and the public] that . . . decision-making is careful, reasoned and equitable." (Topanga Assn. for a ScenicCommunity v. County of Los Angeles, supra, 11 Cal.3d at p. 517.) *Page 938

In view of all these considerations, we hold, pursuant to our supervisory authority over state criminal procedure (see, e.g.,People v. Vickers (1972) 8 Cal.3d 451, 461 [105 Cal.Rptr. 305,503 P.2d 1313]; People v. Cahan (1955) 44 Cal.2d 434, 442 [282 P.2d 905, 50 A.L.R.2d 513]), that trial courts in thefuture should render a brief statement of reasons in support of an order denying a motion for bail on appeal. (Cf. Febre v.United States (1969) 396 U.S. 1225 [24 L.Ed.2d 48, 90 S.Ct. 19]; Fed. Rules of Appellate Proc., rule 9(b).) Such a statement need not include conventional findings of fact; all that is required "is that the basis for the order be set forth `with sufficient specificity to permit meaningful review.'" (People v. Browning (1975) 45 Cal.App.3d 125, 137-138 [119 Cal.Rptr. 420] (quoting Kent v. United States (1966) 383 U.S. 541, 561 [16 L.Ed.2d 84, 97, 86 S.Ct. 1045]).)

As noted above, the trial court in the instant case did not purport to give a full statement of its reasons for denying defendant's motion for bail on appeal. Although the court mentioned several factors which apparently influenced its determination, we doubt that such reasons could properly support a denial of release under the applicable standards discussed above.¹² (10) In any event, although this opinion's requirement of a statement of reasons accompanying orders denying release on appeal is to be applied prospectively only, considerations of fairness convince us that the present defendant is entitled to the benefits of this ruling. (See Li v. YellowCab Co. (1975) 13 Cal.3d 804, 829-830 [119 Cal.Rptr. 858,532 P.2d 1226]; Stovall v. Denno (1967) 388 U.S. 293, 301 [18 L.Ed.2d 1199, 1206, 87 S.Ct. 1967].) Accordingly, although we decline to release defendant at this time, our denial of habeas corpus relief is specifically without prejudice to defendant's right to file a new application for bail on appeal with the superior court, *Page 939 which application is to be determined in accordance with the views expressed herein.

The order to show cause, having served its purpose, is discharged, and the writ of habeas corpus is denied.

Wright, C.J., Mosk, J., Sullivan, J., and Richardson, J., concurred.