Newton

The bail of petitioner, charged with manslaughter, was fixed at $50,000 cash by the Alameda County Superior Court. This amount was posted and he was released from actual custody. Thereafter petitioner moved for an order substituting State of California bonds of a face value of $50,000 in lieu of the cash on deposit with the court. The proffered bonds will mature in the year 2015; they bear interest at the rate of 3 percent per annum and have a readily determined present market value of $26,000. Petitioner’s motion was denied.

Sought from this court is a peremptory writ of mandate directing the superior court to grant petitioner’s motion and to allow substitution of the bonds for the cash now on deposit. He relies on Penal Code section 1298. This section provides:

No contention is made by petitioner that the amount of bail set by the superior court is excessive or otherwise unreasonable.

Section 1298 has been in effect for over 50 years, and it has been generally recognized that government bonds may be and have been used “in lieu of a deposit of money.” (See Gustafson, Bail in California (1956) 44 Cal.L.Rev. 815, 826; and The Work of the 1937 California Legislature…

I concur, but in the result only.

The pertinent language of Penal Code section 1298 states: “In lieu of a deposit of money, the defendant or any other person may deposit bonds of the United States or of the State of California of the face value of the cash deposit required, and such bonds shall be treated in the same manner as a deposit of money. ...”

In the plainest of language courts are told by section 1298 that for purposes of bail they must accept federal and state bonds at their face value. In the context of this case the superior court was ordered by the statute to accept such bonds, actually worth $26,000, at their face value of $50,000. To find a different legislative intent, in my opinion, must strain reason.

Faced with the task of interpreting section 1298 the District Court of *508 Appeal in Wilson v. Justice's Court, 22 Cal.App.2d 278 [ 70 P.2d 695 ] (where no question of constitutionality was raised or resolved), found its meaning clear. There the justice’s court clerk had refused a tender of federal bonds as bail because it was not established “that the present cash value of the bonds tendered equalled the sum of money fixed as bail.” The court said (p. 280):

It…

The bail of petitioner, charged with manslaughter, was fixed at $50,000 cash by the Alameda County Superior Court. This amount was posted and he was released from actual custody. Thereafter petitioner moved for an order substituting State of California bonds of a face value of $50,000 in lieu of the cash on deposit with the court. The proffered bonds will mature in the year 2015; they bear interest at the rate of 3 percent per annum and have a readily determined present market value of $26,000. Petitioner's motion was denied.

Sought from this court is a peremptory writ of mandate directing the superior court to grant petitioner's motion and to allow substitution of the bonds for the cash now on deposit. He relies on Penal Code section 1298. This section provides:

"In lieu of a deposit of money, the defendant or any other person may deposit bonds of the United States or of the State of California of the face value of the cash deposit required, and such bonds shall be treated in the same manner as a deposit of money or the defendant may give as security any equity in real property which he owns. A hearing, at which witnesses may be called or examined, must be…