How Courts Determine If, and What Amount, to Set Bail

Bail is the means the Court uses to ensure a defendant shows up in Court. Basically, by setting a “price” for the defendant to be released from custody of the jail on bail, the defendant has something at stake – money – that can be lost if he or she does not show up for Court. If you have the money to post the bail amount set yourself, if you show up to court and the matter gets resolved either by dismissal, negotiated plea, or jury trial, you will get your money back at the end of the case. If you are like most defendants, however, you do not have the large sums generally required for bail and you hire a bondsman to put up his money on your behalf, and you pay him a fee – called the “bail premium” – for the risk that he is taking to do so. You do not get this premium money back, as it is the price you pay for the bondsman to post the bail for you.

In setting of bail, Courts use what is called a “bail schedule” that indicates the bail that should be set according to the seriousness of the given case. In Solano County, for instance, the bail schedule is usually based on the exposure of the case – the amount of time in custody someone is facing for a given case. For instance, a felony domestic violence case carries 4 years in state prison, and that is equated to a bail amount of $35,000.00. But judges can raise or decrease bail in any case based on certain circumstances.

Deviating from the Bail Schedule

Pursuant to Penal Code section 1275(a), in setting bail, “a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case..” Cal. Penal Code § 1275(a). A fundamental consideration in determining the appropriate bail amount is thus the probability that the defendant will make all required court appearances.  “The purpose of bail is to assure the defendant’s attendance in court . . . .”  See In re Samano (1995) 31 Cal.App.4th 984, 992, quoting In re Underwood (1973) 9 Cal.3d 345, 348.

Under Penal Code section 1270.1(c), at the adversarial hearing required where the bail sought to be imposed deviates from the county bail schedule in strike or other specific cases, evidence of the defendant’s ties to the community must be evaluated by the judge imposing bail.  See Cal. Penal Code § 1270.1(c).

An experienced criminal defense attorney will establish these ties through exhibits showing a defendant’s  connection to the community and lessened risk that he will flee the jurisdiction, in an attempt to get a bail ordered that is less than the scheduled bail amount.

Own Recognizance and Similar Release

Own recognizance (“O.R.”) release means that the Court permits the defendant to be released from custody on a promise to appear in Court without requiring bail to be posted. While rare in many felony cases, OR release is presumed in most misdemeanor cases where the crime alleged does not threaten public safety and where the ability to appear in court on behalf of the defendant is not in question.

This authority is imbued in the judge or magistrate in Penal Code section 1270:

(a) Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out-of-county warrant. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, shall be entitled to an own recognizance release unless the court makes a finding on the record, in accordance with Section 1275, that an own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set bail and specify the conditions, if any, whereunder the defendant shall be released.

Cal. Penal Code § 1270(a).

Many counties, such as Solano County, also screen felony defendants for supervised own recognizance release or release with terms, where terms attached to release without bail must be met in order for the defendant to maintain their OR release status. This includes meeting with the Probation Department, drug testing, temporarily giving up Fourth Amendment protections, completing AA or NA meetings, or any other term the Court feels will ensure the defendant’s presence and keep the public safe.

Drug Cases and Bail Holds

In drug cases involving allegations of drug sales, a police agency or the DA can request a bail “hold”, whereby the defendant must show that the money used to post the bail was not obtained from drug sales other criminal conduct.

Under Penal Code section 1275.1, the parameters and rights regarding a “bail hold” are specified:

(a) Bail, pursuant to this chapter, shall not be accepted unless a judge or magistrate finds that no portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.

(b) A hold on the release of a defendant from custody shall only be ordered by a magistrate or judge if any of the following occurs:

(1) A peace officer, as defined in Section 830, files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.

(2) A prosecutor files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. A prosecutor shall have absolute civil immunity for executing a declaration pursuant to this paragraph.

(3) The magistrate or judge has probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.

(c) Once a magistrate or judge has determined that probable cause exists, as provided in subdivision (b), a defendant bears the burden by a preponderance of the evidence to show that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means. Once a defendant has met such burden, the magistrate or judge shall release the hold previously ordered and the defendant shall be released under the authorized amount of bail.

(d) The defendant and his or her attorney shall be provided with a copy of the declaration of probable cause filed under subdivision (b) no later than the date set forth in Section 825.

(e) Nothing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained.

(f) At the request of any person providing any portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution, the magistrate or judge, at an evidentiary hearing to determine the source of the funds, may close it to the general public to protect the person’s right to privacy in his or her financial affairs.

(g) If the declaration, having been filed with a magistrate or judge, is not acted on within 24 hours, the defendant shall be released from custody upon posting of the amount of bail set.

(h) Nothing in this code shall deny the right of the defendant, either personally or through his or her attorney, bail agent licensed by the Department of Insurance, admitted surety insurer licensed by the Department of Insurance, friend, or member of his or her family from making an application to the magistrate or judge for the release of the defendant on bail.

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(k) As used in this section, “feloniously obtained” means any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution which is possessed, received, or obtained through an unlawful act, transaction, or occurrence constituting a felony.

Cal. Penal Code § 1275.1.

Thus, a defendant facing a “bail hold” must be able to prove that the money used to post the bail comes from a legitimate, non-criminal source.

An experienced criminal defense attorney would assist his client facing a “bail hold” to collect evidence showing the source of the funds and that it is not from a criminal source, such as a family member, significant other, or employer.

 

Bail and Your Criminal Case

Release from custody pending the litigation of a case can make a huge difference in the resolution of a case, and it is always advantageous to the defense for the defendant to be out of custody while the case is ongoing.  If you or a loved one is facing the prospect of being arrested on a criminal case where bail may be set or a “bail hold” imposed, you need an experienced criminal defense team on your side to assist in obtaining OR release, getting bail reduced, or a “bail hold” lifted so that you have the best chances of winning your case or receiving the best resolution available for your situation.

At Honeychurch & Boyd, we have helped many clients achieve reduced bail, OR release, or to lift a “bail hold”, so that they may achieve the best result possible for their given case in the Solano County communities of Fairfield, Green Valley, Vacaville, Benicia, Vallejo, Dixon, or Rio Vista, or in Napa and Yolo Counties. Call our office today at 707-429-3111 and schedule a free consultation with one of our attorneys to discuss how we can help you achieve the best result available for your case.