2021 Update for California: People can no longer be incarcerated solely because they cannot afford bail. Clear and convincing evidence is required to show that detention is necessary to protect public safety. See In Re. Kenneth Humphrey on Habeas Corpus, (March 25, 2021).
2020 Update for Los Angeles County: Except in serious or violent felony cases, most arrestees will be released without having to pay bail. Learn more in our California bail article.
California Penal Code 1276 regulates bail bond in the state of California. Most people who get arrested and charged with a crime will opt for posting bail through a bail bond since they may not have enough cash on hand to post cash bail.
A bail bond is a contract between the accused and a bail bond agent. Under this contract, you promise to appear in court when ordered and the agent promises to post bail for you. You have to pay the agent a specified premium, which is typically 10 percent of the bail amount the court has set. This premium is not refundable, but can be reduced to 8 percent of the bail amount if an attorney refers the accused to the agent.
If you fail to appear in court, the bail bond agent forfeits the bail money. Therefore, these agents will have a very strong incentive to monitor you and make sure you appear. If you fail to do so, it will be up to the agent to find you. In order for the bail bond agency to post bail on your behalf, an agent will typically require some sort of collateral to be posted. This can be a house, car, or anything of value you own. If you fail to appear in court, this collateral will be used to cover the forfeiture of the bail amount.
When the bond is forfeited and the period of time in PC 1305 has elapsed, the court in question enters a summary judgment and the district attorney or county counsel must demand immediate payment within 30 days after the summary judgment becomes final. The clerk of the court must serve notice of the entry of judgment within five days of the date of the judgment. The court can extend the time period not to exceed 180 days from its order or permit tolling.
The California Penal Code establishes a number of conditions under which the forfeiture is set aside:
- if the case is dismissed or no complaint is filed within 15 days of arraignment [1305(a)(5)],
- if the clerk fails to mail forfeiture notice within 30 days or fail to mail to both agent and surety [1305(b)(1)-(3)],
- if the defendant is returned to court within the 180 day period [1305(b)(1)-(3)],
- if defendant is permanently disabled [PC 1305(d)], deceased or otherwise permanently unable to appear [PC 1305(d)(1)], temporarily disabled [PC 1305(e)(1)-(3)], or in custody beyond jurisdiction of the court [PC 1305(f)(g)],
- a motion is filed by the agent/surety within the 180 day period to be heard within 30 of the expiration of the 180 day period [PC 1305(I)], 1305.4],
- if the court has reason to believe there is a sufficient excuse for a failure to appear, it may continue the case for a period it deems reasonable [PC 1305.1].
A California criminal defense attorney not only can help reduce the percentage you need to pay for your bail bond premium, but also work in defense of your legal rights. Contact us if you need a criminal representation.
