Every crime in California is defined by a specific code section. Our attorneys explain the law, penalties and best defense strategies for every major crime in California.
Litigation » When Can Bail be Denied Altogether?
Yes. A judge can deny bail if an offense is punishable by death, if there is a parole hold, or if there is a public safety exception. The “public safety exception” allows preventive detention. It applies to certain classes of felonies and felony sexual assault offenses. If the charge is for any other offense, bail must be set as a matter of right. (See Penal Code 1271).
The rules for denying bail are found in California Constitution, article I, section 12. This section allows preventive detention. A judge can deny bail in the following cases:
The judge in denying bail must find that there is clear and convincing evidence of the underlying facts. Penal Code 292 lists the felony sex offenses that are considered acts of violence and great bodily harm.
If a crime is bailable, however, the court must set bail at the first court appearance. In fixing the amount of bail, the court must take into consideration:
Anyone who is eligible for release on bail is also eligible to be released on his or her own recognizance per Penal Code 1270(a). The judge has a great deal of discretion in setting bail.
Please note that bail is not allowed on a parole hold. (See In re Law (1973) 10 C3d 21).
Bail is set at a person’s first court appearance. The judge often sets bail according to the county bail schedule. Either side may request a formal bail hearing to request higher or lower bail. A formal bail hearing requires 48-hour notice to the prosecutor.
At a bail hearing both the prosecution and the defense may present evidence. This may include testimony, written declarations, or other information for the judge to consider. (See https://www.shouselaw.com/bail-hearing.html).
Penal Code 1275 lists several factors that the court must consider in setting, reducing, or denying bail:
Courts routinely consider additional aspects in ruling on whether the accused is likely to make future court appearances. These include:
Yes, judges can set conditions on bail as long as they serve the purpose of bail. For example, a judge may require a person to:
The court may also order an accused not to intimidate, dissuade, or contact victims and witnesses per Penal Code 136.2. This is required in domestic violence cases.
Under Penal Code 1269b(c), judges in each California county must create a countywide bail schedule that lists:
The bail schedule usually lists criminal offenses by code section and description, and the recommended bail for each charge. The bail schedule also lists any amounts to be added for:
A copy of the countywide bail schedule is available from the court clerk and the jail.
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.
2021 Update for California: People may no longer be incarcerated solely because they cannot afford bail; there must be clear and convincing evidence that incarceration is necessary to protect public safety. See In Re. Kenneth Humphrey on Habeas Corpus, (March 25, 2021); Maura Dolan, California’s top court ends cash bail for some defendants who can’t afford it, Los Angeles Times (March 25, 2021)
Bail is a device that permits an accused to be released from custody by posting:
Many people contract with a bail agency to post a bond. A non-refundable fee of 10% of the bail amount is typically charged by the bail agency.
Alternatively, the accused (or someone acting on their behalf) may deposit with the court or police agency the bail amount. Depending on the court or law enforcement agency, the following methods of bail payment may be acceptable:
Please note that a jail will not necessarily accept all of these types of payments. For example, a court hearing is required to determine the equity value when real property is used for bail. The value of the equity must be equal to twice the amount of the cash deposit required. (See Penal Code 1298).
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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