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:

• capital crimes,
• violent felonies if there is a substantial likelihood that release would result in great bodily harm to others,
• felony sexual assaults if there is a substantial likelihood that release would result in great bodily harm to others; OR
• any felony if the accused has threatened someone with great bodily harm and there is a substantial likelihood that he or she would carry out the threat.

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:

• the seriousness of the offense charged,
• the previous criminal record of the defendant, and
• the probability of his or her appearing at the trial or hearing of the case.

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).

What is a Bail Hearing?

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.

Penal Code 1275 lists several factors that the court must consider in setting, reducing, or denying bail:

1. public safety,
2. the previous criminal record of the accused,
3. the probability of the accused appearing at trial, and
4. the seriousness of the offense charged, including alleged injury, threats, controlled substances, or firearms or other deadly weapons involved in the commission of the charged crime.

Courts routinely consider additional aspects in ruling on whether the accused is likely to make future court appearances. These include:

• Does the accused have ties to the community?
• Does the accused live in the community?
• Does the accused’s family live in the area?
• Is the accused employed locally?
• Does the accused own property in the community?
• Does the accused have a prior record of failing to appear?

Can a Judge Set Conditions Regarding Bail?

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:

• surrender a passport or driver’s license,
• check in with the probation department at set times,
• wear a monitoring device, and/or
• not travel outside the state.

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.

What is a Countywide Bail Schedule?

Under Penal Code 1269b(c), judges in each California county must create a countywide bail schedule that lists:

• all bailable felony offenses,
• all misdemeanors, and
• all infractions (except vehicle code infractions).

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:

• sentence enhancements,
• special allegations, OR
• other extraordinary facts.

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.

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, (2021) 11 Cal. 5th 135; Maura Dolan, California’s top court ends cash bail for some defendants who can’t afford it, Los Angeles Times (March 25, 2021)

What is Bail? How is it Posted?

Bail is a device that permits an accused to be released from custody by posting:

• cash,
• a bond,
• other security.

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:

• cash,
• cashier’s check,
• money order,
• government bonds,
• real property.

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).