Updated March 27, 2020
An arraignment is usually the first court hearing in a criminal case. At an arraignment, the accused generally enters a plea (guilty, not guilty, or no contest), the issue of bail and release is determined, and a future court date is set (usually for the pretrial or, in a felony case, the preliminary hearing)
In the article below, our California criminal defense lawyers will explain the arraignment process, your rights, and what you may expect to happen. If you have additional questions, feel free to contact us at the Shouse Law Group.
- 1. What is an arraignment?
- 2. When does a felony arraignment take place?
- 3. When is a misdemeanor arraignment?
- 4. What are my rights at the hearing?
- 5. Can my lawyer appear on my behalf?
- 6. What happens if I fail to appear?
- 7. What should I bring to the hearing?
- 8. When do I enter a plea?
- 9. Will the judge consider reducing my bail at the arraignment?
- 10. What if I was unlawfully arrested?
- 11. And with respect to other motions.
1. What is an arraignment?
An arraignment hearing is the first formal court proceeding in the California criminal law process. It follows an arrest. Simply put, this is the stage where
- the court will advise you of your Constitutional rights,
- you will find out the specific charges that have been filed against you,
- you will have your first opportunity to enter a plea, and
- the court will set, modify, reinstate, or exonerate your bail.
The arraignment hearing takes place once the prosecuting agency (typically the local District Attorney’s office or the local City Attorney’s office) has filed formal charges. When the arraignment takes place is strictly regulated according to California law.
2. When does a felony arraignment take place?
There are actually two arraignment hearings in the lifespan of a California felony case. One occurs at the very start of criminal proceedings. The second happens after the preliminary hearing…if the result of that hearing is to hold the defendant to answer on the charges. For now, we’ll focus on the first of these: the initial arraignment.
If you committed an offense that requires you to remain in “custody” (that is, in jail), you must be arraigned within 48 hours of your arrest, not including weekends and holidays.1 This timeframe establishes the maximum amount of time the police and prosecutors have to place you before a judge.
Depending on the circumstances, sometimes even making you wait 48 hours could be considered unreasonable — an issue that your attorney could explore and potentially argue on your behalf.2
If there is an unreasonable delay between your arrest and your arraignment, the delay converts an otherwise lawful arrest into an unlawful detention. This type of potential police misconduct may entitle you to civil (or monetary) damages from the law enforcement agency for violations of California’s false imprisonment law. However, unlawful detention will not typically result in a dismissal of the case, unless
- you can prove that the delay deprived you of a fair trial, or
- otherwise caused you to suffer some type of prejudice or unfair injury.3
If you are being arraigned on a felony complaint that doesn’t require you to remain in custody — that is, you were released following your arrest, or you bailed out — you must be arraigned “without unnecessary delay.” In reality, however, if you’re out of custody, it may be weeks or even months before your arraignment.4
Example: John is arrested Friday night for felony assault with a firearm. He’s held in the West Valley Detention Center in lieu of $50,000 bail. Because he’s in custody, the prosecutor must arraign him no later than the following Tuesday (2 court days).
On Saturday, however, John’s family posts bail and he gets released. Because John is now out of custody, the D.A. no longer needs to arraign him within this timeframe. Therefore, John is given a notice to appear for his arraignment three weeks later, rather than Tuesday.
3. When is a misdemeanor arraignment?
The 48-hour rule applies to all crimes that require you to remain in custody, regardless of whether they are felonies or misdemeanors. That said, most defendants are released following a misdemeanor arrest.
When this is the case, you will not be arraigned for at least ten days following your arrest.5
4. What are my rights at the hearing?
Both the United States Constitution and the California Constitution empower you with a variety of rights during all criminal proceedings. During your arraignment, the judge (or, in larger counties, a prerecorded announcement) will advise you of these rights.
These Constitutional rights include:
- the right to be represented by an attorney (which includes the right to be represented by a court-appointed public defender if you are not able to afford a private criminal defense attorney),6
- the right against self-incrimination,
- the right to a speedy trial (enforceable through something called a Serna or speedy trial motion),7
- the right to a trial by jury, and
- the right to produce and confront witnesses.8
If you have been accused of committing an infraction, only some of these rights apply. For example, a defendant charged with an infraction is not entitled to a court-appointed attorney or a trial by jury.9
5. Can my lawyer appear on my behalf?
This depends on the offense for which you were arrested.
If you were arrested for a felony offense, you are typically required to appear in person at your arraignment hearing and most other proceedings. There are exceptions that either
- allow you to appear via a two-way audio/video conference (sometimes called “video court”), or
- excuse your presence altogether if you execute a written waiver, and the judge accepts your waiver.
There are a variety of rules that relate to these exceptions that your criminal defense attorney can explain. Be aware, however, that even if you validly excuse yourself from an arraignment, the court retains the right to order you to appear in person at any time until the final resolution of your case.10
If you were arrested for a misdemeanor, you are typically permitted to have your attorney appear on your behalf.11 However, there are some exceptions, the most common of which include
- California domestic violence charges,
- alleged violations of a protective order, and
- certain aggravated offenses involving driving under the influence (DUI), such as Vehicle Code 23153 VC California’s “DUI causing injury” law or Penal Code 191.5(b) PC California’s “vehicular manslaughter while intoxicated law”.12
If you were arrested for one of these misdemeanor offenses, California law will most likely require your presence at the arraignment.
6. What happens if I fail to appear?
If you or your attorney fails to appear (commonly referred to as an FTA), the court will generally issue a California bench warrant. A California bench warrant authorizes law enforcement officers to arrest you and bring you directly to court.
Failing to appear on a felony case may trigger a separate felony charge. Failing to appear on a misdemeanor case is a misdemeanor.13
7. What should I bring to the hearing?
You will want to bring your attorney, if you hire one, as well as any paperwork you may have received from the police, the jail, and/or your bail bondsman. If you have documents or evidence that could aid in your defense, you will probably want to bring those as well. You will likely leave the arraignment hearing with:
- a copy of the formal complaint that has been filed against you, and
- possibly a copy of the police report pertaining to your case.14
The arraignment is the prosecutor’s opportunity to inform you of the charges that are pending against you.15 This is also his/her first opportunity to make you an “offer” which is the sentencing that he/she seeks for the crime(s) you have allegedly committed.
8. When do I enter a plea?
The arraignment presents your first opportunity to enter a “plea” in the case. Whether or not you choose to do so — or attempt to continue the case — will depend on your individual circumstances. If you enter a plea, it will either be:
- guilty (in which case, you will proceed to a sentencing hearing, and all further stages of the criminal court process will be limited to post-conviction issues),
- nolo contendere (or “no contest”) which is essentially a guilty plea (the difference being that a “no contest” plea can’t be used as evidence against you in the event that there is also a civil case that arises from the incident), or
- not guilty (in which case you will proceed to the pretrial or preliminary hearing phase of the California criminal court process).
Although most defendants who are represented by attorneys do not plead guilty or no contest during the arraignment phase, sometimes it is strategically advisable to do so. This may be the case, for example, in order to avoid further prosecution for more serious, uncharged offenses. 16
Deferred entry of judgment or diversion
And as Ventura criminal defense attorney Darrell York17 explains, “There is another option. You or your attorney could request a deferred entry of judgment. ‘Deferred entry of judgment’, pursuant to Penal Code 1000 PC, is a type of diversion program that allows you to abide by certain terms and conditions that — once you complete — entitles you to a dismissal of the charges.”
Penal Code 1000 PC “deferred entry of judgment” most commonly applies to
- certain California drug offenses,
- certain cases involving child abuse and/or neglect filed under Penal Code 272 PC (contributing to the delinquency of a minor), and
- Penal Code 470 PC California’s “bad check” forgery cases.18
9. Will the judge consider reducing my bail at the arraignment?
Most likely, yes, although this issue could be set aside and argued at a more formal bail hearing which would likely be held within a week of your request. If you plead not guilty, the judge will
- modify, or
your bail. “Bail” is money that the court requires you to pay in order to assure your court appearances. The amount of bail varies depending on the crime involved. A County bail schedule sets forth the amount for bail for each type of crime.
If you feel that your bail is too high or that you should be released on your own recognizance (more commonly referred to as an “O.R. release”), you may ask the judge to modify the amount.
Whether the judge considers this issue at your arraignment or at a future bail hearing, he/she will presume that you are guilty of the charges and makes his/her decision with that presumption in mind. The judge then considers
- the danger you may pose to the community, and to specific parties in the case
- your flight risk (if you are employed, live in the area, and/or have friends or family in the area, these community “ties” will usually weigh in your favor).19
After considering these factors, the judge may decide to
- keep the set bail amount,
- modify your bail by reducing or raising it, or
- release you O.R.20
If you obtain an O.R. release (which is common for many first-offense misdemeanor cases that do not involve allegations under California domestic violence law), it means that the court believes you will keep your promise to appear in court as instructed.21
If you do not obtain an O.R. release and you cannot afford to post bail, you must remain in custody until your case is resolved.
10. What if I was unlawfully arrested?
If you were arrested on a misdemeanor charge without a warrant — and remain in custody at the time of arraignment — you may request a probable cause hearing.23 This is referred to as a “Penal Code 991 motion.”
A probable cause hearing requires the judge to determine
- if there is probable cause to believe that a crime was, in fact, committed, and
- if you are the person who committed that crime.24
“Probable cause” is a legal standard which means “a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.”25
Probable cause hearings are typically conducted at the time of the arraignment.
11. And with respect to other motions.
When applicable, the arraignment is also your attorney’s first opportunity to argue against pending orders, such as a restraining order or stay-away order (which are most common in connection with California domestic violence cases and alleged violations of Penal Code 646.9 PC California’s stalking law).26
This is simply another reason why it is so important to consult with an attorney prior to your arraignment if you can afford to do so.
Call us for help…
If you have additional questions about California’s arraignment process, or you would like to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada’s criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.27
To learn about arraignments in Nevada, go to our page on arraignments in Nevada.
- California Penal Code 825 PC — Appearance before magistrate; unnecessary delay.. (“(a)(1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate [for his/her arraignment] without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays. (2) When the 48 hours prescribed by paragraph (1) expire at a time when the court in which the magistrate is sitting is not in session, that time shall be extended to include the duration of the next court session on the judicial day immediately following. If the 48-hour period expires at a time when the court in which the magistrate is sitting is in session, the arraignment may take place at any time during that session. However, when the defendant’s arrest occurs on a Wednesday after the conclusion of the day’s court session, and if the Wednesday is not a court holiday, the defendant shall be taken before the magistrate not later than the following Friday, if the Friday is not a court holiday.”)
- Dragna v. White (1955) 45 Cal.2d 469, 473. (“The arraignment statute, however, does not authorize a two-day detention in all cases but, instead, places a limit upon what may be considered a necessary delay, and a detention of less than two days, if unreasonable under the circumstances, is in violation of the statute.People v. Stroble, 36 Cal.2d 615, 624- 625 [ 226 P.2d 330] (about 24 hours).)”)
- See same at 471.(“A police officer who makes an arrest without a warrant and without justification may be held civilly liable for [California] false arrest and imprisonment…” [And at 473], “We are satisfied that the better rule is that where the arrest is lawful, subsequent unreasonable delay in taking the person before a magistrate for the arraignment will not affect the legality of the arrest, although it will subject the offending person to liability for so much of the imprisonment as occurs after the period of necessary or reasonable delay.”)See also People v. Valenzuela (1978) 86 Cal.App.3d 427, 428. (“A violation of a defendant’s right to be taken before a magistrate for arraignment within the time specified by the law does not require a reversal of his conviction unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result. Moreover, Pen. Code, 825, 849, requiring that a defendant must be taken before a magistrate without unnecessary delay, do not authorize or require a dismissal of a prosecution by reason of delay in arraignment.”)
- California Penal Code 859 PC — Charge of felony by written complaint..(“When the defendant is charged with the commission of a felony by a written complaint subscribed under oath and on file in a court within the county in which the felony is triable, he or she shall, without unnecessary delay, be taken before a magistrate of the court in which the complaint is on file.”)
- California Penal Code 853.6 PC — Misdemeanors; release and arraignment procedures.(“(b) Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate.(e) The officer shall, as soon as practicable, file the duplicate notice, as follows: (1) It shall be filed with the magistrate if the offense charged is an infraction. (2) It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so. (3) The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2). If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant. Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in his or her judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by him or her in the form set forth in Section 815a. The defendant may, prior to the date upon which he or she promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in his or her discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with a violation of Penal Code 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and he or she has previously been convicted of a violation of that section or a violation that is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring him or her to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case. Upon the making of the order that no further proceedings be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.”)
- California Penal Code 858 PC — Informing defendant of charge and right to counsel..(“When the defendant is brought before the magistrate [for arraignment] upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings..”)See also California Penal Code 859 PC — Charge of felony by written complaint; appearance before magistrate; copy of complaint; counsel; minors. (“When the defendant is charged with the commission of a felony by a written complaint subscribed under oath and on file in a court within the county in which the felony is triable, he or she shall, without unnecessary delay, be taken before a magistrate of the court in which the complaint is on file [for an arraignment]. The magistrate shall immediately deliver to the defendant a copy of the complaint, inform the defendant that he or she has the right to have the assistance of counsel, ask the defendant if he or she desires the assistance of counsel, and allow the defendant reasonable time to send for counsel. However, in a capital case, the court shall inform the defendant that the defendant must be represented in court by counsel at all stages of the preliminary and trial proceedings and that the representation will be at the defendant’s expense if the defendant is able to employ counsel or at public expense if he or she is unable to employ counsel, inquire of him or her whether he or she is able to employ counsel and, if so, whether the defendant desires to employ counsel of the defendant’s choice or to have counsel assigned for him or her, and allow the defendant a reasonable time to send for his or her chosen or assigned counsel. If the defendant desires and is unable to employ counsel, the court shall assign counsel to defend him or her; in a capital case, if the defendant is able to employ counsel and either refuses to employ counsel or appears without counsel after having had a reasonable time to employ counsel, the court shall assign counsel to defend him or her. If it appears that the defendant may be a minor, the magistrate shall ascertain whether that is the case, and if the magistrate concludes that it is probable that the defendant is a minor, he or she shall immediately either notify the parent or guardian of the minor, by telephone or messenger, of the arrest, or appoint counsel to represent the minor.”)
- California Penal Code 1382 PC — California speedy trial rights.
- California Penal Code 686 PC — Defendants’ rights; speedy and public trial; counsel; production of witnesses; confronting adverse witnesses; hearsay evidence; depositions.(“In a criminal action the defendant is entitled: 1. To a speedy and public trial. 2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel [even as early as the arraignment], except that in a capital case he shall be represented in court by counsel at all stages of the preliminary and trial proceedings. 3. To produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that: (a) Hearsay evidence may be admitted to the extent that it is otherwise admissible in a criminal action under the law of this state. (b) The deposition of a witness taken in the action may be read to the extent that it is otherwise admissible under the law of this state.”)
- California Penal Code 19.6 — Infractions; punishment; jury trial; right to public defender.(“An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail.”)
- California Penal Code 977 PC — Presence of defendant; exception.(“(b)(1) In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided by subdivision (c). (2) The accused may execute a written waiver of his or her right to be personally present, approved by his or her counsel, and the waiver shall be filed with the court. However, the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof. (c) The court may permit the initial court appearance and arraignment of defendants held in any state, county, or local facility within the county on felony or misdemeanor charges, except for those defendants who were indicted by a grand jury, to be conducted by two-way electronic audiovideo communication between the defendant and the courtroom in lieu of the physical presence of the defendant in the courtroom. If the defendant is represented by counsel, the attorney shall be present with the defendant at the initial court appearance and arraignment, and may enter a plea during the arraignment. However, if the defendant is represented by counsel at an arraignment on an information in a felony case, and if the defendant does not plead guilty or nolo contendere to any charge, the attorney shall be present with the defendant or if the attorney is not present with the defendant, the attorney shall be present in court during the hearing. The defendant shall have the right to make his or her plea while physically present in the courtroom if he or she so requests. If the defendant decides not to exercise the right to be physically present in the courtroom, he or she shall execute a written waiver of that right. A judge may order a defendant’s personal appearance in court for the initial court appearance and arraignment. In a misdemeanor case, a judge may, pursuant to this subdivision, accept a plea of guilty or no contest from a defendant who is not physically in the courtroom. In a felony case, a judge may, pursuant to this subdivision, accept a plea of guilty or no contest from a defendant who is not physically in the courtroom if the parties stipulate thereto. (d) Notwithstanding subdivision (c), if the defendant is represented by counsel, the attorney shall be present with the defendant in any county exceeding 4,000,000 persons in population.”)
- See same.(“(“(a)(1) In all cases in which the accused is charged with a misdemeanor only, he or she may appear by counsel only, except as provided in paragraphs (2) and (3). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided by subdivision (c).”)
- See same.(“(2) If the accused is charged with a misdemeanor offense involving domestic violence, as defined in Section 6211 of the Family Code, or a misdemeanor violation of Section 273.6, the accused shall be present for arraignment and sentencing, and at any time during the proceedings when ordered by the court for the purpose of being informed of the conditions of a protective order issued pursuant to Section 136.2. (3) If the accused is charged with a misdemeanor offense involving driving under the influence, in an appropriate case, the court may order a defendant to be present for arraignment, at the time of plea, or at sentencing. For purposes of this paragraph, a misdemeanor offense involving driving under the influence shall include a misdemeanor violation of any of the following: (A) Subdivision (b) of Section 191.5 [California’s “vehicular manslaughter while intoxicated” law]. (B) Section 23103 as specified in Section 23103.5 of the Vehicle Code. (C) Section 23152 of the Vehicle Code [Driving Under the Influence (DUI)]. (D) Section 23153 of the Vehicle Code [California’s “DUI causing injury” law].”
- California Penal Code 1320 PC — Failure to appear after release upon own recognizance; violation; presumption; penalty.(“(a) Every person who is charged with or convicted of the commission of a misdemeanor who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a misdemeanor. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. (b) Every person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony, and upon conviction shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both that fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.”)
- California Penal Code 988 PC — Definition; procedure.(“The arraignment must be made by the court, or by the clerk or prosecuting attorney under its direction, and consists in reading the accusatory pleading to the defendant and delivering to the defendant a true copy thereof, and of the endorsements thereon, if any, including the list of witnesses, and asking the defendant whether the defendant pleads guilty or not guilty to the accusatory pleading; provided, that where the accusatory pleading is a complaint charging a misdemeanor, a copy of the same need not be delivered to any defendant unless requested by the defendant.”)
- United States Constitution Amendment VI.See also California ConstitutionArticle I, section 14.
- People v. Bas (1987) 194 Cal.App.3d 878.(“A felony prosecution for causing injury while driving under the influence of alcohol and while having a blood alcohol level of .10 or above was barred under Pen. Code, 654 (acquittal or conviction and sentence under one provision bars prosecution for same act or omission under any other provision). Defendant had already pleaded guilty to a misdemeanor complaint that included the traffic infraction of failure to yield the right of way (which infraction formed the basis in part for the felony drunk- driving prosecution and was specifically pleaded as an element of both felony offenses), and had already satisfied the two probation conditions imposed (30 days in jail and payment of a fine). This use and effect of the failure-to-yield infraction in the misdemeanor case was known to the district attorney, as was defendant’s intention to use it as a bar in the felony prosecution.”)See California Penal Code 654 PC — Offenses punishable in different ways by different provisions; double jeopardy; denial of probation.(“(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other. (b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.”)
- Ventura criminal defense attorney Darrell York uses his former experience as a Glendale Police Officer to represent clients at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building.
- California Penal Code 1000 PC “Deferred Entry of Judgment”. PC 1000 primarily refers to California drug offenses. Alternative diversion programs, such as those for child abuse/neglect and Penal Code 470 PC California’s “bad check” forgery cases are addressed in Penal Code sections 1000-1001.90.
- California Penal Code 1275 PC – Setting, reducing or denying bail; considerations.(“(a) In setting, reducing, or denying bail, the 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 hearing of the case. The public safety shall be the primary consideration.”)See also Van Atta v. Scott (1980) 27 Cal.3d 424, 438.(“The sole issue at the OR hearing is whether the detainee will appear for subsequent court proceedings if released OR. (See In re Underwood (1973) 9 Cal.3d 345, 348 [107 Cal.Rptr. 401, 508 P.2d 721].)  To answer this question the trial court must consider the following factors: (1) the detainee’s ties to the community, including his employment or other sources of income (e.g., welfare payments), the duration and location of his residence, his family attachments, his property holdings, and any independent reasons for wanting to leave or remain in the community (e.g., parole or immigration status); (2) the detainee’s record of appearance at past court hearings or of flight to avoid prosecution; (3) the severity of the sentence the detainee faces. (See In re Podesto (1976) 15 Cal.3d 921, 934-935 [127 Cal.Rptr. 97, 544 P.2d 1297].)”)
- California Penal Code 1270 PC — Release on recognizance..(“(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.”)
- California Penal Code 1318 — Release agreement; necessity; filing; signature; contents.(“(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes: (1) The defendant’s promise to appear at all times and places [including his/her arraignment], as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending. (2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate. (3) The defendant’s promise not to depart this state without leave of the court. (4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California. (5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.”)
- California Penal Code 991 — Probable cause determination; misdemeanor..(“(a) If the defendant is in custody at the time he appears before the magistrate for arraignment and, if the public offense is a misdemeanor to which the defendant has pleaded not guilty, the magistrate, on motion of counsel for the defendant or the defendant, shall determine whether there is probable cause to believe that a public offense has been committed and that the defendant is guilty thereof.”)
- See same.
- People v. Ingle (1960) 53 Cal.2d 407, 412
- If an emergency protective order, temporary restraining order, or any other court order is interfering with your liberties and home life, your attorney may ask the court to set aside or quash the order at the time of the arraignment.If appropriate, the court may do so. These orders are most typically imposed in connection with domestic violence cases and with violations of Penal Code 646.9 PC California’s stalking law.
- Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s criminal court system. Their Nevada law offices are located in Reno and Las Vegas.