In the California criminal justice system, bail is money that must be posted with the court in order for an inmate to be released from jail. It is a means of ensuring that the person will show up for future court appearances.
It is unconstitutional in California for people to be held on bail solely because they cannot afford it; there must be clear and convincing evidence that detention is necessary to protect public safety. In Los Angeles County, only people arrested for serious or violent felonies may be held on bail.
Everyone else must be released on their own recognizance (which means they do not have to pay anything). Some people may be given additional restrictions, such as a requirement to surrender their guns or stay away from the alleged victim.
Below, our criminal defense attorneys explain the process of posting bail in the California criminal court system by addressing the following:
- 1. What is bail?
- 2. What does “cash bail” mean?
- 3. How do bail bonds work?
- 4. What are my responsibilities as a cosigner?
- 5. What happens if I fail to appear in court once I’ve posted bail?
- 6. What happens to the bail once the case is over?
- 7. What if I cannot afford bail?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. What is bail?
“Bail” refers to the money that you must post with the court in order to be released from jail. It is a way of ensuring the court that you will attend your future court appearances.
In many instances, the judge will release you on your own recognizance (commonly referred to as an O.R. release). If the judge releases you “O.R.”, you do not post bail, you simply promise that you will attend your court appearances.
Under certain circumstances, and in connection with certain crimes, the judge will deny you the right to post bail. However, most of the time, bail is required.
Bail varies crime-to-crime, county-to-county
The amount of bail varies depending on the crime involved. All California counties have their own bail schedules that set forth the amount for bail for each type of crime.2
In Los Angeles County, nearly all arrestees get released on their own recognizance. Only people arrested for serious or violent felonies may be held on bail.
People in LA County who get released without bail may still have to comply with one or more of the following requirements as a condition of staying out of custody while the case is pending:
- Release to community member, friend, family member or partner with a promise to accompany the accused to court
- Phone/text/online check-ins with designated agency
- Travel Restrictions – order to not leave state, passport surrender
- Driving prohibitions or restrictions
- Stay away order
- AA/NA meeting attendance (or similar community support groups)
- Order to surrender weapon(s) to law enforcement
- Ignition Interlock Device
- In-person check-ins with designated agency
- Mental health treatment
- Alcohol abuse treatment
- Substance abuse treatment
- Drug and alcohol testing
- Residential treatment program
- Home relocation during case pendency
- Secure Continuous Remote Alcohol Monitoring
- Electronic monitoring/GPS
- Home detention
It is the judge who ultimately sets your bail. California criminal law bestows the judge with quite a bit of discretion, allowing them to deviate from the bail schedule, depending on
- your criminal history,
- your flight risk, and
- the facts of your specific case.3
As you can see, posting bail can put a serious strain on your finances. This is why it is important to request a California bail hearing or an O.R. release to lessen some of this burden.
There are essentially three ways to post bail:
- though cash bail,
- through a bail bond, which is the most common way to post bail, and
- through a property bond, which means that you allow the court to place a lien on your property and if you fail to appear in court as instructed, the court is authorized to institute foreclosure proceedings against you. Although this type of bond is available, it is rarely utilized.
2. What does “cash bail” mean?
In order to be released on cash bail, you must deposit the full amount with the clerk of the court or with the arresting agency. Depending on the policies of the particular court, you may pay by
- a traveler’s check,
- money order,
- personal check, or
- a bank cashier’s check.
If you attend all of your court appearances, you will receive a full refund 60 to 90 days following the resolution of your case. If you fail to appear (also known as an “FTA”), you forfeit your money to the court.
If the police, prosecutor, or judge believes that you feloniously obtained your bail, the court will
- “hold” your release and
- conduct a hearing to resolve the issue.
“Feloniously” obtained means that you received your bail “by means of an unlawful
- transaction, or
- occurrence constituting a felony”.
It is up to you to prove that the funds were legally obtained. If you do, the court will accept your bail. If you do not, the court will not accept your bail and – depending on the circumstances – may even raise it as a consequence.4
The reason that this is an issue is that the purpose of bail is to ensure your future court appearances. California courts believe that if you feloniously obtained bail, or the bail is a “business expense” for a larger criminal enterprise, there may be little incentive for you to appear.5
And as Riverside criminal defense attorney Michael Scafiddi6 explains,
“This means that even if you have the funds to secure a cash bail, you may still want to go through a certified bond agent to retain a ‘low profile’. This might be the case if, for example, you are charged with a high-profit narcotics sale.”
3. How do bail bonds work?
Since most people do not have the means to post cash bail, bail bonds are more frequently used.
The process of obtaining the bond only takes about 20 minutes. However, once you secure the bond, it generally takes between 30 minutes and 4 hours for the suspect to be released from custody.
Bail bondsmen (also called bail agents) post your bail in exchange for a non-refundable premium (which California law sets at a maximum 10%). If, for example, your total bail is $50,000, you will pay the bondsman $5,000.
However, some bail companies offer discounts to certain clients. For example, Bad Boys Bail Bonds charges less than 10% for clients who are
- represented by attorneys,
- government employees,
- union members,
- members of the U.S. military, or
- any of the above who is a family member who will cosign for the bond.
Contracts with bail bondsmen typically last for one year. If your case extends beyond that period, the agent will likely require you to pay a renewal premium.
In addition, many bondsmen may also require collateral. “Collateral” is something of value that you offer the agent to assure you will not “skip town”. If you do, the agent has the right to keep or sell your collateral.
This, too, is something that varies according to the bail agent. Larger bail bond companies like Bad Boys do not require collateral on bail amounts under $100,000.
4. What are my responsibilities as a cosigner?
If you are securing the bond for another person through a bail bond company, you become the cosigner. As the cosigner, you are promising that you will ensure that the defendant makes all of their court appearances. This is the case whether you
- personally pay the premium or
- gather money from others to post the bond.
If the defendant fails to appear for court, the bond company will attempt to find and collect from them first. If the agent is unable to do so, you are responsible for repaying the bondsman.
5. What happens if I fail to appear in court once I’ve posted bail?
If you fail to appear for court (commonly referred to as an “FTA”), the judge
- forfeits your bail and
- may issue a California bench warrant for your arrest.7
If you paid cash bail, none of it will be returned. If you posted a bail bond, the bond company will seek reimbursement
- first from you, and
- then from the cosigner.
However, if you appear within 180 days of the notice of bail forfeiture and provide a satisfactory excuse as to why you did not initially appear, the court may vacate and exonerate the bond.8
Examples of satisfactory excuses or “good cause” include (but are not limited to):
- severe illness,
- insanity, and/or
- being held in custody by another jurisdiction.
6. What happens to the bail once the case is over?
Once your case is resolved, the court exonerates (or releases) your bail. Exoneration takes place when
- the case is concluded,9
- the court orders you into a Penal Code 1000 PC drug diversion program,10
- the court declares you incompetent to stand trial,11 or
- you are committed into custody following an adverse verdict.12
If you posted cash bail and suffer a conviction that includes a fine and/or restitution, your bail will be applied towards those penalties.13
7. What if I cannot afford bail?
In California, you cannot be held in custody for the sole reason that you cannot afford to pay the bail amount. If you cannot afford to pay, the court should release you as long as it would not threaten public safety.
Soon after the arrest, the court will hold a Humphrey hearing. This is where the judge ensures that you are not incarcerated only because you lack the financial resources to post bail for release.14
Call us for help…
If you or a loved one is in need of help with bail and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group.
We can provide a consultation in the office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
In Colorado? Learn about bond procedures.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada’s bail laws and procedures. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.15
- Our California criminal defense lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Note that California Senate Bill 10 will not be put into effect due to a 2020 California referendum. This bill would have overhauled the bail system and created “preventive detention hearings” at which judges would have wide discretion to decide who should be kept in custody pretrial. (Also learn about Pretrial Assessment Services, pretrial risk assessments in California, supervised own recognizance release, and validated risk assessment tools.)
- California Penal Code 1269b – Acceptance of bail; notice of appearance of prisoner; schedule of bail. (“(c) It is the duty of the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council in accordance with Section 40310 of the Vehicle Code.”)
- California Penal Code 1269c – Increase or reduction of bail in schedule; declaration by peace officer; application by defendant; determination by magistrate. See also California Penal Code 1289 – Increase or reduction of bail; showing of cause; notice of application for reduction. (“After a defendant has been admitted to bail upon an indictment or information, the Court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the Court may order the defendant to be committed to actual custody, unless he give bail in such increased amount. If application be made by the defendant for a reduction of the amount, notice of the application must be served upon the District Attorney.”); LADA Special Directive 20-06. 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).
- California Penal Code 1275.1.
- U.S. v. Ellis DeMarchena (1971) 330 F.Supp. 1223, 1226. (“The court has the right and the duty to satisfy itself that there is more than just a financial assurance that a bailed defendant will appear in court when required. Thus, when a corporate surety bond is tendered for acceptance, the court has the right to ask the surety to whom they will look in the event of a forfeiture. The source of the security providing the collateral for the bond can provide valuable information regarding the motivation for a defendant to appear. If the bond were secured by the property of defendant’s relatives, or close friends, the court could, logically, conclude that the possibility of financial harm to those individuals might motivate a defendant to appear. On the other hand, if the security comes from an illegitimate source, and is merely a “business” expense for a dealer in contraband, there is a paucity of moral force compelling a defendant to reappear. Indeed, such a source would be more consistent with a possible fulfillment of a pledge to a defendant of purchased freedom if caught.”)
- Riverside criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients in San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville.
- California Penal Code 1305 PC — Nonappearance of defendant. (“(a) A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear for any of the following: (1) Arraignment. (2) Trial. (3) Judgment. (4) Any other occasion prior to the pronouncement of judgment if the defendant’s presence in court is lawfully required. (5) To surrender himself or herself in execution of the judgment after appeal…”)See also California Penal Code 978.5 — Bench warrant of arrest. (“(a) A [California] bench warrant of arrest may be issued whenever a defendant fails to appear in court as required by law including, but not limited to, the following situations…(2) If the defendant is released from custody on bail and is ordered by a judge or magistrate, or other person authorized to accept bail, to personally appear in court at a specific time and place. (3) If the defendant is released from custody on his own recognizance and promises to personally appear in court at a specific time and place.”)
- California Penal Code 1305 PC — Nonappearance of defendant; jurisdiction; vacation of forfeiture and exoneration of bond.
- See California Penal Codes 1538.5(k-l); 1385 (pursuant to 1188 and/or 1384); 995 (per 997).
- California Penal Code 1000.2 PC — Hearing by court; determination of deferred entry of judgment; exoneration of bail; progress reports. (“…At the time that [a Penal Code 1000 PC drug diversion program, or] deferred entry of judgment is granted, any bail bond or undertaking, or deposit in lieu thereof, on file by or on behalf of the defendant shall be exonerated, and the court shall enter an order so directing.”)
- See California Penal Code 1368; 1370; 1370.01; 1371.
- California Penal Code 1166 PC — General verdict against defendant or special verdict; remand or commitment to custody pending judgment; exoneration of bail and refund of deposit. (“If a general verdict is rendered against the defendant, or a special verdict is given, he or she must be remanded, if in custody, or if on bail he or she shall be committed to the proper officer of the county to await the judgment of the court upon the verdict, unless, upon considering the protection of the public, the seriousness of the offense charged and proven, the previous criminal record of the defendant, the probability of the defendant failing to appear for the judgment of the court upon the verdict, and public safety, the court concludes the evidence supports its decision to allow the defendant to remain out on bail. When committed, his or her bail is exonerated, or if money is deposited instead of bail it must be refunded to the defendant or to the person or persons found by the court to have deposited said money on behalf of said defendant.”)
- California Penal Code 1297 PC — Receipt for deposit; application of deposit by defendant to fine and costs; refund. (“When money has been deposited, a receipt shall be issued in the name of the depositor. If the money remains on deposit at the time of a judgment for the payment of a fine, the clerk shall, under the direction of the court, if the defendant be the depositor, apply the money in satisfaction thereof, and after satisfying restitution to the victim or the Restitution Fund, fines, and costs, shall refund the surplus, if any, to the defendant…”)
- In re Kenneth Humphrey (2021) 11 Cal.5th 135.
- Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada’s bail laws and procedures. Their Nevada law offices are located in Reno and Las Vegas.