A bail hearing is a court proceeding where a judge decides whether to allow a defendant to post bail and be released from custody while awaiting trial. A judge could also decide to set bail at a higher or lower amount than what is scheduled for the offense.
At the bail hearing, the court can do one of four things:
- Release the defendant on their own recognizance (“OR release”);
- Require the defendant to post “bail” (a forfeitable sum of money) with the court;
- Release the defendant subject to conditions other than the payment of bail; or
- If the crime charged is a violent felony, deny bail and release entirely.
The California Supreme Court ruled that people who cannot afford to pay bail must be released unless there is clear and convincing evidence that incarcerating them is necessary for public or victim safety. Shortly after a person’s arrest, the court will hold a Humphrey hearing to make sure that lack of financial resources is not the only reason why they are incarcerated.
In Los Angeles County, people arrested for misdemeanors or non-violent, non-serious felonies must be released without paying bail. The judge could also add conditions of pretrial release, such as going to counseling or surrendering all firearms.1
To help you better understand bail hearings, our California criminal defense lawyers discuss the following, below:
- 1. What is bail?
- 2. How is the amount of bail determined?
- 3. What happens at a bail hearing?
- 4. Will courts grant bail if the defendant agrees to conditions of release?
You may also find helpful information in our article on How to Post Bail in California.
A bail hearing is where the defendant – or their attorney – can ask for lower bail or O.R. release.
1. What is bail?
“Bail” is money that the court requires a criminal defendant to pay in order to assure the defendant’s court appearances. If the defendant does not appear as and when legally required, this money is forfeited.
1.1. How can I post bail in California?
Defendants post bail by either:
- Paying the full amount of the bail in cash or,
- Posting a bond (which is more common).
1.2. How do I get a bail bond in California?
To secure a bail bond, defendants use a bondsman (or bail agent). Bondsmen agree to post bail in exchange for the defendant paying a percentage of the full amount, usually 10%.
This 10% is a nonrefundable fee, and the bondsman gets to keep that amount of money after bail is returned.
Because the bondsman is on the hook if a defendant does not show, many bondsmen will require a friend or family member of the defendant to
- cosign the bond or
- put up collateral.
That way, if the defendant skips bail, it is the friend or family member who loses the money amount rather than the bondsman.
Most bond collateral is in the form of real estate or cash, though personal property (such as jewelry) is sometimes accepted.
1.3. What happens if a defendant “skips bail”?
If the defendant “skips bail” (does not appear in court) the agent has a certain amount of time to locate the defendant and return them to the custody of the court. If the defendant does not appear by the outside date, the full amount of the bail is forfeited to the court.
If a bond was deposited, the bond goes into judgment. The bail agent becomes responsible to pay the full amount of bail to the court. The bondsman then becomes legally entitled to keep or seize any collateral. If the collateral consisted of real estate, the bondsman can force a sale.
2. How is the amount of bail determined?
The amount of bail varies depending on the crime involved. All counties have their own bail schedules that set forth the amount of bail for each type of crime.2 It is now unconstitutional in California to detain an arrestee for the sole reason that they cannot pay bail.
2.1. Los Angeles County
In Los Angeles County, almost all arrestees get released from jail on their own recognizance. People arrested for serious or violent felonies can still be held on bail.
Arrestees in Los Angeles County who get released without paying bail may still have to abide by one or more mandates as a condition of remaining out of custody while the case is pending.3
Posting bail can put a serious strain on your finances. This is why it is important to request a bail hearing to request lower bail or an OR release.
3. What happens at a bail hearing?
In the California superior court, a bail hearing presents defendants with an opportunity to ask the court either to
- reduce their bail, or
- eliminate bail altogether by releasing them on their own recognizance.4
3.1. Reducing bail
When deciding whether to reduce bail, the judge considers:
- the defendant’s ability to pay,
- the seriousness of the alleged offense (including any injuries to the alleged victim, any threats to the alleged victim, whether any weapons were allegedly used, and whether any drugs were allegedly involved),
- the defendant’s prior criminal history,
- the defendant’s probability of appearing for future court dates such as the arraignment, and, most importantly,
- public safety.5
3.1.1. Unusual circumstances or good cause
When defendants are charged with a serious felony or a violent felony, the judge cannot reduce their bail below the scheduled amount unless they find unusual circumstances or good cause.
“Unusual circumstances” or “good cause” do not include the facts that:
- the defendant has made all prior court appearances, and/or
- the defendant hasn’t committed any new offenses, but rather
- that there has been a change in circumstance, substantiated by new evidence.6
The phrase “change in circumstances” refers to a change in the defendant’s situation, in the facts of the case, or in the proceedings. It does not mean that the judge who initially set bail committed legal error or didn’t properly analyze the case.7
Important to note is the fact that even if the defendant posts bail, the judge still retains the discretion to order them into custody once the trial begins.8
3.1.2. Automatic bail review
If the defendant hasn’t posted bail – and therefore remains in custody – they are automatically entitled to have a bail review hearing within 5 days of the time that their bail was originally set.9
3.1.3. Notice of bail hearing
If the alleged offense is
- classified as a serious felony,
- classified as a violent felony,
- among a list of certain California domestic violence laws, or
- among a list of certain violations of protective orders,
California criminal law requires defendants to provide the prosecutor with a minimum two-day written notice of their intent to request a reduction at the bail hearing, so that they have the opportunity to oppose the matter.10
3.2. Raising bail
It is important to keep in mind that the judge has the discretion not only to reduce bail, but to raise it as well. If defendants seek a bail reduction, the prosecutor may highlight information about which the court was otherwise unaware (such as a probation violation or parole violation).11
If the judge raises bail, even beyond that which the defendant can afford to post, it is within their discretion to do so unless the judge has exercised a clear abuse of that discretion. The fact that the defendant simply can’t afford to post it doesn’t mean that the bail is inherently excessive or that the judge has abused their discretion.12 It simply means that the defendant will have to remain in custody.13
3.3. Releasing on O.R.
In lieu of posting bail, the defendant may ask the judge to release them on their own recognizance (more commonly referred to as an O.R. release). As long as they are not charged with a California criminal offense that is punishable by death, they are entitled to an O.R. release unless such a release
- will compromise public safety, or
- will not reasonably ensure their appearance for future court proceedings.14
4. Will courts grant bail if the defendant agrees to conditions of release?
It may. This is where the experience and skill of a California criminal defense attorney come into play. Seasoned lawyers know how to think “outside the box” and understand that creative thinking can be the key to representing their clients successfully.
In fact, proposing bail conditions may be a way for a lawyer to secure a reduced bail (or possibly even an O.R. release) from an otherwise unwilling or hesitant judge.15
4.1. Examples of bail conditions
- requiring the defendant to surrender their passport and/or driver’s license, and restricting their travel,
- requiring the defendant to check into an inpatient treatment facility,
- requiring the defendant to wear a Secure Continuous Remote Alcohol Monitor “SCRAM” device,16 or
- requiring the defendant to wear a GPS tracking device or placing them on “house arrest” via electronic monitoring.
The options are essentially limitless. However, the judge cannot impose a bail condition that violates their Constitutional Due Process rights.17
Legal References:
- In re Kenneth Humphrey, 11 Cal.5th 135 (Cal. 2021); Maura Dolan, California’s top court ends cash bail for some defendants who can’t afford it, Los Angeles Times (March 25, 2021); LADA Special Directive 20-06.
- California Penal Code 1269b PC — 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. (d) A court may, by local rule, prescribe the procedure by which the uniform countywide schedule of bail is prepared, adopted, and annually revised by the judges. If a court does not adopt a local rule, the uniform countywide schedule of bail shall be prepared, adopted, and annually revised by a majority of the judges. (e) In adopting a uniform countywide schedule of bail for all bailable felony offenses the judges shall consider the seriousness of the offense charged. In considering the seriousness of the offense charged the judges shall assign an additional amount of required bail for each aggravating or enhancing factor chargeable in the complaint, including, but not limited to, additional bail for charges alleging facts that would bring a person within any of the following sections: Section 667.5, 667.51, 667.6, 667.8, 667.85, 667.9, 667.10, 12022, 12022.1 PC, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53, 12022.6, 12022.7, 12022.8, or 12022.9 of this code, or Section 11356.5, 11370.2, or 11370.4 of the Health and Safety Code. In considering offenses in which a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, the judge shall assign an additional amount of required bail for offenses involving large quantities of controlled substances. (f) The countywide bail schedule shall contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate. If the schedule does not list all offenses specifically, it shall contain a general clause for designated amounts of bail as the judges of the county determined to be appropriate for all the offenses not specifically listed in the schedule. A copy of the countywide bail schedule shall be sent to the officer in charge of the county jail, to the officer in charge of each city jail within the county, to each superior court judge and commissioner in the county, and to the Judicial Council.”)
- LADA Special Directive 20-06. These mandates include Release to community member, friend, family member or partner with 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 Deviced; 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.
- California Penal Code 1269c PC — Increase or reduction of bail in schedule; declaration by peace officer; application by defendant; determination by magistrate. (“If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to assure defendant’s appearance or to assure the protection of a victim, or family member of a victim, of domestic violence, the peace officer shall prepare a declaration under penalty of perjury setting forth the facts and circumstances in support of his or her belief and file it with a magistrate, as defined in Section 808, or his or her commissioner, in the county in which the offense is alleged to have been committed or having personal jurisdiction over the defendant, requesting an order setting a higher bail. The defendant, either personally or through his or her attorney, friend, or family member, also may make application to the magistrate for release on bail lower than that provided in the schedule of bail [that is, a California bail hearing] or on his or her own recognizance. The magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she deems sufficient to assure the defendant’s appearance or to assure the protection of a victim, or family member of a victim, of domestic violence, and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant’s release on his or her own recognizance. If, after the application is made, no order changing the amount of bail is issued within eight hours after booking, the defendant shall be entitled to be released on posting the amount of bail set forth in the applicable bail schedule.”)See also California Penal Code 1289 PC — 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 [for a California bail hearing] must be served upon the District Attorney.”)
- California Penal Code 1275 PC — Setting, reducing or denying bail; considerations. (“(a) In setting, reducing, or denying bail [pursuant to a California bail hearing], 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. In considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant. (b) In considering offenses wherein a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, the judge or magistrate shall consider the following: (1) the alleged amounts of controlled substances involved in the commission of the offense, and (2) whether the defendant is currently released on bail for an alleged violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code.”) See also: Humphrey on Habeas Corpus (CA Court of Appeal, First District, Division 2, 2018) Case No. A152056.
- California Penal Code 1275 PC — Setting, reducing or denying bail; considerations. (“(c) Before a court reduces bail below the amount established by the bail schedule approved for the county, in accordance with subdivisions (b) and (c) of Section 1269b, for a person charged with a serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, “unusual circumstances” does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses.”)See also California Penal Code 1289 PC, endnote 4, above. See also In re Alberto (2002) 102 Cal.App.4th 421, 430. (“Penal Code section 1289 expressly provides for subsequent motions [that is, a California bail hearing] to increase or reduce bail upon a showing of good cause. However, the good cause must be founded on changed circumstances relating to the defendant or the proceedings, not on the conclusion that another judge in previously setting bail committed legal error. Although not necessarily exhaustive, factors to be considered in “setting, reducing or denying” bail are set forth in section 1275: protection of the public (the “primary consideration”), seriousness of the offense, previous criminal record, and probability of defendant appearing in court..”[and continuing at 431], “Equally so, our decision does not mean that the People were without remedy if they believed Judge Wesley erred as a matter of law in the setting of bail by, for example, considering factors not permitted by law, ignoring relevant information, or failing to make required findings. The People’s remedy was to seek review of Judge Wesley’s order by extraordinary writ in this court.”)
- In re Alberto (2002) 102 Cal.App.4th 421, 430-431. (“[California Penal Code] Section 1289 expressly provides for subsequent motions to increase or reduce bail upon a showing of good cause. However, the good cause must be founded on changed circumstances relating to the defendant or the proceedings, not on the conclusion that another judge in previously setting bail committed legal error. Although not necessarily exhaustive, factors to be considered in “setting, reducing or denying” bail are set forth in section 1275: protection of the public (the “primary consideration”), seriousness of the offense, previous criminal record, and probability of defendant appearing in court. (See also In re Berman (1930) 105 Cal.App. 270, 271-272, 287 P. 373 [proper to consider under 1289 amount of bail posted by defendant in another pending case]; In re Black (1934) 140 Cal.App. 361, 35 P.2d 355 [numerous factors]; In re Grimes (1929) 99 Cal.App. 10, 277 P. 1052 [moral turpitude of the offense, penalty provided by law].) Whether subsequent to Judge Wesley’s bail order circumstances have changed in the context of these factors is an appropriate consideration for the court in conducting a hearing pursuant to section 1289. (Cf. People v. Locklar (1978) 84 Cal.App.3d 224, 230, 148 Cal.Rptr. 322 [second judge may reconsider prior denial of consolidation motion where there are changed circumstances].)”)
- California Penal Code 1129 — Commitment of defendant on bail. (“WHEN DEFENDANT ON BAIL APPEARS FOR TRIAL HE MAY BE COMMITTED. When a defendant who has given bail appears for trial, the Court may, in its discretion, at any time after his appearance for trial, order him to be committed to the custody of the proper officer of the county, to abide the judgment or further order of the Court, and he must be committed and held in custody accordingly.”)
- California Penal Code 1270.2 PC — Before conviction; automatic review of order fixing bail. (“When a person is detained in custody on a criminal charge prior to conviction for want of bail, that person is entitled to an automatic review of the order fixing the amount of the bail [that is, a California bail hearing] by the judge or magistrate having jurisdiction of the offense. That review shall be held not later than five days from the time of the original order fixing the amount of bail on the original accusatory pleading. The defendant may waive this review.”)
- California Penal Code 1270.1 PC — Violent felonies and specified acts; bail set at unscheduled amount; notice; hearing; statement of decision reasons; threats against victim or witness. (“(a) Before any person who is arrested for any of the following crimes may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, or may be released on his or her own recognizance, a hearing shall be held in open court before the magistrate or judge [that is, a California bail hearing]: (1) A serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, but not including a violation of subdivision (a) of Section 460 (residential burglary). (2) A violation of Section 136.1 where punishment is imposed pursuant to subdivision (c) of Section 136.1, 262, 273.5, 422 [that is, certain California domestic violence charges] where the offense is punished as a felony, or 646.9. (3) A violation of paragraph (1) of subdivision (e) of Section 243. (4) A violation of Section 273.6 if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party. (b) The prosecuting attorney and defense attorney shall be given a two court-day written notice and an opportunity to be heard on the matter. If the detained person does not have counsel, the court shall appoint counsel for purposes of this section only. The hearing required by this section shall be held within the time period prescribed in Section 825. (c) At the hearing, the court shall consider evidence of past court appearances of the detained person, the maximum potential sentence that could be imposed, and the danger that may be posed to other persons if the detained person is released. In making the determination whether to release the detained person on his or her own recognizance, the court shall consider the potential danger to other persons, including threats that have been made by the detained person and any past acts of violence. The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond. (d) If the judge or magistrate sets the bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, the judge or magistrate shall state the reasons for that decision and shall address the issue of threats made against the victim or witness, if they were made, in the record. This statement shall be included in the record.”)
- If you are on probation or parole, it may be advisable for you to post bail as quickly as possible without initiating a hearing. Many times if the court finds out that you are currently on parole or probation before you post bail, it will place a “hold” on your release. However, if you ‘bail out’ before the court obtains that information, many times your probation or parole officer will allow you to remain free on bail pending the outcome of your case.
- In re Burnette (1939) 35 Cal.App.2d 358, 360-361. (“It is well settled, even in cases involving bail after indictment and before conviction, that bail is not to be deemed excessive merely because the person under indictment cannot give the bail required of him. (3 Cal. Jur., p. 1049, sec. 18.)”)
- California Penal Code 1289 PC — 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 [at a California bail hearing]. 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.”)
- California Penal Code 1270 PC — Release on recognizance; non-capital offense; offense; considerations; public safety; procedure. (“(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 1269c PC — Increase or reduction of bail in schedule; declaration by peace officer; application by defendant; determination by magistrate. (“The magistrate or commissioner to whom the application is made is authorized to set bail in an amount that he or she deems sufficient to assure the defendant’s appearance or to assure the protection of a victim, or family member of a victim, of domestic violence, and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant’s release on his or her own recognizance.”)
- A Secure Continuous Remote Alcohol Monitor “SCRAM” device is a tamper-resistant bracelet that a DUI offender wears around their ankle. The SCRAM bracelet tests the DUI offender’s sweat for alcohol at least once per hour. The SCRAM bracelet wirelessly transmits the results at least once per day via the SCRAM Modem to a regional monitoring center.
- “Gray v. Superior Court (2005) 125 Cal.App.4th 629, 644. (“Here, Gray was able to post bail and therefore had a right to be free from confinement. The trial court cannot justify imposing bail conditions [at a bail hearing] in a manner depriving Gray of due process or other constitutional rights on the ground that Gray would otherwise be confined and effectively deprived of those rights.”). For example, in Gray v. Superior Court, the judge violated the defendant’s due process rights by suspending his medical license as a bail condition without prior notice. But the conditions must be ones the defendant has the ability to satisfy. For instance, in a case decided in January 2018, a California appellate court held that it was constitutionally unfair for a criminal court to order the defendant to participate in drug treatment as a condition of release, but then prevent release by setting bail in an amount he could not pay. (See endnote 5).