Preventive Detention and Release Procedures in California (Penal Codes 1320.7 - 1320.35 PC)

A California preventive detention hearing is where a judge decides whether a criminal defendant should remain in custody or be released pending the trial. Now that California is eliminating the criminal bail system as of October 1, 2019, the main factors that will determine whether a defendant can be released following arrest are whether:

  1. the defendant poses a safety risk to the public or the victim; and
  2. the defendant will likely show up to future court appearances

The majority of people arrested for California misdemeanors will be released on their own recognizance immediately.

In other cases, the courts' Pretrial Assessment Services (PAS) will hold prearraignment reviews to determine whether to release defendants based on their likelihood of reoffending and showing up to court. And if the prosecution objects to a defendant's release, the court will hold a preventive detention hearing to decide whether a defendant should remain incarcerated.

Either way, a defendant will never again be able to buy his or her way out of jail pending the trial.1

In this article, our Los Angeles California criminal defense attorneys discuss:

gavel and handcuffs
Preventive detention hearings will be replacing bail hearings in California.

1. The End of Bail in California

As of October 1, 2019, the concept of bail is a thing of the past for California courts.

Under a bail system, most crimes have a dollar amount that defendants may pay in exchange for getting released from jail pending the trial. The purpose of ending the bail system is to eliminate the advantage rich defendants have over other defendants who are accused of the same crimes but who are unable to afford the price of freedom.

In a system with no bail, California courts will instead release defendants on their own recognizance only if:

  • they do not post a risk to public safety or the crime victim(s), and
  • they are likely to show up at future court appearances

Defendants' financial resources will no longer play any part in whether they remain in or out of custody pending the resolution of their criminal case.

As discussed in detail below, every California criminal court will have a Pretrial Assessment Services (PAS) division to determine which defendants will get released pending trial. Those who do not get released by PAS may be able to argue for their release at a "preventive detention hearing" in front of a judge.

Note that any defendants released on bail prior to October 1, 2019, shall remain on bail pursuant to the terms of their release. And any defendants taken into custody prior to October 1, 2019 will be reconsidered for release the same as if they were arrested on or after October 1, 2019.2

2. Pretrial Assessment Services (PAS)

As of October 1, 2019, each California criminal court will have a Pretrial Assessment Services (PAS) division. PAS will be made up of court employees or qualified local public agency employees. 

Most people who get arrested for misdemeanors in California will not have to deal directly with PAS. In most cases, misdemeanor defendants get released on their own recognizance pending the resolution of the case.

But whenever a person gets arrested for a California felony -- or for one of the four serious misdemeanors discussed below in section 6 -- PAS will conduct a background investigation of the defendant. At the conclusion of this investigation, PAS will give the court and attorneys on both sides a report with its recommendations for conditions of the defendant's release.

These PAS reports and recommendations are based on the following six factors:

  1. the defendant's risk level/score (go to subsection 3.1 below for more information about risk scores);
  2. the defendant's criminal charge(s);
  3. the defendant's criminal history;
  4. any missed court appearances by the defendant within the last three (3) years;
  5. any relevant information regarding the defendant's risk to public safety; and
  6. any relevant information regarding the defendant's risk of failing to show up to required court appearances

Note that these PAS reports may be used only during California arraignments or prearraignment reviews (discussed in the next section). Therefore, these reports may not be used as evidence if the case goes to trial or during sentencing if the defendant ultimately gets convicted.3

3. Prearraignment Reviews

A prearraignment review is where PAS or a judge determines whether to release defendants prior to the arraignment (which is the formal filing of criminal charges).

Not all defendants are entitled to prearraignment reviews. Scroll down to section 7 for more information.

3.1. Prearraignment reviews conducted by PAS

During prearraignment reviews, PAS considers the following factors:

  • the defendant's PAS report (discussed in the previous section);
  • all the facts and circumstances relevant to the defendant's custody status; and
  • any relevant and available information provided by:
    • police,
    • the defendant,
    • victim(s), and
    • the prosecution and defense attorneys

These prearraignment reviews must occur no later than twenty-four (24) hours after the defendant's booking. But if PAS can show good cause, the detention can be postponed up to twelve (12) additional hours.

Whether PAS ultimately rates a defendant as low-, medium-, or high-risk determines whether the defendant will be released and under what conditions.

3.1.1. Low-risk

A low-risk defendant is one who poses little threat to public safety and will likely appear in at future court appearances.

If PAS determines a defendant is low-risk, it will release the defendant on his/her own recognizance and with the least restrictive condition(s) available to reasonably assure public safety and the defendant's return to court. This release will occur prior to arraignment and without review by the court. 

Defendants who get recognizance release are required to sign a form that includes the following five (5) items:

  1. A promise to appear at all times and places, as ordered by the court;
  2. A promise not to leave California without the court's permission;
  3. An agreement to waive extradition to California if the defendant fails to appear as required and is apprehended outside of California;
  4. An acknowledgment that the defendant has been informed of the consequences and penalties for violating the conditions of release; and
  5. An agreement to obey all laws and orders of the court.

3.1.2. Medium-risk

A medium-risk defendant is one who poses a moderate threat to public safety or may miss future court appearances.

If PAS determines a defendant is medium-risk, it will either release the defendant or continue detaining the defendant depending on local court rules.

Defendants who get released will be either:

Either way, PAS will impose the least restrictive condition(s) available to reasonably assure public safety and the defendant's return to court. This release will occur prior to arraignment and without review by the court. 

Defendants who get recognizance release are required to sign a form that includes the following five (5) items:

  1. A promise to appear at all times and places, as ordered by the court;
  2. A promise not to leave California without the court's permission;
  3. An agreement to waive extradition if the defendant fails to appear as required and is apprehended outside of California;
  4. An acknowledgment that the defendant has been informed of the consequences and penalties for violating the conditions of release; and
  5. An agreement to obey all laws and orders of the court.

Note that individual courts may adopt local rules that heighten the standards for prearraignment release of medium-risk defendants.

3.1.3. High-risk

PAS may not release defendants it determines have a high risk to public safety or failure to appear in court. Instead, these defendants will remain in detention pending the arraignment.

3.2. Prearraignment reviews conducted by courts

Courts may also conduct prearraignment reviews of defendants and make release decisions, but there are exceptions. Courts do not have the authority to conduct prearraignment reviews of defendants who either:

  • have been assessed as high-risk by PAS (see the previous subsection),
  • were pending trial or sentencing in a felony matter at the time of the arrest, or
  • is charged with a "serious felony" or a "violent felony" (see subsections 7.2 and 7.3 below for a list of these crimes)

When deciding whether to release a defendant, the judge must consider the information in the PAS report and PAS's recommendations. The judge must also consider any relevant and available information provided by:

  • police,
  • the defendant,
  • victim(s), and
  • the prosecution and defense attorneys

Defendants who get recognizance release are required to sign a form that includes the following five (5) items:

  1. A promise to appear at all times and places, as ordered by the court;
  2. A promise not to leave California without the court's permission;
  3. An agreement to waive extradition if the defendant fails to appear as required and is apprehended outside of California;
  4. An acknowledgment that the defendant has been informed of the consequences and penalties for violating the conditions of release; and
  5. An agreement to obey all laws and orders of the court.

Courts may decline to release a defendant pending arraignment if there is a substantial likelihood that no condition(s) of pretrial supervision will reasonably assure public safety or the appearance of the person as required. Accordingly, Courts will not release defendants pending arraignment if either:

  1. At the time of arrest, the defendant was on postconviction supervision (other than court supervision or informal probation);
  2. The defendant intimidated, dissuaded, or threatened retaliation against a witness or victim of the current crime; or
  3. The defendant is currently on pretrial release and has violated a condition of release; or
  4. The crime for which the defendant was arrested was committed with either:
    1. violence (or threatened violence) against a person;
    2. great bodily injury (or the likelihood of serious bodily injury); or
    3. being armed with a deadly weapon (even if it was not used)

Note that courts can generally modify a defendant's conditions of release with 24 hours notice for good cause shown.4

4. Arraignments and Motions for Preventive Detention

An arraignment is when a criminal defendant is formally charged in court. The arraignment is also a time for the court to review and possibly modify the defendant's conditions of release if requested by either party. 

As discussed earlier, defendants in most misdemeanor and some felony cases get released from custody prior to the arraignment on their own recognizance or own supervised recognizance.

If a defendant is still in custody by the arraignment, PAS will give all of the following information to the court for consideration:

  1. the defendant's risk score/level;
  2. the crime for which the defendant was booked for;
  3. the defendant's criminal history, including a history of failure to appear in court within the past three (3) years;
  4. any supplemental information that addresses the defendant's risk to public safety or risk of failure to appear in court as required; and
  5. recommendations to the court for conditions of release

At an arraignment, the court will order that defendants be released on their own recognizance or on supervised recognizance unless the prosecution files a motion for preventive detention. A motion for preventive detention asks the judge to keep the defendant in custody pending the trial.

There are five possible grounds for filing a motion for preventive detention:

  1. At the time of arrest, the defendant was on postconviction supervision (other than informal probation or court supervision).
  2. At the time of arrest, the defendant was subject to a pending trial or sentencing on a felony matter.
  3. The defendant intimidated or threatened retaliation against a witness or victim of the current crime.
  4. There is substantial reason to believe that no pretrial release conditions will reasonably assure public safety or that the defendant will appear in court.
  5. The crime for which the defendant was arrested was committed with either:
    1. violence, threatened violence, or the likelihood of serious bodily injury, or
    2. a deadly weapon being used or available, or
    3. great bodily injury

After the prosecution asks for a preventive detention hearing, the court will decide whether to release or detain the defending pending the hearing. When making its decision, the court will give significant weight to PAS's information and recommendations.

Note that the D.A. may file motions for preventive detention at any time during criminal proceedings, not just at the arraignment.

Scroll down to the next section for information on preventive detention hearings.5

5. Preventive Detention Hearings

A preventive detention hearing is where the judge in a criminal trial hears arguments for and against detaining a defendant in jail pending the trial. Preventive detention hearings are like a replacement for California bail hearings.

When a preventative detention hearing takes place depends on whether the defendant is in custody:

  • If the defendant is in custody, the hearing must occur within three (3) court days from when the motion for preventive detention is filed.
  • If the defendant is out of custody but the court issues a warrant for the defendant, the hearing must occur within three (3) court days from when the defendant is taken in custody.
  • If the defendant is out of custody and the court issues no warrant, then the hearing must take place within five (5) court days from the date the hearing is requested.

Note that a preventive detention hearing can take place at the same time as the arraignment -- or within three (3) days of the arraignment -- if the defense, prosecution, and judge agree. The parties can also ask the court to postpone the hearing to a later date.

Preventive detention hearings are supposed to be completed in one session unless the defendant agrees to extend it. During the hearing, the defendant has the right to have a lawyer present and to be heard. The prosecution must make a reasonable effort to notify the victim(s) about the hearing and offer a reasonable opportunity to be heard (in person or through writing).

5.1. Rebuttable presumption for detention

The court will presume that a defendant should be detained in any of the three circumstances listed below. Note that this presumption is rebuttable: This means that court can still release the defendant pending the trial if the defense attorney can convince the court that the defendant is not a safety threat and will show up to court.

1) The court will presume a defendant should be detained if the charge is for a "violent felony" (see subsection 7.3 below for a list of crimes).

2) The court will presume a defendant should be detained if the crime was committed with either:

  • violence against a person, threatened violence, or the likelihood of serious bodily injury, or
  • a deadly weapon being used or available, or
  • great bodily injury

3) The court will presume a defendant should be detained if the defendant is high-risk to the safety of the public or victim, and either of the following conditions is true:

  • The defendant was convicted of a serious felony or a violent felony (see subsections 7.2 and 7.3 below for a list of crimes) within the past five (5) years; or
  • The defendant has intimidated, dissuaded, or threatened retaliation against a witness or victim of the current crime; or
  • At the time of arrest, the defendant was on postconviction supervision (other than informal probation or court supervision); or
  • The defendant committed the current crime while pending sentencing for either a violent felony (see subsection 7.3 below for a list of crimes) or a crime with:
    • violence against a person, threatened violence, or the likelihood of serious bodily injury; or
    • a deadly weapon being used or available; or
    • great bodily injury in the commission of the crime

If the defense attorney argues that there is insufficient evidence that the defendant committed the crimes he/she is charged with, the prosecution has to establish that there is probable cause that the defendant did commit the crimes.

Ultimately, the court makes its decision about whether to release the defendant and if there is probable caused based on the following evidence and factors:

  • the defendant's statements, if any;
  • offers of proof and argument of counsel;
  • input from the victim(s), if any;
  • any evidence presented at the hearing, including reliable hearsay evidence;
  • the nature and circumstances of the crime charged;
  • the weight of the evidence against the defendant (including evidence that either side is trying to exclude);
  • the defendant's past conduct, family and community ties, criminal history, and record concerning appearance at court proceedings;
  • whether, at the time of the current crime or arrest, the defendant was on probation, parole, or supervised release;
  • the recommendation of PAS;
  • the nature and seriousness of the risk to the safety of any other person or the community posed by the defendant's release;
  • the impact of detention on the defendant's family responsibilities and community ties, employment, and participation in education; and
  • any proposed plan of supervision.

In order for a court to detain a defendant following a preventive detention hearing, the court has to find by clear and convincing evidence that there is no reasonable way to release the defendant and assure public safety and that the defendant will show up to court.

If the court releases the defendant following a preventive detention hearing, the court has to tell the defendant of the conditions of release and the penalties for violating them. If the defendant fails to show up for court, the court will issue a California bench warrant. If the defendant otherwise violates a condition of release, the court will issue a California arrest warrant.

5.2. Challenging or reopening a preventive detention hearing

The defense and prosecution can file a motion with the court to reopen the preventive detention hearing based either on:

  • newly discovered evidence;
  • newly discovered facts; or
  • a material change in circumstances

The court can even reopen a preventive detention hearing on its own if it discovers new information by PAS. If the victim requests it, the prosecution will keep the victim notified whenever a preventive detention hearing is reopened and will give the victim an opportunity to testify.

The defense and prosecution can also challenge a judge's decision in a preventive detention hearing by filing a writ with the applicable court of appeals.6

6. Misdemeanor Arrests

In general, people cited or arrested for misdemeanor crimes do not get California pretrial risk assessments by PAS.

Instead, misdemeanor defendants get booked and released without being jailed. Or if they do happen to get jailed, they must be released within twelve (12) hours of the booking. But there are exceptions for people arrested for either of the following four (4) misdemeanors:

  1. California crime of corporal injury on a spouse or cohabitant;
  2. California crime of domestic battery;
  3. California crime of stalking;
  4. California crime of violation of a protective order if the defendant allegedly either:
    1. made threats to kill or harm the victim,
    2. engaged in violence against the victim, or
    3. went to the victim's residence or workplace

People arrested for either of the aforementioned misdemeanors may be subjected to the same prearraignment and preventive detention hearings discussed above in this article.

Depending on the pretrial risk assessment, people arrested for either of the aforementioned four misdemeanors may either be:

  • released on their own recognizance (as if there was no risk assessment),
  • released but with conditions (a.k.a. supervised release), or
  • jailed pending the resolution of the criminal case7

7. Ineligibility for release

Defendants with any of the following circumstances are ineligible to be released prior to their arraignment by PAS:

  • high-risk assessment by PAS (see section 2 above for more information);
  • three (3) or more prior warrants for failure to appear in court within the previous twelve (12) months;
  • pending trial or pending sentencing for a misdemeanor or felony at the time of arrest;
  • on any form of postconviction supervision (other than informal probation or court supervision) at the time of arrest;
  • in violation of a condition of pretrial release within the past five (5) years;
  • an arrest for violating any type of restraining order within the past five (5) years;
  • having intimidated, dissuaded, or threatened retaliation against a witness or victim of the current crime;
  • the arrest is for a third (3rd) DUI offense within the past ten (10) years;
  • the arrest is for DUI causing injury or death;
  • the arrest is for DUI with a BAC of .20 or higher;
  • the arrest is for a felony which includes an element of physical violence -- or the threat thereof -- to another person;
  • the arrest is a felony which includes an element of the likelihood of great bodily injury;
  • the arrest is a felony in which the defendant is alleged to have been personally armed with or used a deadly weapon in the commission of the crime;
  • the arrest is a felony which the defendant is alleged to have personally inflicted great bodily harm in the commission of the crime;
  • the arrest was for one of the following four misdemeanors (see the prior section for more details about misdemeanor arrests):
  • the arrest was for a sex offense that -- upon conviction -- would make the defendant a Tier II or tier III offender (see below to subsection 7.1 for a list of these sex offenses);
  • the arrest was for a serious felony or a violent felony (see below to subsections 7.2 and 7.3 for a list of these offenses); or
  • the defendant has a past conviction within the last five (5) years for a serious felony or a violent felony (see below to subsections 7.2 and 7.3 for a list of these offenses)8

Note that most defendants facing misdemeanor charges may be released without a pretrial assessment -- see the prior section for more information.

7.1 Sex offenses

People arrested for any of the following Tier II or Tier III sex offenses are not eligible for prearraignment release by PAS:9

7.1.1. Tier two sex offenses

Tier two level crimes include violations of either:

7.1.2. Tier three sex offenses

Tier three level crimes include violations of:

7.2. Serious felonies

People arrested for any of the following serious felonies are not eligible for prearraignment release by PAS. And defendants with convictions of any of the following serious felonies within the past five (5) years are also not eligible for prearraignment release by PAS:

7.3. Violent felonies

People arrested for any of the following violent felonies are not eligible for prearraignment release by PAS. And defendants with convictions of any of the following violent felonies within the past five (5) years are also not eligible for prearraignment release by PAS:

  • Murder or voluntary manslaughter;
  • Mayhem;
  • Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262;
  • Sodomy as defined in subdivision (c) or (d) of Section 286;
  • Oral copulation as defined in subdivision (c) or (d) of Section 288a;
  • Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288;
  • Any felony punishable by death or imprisonment in the state prison for life;
  • Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55;
  • Any robbery;
  • Arson, in violation of subdivision (a) or (b) of Section 451;
  • Sexual penetration as defined in subdivision (a) or (j) of Section 289;
  • Attempted murder;
  • A violation of Section 18745, 18750, or 18755;
  • Kidnapping;
  • Assault with the intent to commit a specified felony, in violation of Section 220;
  • Continuous sexual abuse of a child, in violation of Section 288.5;
  • Carjacking, as defined in subdivision (a) of Section 215;
  • Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1;
  • California crime of extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22;
  • Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22;
  • Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary;
  • Any violation of Section 12022.53; or
  • A violation of subdivision (b) or (c) of Section 11418.11

8. Victims' rights

The purpose of Senate Bill 10 is not only to eliminate bail but also to give victims the opportunity to give their input about whether a defendant should be released.

The D.A. must let crime victims know when a defendant will have an arraignment. And if the defendant requests it, the D.A. must let crime victims know about any preventive detention hearings. And if the defendant requests it, the court will give the victim a reasonable opportunity to be heard.

If victims do not wish to appear personally in court to give their comments, they can submit their comments in writing through the prosecution.12

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Legal References

  1. California Senate Bill 10 (2018).
  2. California Penal Code 1320.34 PC ("This chapter shall become operative on October 1, 2019."); 1320.9 PC; 1320.19 PC; 1320.33 PC ("(a) Defendants released on bail before October 1, 2019, shall remain on bail pursuant to the terms of their release. (b) Defendants in custody on October 1, 2019, shall be considered for release pursuant to Section 1320.8, and, if not released, shall receive a risk assessment and be considered for release or detention pursuant to this chapter.").
  3. California Penal Codes 1320.08 - 10 PC.
  4. California Penal Codes 1320.11 - 14 PC.
  5. California Penal Codes 1320.15 - 18 PC.
  6. California Penal Codes 1320.19 - 23 PC.
  7. California Penal Code 1320.10.
  8. Id.
  9. Id.
  10. Id.; California Penal Code 1192.7(c) PC
  11. California Penal Code 1320.10; California Penal Code 667.5(c) PC.
  12. California Penal Code 1320.16 PC & 1320.19.

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