I believe that a person's ability to fight his or her case “from outside” the jail often increases the chance of a successful outcome, especially at trial. To that end, I am prepared to do everything I can to help my clients get bail reductions and own recognizance (O.R.) releases.
Own recognizance release
The California Constitution states that “[a] person may be released on his or her own recognizance in the court's discretion.” (Cal. Const. Art. I, sec. 12.) The California Penal Code provides that a defendant not charged with an offense punishable by death may be released on his or her own recognizance. (Penal Code sec. 1270, subd. (a).) Bail and O.R. issues are usually addressed at the defendant's first court appearance, without prior notice. In other cases, the defendant's counsel will provide two days notice to the prosecutor in order to address the defendant's custodial status.
Defense counsel cannot request a bail or custody status review at every hearing. Once the court has set bail, the court cannot change it without a showing of good cause. (Penal Code sec, 1289.) Generally, this means proving circumstances have changed since bail was set.
In many cases the judge or other magistrate will order a defendant to perform specific conditions as part of his or her O.R. release¸ as authorized by Penal Code section 1218. The conditions must be based upon the specific nature of the defendant's case. (In re York (1995) 9 Cal.4th 1133, 1143.)
In ruling on the defendant's O.R. request, the court frequently (if not invariably) closely examines a defendant's employment record, ties to the community, prior criminal history including any prior failures to appear, and the nature of the current offense.
Penal Code section 1318 requires the defendant to sign and file a release agreement with the court prior to release.
Bail and bail reductions
The California Constitution provides that bail is a matter of right unless the charged offense is punishable by death or a public safety exception applies. (Cal. Const. Art. I, sec. 12.) Generally, bail is first set by the Sheriff at the jail during booking pursuant to the countywide bail schedule, and is then revised based upon the nature of the charges actually filed by the D.A. Once the case gets to court, both the defense and the District Attorney may argue for lower or greater bail based upon the alleged facts of the case and the particular defendant.
In felony cases the judge or other magistrate may deny bail if it is sufficiently established that: the defendant committed acts of violence on another person and the court concludes (based upon a clear and convincing standard) that releasing the defendant would likely result in great bodily harm to others; that the defendant threatened another with serious bodily harm and it is likely that the defendant would carry out the threat if released; the defendant is charged with a capital offense. Certain sex offenses as set forth in California Penal Code section 292 also fall into the public safety/preventive detention exception to the general rule that bail is a matter of right.
When the court is faced with a request to set, deny, or lower bail, the court must consider those issues identified in Penal Code section 1275, which states:
(1) 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 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 setting bail, a judge or magistrate may consider factors such as the information included in a report prepared in accordance with section 1318.1.
(2) 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.
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 of 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.
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.
Both the United States and California Constitutions prohibit courts setting “excessive bail,” although in some cases bail may be denied all together. (United States v. Salerno (1987) 481 U.S. 739, 752-755.) My goal is to do everything possible to get your bail reduced or obtain your release on your own recognizance.
If you need help getting a family member, other loved one or friend released from custody, please call me to discuss obtaining bail or an O.R. release.