Bail Following an Arrest
When someone is arrested for certain misdemeanors or felony offenses that person may be kept in jail unless a person posts bail. Bail is intended to be a security ensuring a person arrested will show up for court and face the charges against him or her as well as protect the public.
Bail allows a defendant to be released from actual custody on the posting of a bond, cash deposit, or other security deemed necessary to guarantee the defendant’s appearance in court. A defendant who is charged with a noncapital offense may be admitted to bail before conviction as a matter of right. However a person charged with a violent felony or sexual assault can have their bail rights curtailed when the facts are evident or the presumption great enough and the court finds, based on clear and convincing evidence, that there is a substantial likelihood the person’s release would result in great bodily harm to others. The same is true if the defendant is charged with any felony when the court finds, based on clear and convincing evidence, that the person has threatened another with great bodily injury to another and that there is a substantial likelihood that the defendant will carry out the threat if released (Cal Const art I, §12(c)). Bail motions may be made orally or in writing. If the court decides to set bail in excess of the bail schedule, it should articulate the specific grounds in support of the decision.
The court has broad discretion in setting the amount of bail, and absent an abuse of discretion, the court’s bail order will not be changed. There still are some constraints to the court’s power. The Court can’t set bail with the intent to punish the defendant. The Court is not set an “excessive” bail. Bail is excessive when it is unreasonably great, and clearly disproportionate to the offense involved. Bail is not considered excessive merely because the defendant cannot post it. When the Court goes about setting, reducing, or denying bail, the Court must take into account certain factors: safety of public and victim; the Defendant’s prior record; the seriousness of the charged offense. if the defendant is charged with a narcotics offense the court will usually consider the alleged amount of the controlled substances involved; and the likelihood of the defendant’s appearing in court if released from custody.
In deciding the chances of the defendant’s appearing at subsequent court proceedings, the court should consider the defendant’s ties to the community which can be illustrated by the defendant’s record of employment and how long the defendant has lived in the county. The court will also look into the defendant’s record of appearance in other court cases he or she may have had; and the penalties the defendant is looking at if there is a conviction.
Most counties have their bail schedules on-line. A bail schedule is a guideline for bail amounts to be set in relations to certain offenses and enhancements charged. A bail schedule is used by Judges and attorneys to determine what bail may be reasonable for certain offenses but the amounts are not set in stone. The bail can still be deviated upward or downward from the schedule depending on the facts of the case and the defendant’s back ground. A bail motion can be made by the defendant or the prosecution whenever there is a change in circumstances surrounding the defendant’s case.
Certain facts and circumstances surrounding an offense can trigger a PC 1275 hold on the bail that is about to be paid. The 1275 hold is put on the bail in order to ensure the Court that the bail money be used to release the defendant from custody is not from the illegal proceeds of the defendant’s alleged criminal activity. The bail money being put up for the defendant must be shown to have come from a legitimate source such as bank records, paycheck stubs, tax returns, affidavits. A declaration regarding the source of the money can be subject to the penalty of perjury. If the money is shown to come from a legitimate source the 1275 hold will be lifted and the defendant will be allowed to proceed with the bailing out process.
Bail After Conviction
Following a conviction in a criminal case, a defendant is usually required to remain in jail until sentencing per the requirements of California Penal Code 1166. However, under limited circumstances, the judge may allow the defendant to await sentencing outside of custody by allowing bail until judgment is rendered. In order to qualify for this type of bail, the defendant must demonstrate that he or she does not pose a threat to the public, has not been convicted of a gravely serious offense, and will likely return to court for further proceedings. The defendant must also have an acceptable criminal record (or lack thereof) which leans in favor of allowing bail.
Whether or not bail is likely to be given following a conviction depends on the type of charges involved. The right to bail after a conviction exists for misdemeanor charges. In felony matters, California Penal Code 1272 sets the issue of bail at the discretion of the court. Either way, the court has the discretion to set bail at a reasonable amount and to impose conditions on bail as needed to protect the public.
Getting Bail During an Appeal
If the defendant decides to appeal his or her conviction, he or she may request bail from the court which held the trial. The trial court is the appropriate court for deciding this matter pursuant to California Penal Code section 1272.