Close X

Pre-arraignment custodial status

Following the arrest or detainment by police, a defendant can be taken into custody or released depending on the seriousness of the offense.

Released with Citation Generally, a defendant accused of an infraction or certain misdemeanors is released with a citation containing a promise to appear pursuant to Pen C 853.6 and Veh C 40500. The promise to appear is binding on the defendant once he signs it and shows proof of i.d. or gives a fingerprint.

There are several circumstances where police can arrest the defendant in lieu of allowing a release. Police are required to immediately arrest a suspect who refuses to sign the promise to appear in accordance with Pen C 853.6 . Other instances where police may arrest an infraction/misdemeanor defendant include where a person has outstanding arrest warrants, cannot produce any valid form of identification, or is suspected  DUI under the Vehicle Code. Police are also empowered to arrest a defendant when it is believed he/she will intentionally fail to appear when required.

There are also public safety reasons why police can arrest a defendant who would otherwise qualify for a citation release. Pen C 853.6(i) allows the arrest of any defendant who is overly intoxicated as to pose a risk of danger, defendants who are unable to care for their own safety, or if it is likely that additional offenses (causing immediate danger) may occur after release.

A defendant who has been issued a citation/promise to appear can complete his appearance obligation by paying bail, or appearing personally or through counsel. If the defendant (in an infraction case) opts to pay bail prior to the appearance date, the bail amount can be forfeited if he/she fails to attend the subsequent arraignment. Bail forfeitures will count as convictions on a defendant's DMV record per Veh C 1803(a)(2), 13103. In misdemeanor cases, a non-appearance will result in the issuance of an arrest warrant.

O.R. – Own Recognizance Release California law allows a defendant to be released without requiring bail through a process called an O.R. release. O.R. allows the defendant to remain out of custody during court proceedings. In some cases the court may require supervised O.R., meaning the defendant may have to report to a supervisor and meet other requirements, such as drug testing. O.R. Can be granted before or during the trial stage, or on appeal. In re Robinson (1971) 16 CA3d 539, 94 CR 148.

How O.R. Is Determined The California Constitution and applicable statutes provide guidance as to when O.R. may be granted:

The court has discretion as to granting O.R. under the Cal Const art I, §12.

Pen C 1270(a) – non death penalty cases may be granted O.R.

Pen C 1270(a) – when only misdemeanors are charged, O.R. May be granted unless it poses a risk to public safety or there is potential that the defendant will fail to appear.

The court will consider the factors associated with setting bail under Pen C 1275, such as “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 court needs to apply the O.R. Eligibility factors as they apply to each defendant individually, non-appearances by other defendants with similar crimes cannot be a basis for denying O.R. People v. Arnold (1976) 58 CA3d Supp 1.

Whether a hearing is required to determine OR depends on the type of offense charged. For most misdemeanor offenses a request for O.R. can be heard at the arraignment. Domestic violence, violent felonies (not listed in Pen C 667.5(c)), and some violations for protective orders will require notice to the prosecution (that the O.R. request will be sought) and a court hearing. O.R. requests on violent felonies listed under Pen C 667.5(c) are not allowed if the defendant  previously failed to appear on a felony case.  All other felonies under Pen C 667.5 must comply with the hearing and notice requirement per Pen C 1319.

When evaluating a case for a violent felony O.R. request, the court will consider several factors listed in Pen C 1319 (b). These factors include whether the defendant has outstanding felony warrants, criminal record and residence information, and the information submitted by the prosecution. When the court comes to a decision in these matters, it is necessary for the judge to explain the decision on the court record as required by Pen C 1319.

Some county courts employ investigators to assist in their O.R. determinations. These investigators seek out information about the defendant to supplement the court's review process as allowed in Pen C 1318.1. In some violent felony and felony DUI cases, the investigators are required to submit a written report with specific details. Pen C 1318.1 requires that these reports verify the defendant's outstanding warrants, prior failures to appear, criminal record, and residence history over the past year.

To effectuate the O.R. release,  Pen C 1318.1 requires the defendant to sign and file an O.R. agreement with the court. This agreement sets forth the conditions of the O.R. Release. The document will instruct the defendant to make required court appearances, adhere to the court's reasonable conditions, remain within state boundaries unless otherwise authorized, and to waive extradition. Additionally, the agreement will contain an acknowledgment that the defendant understands the consequences and penalties associated with a violation of the foregoing conditions.

The Consequences of Violating O.R. In the case that a defendant does not appear as required per the O.R. Agreement, the court can use its power under Pen C 978.5 to issue a bench warrant. If it is determined that the O.R. defendant willfully failed to appear, he/she can be charged with either a misdemeanor or felony in conformance with the underlying charges per Pen C 1320(a), 1320(b). Alternatively, the court can charge a failure to appear misdemeanor under Pen C 853.7.

Challenges to O.R. Violations The case People v. Mohammed (2008) 162 CA4th 920, 76 CR3d 372, held that a defendant will not be guilty of the additional charge for failure to appear if the O.R. agreement was not issued in compliance with Pen C 1318.

Other O.R. Considerations Under some circumstances, the court can grant OR to assist the defendant in being available for trial, i.e. People v. Sylvestry (1980) 112 CA3d Supp 1, 7, 169 CR 575, where defendant was granted O.R. so he could check into a drug rehabilitation program.

If a defendant is held in custody, Pen C 825 requires that the O.R. hearing take place within 48 hours of arrest, as with the arraignment.

Bail Release Bail is simply an amount of money paid to the court to secure the release (out of custody) of a criminal defendant while court proceedings occur. When bail is posted, it is deposited with the court who holds the funds as collateral to guarantee the defendant's subsequent court appearances. If the defendant fails to adhere to the conditions imposed by the court, the bail can be forfeited and the defendant can be “remanded”, in other words put back into custody.

How does a defendant qualify for bail? A defendant who has not yet been convicted of a crime has a right to bail under the California Constitution, art I, sec. 12. Therefore, most criminal defendants will be entitled to bail with the exception of two disqualifying scenarios. Defendants who have been charged with a crime where capital punishment (death penalty) can be imposed are not eligible for bail. Additionally, defendants in cases involving any of the violent felonies listed in Pen C 292 (such as rape or sodomy by force) are disqualified from bail to protect public safety.

Thus, most defendants (in both felony or misdemeanor cases) will have the right to bail prior to being convicted of an offense. A defendant can post bail prior to his/her first court appearance, or have bail set at the arraignment. A defendant may also seek bail after a conviction is entered to secure a release until sentencing occurs. In misdemeanor cases, post-conviction bail is still considered a right under Pen C 1271 (1)-(2). Following a conviction in felony cases, the defendant is not entitled to bail as a right, and the granting of bail is at the discretion of the court per Pen C secs. 1272(3), 1272.1.

How is the bail amount set? [review] Under the California Constitution, Art I, 12(c), bail cannot be excessive. Prior to a court hearing, the bail amount will be set using the county's standardized bail schedule. The issuance of the bail schedule is governed by Pen C 1269b. This amount can be modified at the first court hearing (usually the arraignment) if either the prosecution or defense demonstrate why a different amount is more appropriate.

At the initial court hearing, the presiding magistrate or judge is required to set bail under Pen C 1271 and Cal Const art 1, sec 12. At this stage, the magistrate has discretion in setting the bail amount per Penal Code 1268, 1269c, 1275, 1289. In most cases, bail will coincide with the amount recommended by the bail schedule. However, Penal Code secs. 1269c, 1270.2, 1289 allow both the prosecution and defense the opportunity to request a different bail amount in light of the circumstances. Police are also entitled to give input regarding the bail amount (under Pen C 1269c) by submitting a declaration stating why the bail amount should be increased.

Unlike a trial, bail hearings are informal proceedings. Both sides may present relevant evidence such as witnesses and/or declarations to support their bail requests. The court will weigh a few critical factors when deciding at what amount to set the bail. These include the seriousness of the offense, the likelihood the defendant will appear at future court appearances, and his/her criminal record. The court can also consider other factors listed under Penal Code 1275 such as public safety, use of firearms during crime, defendant's connection to the community, employment obligations, and ties to the area via property ownership. Furthermore, the court can weigh the amount of the bond versus the relative wealth of the defendant to determine if the amount is sufficient to ensure future court appearances will be made. Pen C 1275 also creates special considerations when the offense charged involves drugs. The judge will take into account the amount of drugs involved in the crime, and whether the defendant is currently on bail for a drug related offense.

Penal Code 1289 requires a party moving to modify a previously set bail to demonstrate good cause. In the past, the court has interpreted “good cause' to mean a change in circumstances demonstrated by newly presented evidence. In Re Alberto (2002) 102 CA4th 421, 125 CR2d 526. In the case In Re Alberto, the California Appeals Court dealt with the issue of whether the judge in a successive hearing could reconsider the bail amount already set by a previous judge. The court affirmed that a change in bail is only warranted when there is evidence of changed circumstances relating to the defendant or the proceedings. The court suggested that an reconsideration of a bail amount would require an analysis of the Pen C 1275 factors to determine if a significant change had occurred to justify altering the bail.

Whenever the court decides to set bail at an amount different from the bail schedule, it must explain its reasoning on the record per Pen C 1270.1. This section requires the judge to “state the reasons” on the court record and to address any threats (to a witness) made by the defendant which affected the decision to depart from the bail schedule.  Any bail amount set lower than the bail schedule recommendation for a serious or violent felony also requires an explanation on the record per Penal Code 1275(c). The Penal Code 1275(c) showing requires a finding of “unusual circumstances” and cannot merely rely on the fact that the defendant has made all previous court dates or has not been charged with subsequent crimes.

Bail Conditions When the court grants bail, it may also attach reasonable conditions to which the defendant must adhere to preserve out of custody status. Bail conditions are at the discretion of the court per Penal Code 1269c. Common conditions  require defendants to surrender their travel documents and driver's license, to refrain from leaving a geographic area, and to appear at specified locations as ordered by the court. Conditions can also be imposed which control the conduct of the defendant, such as prohibiting contact or tampering with witnesses. However, the court's power is not limitless as the defendant's Constitutional due process rights must still be taken into consideration.

Acceptable Forms of Payment for Bail There are several ways a defendant can post bail depending on his/her circumstances. A defendant may post bail himself/herself, or may have a third party make the payment.

Cash Although it's not common practice, a defendant may elect to post bail by cash payment under Penal Code 1269.

Cash Alternatives With most lower grade offenses (non-felonies) most courts will accept many different types of payment such as… personal checks, money orders, traveler's checks, or cashier's checks. Some courts and law enforcement agencies will not accept these forms of payment for more serious crimes where bail amounts are likely to be large. The California Penal code gives guidance as to what is not accepted in 1295(c) which prohibits payment via general assistance checks. In most cases, it is best to contact the custodial agency/court to determine which type of payment is allowed, or to consult with a dui attorney who is familiar with the bail payment process.

Property as Security A defendant can use real estate equity as payment for bail. This requires a court hearing to assess the value of the equity. Pen C 1298 mandates that the value of the equity be twice the required bail amount. Real estate documents such as a title report and professional property appraisal will need to be presented to the court. The problem with this method of posting bail is that preparing the required documentation can delay the process. Additionally, offering real estate as security can prompt the prosecution to use Pen C 1275.1 to request a determination that the property was not purchased with felonious funds.

Bonds Federal or state government bonds may be filed with the court to satisfy bail. This is not an option if the defendant chooses to pay bail prior to his/her court hearing because it is not an accepted form of payment at jails.

Bail Bond Penal Code 1269 authorizes the use of a bail bond, which is generally the most common method for posting bail. The bond is executed by a third party agency (bail bondsman) who acts as a surety on behalf of the defendant. Pen C 1278 describes the bail undertaking agreement where the defendant promises to appear and answer to the court and the bondsman agrees to pay the bail amount in the event of a forfeiture. Courts are required to accept the bond presented by a licensed agent per Pen C 1276(a). The agreement with the bail bondsman is held to the same Pen C 1275.1 standard which prohibits the use of funds feloniously obtained. Once the bondsman posts the bond, the facility holding the defendant in custody is required to release the defendant with an order to appear per Penal Code 1269(b).

The court's inquiry into source of funds Penal Code 1275.1 requires the judge to ensure that no part of the bail payment contains funds which have been procured by criminal acts. If the judge suspects improperly obtained funds are involved, he/she can order that the defendant be held in custody pending a final determination on the matter. The court can find probable cause to justify the hold through:

A police officer's sworn declaration detailing the illegal source of the funds, or

The prosecutor's sworn declaration setting forth probable cause that the funds are the result of felonious acts, or

The court itself has reason to believe the money was obtained by illegal means.

Once the court has established that probable cause exists, the burden of proof shifts back to the defendant to show by a preponderance of the evidence that the funds are legitimate. If the defendant is able to meet this burden, he/she will be allowed to post the required bail amount and be released.

Revoking Bail There are some situations where the court can revoke a release on bail and return the defendant into custody. Penal Code 1129 empowers the court to remand an out of custody defendant who is present at trial. Following a guilty verdict against the defendant, the court may use Penal Code 1166 to remand him/her to await sentencing.

There is no general requirement that the court must grant bail during an appeal. According to Penal Code 1272, bail during an appeal remains at the court's discretion. The right to bail during appeals does exist for cases where a fine is imposed as the sentence.  Additionally, a defendant will have a right to bail on appeal if he/she was originally sentenced to probation in lieu of jail time under In re Driscoll (1987) 191 CA3d 1356, 236 CR 882.

The court can also order a defendant (released on bail) into custody under other circumstances. Penal Code 1310(a) can be used to order the defendant into custody when a bail forfeiture occurs due to the defendant's failure to appear. Pen 1310(b) allows the court to place defendant in custody if the surety has left California or is deceased. Under Penal Code 1310(c), the court can direct the detention of a defendant who is the subject of a felony indictment or information and fails to post an increased bail amount.

A California Court of Appeals granted the ability to revoke O.R. (or bail) on an existing case if the defendant is held to answer on a subsequent case. In re Annis (2005) 127 CA4th 1190, 26 CR3d 321.

How defense counsel can help during bail motion When a criminal defense attorneymakes a motion for bail, he/she may also suggest other ideas to the court to support the request for “out of custody” status. An attorney could advise the court that the defendant needs to receive counseling or go into a rehabilitation program while released on bail. In other cases, an attorney might agree to the court placing curfew conditions on the bail release to ensure the defendant stays out of trouble. Requests can also be made for house arrest (electronic monitoring) where the court will be satisfied the defendant will be confined to a particular area and more likely to make required appearances. Another option is where the defendant is fitted with a GPS device as a condition of or instead of bail. Alcohol related offenses may also qualify for a release with a remote alcohol monitor device (SCRAM) which verifies the defendant's sobriety status.

How long does a release on bail last? Once bail is granted and posted, it remains in effect until it is either exonerated (i.e. terminated because the case is dismissed) or forfeited through a failure to appear as described in Penal Code 1273, 1278(a), 1458-1459.

Exoneration of bail Exoneration is when the necessity for bail ends. The California Penal Code lists situations where this will occur. Penal Code 1008 exonerates bail when a demurrer is sustained. Penal Code 1188 states that bail will be exonerated through a motion of arrest of judgement, meaning where the evidence presented at trial gives no reason to believe the defendant is guilty or will be indicted again on the charge. Of course, where the case is dismissed as a result of a successful motion to suppress (Penal Code 1538.5) or dismissed under Penal Code 1385, or Penal Code 995, bail will also be exonerated.

The court is required to exonerate bail when the defendant is granted deferred entry of judgment (DEJ) under Pen C 1000.2. DEJ is commonly used to allow defendant to complete a drug rehabilitation program or to receive help for cognitive disabilities per Pen C 1001.27.

If the defendant is convicted and sentenced for in a case, Pen C 1166 requires bail exoneration. Similarly, when the defendant is found mentally incompetent to stand trial per Pen C 1368, 1370, 1370.1, or 1371, bail is exonerated.

As previously discussed, whenever the defendant is found guilty at trial, it is required that the court remand the defendant thus exonerating bail. However, Pen C 1166 still allows the court to grant a bail release if the defendant is an appropriate candidate for release under the factors. Pen C 1166 takes into account the seriousness of the offense, the defendant's criminal record, whether the defendant has a history of failing to appear, and the safety of the public.

Bail Forfeiture Bail forfeiture is the surrender of the bail amount imposed as a penalty for a defendant's failure to appear before the court. It should be noted that failing to appear is the only authorized manner in which bail can be forfeited.

As you may have seen on reality t.v., when a defendant uses the services of a bail bondsman and fails to appear in court, the bail agent may locate the defendant and surrender him/her to the court to exonerate bail. The process of surrendering the defendant to the court is governed by California Penal Code 1300(a).

California Penal Code 1303 allows for existing bail to be transferred to newly filed charges under a specific circumstance. This is allowed where charges are dismissed against a defendant, and the prosecution re-files new charges within 15 days of the dismissal. In this situation, the court will apply the existing bail amount (for the old charges) to the new case.

Defendants who have deposited bail in Vehicle Code cases will have the funds returned to them within 30 days following a not guilty verdict or dismissal. California law allows for payment of interest in addition to any amount bail paid when such funds are not returned within 60 days under CC 3289, Veh C 42201.6.

The payment of interest with untimely returned bail amounts is unique to vehicle code violations. Govt C 53647.5 and California Penal Code 1463.1 prohibit accompanying interest amounts with any other types of bail.

Reviewing Bail Issues Whenever an issue arises with bail, i.e. defense counsel believes bail shouldn't have been denied or the amount is inappropriate, California Penal Code 1490-1491 allow counsel to file a writ of habeas corpus on behalf of the defendant. In re McSherry (2003) 112 CA4th 856, 859, 5 CR3d 497; In re Bright (1993) 13 CA4th 1664, 17 CR2d 105. A writ of habeaus corpus is an order to the custodial agency to produce the prisoner/defendant so that a determination may be made regarding whether or not his/her detention is constitutional.

—————————-

CALIFORNIA PENAL CODE 853.6.  (a) (1) In any case in which a person is arrested for an offense declared to be a misdemeanor, including a violation of any city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter, although nothing prevents an officer from first booking an arrestee pursuant to subdivision (g). If the person is released, the officer or his or her superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or his or her superior determines that the person should be released, the officer or his or her superior shall prepare a written notice to appear in a court. (2) In any case in which a person is arrested for a misdemeanor violation of a protective court order involving domestic violence, as defined in subdivision (b) of Section 13700, or arrested pursuant to a policy, as described in Section 13701, the person shall be taken before a magistrate instead of being released according to the procedures set forth in this chapter, unless the arresting officer determines that there is not a reasonable likelihood that the offense will continue or resume or that the safety of persons or property would be imminently endangered by release of the person arrested. Prior to adopting these provisions, each city, county, or city and county shall develop a protocol to assist officers to determine when arrest and release is appropriate, rather than taking the arrested person before a magistrate. The county shall establish a committee to develop the protocol, consisting of, at a minimum, the police chief or county sheriff within the jurisdiction, the district attorney, county counsel, city attorney, representatives from domestic violence shelters, domestic violence councils, and other relevant community agencies. (3) This subdivision shall not apply to the crimes specified in Section 1270.1, including crimes defined in each of the following: (A) Paragraph (1) of subdivision (e) of Section 243. (B) Section 273.5. (C) 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. (D) Section 646.9. (4) Nothing in this subdivision shall be construed to affect a defendant's ability to be released on bail or on his or her own recognizance, except as specified in Section 1270.1. (b) Unless waived by the person, the time specified in the notice to appear shall be at least 10 days after arrest if the duplicate notice is to be filed by the officer with the magistrate. (c) The place specified in the notice shall be the court of the magistrate before whom the person would be taken if the requirement of taking an arrested person before a magistrate were complied with, or shall be an officer authorized by that court to receive a deposit of bail. (d) The officer shall deliver one copy of the notice to appear to the arrested person, and the arrested person, in order to secure release, shall give his or her written promise to appear in court as specified in the notice by signing the duplicate notice which shall be retained by the officer, and the officer may require the arrested person, if he or she has no satisfactory identification, to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print. Upon the signing of the duplicate notice, the arresting officer shall immediately release the person arrested from custody. (e) The officer shall, as soon as practicable, file the duplicate notice, as follows: (1) It shall be filed with the magistrate if the offense charged is an infraction. (2) It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so. (3) The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2). If the duplicate notice is filed with the prosecuting attorney, he or she, within his or her discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant. Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in his or her judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by him or her in the form set forth in Section 815a. The defendant may, prior to the date upon which he or she promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in his or her discretion, order that no further proceedings shall be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and he or she has previously been convicted of a violation of that section or a violation that is punishable under that section, except in cases where the magistrate finds that undue hardship will be imposed upon the defendant by requiring him or her to appear, the magistrate may declare the bail forfeited and order that no further proceedings be had in the case. Upon the making of the order that no further proceedings be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463. (f) No warrant shall be issued for the arrest of a person who has given a written promise to appear in court, unless and until he or she has violated that promise or has failed to deposit bail, to appear for arraignment, trial, or judgment or to comply with the terms and provisions of the judgment, as required by law. (g) The officer may book the arrested person at the scene or at the arresting agency prior to release or indicate on the citation that the arrested person shall appear at the arresting agency to be booked or indicate on the citation that the arrested person shall appear at the arresting agency to be fingerprinted prior to the date the arrested person appears in court. If it is indicated on the citation that the arrested person shall be booked or fingerprinted prior to the date of the person's court appearance, the arresting agency at the time of booking or fingerprinting shall provide the arrested person with verification of the booking or fingerprinting by making an entry on the citation. If it is indicated on the citation that the arrested person is to be booked or fingerprinted, the magistrate, judge, or court shall, before the proceedings begin, order the defendant to provide verification that he or she was booked or fingerprinted by the arresting agency. If the defendant cannot produce the verification, the magistrate, judge, or court shall require that the defendant be booked or fingerprinted by the arresting agency before the next court appearance, and that the defendant provide the verification at the next court appearance unless both parties stipulate that booking or fingerprinting is not necessary. (h) A peace officer shall use the written notice to appear procedure set forth in this section for any misdemeanor offense in which the officer has arrested a person without a warrant pursuant to Section 836 or in which he or she has taken custody of a person pursuant to Section 847. (i) Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for nonrelease, in which case the arresting officer may release the person, except as provided in subdivision (a), or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, which of the following was a reason for the nonrelease: (1) The person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others. (2) The person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety. (3) The person was arrested under one or more of the circumstances listed in Sections 40302 and 40303 of the Vehicle Code. (4) There were one or more outstanding arrest warrants for the person. (5) The person could not provide satisfactory evidence of personal identification. (6) The prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested. (7) There was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested. (8) The person arrested demanded to be taken before a magistrate or refused to sign the notice to appear. (9) There is reason to believe that the person would not appear at the time and place specified in the notice. The basis for this determination shall be specifically stated. (10) The person was subject to Section 1270.1. The form shall be filed with the arresting agency as soon as practicable and shall be made available to any party having custody of the arrested person, subsequent to the arresting officer, and to any person authorized by law to release him or her from custody before trial. (j) Once the arresting officer has prepared the written notice to appear and has delivered a copy to the person arrested, the officer shall deliver the remaining original and all copies as provided by subdivision (e). Any person, including the arresting officer and any member of the officer's department or agency, or any peace officer, who alters, conceals, modifies, nullifies, or destroys, or causes to be altered, concealed, modified, nullified, or destroyed, the face side of the remaining original or any copy of a citation that was retained by the officer, for any reason, before it is filed with the magistrate or with a person authorized by the magistrate to receive deposit of bail, is guilty of a misdemeanor. If, after an arrested person has signed and received a copy of a notice to appear, the arresting officer determines that, in the interest of justice, the citation or notice should be dismissed, the arresting agency may recommend, in writing, to the magistrate that the charges be dismissed. The recommendation shall cite the reasons for the recommendation and shall be filed with the court. If the magistrate makes a finding that there are grounds for dismissal, the finding shall be entered in the record and the charges dismissed. Under no circumstances shall a personal relationship with any officer, public official, or law enforcement agency be grounds for dismissal. (k) (1) A person contesting a charge by claiming under penalty of perjury not to be the person issued the notice to appear may choose to submit a right thumbprint, or a left thumbprint if the person has a missing or disfigured right thumb, to the issuing court through his or her local law enforcement agency for comparison with the one placed on the notice to appear. A local law enforcement agency providing this service may charge the requester no more than the actual costs. The issuing court may refer the thumbprint submitted and the notice to appear to the prosecuting attorney for comparison of the thumbprints. When there is no thumbprint or fingerprint on the notice to appear, or when the comparison of thumbprints is inconclusive, the court shall refer the notice to appear or copy thereof back to the issuing agency for further investigation, unless the court finds that referral is not in the interest of justice. (2) Upon initiation of the investigation or comparison process by referral of the court, the court shall continue the case and the speedy trial period shall be tolled for 45 days. (3) Upon receipt of the issuing agency's or prosecuting attorney's response, the court may make a finding of factual innocence pursuant to Section 530.6 if the court determines that there is insufficient evidence that the person cited is the person charged and shall immediately notify the Department of Motor Vehicles of its determination. If the Department of Motor Vehicles determines the citation or citations in question formed the basis of a suspension or revocation of the person's driving privilege, the department shall immediately set aside the action. (4) If the prosecuting attorney or issuing agency fails to respond to a court referral within 45 days, the court shall make a finding of factual innocence pursuant to Section 530.6, unless the court finds that a finding of factual innocence is not in the interest of justice. (5) The citation or notice to appear may be held by the prosecuting attorney or issuing agency for future adjudication should the arrestee who received the citation or notice to appear be found. (l) For purposes of this section, the term “arresting agency” includes any other agency designated by the arresting agency to provide booking or fingerprinting services.

VEHICLE CODE 40500.  (a) Whenever a person is arrested for any violation of this code not declared to be a felony, or for a violation of an ordinance of a city or county relating to traffic offenses and he or she is not immediately taken before a magistrate, as provided in this chapter, the arresting officer shall prepare in triplicate a written notice to appear in court or before a person authorized to receive a deposit of bail, containing the name and address of the person, the license number of his or her vehicle, if any, the name and address, when available, of the registered owner or lessee of the vehicle, the offense charged and the time and place when and where he or she shall appear. If the arrestee does not have a driver's license or other satisfactory evidence of identity in his or her possession, the officer may require the arrestee to place a right thumbprint, or a left thumbprint or fingerprint if the person has a missing or disfigured right thumb, on the notice to appear. Except for law enforcement purposes relating to the identity of the arrestee, no person or entity may sell, give away, allow the distribution of, include in a database, or create a database with, this print.

Report of Court Action: Abstract of Conviction California

Vehicle Code 1803.  (a) (2)  For the purposes of this section, a forfeiture of bail shall be equivalent to a conviction.

Equivalents of Conviction Vehicle Code 13103.  For purposes of this division, a plea of nolo contendere or a plea of guilty or judgment of guilty, whether probation is granted or not, a forfeiture of bail, or a finding reported under Section 1816, constitutes a conviction of any offense prescribed by this code, other than offenses relating to the unlawful parking of vehicles.

Penal Code 1270(a)

(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 1275

(a) 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 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. (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.

PC 667.5(c)

(c) For the purpose of this section, “violent felony” shall mean any of the following: (1) Murder or voluntary manslaughter. (2) Mayhem. (3) 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. (4) Sodomy as defined in subdivision (c) or (d) of Section 286. (5) Oral copulation as defined in subdivision (c) or (d) of Section 288a. (6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288. (7) Any felony punishable by death or imprisonment in the state prison for life. (8) 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. (9) Any robbery. (10) Arson, in violation of subdivision (a) or (b) of Section 451. (11) Sexual penetration as defined in subdivision (a) or (j) of Section 289. (12) Attempted murder. (13) A violation of Section 18745, 18750, or 18755. (14) Kidnapping. (15) Assault with the intent to commit a specified felony, in violation of Section 220. (16) Continuous sexual abuse of a child, in violation of Section 288.5. (17) Carjacking, as defined in subdivision (a) of Section 215. (18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code. (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code. (21) 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. (22) Any violation of Section 12022.53. (23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person.

California Penal Code 1319

(a) No person arrested for a violent felony, as described in subdivision (c) of Section 667.5, may be released on his or her own recognizance until a hearing is held in open court before the magistrate or judge, and until the prosecuting attorney is given notice and a reasonable opportunity to be heard on the matter. In all cases, these provisions shall be implemented in a manner consistent with the defendant's right to be taken before a magistrate or judge without unreasonable delay pursuant to Section 825. (b) A defendant charged with a violent felony, as described in subdivision (c) of Section 667.5, shall not be released on his or her own recognizance where it appears, by clear and convincing evidence, that he or she previously has been charged with a felony offense and has willfully and without excuse from the court failed to appear in court as required while that charge was pending. In all other cases, in making the determination as to whether or not to grant release under this section, the court shall consider all of the following: (1) The existence of any outstanding felony warrants on the defendant. (2) Any other information presented in the report prepared pursuant to Section 1318.1. The fact that the court has not received the report required by Section 1318.1, at the time of the hearing to decide whether to release the defendant on his or her own recognizance, shall not preclude that release. (3) Any other information presented by the prosecuting attorney. (c) The judge or magistrate who, pursuant to this section, grants or denies release on a person's own recognizance, within the time period prescribed in Section 825, shall state the reasons for that decision in the record. This statement shall be included in the court' s minutes. The report prepared by the investigative staff pursuant to subdivision (b) of Section 1318.1 shall be placed in the court file for that particular matter.

PC 1318

(a) A court, with the concurrence of the board of supervisors, may employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognizance. (b) Whenever a court has employed an investigative staff pursuant to subdivision (a), an investigative report shall be prepared in all cases involving a violent felony, as described in subdivision (c) of Section 667.5, or a felony in violation of subdivision (a) of Section 23153 of the Vehicle Code, recommending whether the defendant should be released on his or her own recognizance. The report shall include all of the following: (1) Written verification of any outstanding warrants against the defendant. (2) Written verification of any prior incidents where the defendant has failed to make a court appearance. (3) Written verification of the criminal record of the defendant. (4) Written verification of the residence of the defendant during the past year. After the report is certified pursuant to this subdivision, it shall be submitted to the court for review, prior to a hearing held pursuant to Section 1319. (c) The salaries of the staff are a proper charge against the county.

Pen C 825

(a) (1) Except as provided in paragraph (2), the defendant shall in all cases be taken before the magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays. (2) When the 48 hours prescribed by paragraph (1) expire at a time when the court in which the magistrate is sitting is not in session, that time shall be extended to include the duration of the next court session on the judicial day immediately following. If the 48-hour period expires at a time when the court in which the magistrate is sitting is in session, the arraignment may take place at any time during that session. However, when the defendant's arrest occurs on a Wednesday after the conclusion of the day's court session, and if the Wednesday is not a court holiday, the defendant shall be taken before the magistrate not later than the following Friday, if the Friday is not a court holiday. (b) After the arrest, any attorney at law entitled to practice in the courts of record of California, may, at the request of the prisoner or any relative of the prisoner, visit the prisoner. Any officer having charge of the prisoner who willfully refuses or neglects to allow that attorney to visit a prisoner is guilty of a misdemeanor. Any officer having a prisoner in charge, who refuses to allow the attorney to visit the prisoner when proper application is made, shall forfeit and pay to the party aggrieved the sum of five hundred dollars ($500), to be recovered by action in any court of competent jurisdiction.

Pen C 292

It is the intention of the Legislature in enacting this section to clarify that for the purposes of subdivisions (b) and (c) of Section 12 of Article I of the California Constitution, a violation of paragraph (2) or (6) of subdivision (a) of Section 261, paragraph (1) or (4) of subdivision (a) of Section 262, Section 264.1, subdivision (c) or (d) of Section 286, subdivision (b) of Section 288, subdivision (c) or (d) of Section 288a, or subdivision (a) of Section 289, shall be deemed to be a felony offense involving an act of violence and a felony offense involving great bodily harm.

Penal Code 1271

If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right.

Penal Code 1268

Admission to bail is the order of a competent Court or magistrate that the defendant be discharged from actual custody upon bail.

pc 1289

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.

PC 1275(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.

PC 1269c.

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 ensure the defendant's appearance or to ensure 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. Except where the defendant is charged with an offense listed in subdivision (a) of Section 1270.1, 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 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 ensure the defendant's appearance or to ensure 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.

PC 1000.2 DEJ

The court shall hold a hearing and, after consideration of any information relevant to its decision, shall determine if the defendant consents to further proceedings under this chapter and if the defendant should be granted deferred entry of judgment. If the court does not deem the defendant a person who would be benefited by deferred entry of judgment, or if the defendant does not consent to participate, the proceedings shall continue as in any other case. At the time that 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. The period during which deferred entry of judgment is granted shall be for no less than 18 months nor longer than three years. Progress reports shall be filed by the probation department with the court as directed by the court.

Pc 1166

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.

Penal Code 1368

(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court. (c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined. If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call. If the defendant is declared mentally incompetent, the jury shall be discharged.

Penal Code 1371

The commitment of the defendant, as described in Section 1370 or 1370.01, exonerates his or her bail, or entitles a person, authorized to receive the property of the defendant, to a return of any money he or she may have deposited instead of bail, or gives, to the person or persons found by the court to have deposited any money instead of bail on behalf of the defendant, a right to the return of that money.

Penal Code 1300(a)

(a) At any time before the forfeiture of their undertaking, or deposit by a third person, the bail or the depositor may surrender the defendant in their exoneration, or he may surrender himself, to the officer to whose custody he was committed at the time of giving bail, in the following manner:

Penal Code 1303(a)

“If an action or proceeding against a defendant who has been admitted to bail is dismissed, the bail shall not be exonerated until a period of 15 days has elapsed since the entry of the order of dismissal. If, within such period”

California Vehicle Code 42201.6

(a) A deposit of bail received with respect to an infraction violation of this code, or any local ordinance adopted pursuant to this code, including, but not limited to, a violation involving the standing or parking of a vehicle, shall be refunded by the agency which issued the notice of violation or the court within 30 days of a cancellation, dismissal, or finding of not guilty of the offense charged. (b) Multiple or duplicate deposits of bail or parking penalty shall be identified by the court or agency and refunded within 30 days of identification. (c) Any amount to be refunded in accordance with subdivision (a) or (b) shall accrue interest, at the rate specified in Section 3289 of the Civil Code, on and after the 60th day of a cancellation, dismissal, or finding of not guilty or identification of multiple or duplicate deposits, and shall be refunded as soon as possible thereafter along with accrued interest.

California Government Code Section 53647.5 Notwithstanding any other provision of law, interest earned on any bail money deposited by a court in a bank account pursuant to Section 1463.1 of the Penal Code and Section 53679 of this code shall be allocated for the support of that court.

California Penal Code 1295(c)

(c) The clerk of the court shall not accept a general assistance check for this deposit or any part thereof.

California Penal Code 1298

“A hearing, at which witnesses may be called or examined, shall be held before the magistrate to determine the value of the equity and if the magistrate finds that the value of the equity is equal to twice the amount of the cash deposit required he or she shall allow the bail.”

California Penal Code 1275.1

(a) Bail, pursuant to this chapter, shall not be accepted unless a judge or magistrate finds that no portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. (b) A hold on the release of a defendant from custody shall only be ordered by a magistrate or judge if any of the following occurs: (1) A peace officer, as defined in Section 830, files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. (2) A prosecutor files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. A prosecutor shall have absolute civil immunity for executing a declaration pursuant to this paragraph. (3) The magistrate or judge has probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. (c) Once a magistrate or judge has determined that probable cause exists, as provided in subdivision (b), a defendant bears the burden by a preponderance of the evidence to show that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means. Once a defendant has met such burden, the magistrate or judge shall release the hold previously ordered and the defendant shall be released under the authorized amount of bail. (d) The defendant and his or her attorney shall be provided with a copy of the declaration of probable cause filed under subdivision (b) no later than the date set forth in Section 825. (e) Nothing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained. (f) At the request of any person providing any portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution, the magistrate or judge, at an evidentiary hearing to determine the source of the funds, may close it to the general public to protect the person's right to privacy in his or her financial affairs. (g) If the declaration, having been filed with a magistrate or judge, is not acted on within 24 hours, the defendant shall be released from custody upon posting of the amount of bail set. (h) Nothing in this code shall deny the right of the defendant, either personally or through his or her attorney, bail agent licensed by the Department of Insurance, admitted surety insurer licensed by the Department of Insurance, friend, or member of his or her family from making an application to the magistrate or judge for the release of the defendant on bail. (i) The bail of any defendant found to have willfully misled the court regarding the source of bail may be increased as a result of the willful misrepresentation. The misrepresentation may be a factor considered in any subsequent bail hearing. (j) If a defendant has met the burden under subdivision (c), and a defendant will be released from custody upon the issuance of a bail bond issued pursuant to authority of Section 1269 or 1269b by any admitted surety insurer or any bail agent, approved by the Insurance Commissioner, the magistrate or judge shall vacate the holding order imposed under subdivision (b) upon the condition that the consideration for the bail bond is approved by the court. (k) As used in this section, “feloniously obtained” means any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution which is possessed, received, or obtained through an unlawful act, transaction, or occurrence constituting a felony.

California Penal Code 1269

The taking of bail consists in the acceptance, by a competent court or magistrate, of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking, or that the bail will pay to the people of this state a specified sum. Upon filing, the clerk shall enter in the register of actions the date and amounts of such bond and the name or names of the surety or sureties thereon.

California Penal Code 1278

“(a) Bail is put in by a written undertaking, executed by two sufficient sureties (with or without the defendant, in the discretion of the magistrate), and acknowledged before the court or magistrate, in substantially the following form:

An order having been made on the ____ day of ____, 20__, by ____, a judge of the ____ Court of ____ County, that ____ be held to answer upon a charge of (stating briefly the nature of the offense), upon which he or she has been admitted to bail in the sum of ____ dollars ($____); we, ____ and ____, of ____ (stating their place of residence and occupation), hereby undertake that the above-named ____ will appear and answer any charge in any accusatory pleading based upon the acts supporting the charge above mentioned, in whatever court it may be prosecuted, and will at all times hold himself or herself amenable to the orders and process of the court, and if convicted, will appear for pronouncement of judgment or grant of probation, or if he or she fails to perform either of these conditions, that we will pay to the people of the State of California the sum of ____ dollars ($____) (inserting the sum in which the defendant is admitted to bail). If the forfeiture of this bond be ordered by the court, judgment may be summarily made and entered forthwith against the said (naming the sureties), and the defendant if he or she be a party to the bond, for the amount of their respective undertakings herein, as provided by Sections 1305 and 1306.”

California Penal Code 1276(a)

“(a) A bail bond or undertaking of bail of an admitted surety insurer shall be accepted or approved by a court or magistrate without further acknowledgment if executed by a licensed bail agent of the insurer under penalty of perjury and issued in the name of the insurer by a person authorized to do so by an unrevoked power of attorney on file in the office of the clerk of the county in which the court or magistrate is located.”

California Penal Code 1269(b)

“ If a defendant has appeared before a judge of the court on the charge contained in the complaint, indictment, or information, the bail shall be in the amount fixed by the judge at the time of the appearance. If that appearance has not been made, the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant is required to appear, previously fixed and approved as provided in subdivisions (c) and (d).”

California Penal Code 1129

“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 1166

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 1272

“After conviction of an offense not punishable with death, a defendant who has made application for probation or who has appealed may be admitted to bail:…

3. As a matter of discretion in all other cases, except that a person convicted of an offense subject to this subdivision, who makes a motion for release on bail subsequent to a sentencing hearing, shall provide notice of the hearing on the bail motion to the prosecuting attorney at least five court days prior to the hearing.”

California Penal Code 1310(a)

“The court to which the committing magistrate returns the depositions, or in which an indictment, information, or appeal is pending, or to which a judgment on appeal is remitted to be carried into effect, may, by an order entered upon its minutes, direct the arrest of the defendant and his or her commitment to the officer to whose custody he or she was committed at the time of giving bail, and his or her detention until legally discharged, in the following cases: (a) When, by reason of his or her failure to appear, he or she has incurred a forfeiture of his or her bail, or of money deposited instead thereof.”

(b) When it satisfactorily appears to the court that his or her bail, or either of them, are dead or insufficient, or have removed from the state. (c) Upon an indictment being found or information filed in the cases provided in Section 985.

California Penal Code 1273

If the offense is bailable, the defendant may be admitted to bail before conviction: First–For his appearance before the magistrate, on the examination of the charge, before being held to answer. Second–To appear at the Court to which the magistrate is required to return the depositions and statement, upon the defendant being held to answer after examination. Third–After indictment, either before the bench warrant is issued for his arrest, or upon any order of the Court committing him, or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the Court in which it is found, or to which it may be transferred for trial. And after conviction, and upon an appeal: First–If the appeal is from a judgment imposing a fine only, on the undertaking of bail that he will pay the same, or such part of it as the appellate Court may direct, if the judgment is affirmed or modified, or the appeal is dismissed. Second–If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified, or upon the appeal being dismissed, or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the Court to which said cause may be remanded, and submit himself to the orders and process thereof.

California Penal Code 1458

“The provisions of this code relative to bail are applicable to bail in misdemeanor or infraction cases. The defendant, at any time after arrest and before conviction, may be admitted to bail…

defendant will appear and answer any charge in any accusatory pleading based upon the acts supporting the complaint above mentioned and all duly authorized amendments thereof, in whatever court it may be prosecuted, and will at all times hold himself or herself amenable to the orders and process of the court, and, if convicted, will appear for pronouncement of judgment or grant of probation or if the defendant fails to perform either of these conditions, that we will pay to the people of the State of California the sum of ____ dollars ($____) (inserting the sum in which the defendant is admitted to bail). If the forfeiture of this bond is ordered by the court, judgment may be summarily made and entered forthwith against the said ____ (naming the sureties and the defendant if the defendant is a party to the bond) for the amount of their respective undertakings herein, as provided by Sections 1305 and 1306 of the California Penal Code.”

California Penal Code 1459

“Undertakings of bail filed by admitted surety insurers shall meet all other requirements of law and the obligation of the insurer shall be in the following form except to the extent a different form is otherwise provided by statute…If the forfeiture of this bond be ordered

by the court, judgment may be summarily made and entered forthwith against the

said ____(stating the name of admitted surety insurer and state of incorporation) for the amount of its undertaking herein, as provided by Sections 1305 and 1306 of the California Penal Code.”

California Penal Code 1008

If the demurrer is sustained, and no amendment of the accusatory pleading is permitted, or, in case an amendment is permitted, no amendment is made or amended pleading is filed within the time fixed therefor, the action shall be dismissed, and, except as provided in Section 1010, the court must order, if the defendant is in custody, that he be discharged or if he has been admitted to bail, that his bail be exonerated, or, if money or other property has been deposited instead of bail for his appearance, that such money or other property be refunded to him or to the person or persons found by the court to have deposited such money or other property on his behalf.

California Penal Code 1188

If, from the evidence on the trial, there is reason to believe the defendant guilty, and a new indictment or information can be framed upon which he may be convicted, the court may order him to be recommitted to the officer of the proper county, or admitted to bail anew, to answer the new indictment or information. If the evidence shows him guilty of another offense, he must be committed or held thereon, and in neither case shall the verdict be a bar to another prosecution. But if no evidence appears sufficient to charge him with any offense, he must, if in custody, be discharged; or if admitted to bail, his bail is exonerated; or if money has been 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; and the arrest of judgment shall operate as an acquittal of the charge upon which the indictment or information was founded.

California Penal Code 1538.5

“(k)…if the defendant's motion to return property or suppress evidence is granted and the case is dismissed pursuant to Section 1385, or the people appeal in a misdemeanor case pursuant to subdivision (j), the defendant shall be released pursuant to Section 1318 if he or she is in custody and not returned to custody unless the proceedings are resumed in the trial court and he or she is lawfully ordered by the court to be returned to custody.”

“(l)…In case of an appeal by the defendant in a misdemeanor case from the denial of the motion, he or she shall be entitled to bail as a matter of right, and, in the discretion of the trial or appellate court, may be released on his or her own recognizance pursuant to Section 1318. In the case of an appeal by the defendant in a misdemeanor case from the denial of the motion, the trial court

may, in its discretion, order or deny a stay of further proceedings pending disposition of the appeal.”

California Penal Code 995

(a) Subject to subdivision (b) of Section 995a, the indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: (1) If it is an indictment: (A) Where it is not found, endorsed, and presented as prescribed in this code. (B) That the defendant has been indicted without reasonable or probable cause. (2) If it is an information: (A) That before the filing thereof the defendant had not been legally committed by a magistrate. (B) That the defendant had been committed without reasonable or probable cause. (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.

Pen C 1270.1

(a) Except as provided in subdivision (e), 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: (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, Section 262, 273.5, or 422 where the offense is punished as a felony, or Section 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. (e) Notwithstanding subdivision (a), a judge or magistrate, pursuant to Section 1269c, may, with respect to a bailable felony offense or a misdemeanor offense of violating a domestic violence order, increase bail to an amount exceeding that set forth in the bail schedule without a hearing, provided an oral or written declaration of facts justifying the increase is presented under penalty of perjury by a sworn peace officer.

PC 1318 (a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:

(1) The defendant's promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.

(2) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate.

(3) The defendant's promise not to depart this state without leave of the court.

(4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.

(5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.

(a) 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 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. (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.

(a) A court, with the concurrence of the board of supervisors, may employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognizance. (b) Whenever a court has employed an investigative staff pursuant to subdivision (a), an investigative report shall be prepared in all cases involving a violent felony, as described in subdivision (c) of Section 667.5, or a felony in violation of subdivision (a) of Section 23153 of the Vehicle Code, recommending whether the defendant should be released on his or her own recognizance. The report shall include all of the following: (1) Written verification of any outstanding warrants against the defendant. (2) Written verification of any prior incidents where the defendant has failed to make a court appearance. (3) Written verification of the criminal record of the defendant. (4) Written verification of the residence of the defendant during the past year. After the report is certified pursuant to this subdivision, it shall be submitted to the court for review, prior to a hearing held pursuant to Section 1319. (c) The salaries of the staff are a proper charge against the county.

PC 978.5

(a) A 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: (1) If the defendant is ordered by a judge or magistrate to personally appear in court at a specific time and place. (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. (4) If the defendant is released from custody or arrest upon citation by a peace officer or other person authorized to issue citations and the defendant has signed a promise to personally appear in court at a specific time and place. (5) If a defendant is authorized to appear by counsel and the court or magistrate orders that the defendant personally appear in court at a specific time and place. (6) If an information or indictment has been filed in the superior court and the court has fixed the date and place for the defendant personally to appear for arraignment. (b) The bench warrant may be served in any county in the same manner as a warrant of arrest.

1320(a)

(a) Every person who is charged with or convicted of the commission of a misdemeanor who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a misdemeanor. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for

(b) Every person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony, and upon conviction shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment pursuant to subdivision (h) of Section 1170, or in the county jail for not more than one year, or by both that fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.

PC 1289

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.

The Law Office of Michael Rehm

Michael-rehm

The Law Office of Michael Rehm serves all of California, including the areas of San Diego, El Cajon, Vista, Chula Vista, La Jolla, Carlsbad, Encinitas, Oceanside, North County, Escondido and Surrounding Counties.

Contact Us Today

The Law Office of Michael Rehm is a DUI and Criminal Defense Law Office that practices throughout San Diego County. Michael Rehm is available for free, confidential consultations at (619) 787-3456.