CLE Center Home  |  FAQs  |  
Continue to take Test  |  Print test for mailing
MCLE: Bail and O.R. release
By Henry J. Hall

Please visit the MCLE section of the Daily Journal's website to take this test.

One of the most important issues in a criminal case is whether a defendant should be freed on bail or on his or her own recognizance (O.R.), or forced to await the outcome of court proceedings in custody. Given its importance, both lawyers and bench officers should be aware of the basic principles governing bail and O.R. release.

The objective of this article and accompanying self-study test is to familiarize readers with the law of bail and O.R. release. Readers will learn about constitutional and statutory provisions dealing with matters including when bail is barred and when it is available as a matter of right, the proper and improper criteria that can be considered in setting bail or releasing a person O.R., and conditions that may be imposed upon release.

Bail Provisions

The Eighth Amendment to the U.S. Constitution forbids "excessive" bail, stating that "[e]xcessive bail shall not be required." The Eighth Amendment does not guarantee a right to bail; it only provides that if bail is fixed, it cannot be excessive. United States v. Salerno, 481 U.S. 739 (1987).

California confers both a constitutional and a statutory right to bail. Cal Const art 1, Section 12; Pen C Sections 1268 et seq. California's constitutional and statutory rights to bail are thus broader than the federal right. See Pen C Section 1271; In re Underwood, 9 Cal. 3d 345 (1973). The California Constitution provides that a person must be released on bail except in three circumstances:

(1) "Capital cases where the facts are evident or the presumption great";

(2) "Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others"; or

(3) "Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released." Cal Const art 1, Section 12; see also Pen C Section 1270.5.

The bar to bail for defendants in capital cases includes all special circumstance cases, even if the death penalty is not sought. The rationale is that the gravity of the offense, not just the potential punishment, justifies denial of bail. People v. Anderson, 6 Cal. 3d 628 (1972), overruled on another point by Price v Superior Court, 25 Cal. 4th 1046 (2001). Denial of bail is proper even when the defendant is a minor charged with special circumstances, even though he or she is not legally eligible for the death penalty. People v. Superior Court (Kim), 20 Cal. App. 4th 936 (1993).

The first part of the standard for denying bail in capital cases, as well as the other specified felonies, is "[t]he facts are evident or the presumption great." That standard is determined by whether a jury's verdict of guilty would be sustained on appeal. In re Troia, 64 Cal. 152 (1883); see also Maniscalco v. Superior Court, 19 Cal. App. 4th 60 (1993). The court has jurisdiction to conduct a hearing to determine whether this standard is met, and, if it is not, the defendant is entitled to have bail set. Clark v. Superior Court, 11 Cal. App. 4th 455 (1992).

The second part of the standard, which applies to felonies, is "[c]lear and convincing" evidence that release would mean a substantial likelihood of great bodily harm. "Clear and convincing" means "a finding of high probability," or "so clear as to leave no substantial doubt." See In re Nordin, 143 Cal. App. 3d 538 (1983).

Bail is available as a matter of right in all other cases before conviction. Pen C Section 1271. After conviction, a defendant has the right to bail when appealing misdemeanors or judgments imposing only fines; postconviction bail is discretionary in all other cases. Pen C Section 1272.

Setting the Amount of Bail

The primary purpose of bail is to protect the public. Pen C Sections 1270(a), 1275(a); In re McSherry, 112 Cal. App. 4th 856 (2003); In re Weiner, 32 Cal. App. 4th 441 (1995). California Constitution Article 1, Section 28(f)(3) (Marsy's Law), reiterates that the judge or magistrate must consider the protection of the public, the safety of the victim, the seriousness of the offense, the defendant's criminal record, and the probability that the defendant will appear at trial. Public safety and the safety of the victim "shall be the primary considerations."

Penal Code Section 1275 further specifies that "[i]n 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."

Older cases saying that the only purpose of bail is to insure the defendant's appearance have been superseded by these constitutional and statutory provisions. See Gray v. Superior Court, 125 Cal. App. 4th 629 (2005).

In determining the seriousness of the offense charged, the bench officer may look to specific factors in the particular case, such as weapon use, injury to the victim, threats to the victim, and use or possession of controlled substances. In re Weiner, 32 Cal. App. 4th at 444. Allegations contained in the arrest reports are assumed to be true for the purpose of setting bail. Galen v. County of Los Angeles, 322 F.Supp.2d 1045 (C.D. Cal. 2004), overruled on another point by Galen v. County of Los Angeles, 468 F.3d 563 (2006). The defendant's prior criminal record, and the probability of the defendant appearing at the trial or hearing of the case, may also be considered. Cal Const art 1, Section 12; Pen C Section 1275(a).

Although not listed in statutes or the state constitution, other proper factors that may be considered include the judge's evaluation of whether the defendant will "do some time" (People v. Kelly, 125 Cal. App. 3d 575 (1981)); a defendant's statements indicating a willingness to flee (Griffin v. Superior Court, 26 Cal. App. 3d 672 (1972)); and the fact that the defendant was a fugitive (In re Grimes, 99 Cal. App. 10 (1929)).

Improper factors include the defendant's entry of a plea of "not guilty by reason of insanity" (Application of Gentry, 206 Cal. App. 2d 723 (1962)); increasing bail because defendant became seriously ill and missed a court date (In re Aydelotte, 97 Cal. App. 163 (1929)); using bail as a revenue source for the government (Sawyer v. Barbour, 142 Cal. App. 2d 827 (1956)); and the fact that the defendant demanded or requested a jury trial (Cal Rules of Ct 4.101).

Bail may not be used to punish the defendant. Ex Parte Newborn, 55 Cal. 2d 500 (1961). But, a bail amount is not necessarily excessive simply because the defendant cannot make it nor is it not excessive because defendant can make it. Galen v. County of Los Angeles, 477 F.3d 652 (9th Cir. 2007); In re Burnette, 35 Cal. App. 2d 358 (1939).

O.R.

Any defendant who is eligible for bail may be released on his or her own recognizance (O.R.). Pen C Section 1270(a). A person released on O.R. simply signs a promise to return to court, and does not have to post any amount of bail. See Pen C Section 1318. However, if the defendant willfully violates his or her promise to appear in court, the defendant can be charged with a misdemeanor. See Veh C Section 40508(a).

In misdemeanor cases, Pen C Section 270 provides that a defendant "shall be entitled to an own recognizance release" unless the judge or magistrate makes a finding pursuant to Pen C Section 1275 that (a) "[t]he defendant's own recognizance release will compromise public safety"; or, (b) an own recognizance release will "not reasonably insure" the defendant's appearance. As with a judge's determination regarding the amount of bail to be set, public safety is the primary consideration in determining whether to release a defendant O.R. Pen C Section 1270(a).

There is no constitutional requirement that a judge make findings regarding why O.R. is denied, even in a misdemeanor case. Van Atta v. Scott, 27 Cal. 3d 424 (1980), overruled on another point by In re York, 9 Cal. 4th 1133 (1995). However, the judge cannot create a policy automatically denying O.R. release for a category of defendants: the judge must exercise discretion "in the light of all the attending circumstances." People v. Arnold, 58 Cal. App. 3d Supp. 1 (1976).

As with a judge's determination regarding the amount of bail to be set, public safety is the primary consideration in determining whether to release a defendant O.R. Pen C Section 1270(a). The burden is on the prosecution to demonstrate that the defendant will not appear in court if released O.R. Van Atta v. Scott, 27 Cal. 3d at 443-44, overruled on another point by In re York, 9 Cal. 4th 1133.

The law anticipates that if a defendant is released on his or her own recognizance, he or she will remain released O.R. until the conclusion of the proceedings unless the defendant fails to appear or violates a condition of release. In re Noland, 78 Cal. App. 3d 161 (1978). O.R. release is a substitute for bail and the defendant remains in the constructive custody of the court and may be subject to restraints not imposed on the public in general. People v. McCaughey, 261 Cal. App. 2d 131 (1968).

Conditions of Release

In a misdemeanor case, the judge or magistrate may set "terms and conditions [of release] that he or she, in his or her discretion, deems appropriate." Pen C Section 1269c. In a felony, "there is a general understanding that the trial court possesses inherent authority to impose conditions associated with release on bail. ... There appears to be little dispute that a trial court may impose conditions associated with release on bail." Gray v. Superior Court, 125 Cal. App. 4th at 642. Public safety must dictate the conditions of release. Id.

Common conditions of release include geographical restrictions (see In re McSherry, 112 Cal. App. 4th at 863); electronic monitoring/house arrest; SCRAM (alcohol monitoring); not driving a motor vehicle (Id.); and protective and stay-away orders.

A defendant may be required as a condition of O.R. release to allow his or her person and property to be searched by law enforcement even without a warrant or suspicion of wrong-doing. The California Supreme Court in In re York, 9 Cal. 4th at 1149, upheld such search and seizure conditions of O.R. release, but indicated in dicta that they may not be proper as conditions of bail. The 9th U.S. Circuit Court of Appeals held that search and seizure conditions, as well as drug testing, may only be imposed when the judge makes "an individualized finding that [the] defendant's ability to appear in court will be impaired absent" the condition. United States v. Scott, 450 F.3d 863 (9th Cir. 2006).

A defendant may be barred from engaging in a profession, such as the practice of medicine, as a condition of release on bail or O.R. release. Gray v. Superior Court, 125 Cal. App. 4th at 643. However, before such a condition is imposed, due process requires that the defendant be given a hearing for the court to determine if less restrictive alternatives exist. Id.

Henry J. Hall is a judge in the Los Angeles County Superior Court.

Continue to take Test   |  Print test for mailing