How Does Bail Work: California Law

If you or a loved one has been arrested in California, navigating the bail process can be confusing and overwhelming. In this comprehensive guide, we’ll explain how bail works in California, including the different types of bail, the factors determining bail amounts, and what happens if a defendant fails to appear in court.

What is Bail?

Bail is a financial guarantee that defendants will appear for their scheduled court dates after being released from custody. When a person is arrested and charged with a crime, they may be held in jail until their case is resolved or until they post bail.

The purpose of bail is to ensure that the defendant returns to court while also allowing them to remain free during the legal process.

Types of Bail in California

There are several types of bail available in California:

1. Cash Bail: The defendant or someone on their behalf pays the full bail amount in cash directly to the court.
2. Bail Bond: The defendant or someone on their behalf pays a non-refundable fee (usually 10% of the total bail amount) to a bail bond company, which then posts a surety bond with the court for the full bail amount.
3. Property Bond: The defendant or someone on their behalf pledges real property (such as a house) as collateral for the bail amount. The court can seize the property if the defendant fails to appear in court.
4. Own Recognizance (OR) Release: In some cases, the court may release the defendant on their own recognizance without requiring any bail payment. This typically happens when the defendant is deemed a low flight risk and has strong ties to the community.

How Bail Amounts are Determined

Bail amounts in California are set according to a county-wide bail schedule, a list of predetermined bail amounts for various crimes. Judges have the discretion to deviate from the bail schedule based on factors such as:

• The severity of the alleged crime
• The defendant’s criminal history
• The likelihood that the defendant will appear in court
• The potential danger to public safety if the defendant is released

Sometimes, a judge may deny bail altogether if they believe the defendant poses a significant flight risk or danger to the community.

The Bail Bond Process

If a defendant chooses to use a bail bond company, the process typically works like this:

1. The defendant or a representative contacts a licensed bail bond agent.
2. The bail bond agent collects personal and case information and a non-refundable fee (usually 10% of the total bail amount).
3. The bail bond agent posts a surety bond with the court for the entire bail amount.
4. The defendant is released from custody and must appear at all court dates.

If the defendant fails to appear in court, the bail bond company is responsible for paying the full bail amount to the court. The company may seek to recover this amount from the defendant or any co-signers on the bail bond contract.

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What Happens if a Defendant Fails to Appear in Court?

If a defendant posts bail and then fails to appear for a scheduled court date, the consequences can be severe:

• The court may issue a bench warrant for the defendant’s arrest.
• The defendant may forfeit the entire bail amount.
• If a bail bond was used, the bail bond company may send a bounty hunter to locate and arrest the defendant.
• The defendant may face additional criminal charges for failing to appear in court.

Bail and California’s Criminal Justice System

California’s bail system has been scrutinized in recent years, with critics arguing that it unfairly penalizes low-income defendants and perpetuates racial disparities in the criminal justice system. In 2018, California passed Senate Bill 10 to eliminate cash bail and replace it with a risk-assessment system. However, the implementation of this law was put on hold after the bail bond industry successfully petitioned for a referendum on the issue.

As of 2023, cash bail remains in use throughout California, although some jurisdictions have implemented reforms to make the system more equitable. For example, some counties now offer pre-trial services that allow defendants to be released on their recognizance or with non-monetary conditions, such as electronic monitoring or drug testing.

Tips for Navigating the Bail Process

If you or a loved one is facing criminal charges in California, here are some tips to keep in mind when navigating the bail process:

Understand the charges: Make sure you understand the specific charges and potential penalties you are facing, as this will impact the bail amount and your legal strategy.

Consider your options: Evaluate whether cash bail, a bail bond, or a property bond is the most feasible option based on your financial situation and the bail amount.

Choose a reputable bail bond company: If you decide to use a bail bond, research and choose a licensed, reputable company with a track record of good customer service.

Attend all court dates: Make sure to attend all scheduled court appearances, as failing to do so can result in forfeiting your bail and facing additional criminal charges.

Consult with a criminal defense attorney: An experienced lawyer can help you navigate the bail process, protect your rights, and build a strong defense strategy.

The Bottom Line

Bail is a critical component of California’s criminal justice system, allowing defendants to remain free while their case is pending. Understanding how bail works, including the different types of bail, the factors determining bail amounts, and the consequences of failing to appear in court, is essential for anyone facing criminal charges in California.

While the state’s bail system has been the subject of ongoing debate and reform efforts, it remains in place as of 2023. Suppose you or a loved one is navigating the bail process. In that case, it’s important to carefully consider your options, choose a reputable bail bond company if needed, and consult with a skilled criminal defense attorney to protect your rights and achieve the best possible outcome in your case.

Here are real case law examples and short definitions with examples related to how bail works in California:

Real Case Law Examples

In re Humphrey (2021) 11 Cal.5th 135:

1. The California Supreme Court held that the state’s cash bail system violates due process and equal protection rights under the California Constitution. The court ruled that judges must consider a defendant’s ability to pay when setting bail and that detention should only be used when necessary to protect public safety or ensure an appearance in court.

In re Avignone (2018) 26 Cal.App.5th 195:

1. The California Court of Appeal held that a defendant’s bail cannot be revoked solely because they used a bail bond to post bail. The court emphasized that the purpose of bail is to ensure a defendant’s appearance, not to punish them for using a bail bond.

People v. Accredited Surety & Casualty Co. (2019) 34 Cal.App.5th 891:

1. The California Court of Appeal held that a bail bond company must be given notice and an opportunity to be heard before a court can forfeit a bail bond due to a defendant’s failure to appear. The court stressed the importance of due process rights for bail bond companies.

Definitions and Examples

Cash Bail

• Definition: A type of bail where the defendant or someone on their behalf pays the full bail amount in cash directly to the court.
• Example: John is arrested, and his bail is $10,000. He pays the full $10,000 in cash to the court and is released from custody.

Bail Bond

• Definition: A type of bail where the defendant or someone on their behalf pays a non-refundable fee (usually 10% of the total bail amount) to a bail bond company, which then posts a surety bond with the court for the entire bail amount.
• Example: Sarah is arrested, and her bail is $50,000. She pays a $5,000 non-refundable fee to a bail bond company, then posts a $50,000 surety bond with the court, and Sarah is released from custody.

Own Recognizance (OR) Release

• Definition: A type of pretrial release where the court allows the defendant to be released without requiring any bail payment, typically when the defendant is deemed a low flight risk and has strong ties to the community.
• Example: Mike is arrested for a minor offense and has no criminal history. The judge releases him on his own recognizance and requires him to sign a promise to appear in court for all scheduled hearings.

Failure to Appear (FTA)

• Definition: When a defendant does not show up for a scheduled court appearance after being released on bail or their recognizance.
• Example: Lisa is released on a $25,000 bail bond but fails to appear for her court date. The court issued a bench warrant for her arrest, and the bail bond company is now responsible for paying the entire $25,000 to the court if she is not located.

Bail Forfeiture

• Definition: When a court keeps the full bail amount paid by a defendant or bail bond company because the defendant failed to appear in court or violated the conditions of their release.
• Example: David posts a $15,000 cash bail but fails to appear for trial. The court forfeits the $15,000 and issues a warrant for David’s arrest.

Frequently Asked Questions (FAQs)

Q: What is bail?

A: Bail is a financial guarantee that defendants will appear for their scheduled court dates after being released from custody.

Q: What are the different types of bail in California?

A: The main types of bail in California are cash bail, bail bonds, property bonds, and own recognizance (OR) release.

Q: How are bail amounts determined in California?

A: Bail amounts in California are set according to a county-wide bail schedule, but judges can deviate from the schedule based on factors such as the severity of the alleged crime, the defendant’s criminal history, and the likelihood that the defendant will appear in court.

Q: What happens if a defendant fails to appear in court after posting bail?

A: If a defendant fails to appear in court after posting bail, the court may issue a bench warrant for their arrest, forfeit the bail amount, and the defendant may face additional criminal charges.

Q: Can a bail bond company help me if I can’t afford to pay the full bail amount?

A: Yes, a bail bond company can post a surety bond with the court on your behalf in exchange for a non-refundable fee, typically 10% of the total bail amount.

Q: Is bail always required in California?

A: No, in some cases, defendants may be released on their own recognizance without requiring any bail payment, particularly if they are deemed a low flight risk and have strong ties to the community.

If This, Then That

1. If a defendant posts cash bail and appears for all their court dates, the full bail amount will be returned to them after the case, regardless of the outcome.
2. If a defendant uses a bail bond company to post bail and appears for all their court dates, then the 10% fee paid to the bail bond company is non-refundable, even if the defendant is found not guilty or the charges are dropped.
3. If a defendant is released on their recognizance and fails to appear for a court date, the court may issue a bench warrant for their arrest and impose additional criminal charges.
4. If a defendant posts a property bond and fails to appear for a court date, then the court may seize the property used as collateral for the bond.
5. Suppose a judge determines that a defendant poses a significant flight risk or danger to the community. In that case, the judge may deny bail altogether, requiring the defendant to remain in custody until their case is resolved.
6. If a defendant violates any conditions of their release while out on bail, such as failing a drug test or contacting a victim, the court may revoke their bail and return them to custody.

These real case law examples and definitions with examples provide a clear and concise overview of how bail works in California, including the different types of bail, the consequences of failing to appear in court, and the legal principles that govern the bail system.