In California, a bail hearing can be one of the most critical moments for someone charged with a crime. It determines whether you will await trial at home with your family or in jail. The hearing often occurs within 48 hours of arrest, excluding weekends and holidays. In this proceeding, a judge must weigh your right to freedom against the government’s interest in protecting the public and ensuring you appear in court.

The most recent significant change came with the landmark In re Humphrey decision. According to the court’s ruling, you cannot be detained simply because you cannot afford to pay the scheduled bail amount. The judge must assess your ability to pay. They must also consider your ties to the community. They must also consider whether less restrictive conditions could reasonably ensure your appearance and public safety. Knowing how this process works is important because the outcome will significantly affect your chances of defending yourself. The information below explains the process in detail.

The Legal Purpose of Bail

The purpose of the bail hearing is twofold. The hearing is not meant to punish the defendant, but to ensure compliance with court proceedings. The bail system essentially enshrines the constitutional presumption of innocence: a person is presumed innocent until proven guilty. Therefore, pretrial detention is a serious restriction of liberty that needs justification before it can be used.

The main aim of a bail hearing is to create a financial reason to ensure that the accused will attend all future obligatory proceedings and not evade his/her appearance in court. Bail serves as a guarantee. You can pay it through cash, bond, or a promise to appear. If the defendant fails to appear in court, the bail money will be forfeited, and a warrant will be issued. The bail should be set at an amount the defendant would be reluctant to forfeit, ensuring he/she will appear for court dates.

The second purpose, which is just as important, is public safety. A judge has to determine if the offender would endanger society or the particular victim if set free. After the 2021 In re Humphrey California Supreme Court’s decision, the judges must consider non-financial options unless it can be proved by clear and convincing evidence that a detention is necessary to protect the public. The judge sets bail, limits conditions, or denies release. In every case, the judges will balance the defendant’s right to liberty versus the community’s right to safety.

Understanding California's County Bail Schedules

A defendant’s case begins with bail being set under the county’s bail schedule before their first court appearance. This schedule is essential to the state’s pretrial procedure for quickly and uniformly setting bail amounts.

A bail schedule is a uniform, county-wide document, adopted and updated annually by the county’s Superior Court judges. The list serves as a master list that sets a presumptively reasonable bail amount for nearly every crime, indicating the precise amount set by crime for misdemeanors and felonies. Bail amounts by crime are usually based on the severity of the crime and the maximum possible sentence. Also, serious offenses carry a much higher bail amount.

A magistrate or judge usually determines the bail amount according to the county’s bail schedule. When a person is arrested, he/she is booked into jail. The bail amount remains fixed and depends only on the criminal charge.

The core purpose of the schedule is to allow a defendant to “bail out” before the first court appearance. By paying the necessary bail amount (directly or through a bail bondsman), the individual quickly gets out of custody, avoiding spending days in jail waiting for the judge to be available to hear their case. The amounts in the schedule are only presumptive, not final. The bail schedule states the money the jail must receive to release someone before the court. The first and arguably most important opportunity for an attorney to argue that this initial schedule bail is excessive and should be set significantly lower is at the formal bail hearing, which takes place at the defendant’s first court appearance, the arraignment.

The defense may argue that the defendant should be released on their own recognizance (O.R.) without bail. Depending on the factual circumstances of each defendant, including their prior criminal record, ties to the community, and risk or dangerousness to the public, the judge may set an amount (greater or less) than that in the schedule.

What Happens During the Bail Hearing?

The bail hearing is part of the arraignment, the defendant’s first formal appearance in court in a criminal case. A defendant held in custody after a warrantless arrest must have this hearing as soon as possible, usually within 48 hours of the arrest (not including weekends and holidays).

The procedure is adversarial, where the judge determines the defendant's pretrial detention status. The proceedings include:

  • Arraignment formalities — Before bail is addressed, the defendant is formally informed of what they are charged with and about their rights as a citizen, including the right to a lawyer.
  • Arguments from the prosecution — The prosecution will go first during the hearing. The prosecutor will request the judge to keep the bail amount that appears on the county bail schedule. He/she will likely ask to increase it or deny bail altogether. The prosecutor can present facts about the case that relate to the defendant (defendant’s criminal history, any FTA’s, or probation or parole status) to present his/her argument that the defendant is a flight risk or a danger to the public.
  • Arguments from the defense — The defense lawyer will explain why the defendant should go free and present the evidence for this. It usually means asking the bail amount to be reduced or the person released on O.R. The lawyer will show the defendant’s connections to the community (job, family), finances, and capability of attending future hearings.
  • The judge's decision — The judge hears from both sides and weighs various factors, particularly public safety and the defendant’s ability to pay, before deciding. The judge can:
  1. Release the defendant on own recognizance (O.R. release)
  2. Set bail at, above, or below the county schedule
  3. Decide the terms of release, like electronic monitoring or stay-away orders
  4. In extreme cases (violent felonies), deny bail entirely.

In felony cases, the defendant must appear at the arraignment, although their attorney usually handles the bail arguments.

Factors a Judge Considers Under Penal Code §1275

California Penal Code §1275 offers judges the authority and standards for pretrial release. This law gives the court judicial discretion, requiring the judge to keep a list of factors in mind for a fair and lawful bail assessment. Above all, two overriding constitutional concerns drive the bail decision:

  • Public safety
  • The defendant appearing at future court proceedings (minimizing flight risk)

The court engages in a detailed evaluation of the case and the accused’s background to manage the above-mentioned essential issues. The judge starts by assessing the seriousness of the offense. The judge considers:

  • The nature and character of the alleged crime
  • Whether a weapon was involved
  • What injuries, if any, are sustained by a victim

A serious or violent felony, for instance, creates a presumption of danger and a need for high bail or detention.

Next, the analysis turns to the defendant's personal history, which shows his/her tendency to conform and risk to others. The judge meticulously examines the defendant's prior criminal history, particularly looking out for violent or drug offenses. Of great importance, the court looks at the defendant’s history of FTA’s: a pattern of missing court dates demonstrates a high flight risk and weighs heavily against a low bail amount or O.R. release.

The judge also considers the stability of the defendant and their community ties, not just the criminal history. Being stable and connected are both important incentives for not running away. The attorney mentions that the defendant has a job, has stayed in the area for a long time, and has family obligations. There are strong community ties that suggest the defendant has too much to lose to flee. In contrast, an unstable lifestyle or lack of ties to the community increases the likelihood of high bail. Moreover, a judge will examine evidence of threats against the victim or witness. This evidence can be used to impose tough release conditions or even deny bail altogether if clear and convincing evidence shows that the defendant poses an unacceptable risk.

When you put all of these factors together, they will determine the final bail amount or conditions of release.

Pretrial Release Options

A defendant charged in California could be released without bail or be held with no bail. Per the Penal Code §1275 criterion, the judge's ruling directly determines this outcome. A defendant can be released using the following options:

Release on Own Recognizance (O.R.)

The best result is a release on one's own recognizance (O.R.). An O.R. release allows the defendant to leave custody after signing a written promise to appear for all future court dates. This option does not require posting a cash bond or bail premium.

Judges typically grant O.R. releases in cases of misdemeanors or where the defendant has:

  • Been charged with a non-violent felony
  • Has little or no criminal record
  • Has strong ties with the community to show low flight risk and no real danger to society

Cash Bail or Bail Bond

If the court deems O.R. release inadequate to ensure the defendant’s presence or community protection, the judge sets bail. The judge has the discretion to adjust the bail amount to a higher or lower amount after considering the case factors. However, it usually starts at the county’s pre-determined bail schedule. The defendant then has two main options for posting bail:

  • Cash bail — The person accused of committing a crime pays the full amount directly to the court. The money will be returned once the case ends if the defendant appears for every hearing.
  • Bail bond — If the defendant cannot pay the full amount, they should contact a bail bond company. The bail bondsman posts a surety bond (a guarantee) for the full amount in exchange for a fee, which is usually non-refundable and 10% of the total bail.

Release With Non-Financial Conditions

To achieve the dual purpose of ensuring appearance and maintaining public safety without imposing excessive bail, the judge often imposes release conditions that are not financial. Conditions like these are commonly used in a supervised O.R. release scenario, offering a middle ground between straight release and cash bail. Orders issued before the trial often include:

  • Electronic monitoring (GPS tracking)
  • Stay-away orders
  • Check-ins and/or counseling

If these conditions imposed by the court are breached, you may be immediately arrested again and detained.

Bail is Denied (No Bail Hold)

In very serious cases, the judge could decide that no amount of money or other conditions can keep the community safe or make the defendant show up. Legally, a judge could deny bail altogether and issue a “No Bail Hold” for certain serious felonies, such as violent crimes, felony sexual assaults, or capital crimes, if it is shown by clear and convincing evidence that the defendant would likely cause great bodily injury if released. This means the accused stays locked up until the trial concludes.

How an Attorney Argues for a Favorable Outcome in a Bail Hearing

A defense attorney will advocate for his/her client’s release or a reduction in bail at a bail hearing. He/she will present evidence to the judge supporting the defendant’s release on own recognizance (O.R.). The primary courtroom strategy focuses on gradually tearing down the prosecution’s case of flight risk or danger to the public, so the judge focuses on the mitigating factors.

Some of the common strategies he/she can use include:

Proving Low Flight Risk

The lawyer attempts to show the defendant’s link to the community to protect against the argument that the defendant may flee. The defense lawyer provides strong evidence to link the accused to the community. This evidence often consists of:

  • Confirmation letters from employers for stable, long-term work — A stable job within the court's jurisdiction is an incentive to stay in the region and a secure source of income, considerably reducing the perceived risk of flight. The judges see a good employment background as a strong motivation for the defendant to attend all the necessary court sessions.
  • Proof of long-term residence, such as lease agreements and utility bills — Documentation demonstrating stable and long-term domicile, like a multi-year lease or utility bills in the defendant’s name, can confirm to the court that the person has already developed a physical life and integrates well into the community/and is not likely to give up and evade trial.
  • Statements demonstrating local family and social ties — Personal statements from local family members, religious leaders, or community organizations attest to the defendant's character and social network. Good family and social support show that they have some roots and family members who depend on them, which supports the argument that they will go back to court instead of running away.

Also, having family in court helps the lawyer’s argument that the defendant has too much to lose by not coming back, which is what the court is often worried about: future appearances.

Proving Low Risk to Public Safety

In response to the public safety concern, the lawyer establishes the defendant's character and his/her non-violent nature. The defense will point out that the accused has no serious criminal record or prior violent felonies. The attorney tries to emphasize the non-violent nature of the current charge wherever possible. He/she focuses on the facts that lessen the perception of threats. The lawyer shows how the defendant is stable and a non-violent member of society, which counters the idea that being released would harm society.

Presenting Mitigating Factors and Due Process

A good lawyer will also introduce mitigating factors, which are any facts that reduce the severity of the alleged offense or help explain the defendant’s actions. It may be possible to provide context about emotional distress and substance abuse issues, along with a request for immediate treatment as a condition of release or lack of intent. The lawyer uses this evidence to demonstrate that the accused is low-risk and deserves the least restrictive release.

Demonstrating community ties, good character, and mitigating circumstances gives the Judge a legally sufficient basis to grant a positive result, like O.R. release or a significant bail decrease below the usual schedule.

Find a Bail Bondsman Near Me

The bail hearing is one of the most critical stages in a criminal case. It may determine whether you will be released or remain in custody. The judge will assess your flight risk and whether you pose a danger to the public. Grasping the Penal Code §1275 standards and showing compelling evidence of community ties is essential for securing a favorable release. Whether the outcome is O.R. release or bail, a swift and informed process is essential.

If you or your loved one needs to be released immediately, you can contact Justice Bail Bonds. We offer 24/7 bail bond services that are quick and affordable, so you do not have to worry about spending too much. Contact us today at 714-541-1155 to start the process of securing your release in Temecula.