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What You Need to Know About Bail Reform in California

By San Diego Attorney on July 5, 2020

On the November 2020 ballot, California voters will have the option of abolishing bail in the state. This is a drastic shift in how the criminal justice system operates in our state and will influence the early stages of a criminal trial. Instead of paying bail after an arrest, defendants will be evaluated with a pretrial assessment review that will determine whether or not you are released from jail prior to your arraignment. This process may prove difficult for most defendants to understand initially and several factors can influence your assessment.

Bail in California

Currently, California utilizes a cash bail system to determine whether or not a defendant is allowed to leave a county jail prior to their arraignment and trial. The local court where you are being tried will determine the amount of bail and you may pay that amount out of pocket or through bail bondsmen. If you are unable to pay, you may remain in custody until your arraignment.

Bail is used to demonstrate that a defendant will attend all court appearances throughout their trial. Technically speaking, it is a deposit, and if you are found innocent or charges are dropped, your bail will be refunded.

The amount you have to pay will vary depending on the severity of the charges, how many charges and enhancements a defendant has against them, if multiple victims are involved, and the local court proceedings. If the court has to extradite you from out of state, your bail can be set at $100,000. San Diego courts follow a Bail Schedule that is valid from January 1, 2020, to December 31, 2020, however, this schedule has been modified due to COVID-19 and the courts currently follow an Emergency Bail Schedule.

However, this system may change to a pretrial assessment in 2021 if the referendum is passed.

Pretrial Assessments

Instead of evaluating defendants based on a cash bail system, California could utilize pretrial assessments that are based on a public safety review according to Senate Bill 10. For defendants charged with misdemeanors, they should be released within 12-hours of their arrest, unless they fulfill certain exclusions. If they fulfill one of those exclusions or are charged with a felony, a pretrial assessment service (PAS) must evaluate their case within 24-hours of the arrest, or 36-hours if the court grants the service an extension.

Depending on the assessment, defendants may be released on their “own recognizance” or OR, which means they agree to attend all court appointments. Clients may be provided with limited restrictions or supervised release.

The assessment will determine if a defendant meets the following classifications:

• Low-risk: Unless a defendant meets one of the 10 exclusions, they are to be released on OR.
• Medium-risk: Unless a defendant meets one of the 10 exclusions, their case will be evaluated by a judge with a Prearraignment Review to determine if they can be granted OR or must remain in jail until their arraignment.
• High-risk: All defendants categorized as high-risk should be held in jail until their arraignment.

Generally, all defendants should be released on OR after their arraignment, unless the prosecution requests a Preventive Detention Hearing and proves that the defendant is a risk to public safety or likely to miss court appointments. However, your attorney can fight on your behalf to secure OR or supervised release with fair terms.

Exclusions and PAS

Senate Bill 10 outlines specific exclusions that may limit your right to a PAS or impact whether or not you receive OR prior to your arraignment. There are 10 primary exclusions that include:

1. Being charged with a registered sex offender crime according to PC 290
2. Being charged with a domestic violence crime or stalking
3. Being charged with your third DUI in 10 years, a DUI with injury, or a DUI .20 or above
4. Disobeyed a restraining order in the last five years
5. Received three or more warrants for failing to appear at court proceedings in the last 12 months
6. Are currently on trial or awaiting sentencing on a misdemeanor or felony charge
7. Currently under probation, parole, or other forms of postconviction supervision
8. Intimidating or threatening witnesses or victims
9. Not following the conditions of a pretrial release in the last five years
10. Being charged with a serious or violent felony

If you are charged with a misdemeanor and do not fulfill any of the above exclusions, the court must release you within 12 hours of your arrest. However, if you do fulfill one of the above exclusions, the court may hold you until your arraignment.

In addition to the 10 primary exclusions, the court also has four felony exclusions that are taken into account during a PAS, which include:

• Personally committing violence against an individual
• Committing great bodily harm against an individual
• Threatening physical violence
• Being armed with or using a deadly weapon when arrested

Defendants categorized as low- or medium-risk who fulfill these exclusions may be held in custody until their arraignment. Any defendant who does not fulfill these exclusions and the above 10 should be granted OR.

Protecting Your Rights

Whether or not Senate Bill 10 is made law, you have a right to an attorney throughout this entire process and are encouraged to contact one as soon as possible. At jD LAW, P.C., our San Diego criminal defense attorneys can begin reviewing your case, negotiate with the DA, ensuring the PAS meets all deadlines and requirements, and fight for reduced charges or a complete dismissal of your case. Contact us at (760) 630-2000 and secure sound legal advice.