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Misdemeanor Bail: Innocent Until Proven Guilty (Convicted)

Presumed Innocent

Courts have held that being charged with a crime cannot, as a constitutional matter, give rise to any inference (for the purposes of setting bail) that the individual is more likely than any other citizen to commit a crime if released from custody. The defendant is, after all, constitutionally presumed to be innocent pending trial, and innocence can only raise an inference of innocence, not of guilt.

Pre- and Post-Arraignment / Bail Hearing Release

Any person arrested for a misdemeanor in California who is either on probation or arrested for domestic violence may have to wait until after a bail hearing in front of a judge before being allowed to post bail.

All other people arrested for misdemeanors in California, pursuant to Penal Code § 1270, shall be released on their own recognizance or permitted to bail prior to arraignment for said offense.

If the person already has legal counsel at the time to the first court appearance (aka: the arraignment) a bail hearing can often be had at the arraignment. Stated differently, a person at arraignment who does not yet have legal representation, and who merely requests such representation at arraignment, often must have the bail hearing heard at a later date or time.

“Public Safety” Does Not Justify Denying Bail at a Misdemeanor Bail Hearing

Penal Code sections 1270 and 1275 state that at a misdemeanor bail hearing the court should consider both the likelihood that the defendant will appear in court (as required for future appearances), as well as “public safety.”

However, the cases of In re Underwood (1973) 9 Cal.3d 345; People v. Barrow (1991) 233 Cal.App.3d 721; People v. Cortez (1992) 6 Cal.App.4th 1202; In re York (1995) 9 Cal.4th 1133; and People v. Standish (2006) 38 Cal.4th 858 collectively hold that the parts of Penal Code sections 1270 and 1275 that permit a court to consider “public safety” in ascertaining bail at a misdemeanor bail hearing are constitutionally invalid. Thus, in a misdemeanor case, “protecting the public,” as a reason for denying bail, without an evidentiary hearing as required by Penal Code §§ 1270 and 1275, is unfair and contrary to law.

The sole issue for a misdemeanor bail hearing should be whether or not the detainee will likely appear for subsequent court proceedings if released; the sole purpose of said hearing should be to determine such. Any argument by the prosecution, or reasoning by the court, that bail should be denied based on “public safety” at a misdemeanor bail hearing is incorrect, and a mis-statement of law.

Probation Violations Should Trail the Underlying Case

The California Supreme Court has said the preference for probation revocations is to trail (or follow) the new case: “We wish to note that the most desirable method for handling the problems of concurrent criminal and probation revocation proceedings may well be for revocation proceedings not even to be initiated until after disposition of the related criminal proceedings.” 

When judges and prosecutors have ignored this California Supreme Court directive in the past, the Supreme Court has repeated that, “prosecutors [should not] routinely disregard our recent admonition that the ‘most desirable method’ of handling such cases is to refrain from initiating revocation proceedings until the related criminal prosecution is completed.”

Bail Schedules Should Not Be Considered at Bail Hearings

At misdemeanor bail hearings, bail schedules should essentially be ignored by judges in determining bail. Bail schedules exist purely so police officers and jails can release those eligible for Pre-Arraignment-Release/Pre-Bail-Hearing-Release prior to Arraignment with consistency and uniformity.

At a misdemeanor bail hearing before a judge, however, courts should consider only:

  • the likelihood of the defendant’s appearance at future court dates as required;
  • the amount of bail or type of conditions that should reasonably assure the appearance of said defendant at future required appearances; and
  • the defendant’s ability to pay.

Felony Arrests Are Subject to Different Standards

Felony arrests are subject to different standards regarding bail. However, a person arrested for a felony is still entitled to reasonable bail pursuant to the 8th amendment to the U.S. Constitution, and is still presumed innocent in the eyes of the law at the time of said Arraignment or Bail Hearing.

If you or a loved one was arrested, please call the Law Office of Ivan O.B. Morse or Ryan L. Smith for a free consultation. We can be reached at (888) 865-0741 or online via our contact form.