Release on Own Recognizance

A. A person who promises to appear in court to answer criminal charges can sometimes be released from jail without having to pay bail. This person is said to be released on his or her own recognizance.

B. O.R. RELEASE IS AVAILABLE: (a) To a misdemeanant defendant as a matter of right, so long as the court can be reasonably assured of the defendant’s appearance as required;

(b) To a felony defendant as a matter of court discretion, unless the offense charged is a capital offense or unless the offense charged is a violent felony and the defendant has previously been charged with a felony offense and has willfully and without excuse failed to appear in court as required.

2. MOTIONS TO REDUCE BAIL

Requests or motions to set or reduce bail may be made at many times during the criminal process. The matter may come up more than once during any particular proceeding.

[b]–At Booking

A person who is arrested and booked may seek release on bail at the time of booking. In the case of an arrest under a warrant, the magistrate who issued the warrant will usually have indicated bail on the warrant. In the case of a warrantless arrest, bail may usually be determined by consulting the county bail schedule.In the event no bail is set, such as when the bail schedule does not contain a set bail for a very serious crime, or when the defendant wishes to move for reduced bail or to offer bail in a form other than the cash or commercial bond the jailer is authorized to accept,18 application must be made to a magistrate. The Penal Code provides that at least one judge of the superior court or municipal court must be reasonably on call for the setting of orders for discharge from actual custody on bail at all times when the court is not in session.

The Penal Code also requires that the officer or an agent in charge of the jail assist the arrested person or the detainee’s attorney in contacting the magistrate on call as soon as possible. A phone call made to contact the magistrate is not included in the calls the defendant is otherwise entitled to make. Note, however, that the aid extended to the detainee does not include the giving of notice that the detainee may obtain a bail bond as an alternative to cash, or that the arrested person has a right to make a phone call to a commercial bonder.

Upon posting bail, the arrested person must be discharged from custody as to the offense on which the bail is posted. At the time of release, the person accepting the bail or bail bond must issue and sign a release order, and set a time and place for the appearance of the arrestee before the appropriate court. Notice of such time and place of appearance must be given to the arrestee upon release.

[c]–Postarrest Appearance

After arrest the defendant must be taken before a magistrate without unnecessary delay. A bail motion may be made at this time.

[d]–Arraignment

If the offense is bailable, the defendant must be admitted to bail at the arraignment before the magistrate at the preliminary hearing. If bail has already been set, the judge at the arraignment will usually continue bail at that amount, unless one of the parties moves to have it changed.

[e]–Preliminary Hearing

If the offense is bailable, the defendant may have bail set, or argue for bail reduction, at the preliminary hearing. The order setting the amount of bail must be stated in the commitment order. If the offense is bailable and the preliminary examination is postponed, the magistrate must admit the defendant to bail upon receipt of a bond or cash deposit as security for his or her appearance at the rescheduled examination.

[f]–Upon Filing of Information or Indictment

After an information or indictment charging the commission of a bailable offense has been filed against the defendant, he or she may be admitted to bail. If the information or indictment is for a felony and the defendant gave bail for his or her appearance before the filing of the information or indictment, the superior court in which the charge is pending may order the defendant to post increased bail or be committed to actual custody.

Upon the allowance of bail and the execution and court approval of the undertaking providing it, the magistrate must sign an order for the defendant’s discharge if he or she is in actual custody. The proper officer must discharge the defendant upon receiving the order.

[g]–At Arraignment after filing of information/indictment

The defendant may be admitted to bail, or argue for reduced bail, at the arraignment in superior court after the filing of an information or indictment.If the defendant fails to appear for arraignment, the court may issue a bench warrant. If the offense is bailable, the bench warrant must state the amount of bail to be posted for release.

[h]–At Motion to Suppress Evidence or for Return of Property

If the defendant’s motion in the superior court for the suppression of evidence or for the return of property under Penal Code Section 1538.5 is granted, and the prosecution files a petition for writ of mandate seeking appellate review of the ruling, the defendant must be released on his or her own recognizance, unless he or she is charged with: (1) a capital offense in which the proof is evident and the presumption great; or (2) a noncapital offense and the court orders that the defendant be discharged from actual custody on bail.

[i]–Pending Habeas Corpus Proceedings

If a person on whose behalf a petition for a writ of habeas corpus is made is in custody, any court or judge authorized to grant the writ to whom the petition is presented, may admit the defendant to bail, if the offense is bailable, pending the determination of the habeas corpus proceeding. The person may be in constructive, not actual, custody.

If the defendant’s petition for habeas corpus is heard before conviction on the crime charged, and the crime is not one of violence, one committed with a deadly weapon, or one involving the forcible taking or destruction of the property of another, bail must be set immediately at the hearing if it has not been set before. Any judge before whom a person may be brought on a writ of habeas corpus may accept bail if the offense is bailable.

If the People appeal from a final order made upon the return of a writ of habeas corpus granting the discharge or release of the petitioner, or petition for a hearing in any appellate court, the petitioner must be admitted to bail or granted an own recognizance (O.R.) release upon the signing of a written promise to appear.

The above rules apply only to California courts. The federal courts are split on whether a federal district court has the authority to grant bail to a state prisoner pending a decision on a federal habeas corpus petition challenging the state prisoner’s state conviction, and the Ninth Circuit still has not decided the issue.

[j]–Pending Extradition

If a person accused of having committed a crime in another state is arrested and brought before a magistrate in California, he or she may be admitted to bail, or seek reduced bail, pending extradition to the foreign jurisdiction, unless the offense is one punishable by death or life imprisonment under the laws of the state demanding extradition, or unless the prisoner is alleged to have escaped or violated the terms of his or her parole following conviction of a crime punishable by imprisonment for at least one year. Although the language of Penal Code Section 1552.1 suggests that the granting of bail to a person pending extradition to another jurisdiction is discretionary, a person awaiting extradition who has not yet been convicted of an offense should have the right to bail to the extent that the California Constitution establishes a pretrial right to bail. If the person is subject to extradition for having fled another jurisdiction after conviction, bail is not a matter of right.

C. After Conviction

Before judgment is rendered but after conviction, a motion to arrest the judgment on the grounds of former conviction, former acquittal, or once in jeopardy may be granted, and the court may order the defendant to be discharged from custody, or may order the posting of new bail if there is reason to believe that the person is guilty and that a new indictment or information can be framed on which a conviction may be had.

A defendant who has been convicted of an offense not punishable by death, and who has made an application for probation or has appealed the conviction, may request the trial court to release him or her on bail. Bail is a matter of right in misdemeanor cases or in cases in which only a fine is imposed, as discu . In all other cases, a trial court must order the defendant’s release on bail if the defendant has demonstrated: (1) by clear and convincing evidence, that he or she is not likely to flee; (2) by clear and convincing evidence, that he or she does not pose a danger to the safety of any other person in the community; and (3) that the appeal is not for the purpose of delay, but, based on the record in the case, raises a substantial legal question that is likely to result in reversal. A request for bail or for bail reduction should be first directed to the trial court. If the defendant is granted bail pending appeal, the People may seek review of the order by way of extraordinary writ, or by appeal.

A trial court may grant bail after granting a motion for new trial. However, the People’s filing of an appeal of the new trial motion is not a changed circumstance requiring a review under Penal Code Section 1275 of a previously set bail amount.

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