Facing criminal charges in California can be overwhelming. After an arrest, securing bail is typically the first step in your defense. Bail allows you to await trial outside of jail, ensuring you can continue to work, support your family, and meet with your attorney more easily in preparing your defense.
Understanding the reasons why bail might be denied in California is crucial. This knowledge can help you and your defense team prepare for court and address potential concerns effectively.
Generally, a judge can deny bail if they think that you are a flight risk or a threat to public safety. However, different jurisdictions will have different approaches to bail.
For instance, in California, judges have significant discretion when denying or setting bail. This underscores the importance of a robust defense strategy. A judge may deny bail for several reasons.
The judge could deny bail if the criminal charges are severe, your criminal history is poor, the judge doubts that you will appear for future court dates, and the judge is worried that you would obstruct justice, tamper with witnesses, or disrespect the court.
Even if the judge does not completely deny bail, they may impose a higher bail amount if certain factors are present. This can lead to the need for a bail bond, which has significant financial implications.
Many jurisdictions now limit when bail can be imposed or when it can be denied completely. Some states have bail reform laws that require judges to release the accused person before trial without bail in some situations. Let's look at common reasons a judge might deny bail in California criminal cases.
You Are Considered a Flight Risk
One of the primary purposes of bail is to ensure a defendant returns to court for all required appearances. If the judge has reason to believe you are likely to flee the jurisdiction to avoid prosecution, they may deny bail altogether. Factors that might contribute to this decision include:
- Possession of a passport,
- Financial resources that could facilitate leaving the country,
- Faced criminal charges in the past and fled the state,
- Prior history of missing court dates,
- International connections,
- No ties to the local community,
- Property abroad or in other states,
- Communicated to others an intent to leave the jurisdiction,
- You have enough money that the judge thinks you would be willing to lose what you post in bail.
Your attorney plays a crucial role in addressing this concern. They can demonstrate your strong community ties, such as family obligations, employment, or consistent residency in the area, to reassure the judge of your commitment to the legal process.
Concerns About Public Safety
Public safety is a paramount consideration in any bail hearing. If the crime you are charged with is violent or poses a danger to others, or if you have threatened someone with harm and the judge believes you might carry out the threat if released, they are duty-bound to deny bail to protect the target of the threat (and the public in general).
Simply put, the judge is likely to deny bail if they think you would be a threat to the public if you were released on bail. Some things that might make a judge concerned about this include the following:
- The charges against you are for violent crimes,
- You have a history of violating protective orders,
- You have not expressed remorse,
- You act as if you would hurt someone if released,
- The victim of the crime you are charged with is in the area,
- You have access to firearms.
The Severity of the Offense
The seriousness of the alleged crime plays a major role in bail determinations. Serious violent felonies with potentially heavy penalties lead judges to be more cautious. They may deny bail out of concern that the stakes involved might incentivize you to flee.
The judge may deny bail if the charges against you are severe. Typically, if a judge imposes bail, the amount will be higher for serious charges. For the most severe felonies, the judge may deny bail completely. Our criminal defense lawyers have found that the denial of bail is most likely to happen for serious charges like:
- Murder,
- Rape,
- Robbery,
- Kidnapping,
- Terrorism.
California law prohibits bail altogether for some offenses. For example, capital offenses like first-degree murder with special circumstances often do not allow bail. The decision is not necessarily at the judge's discretion but is mandated based on the crime itself.
Prior Failures to Appear in Court or Bail Jumping
If you've missed court appearances in the past, this could significantly harm your chances of being granted bail. Prior failures to appear suggest to the judge that you might not take your legal obligations seriously or could deliberately avoid future hearings.
To counter this, your attorney may try to provide evidence of extenuating circumstances or show a recent track record of compliance with court dates. The judge may deny bail if they think you will not appear at your future court dates. Also known as bail jumping, the judge may suspect this if you:
- Have done it in the past,
- Have expressed an intent to do it in this case,
- Have the financial resources to post bail and then lose it by not appearing in court.
You Were Already Out on Probation or Parole
Being on probation or parole at the time of your arrest can negatively impact your bail hearing. If the judge sees a pattern of not abiding by legal conditions, they may deny bail entirely. This decision is rooted in the belief that someone who violates existing conditions may disregard further court orders while awaiting trial.
Probation and parole refer to two separate concepts in the justice system:
- Probation is part of your sentencing that works to either reduce or eliminate your jail or prison time. While on probation, you are released into the community under the supervision of the court or a probation officer.
- Parole occurs after you have served not all but a significant portion of your jail or state prison sentence. It allows you to serve the remainder of your confinement time outside of custody under the supervision of a parole officer.
The Threat of Witness Intimidation or Tampering
Judges take allegations of witness intimidation or tampering very seriously. If the court believes that releasing you on bail might endanger witnesses or jeopardize the integrity of the case, they are unlikely to allow bail. Any effort to influence or threaten witnesses can severely affect your case, even before the trial begins.
Witness intimidation means to knowingly and maliciously prevent a victim or witness from providing testimony at trial. By law, it does not matter if a defendant was actually successful in preventing testimony. Just the attempt to intimidate a victim or witness is sufficient for a defendant to be criminally charged with witness intimidation.
Furthermore, it makes no difference if a victim or witness was injured or intimidated as a result of the attempts to prevent them from cooperating with police or prosecutors. In simple terms, it is illegal to:
- Threaten a victim or witness,
- Through intimidation,
- Whether verbally or physically.
You Have a Lengthy Criminal History
Someone with a history of repeated offenses is typically less likely to secure bail. A prior criminal record suggests a pattern of behavior that the court might view as a risk. For example, if you've faced numerous prior charges for theft, assault, or drug-related offenses, it may signal to the judge that you are less likely to comply with the law while out on bail.
Simply put, the judge may deny bail if you have a long criminal history. This is particularly true if you are a repeat offender and have a criminal record that includes:
- Convictions for serious offenses,
- Prior convictions for tampering with witnesses,
- Failure to appear
- Obstruction of justice,
- A history of violating court orders or terms of probation,
- Convictions for offenses that were committed while out on bail.
Judge's Decision at a Bail Hearing
The decision of whether to deny or to set bail or to release you on your own recognizance (OR Release) is often made at the bail hearing, which is your first court appearance.
The judge can also set bail according to the local county bail schedule, and then the prosecutor or your defense lawyer can request a formal bail hearing to alter the amount.
Whether to set bail, deny it, or release you on your own recognizance with no bail posted is a huge step in your criminal case. A judge's denial of bail means you will remain in custody while your case proceeds through the legal system, which can take months or even years.
If the judge's decision is for pretrial release, you can work and be with your family while your case is pending. When the judge decides that you should be released on bail money or O.R., they will impose conditions of release. These are rules that you have to comply with while you await trial. Some common conditions of bail are the following:
- Random drug testing,
- Attending all of your court hearings,
- Do not commit any new crimes, or
- Get arrested by law enforcement.
How Can a California Criminal Defense Attorney Help You?
In California, the bail process is the subject of Article I, Section 12 of the California Constitution, which is the provision that allows for preventive detention.
The judge can typically only deny bail in non-capital cases when "the facts are evident or the presumption great and the court finds based upon clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released."
If you've been charged with a crime, your ability to get out on bail is by no means guaranteed. Even if bail is offered, the amount could be too steep for you to meet, or there may be other conditions attached.
To improve your chances of receiving bail, a skilled California criminal defense attorney will advocate on your behalf to get the best terms-for example, presenting mitigating circumstances in prior cases or demonstrating your willingness to cooperate with the courts. For more information, contact our criminal defense law firm, Eisner Gorin LLP, based in Los Angeles, CA.
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