LA County’s Temporary Emergency Zero-Bail Schedule
Since March 26, 2020, Los Angeles County has been using a zero-bail schedule, meaning that only individuals accused of high-level felonies and certain high-level misdemeanors have been actually arrested (i.e., taken to & processed at a local police station, etc.). By contrast, everyone else who otherwise would have been arrested has been immediately released after receiving a promise-to-appear summons. But for those defendants who have been charged with serious offenses, the bail amounts are still very high, as set forth in the following schedules for 2020 (the pandemic notwithstanding):
See felony bail schedule at: https://www.lacourt.org/division/criminal/pdf/felony.pdf; for misdemeanors and infractions, see: https://www.lacourt.org/division/criminal/pdf/felony.pdf.
By the way, this zero-bail schedule is legally supported by Article I, Section 12 of the California Constitution, which gives superior court judges the power to release defendants on O.R. (their own recognizance).
Otherwise, whether a defendant is entitled to bail is codified in sections 1268 through 1276.5 of the California Penal Code.
See: https://law.justia.com/codes/california/2009/pen/1268-1276.5.html
Why It’s Critical to Remain Free While Awaiting Trial
Remaining incarcerated while awaiting your trial or even just your preliminary hearing greatly diminishes your ability to present an effective defense. This is particularly true if you are working with private defense counsel (because a public defender usually has too great a caseload to spend much time working with you on your case even if you’re out of custody).
For example, since all jail calls (and possibly in-jail attorney-client conferences) are recorded, your ability to speak freely with your defense counsel is significantly limited. This also applies if your attorney is working with a private investigator to uncover facts, witnesses, and evidence that can help your case. Thus, it is crucial that you be able to make bail.
How the Bail System Works in California
The bail system in California has always overwhelmingly favored those individuals with access to funds and property to secure bail. If you are eligible for bail, there are only three options to be released:
- you pay the entire bail amount in cash or via certified check (this is known as an “undertaking”);
- you have a bail bond agent (also known as a “bail bond licensee”) put up the bail, which is secured by collateral (the equity in your home or a relative’s home, or your business, vehicles, etc.); or
- the court releases you after six gainfully employed individuals co-sign for your bail and you pay a small amount of money to the court.
If you pay the entire amount in cash or by certified funds, you will get the entire amount back once your case has been resolved and the court no longer needs to ensure that you will attend your hearings and trial. But since few defendants can come up with the entire amount of the bail upfront, they almost always have to rely on a bail bond agent, who makes his or her money by charging you a non-refundable percentage – typically ten percent – of the bail amount and, again, with the full amount of the bail typically secured by collateral.
By the way, this upfront fee doesn’t go entirely into the bail bond agent’s own pocket. He or she has to pay a hefty premium to a surety company which covers the agent with an insurance policy for the full amount of the bail in the event you flee, which would otherwise leave the agent on the hook with the court for the full amount of the bond.
Finally, if you fail to appear at one or more hearings, the court will revoke the bail and either the court or the agent will move to foreclose on any real property securing the bond.
How an Experienced Private Attorney Can Help You Pay a Lower Bail Bond Fee
But even that ten percent can be difficult to raise. For example, I was recently retained by a client who was charged with a potential-life-sentence case, which meant that his bail was set at one million dollars ($1 million). If he had approached a bail bond agent on his own, he likely would have had to pay the agent one hundred thousand dollars ($100,000). In other words, a defendant who is not represented by a private attorney will almost always have to pay a high fee to secure bail.
If you are represented by a private attorney, however – particularly a highly experienced and knowledgeable one with excellent, long-standing contacts in the local bail bond community – then you may be able to pay a significantly lower fee. This would occur for several reasons.
First, with a private attorney representing you – particularly with, again, a highly reputable and skilled one – the agent knows that your chances of appearing at each and every court hearing increase exponentially. In other words, the agent knows that your chances of beating the case or at least receiving a highly favorable plea agreement will motivate you to see the case all the way through to its final disposition.
Second, since you will obviously be paying that attorney a fee, the agent knows that you are that much more financially invested in participating in your defense and seeing it to its culmination. (In fact, in fifteen years of practice, only once has a client of mine ever fled. He forfeited bail and absconded to Mexico following his preliminary hearing on a major trafficking case where he had been arrested with twenty kilos of cocaine.)
Third, such an attorney will likely be sending many clients to that particular agent and, therefore, the agent may be willing to give you a break on the fee because the attorney is sending him or her volume business. (Private attorneys usually work closely with two or three bail bond agents who provide them the most competitive rates and exemplary services.)
Not only can a well-connected attorney get you a lower bail bond agent’s fee, but he or she may also be able to get you on a payment plan so that you can pay that percentage over a certain period of time. (With my new client, his potential-life-sentence case will almost certainly take up to a year to go before trial – which, of course, the agent understands.)
As long as the agent feels secure in knowing that you will be able to make regular monthly payments, a payment schedule would not be not uncommon in these situations. For example, my potential-life-sentence client is a skilled and successful tradesman who, now that he is out on bail, can return to his job and resume earning income, which will obviously allow him to timely make his monthly payments.
Similarly, with a veteran private attorney, the bail bond agent may even be willing to accept collateral other than equity in a residential property, if necessary. For example, one of my clients had initially intended to use his home as collateral but it turned out that he had multiple liens (aside from his mortgage) and, therefore, the agent required different collateral in the form of his business income, a vehicle, and even jewelry.
Keep in mind, however, that because this collateral was less secure than unencumbered equity in a home, the agent’s risk was higher; therefore, a higher fee was required (but still far less than the typical ten percent any other agent would have charged).
Finally, it should go without saying that a “public” defense attorney – i.e., one who works for either the LA County Public Defender’s Office or the Alternate Public Defender’s Office (which provides free legal representation to indigent clients when there is a conflict or potential conflict with co-defendants) – will not have these types of relationships or connections with bail bond agents.
In other words, you and your family are entirely on your own in finding a bail bond agent and securing a bond.
Bail Setting Hearings
A judge determines whether or not to Set Bail based on the following factors set forth in California Penal Code section 1275(a).
- whether you pose a danger to the public (by fat the most important consideration for the court and prosecutor);
- the nature of the pending criminal charges;
- whether you have a prior criminal record;
- the likelihood that you will flee; and
- whether the prosecutor has placed a “1275 hold” (see below).
See also California Penal Code section 1275.1.
Having a close professional relationship with a bail bond agent can help your attorney address items one through four. In other words, they can work together to convince your judge to grant you bail in the first place.
My potential-life client was initially denied bail because he had been arrested at the San Ysidro-Tijuana border crossing to Mexico. Thus, the prosecutor had argued that he was an international flight risk.
However, after I was able to convince the judge that my client had actually been returning from a vacation at the time of the arrest, the judge was willing to consider setting bail. Fortunately, my bail bond agent and I were able to come to court with a proposal that was acceptable to the judge.
Specifically, we proposed to the judge that if he was willing to release him, my client would wear an electronic monitoring bracelet which would transmit twenty-four hours a day to the agent, and which would ensure that my client only left home to go to work. In essence, as we explained to the court, an electronic “fence” would be placed around my client.
As a result, the judge agreed to set bail. (Thus, these electronic fences can enforce either 100% home detention or home detention plus work “release”.
Keep in mind, however, that an electronic monitoring arrangement such as this could run you approximately $1,000 a month.)
Further, if the judge does set bail, and you go through a bail bond agent, then the judge will schedule a hearing to ensure that the equity in the real estate securing the bond is worth at least twice the bail amount, pursuant to California Penal Code section 1298.
At the hearing, the court will typically require a recent appraisal and a title search to determine that the property is sufficiently unencumbered to secure the bond.
In sum, bail setting and bail reduction hearings (see below) are highly fact specific, meaning that a judge will carefully examine the individual facts of each case; thus, it’s impossible to suggest strategic recommendations that cover each situation.
Bail Reduction Hearings
I will also a “1275 motion” (see below) to reduce the original bail amount. For example, if one of my clients has been egregiously overcharged by the District Attorney’s Office, such as where the most serious charges are not supported by any evidence or perhaps even by the allegations in the police report, then I will move to have those charges dismissed outright or at least reduced to misdemeanor charges.
This is typically done at the preliminary hearing. If I’m successful and the judge grants my motion, then immediately after the judge’s ruling (i.e., during the same hearing) or in a separate 1275 hearing scheduled shortly afterwards, I’ll file my 1275 motion to have the bail reduced in light of the less serious charges now pending.
“1275 Bail Hold” Hearings
A prosecutor will typically request a bail hold – meaning that the judge will deny bail – if the funds offered to secure the bond or to pay the entire bail amount are believed (or at least alleged) to be derived from criminal proceeds, such as drug trafficking, fraud or extortion. Penal Code section 1275.1(a) states in relevant part:
“Bail … shall not be accepted unless a judge … finds that no portion of the … security … paid … or promised … was feloniously obtained.”
In order to set a bail hold, the prosecutor must provide “probable cause” to the court – i.e., that it is more likely than not (51% or more likely) – that the funds and/or property used to secure bail (or offered to secure bail) were the result of ill-gotten gains. This hold can also be placed by a police officer or detective who effects the arrest, or even by the judge him/herself.
When this occurs, you will now have the burden to prove to the court that your money and/or property was lawfully earned. To that end, your attorney will have to file a motion to release the hold, supported by documentary evidence such as bank statements, tax returns, pay stubs, credit reports, etc.
If the funds are to be provided by your relatives, then they, too, will have to provide all their financial paperwork and may even be required to testify in person under oath (i.e., under penalty of perjury). So, in contrast to bail setting and bail reduction hearings, 1275 hearings are highly document-specific.
This hearing can actually occur immediately following the arraignment (i.e., during the same hearing) or in a separate hearing to be scheduled in the near future. In either event, your attorney should request that the hearing by held in the judge’s chambers or, alternatively, that the judge clear the courtroom to prevent your personal financial information from being disclosed to the public.
Contact our experienced Los Angeles Criminal Defense Attorney for a free consultation today.