(b) Felony sexual assault offenses on another person; OR
(c) Felony offense where D threatened another with GBI
(2) Likelihood of Harm
Felony offenses involving acts of violence or felony sexual assault offenses.When court finds based upon clear and convincing evidence that there is substantial likelihood the person’s release would result in great bodily harm to others (Cal. Const., art. I, § 12, subd. (b).)
Felony offenses where D threatened another with GBI. When the court finds based upon clear and convincing evidence that the person threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released. (Cal. Const., art. I, § 12, subd. (c).)
Arrestee’s previous criminal record & history of compliance with court orders
Likelihood that the arrestee will appear at future court proceedings
Step 1: Is D a danger to the public/victim OR is D a flight risk?
Step 2: If yes, are there nonfinancial conditions of release that may reasonably protect public/victim or reasonably assure the arrestee’s presence at trial? If No:
Electronic monitoring, supervision by pretrial services, community housing, stay-away orders, drug/alcohol testing and treatment
Step 3: If no, court considers D’s ability pay money bail.
Three possible outcomes:
(1) Bail set in amount that vindicates government’s interests and remains affordable to defendant
(2) Bail set at amount that vindicates government’s interests and is unaffordable to defendant
(3) Bail is denied
In re Kowalczyk Analysis
“A court must set pretrial bail in an amount that is reasonable given a noncapital defendant’s constitutional right to release on bail pending trial, the purposes of bail, and the defendant’s individual circumstances — which, as a general matter, means that bail must be set in an amount reasonably attainable for the defendant.” (In re Kowalczyk, 2026 Cal. LEXIS 2206.)
Post-Kowalczyk Four-Step Inquiry
(1) Is pretrial warranted under section 12
(2) If not, does the D pose a risk of danger or does the D pose a risk of flight?
(3) If so, are there non-financial conditions of release sufficient to vindicate these legitimate concerns?
(4) If not, “the court must set bail in an amount that is reasonable, considering the purpose of bail and based on an individualized assessment of the totality of the circumstances in a case, including the defendant’s financial situation.”
Includes:
The protection of the public as well as the victim
The seriousness of the charged offense
The arrestee’s previous criminal record
The arrestee’s history of compliance with court orders
The likelihood that the arrestee will appear at future court proceedings
A defendant’s financial situation and resources available to satisfy a monetary bail order
Determining a Defendant’s Ability to Pay. “[I]f a defendant alleges the inability to pay a certain bail amount, the burden is on the defendant to support the allegation with reliable evidence.” (Ibid.)
“[T]he defendant must do more than present conclusory assertions of indigency or an inability to pay.” (Ibid.)
Meaning of Reasonably Attainable.
This does not mean that bail may only be set in an amount that is easily affordable or convenient to the defendant, or that the court must accept unsupported, conclusory assertions of indigency or an inability to pay.
That is, if a defendant alleges the inability to pay a certain bail amount, the burden is on the defendant to support that allegation with reliable evidence.
A defendant must make “bona fide efforts to acquire the resources to pay.”
Statutory Authority (PC 1268-PC1276.5)
PC 1269b(b): Initial Bail Setting
If no appearance yet, initial bail set per arrest warrant or per uniform bail schedule based upon booking charges
If D has appeared before a judge, that judge sets bail based on the charges alleged in the charging document
PC 1269b(c): Duty of Superior Court to Adopt Bail Schedules. Superior Courts must “prepare, adopt, and annually revise” bail schedule for all felonies and misdemeanors
General Rule: OR Release. In general, noncapital D may be released on OR unless “own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required. Public safety shall be the primary consideration.” (PC 1270(a).)
Capital Offense: no OR release
Felony: “May” be released on OR
Misdemeanor: “Shall” be released on OR unless PC 1275 finding on record
PC 1271: D “may” be admitted to bail on non-capital offense.
Serious felony, violent felony, PC 136.1.(c), felony PC 273.5, felony PC 422, PC 646.9, PC 243(e)(1), PC 273.6 + D made threats to harm, engaged in violence, or has gone to residence of protected party
Court can consider evidence of past court appearances, maximum potential sentence and danger to others if released.
Two-day notice required
If deviates from bail schedule, court must make finding on the record