How does Bail Work in California Penal Code Sections 1269, 1276 and 1276.5
POSTING BAIL
In California, there are three ways that you can post bail if you’re accused of a crime:
- Cash (California Penal Code – Section 1269)
- Bail bond (California Penal Code – Section 1276)
- Property bond (California Penal Code – Section 1276.5).
In the next few sections of this article you will receive detailed information on the Orange County bail process. In order to make sure that you understand your rights completely, call the California bail attorneys at (877) 4-NO-JAIL.
CASH BAIL – CALIFORNIA PENAL CODE SECTION 1269
In order for you to be able to post bail, you have to either have the proper amount of cash on hand or post a cashier’s check for that amount at the jail. In some jurisdictions, you may be allowed to use a credit card to post bail. While cash is typically the easiest way to post bail, the amounts usually range from $10,000 to $100,000, making it very unlikely that most people will have that much money in their possession. As long as you attend all of your court appearances, your cash bail amount will be returned. However, some cases can last for a year or more, and you will not be able use or invest the money in any way. If you fail to appear at any court appearance, you may forfeit that cash bail (California Penal Code – Section 1305) and will not be able to get the cash back.
If you post cash bail, it often takes from six to twelve weeks to receive the cash bail back from the county after the conclusion of the case. If you have posted cash bail and the accused fails to appear and the bail bond is “forfeited,” you will have 180 days in order to locate the accused and to bring him into custody, or to notify law enforcement to arrest him. If the 180 days go by and the accused is not returned to custody, your cash bail will be forfeited forever to the State.
BAIL BOND – CALIFORNIA PENAL CODE SECTION 1276
Most people will opt for posting bail through a bail bond since, as stated above, they do not have enough cash on hand to post cash bail. A bail bond is a contract between the accused and a bail bond agent. Under this contract, you promise to appear in court when ordered and the agent promises to post bail for you. You have to pay the agent a specified premium, which is typically 10 percent of the bail amount the court has set. This premium is not refundable, but can be reduced to 8 percent of the bail amount if an attorney refers the accused to the agent. So, for example, if bail is set at $100,000 and an attorney did not refer the accused to the agent, you will have to pay the agent $10,000, or 10 percent. However, if the attorney did refer you to the bondsman, you may only have to pay $8,000 to the agent – a $2,000 savings.
If you fail to appear in court, the bail bond agent forfeits the bail money. Therefore, these agents will have a very strong incentive to monitor you and make sure you appear. If you fail to do so, it will be up to the agent to find you. In order for the bail bond agency to post bail on your behalf, an agent will typically require some sort of collateral to be posted. This can be a house, car, or anything of value you own. If you fail to appear in court, this collateral will be used to cover the forfeiture of the bail amount.
Hiring a California bail attorney not only can help reduce the percentage you need to pay for your bail bond premium, that attorney can also act quickly to secure your release and help you find a reputable bail bond agent.
PROPERTY BOND – CALIFORNIA PENAL CODE SECTION 1276.5
Instead of posting a cash bond or paying the premium needed to hire a bail bond agent, you can post a property bond. This is where you post your equity interest in real property to ensure your appearance in court. However, the value of the equity must at least be twice the bail amount. For instance, if bail has been set at $100,000, the court must be satisfied that the equity value of the property that is to be posted as bail is at least $200,000. In order to obtain a property bond, the property must have been recently appraised, any liens disclosed, and the property equity be professionally estimated.
The court will accept the property bond, and you will be released from custody, if it is satisfied there is enough equity in the property. If you fail to appear in court when ordered, the county will place a lien on the property. The county will then foreclose on the property to recover the amount of bail.
Preparing a property bond – as well as submitting an official appraisal – can be very time-consuming. As a result, property bonds are rarely sought. However, if you do not have the financial resources to post cash bail or to pay a bail bond agent, a property bond is another avenue for posting bail.
RELEASE ON THE PERSON’S OWN RECOGNIZANCE – CALIFORNIA CONSTITUTION ARTICLE 1, SECTION 12(C)
If the court is sufficiently convinced you will fulfill your promise to appear in court, it may release you on your own recognizance. No bail will be required, and you will be released after providing a written promise to make all court appearances. This typically happens in misdemeanor cases more than in felony matters.
How Does Bail Work?
When a person is charged with a crime and taken into custody, he or she will be given the opportunity to post bail. Bail must be posted in the form of money or property in order for the person to be released from jail before the trial begins. If the person fails to appear in court for trial, the bail money or property can be forfeited. The amount of bail is based on many factors including the seriousness of the alleged offense, the defendant’s criminal history, and the defendant’s flight risk. In general, the more serious the offense or the bigger the flight risk, the higher the bail will be set at.
How Do Bail Bonds Work?
Once the judge has set a bail amount, the defendant may not be able to pay the entire bail amount on their own. In this case, the defendant can seek help from a bail bond agency in the form of a bail bond. A bail bond agency posts bail on behalf of the defendant, as a guarantee to the court that the defendant will appear at all court dates. To post a bail bond, the defendant is usually required to pay 10% of the bail amount to the bail bond agency. The agency will then secure the rest of the bail amount in the form of collateral such as a house, stocks, or property. If the defendant appears for court as required, the collateral is returned and the agency keeps the 10% as payment. If the defendant fails to appear for court, the bail bond is forfeited and the agency will use the defendant’s collateral to pay the remaining amount.
What Can a Bail Bondsman Do Legally?
A bail bondsman provides a court with a surety bond to release the defendant. In other words, the bail bondsman fronts the money on behalf of the defendant in order to get them out of jail. Essentially, the bondsman is vouching for the defendant that they will in fact show up to their court date.
Bail bondsmen do charge a nonrefundable fee for their services. Typically, the fee is around 10% of the total bail amount. This means that if the defendant appears at all of their court dates, the bondsman will receive back the full bail amount, as well as keep the 10% fee from the defendant. If the defendant does not show up for any of their court dates, the bondsman will lose the amount paid towards bail unless they can locate the defendant. For this reason, bondsmen may heavily pursue a defendant who skips town in order to take them back to jail, at which point they may recover the bond.
How Long Can Jail Hold You After Bond Is Posted?
Once the bond has been posted and your paperwork has been completed, you should be released shortly after. Typically, this can take anywhere from 30 minutes to 4 hours, depending on the jail, staff, and your specific circumstances. In rare cases, it may take up to 12 hours. If you are held for longer than 12 hours after your bond has been posted, you should contact an experienced defense attorney who can help you preserve your rights.
How Long Can You Be Out on Bond?
Once you post bail, the amount of time you are granted to stay out of jail is determined after a series of negotiations between your attorney and the court. Not all bails are the same, and bails can vary widely regarding the amount of money required and the length of time the accused can stay out on bail. Most states have a stay-out-of-jail period ranging from 90 to 120 days, but this depends on the nature and severity of your charges, as well as your previous criminal history. The timeline may also depend on your circumstances. For example, if you demand bail due to an emergency medical condition or death in your immediate family, bail may be granted more quickly and hold a longer time frame.
How Long Does It Take to Get Bail Money Back?
Upon appearing at trial, you are entitled to your bail money back. The bail refund will be mailed to the depositor or the person who deposited the money with the court. Generally, the refund will be mailed within 30 business days after the disposition of the case or 30 business days after the order of exoneration. However, it may take up to 8-12 weeks to get your refund in the mail.
WALLIN & KLARICH WILL BE THERE WHEN YOU CALL
You will need the help of an experienced California bail attorney if you or someone close to you has been arrested. Hiring an experienced criminal defense attorney before you pay bail could help you save thousands of dollars.
At Wallin & Klarich, our attorneys have aggressively represented clients in all phases of criminal proceedings – from the time of arrest to trial – for more than 40 years. We have offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, Victorville and West Covina. Our experienced team of criminal defense lawyers is available to help you no matter where you work or live.
If you would like to speak with one of our attorneys, please call (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.
