The term Warrant means a number of different things in the law. A Warrant is typically an order (aka a writ) of a court which directs a law enforcement officer (usually the police/sheriff) to arrest and bring a person before the judge, usually, a person who is charged with a crime, convicted of a crime, but a person who either failed to appear for court or for his or her sentencing, or who is in violation of a court order (contempt of court). On the other hand, a Subpoena is a court order directing a non-defendant (as a rule a witness) to appear in court. A Corporate Summons is the same as an Arrest Warrant, however, it is issued against a corporation, not an individual. All of the above are a form of a criminal court summons, which command the presence of a person before the court.  Conversely, a Search Warrant is an order permitting a law enforcement officer to search a particular place or person for certain specified evidence, based on the sworn declaration by a peace officer, including a district attorney. 

Bail is characteristically described as a form of a bail bond (a surety) which is a surety (bond) deposit with the court in a specified amount of money.   The bond is designed to insure that a defendant appears in court.   Thus, if you have missed a court appearance, or if you have been informed that there is a warrant outstanding for your arrest, either an arrest warrant or a bench warrant, or a corporate summons has been issued against a company, or if you know someone who has an outstanding warrant or summons, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty and property interests in a court of law. At the MAYO LAW CLINIC we vigorously represent and defend individuals who have outstanding warrants for their arrest, or corporations which have had a summons issued for any number of offenses. We also can, and on a regular basis do, vigorously defend individuals and/or corporations who have been served with a search warrant. Likewise, we can assist our clients in arranging for bail to be posted (in order that they may be released from custody), or set a bail hearing before the court, or even challenge a bail amount by way of filing a writ of habeas corpus.   CALL US AT (530) 898-8468 TO SCHEDULE YOUR FREE CONSULTATION!

ABOUT WARRANTS

BENCH WARRANTS AND ARREST WARRANTS

Bench Warrants are routinely issued by a judge when a defendants case is called and the defendant does not appear in court (i.e., a PC §978.5 failure to appear - FTA). A bench warrant is a formal order of the court to law enforcement officers to arrest and bring to jail a person who has failed to appear in court at a determined time and place. A judge may set the amount of bail at the time he/she issues the bench warrant, or the judge may elect to issue a no cite and release bench warrant, which precludes the defendant posting bail before he/she is brought before the judge. It is also a separate misdemeanor offense to fail to appear in court if the underlying charge is also a misdemeanor (PC §1320), or a separate felony charge if the underlying offense is charged as a felony (PC §1320.5). Until recently, the rule was that a FTA charge, either a misdemeanor or a felony, was a separate charge that could not be joined with the underlying offense (People v. Madden (1988) 206 CA3d Supp 14), since doing so would violate PC §954 inasmuch as the offenses are not connected nor do they share any common characteristics. However, just recently, the Court of Appeals in People v. Phelps* (2002) 103 CA4th 923; 127 CR2d 243, the Court of Appeals for the 3rd DCA distinguished Madden and permitted the joinder of criminal threats (PC §422), a felony, with an FTA on the PC §422, also a felony per PC §1320.5.  The DCA claimed the FTA was usable to show consciousness of guilt.  In Phelps the defendant didn't come in on his own volition and PC §1320.5 requires a finding that the defendant intended to evade the process of the court, which the misdemeanor (PC §1320) FTA charge in the Madden case did not.  *Editor's Note:  On December 16, 2002, the Court of Appeals granted a petition for rehearing and, thus, vacated its decision above.  Hence, the above decision cannot be cited for any purposes.

An Arrest Warrant is a judge's order to law enforcement officers to arrest and bring to jail a person charged with a crime, also called a warrant of arrest. The warrant is issued upon a sworn declaration by the district attorney, a police officer or an alleged victim that the accused person committed a crime.  Bail is typically set based upon a policy of the county (misdemeanor defendants may be released upon signing a promise to appear citation, while felony defendants may be released upon posting bail in accordance with a previously set county bail schedule.

Usually, but not always, both Bench Warrants and Arrest Warrants can be handled by the defendant posting bail in a specified amount prior to formally appearing for ones arraignment.   Upon posting the specified bail, the defendant is released from custody and provided with a notice of the time and place the defendant is to appear in court. Typically, the bail bond company will supply this written information to the defendant upon his or her release from custody.

Alternatively, in the case of many Bench Warrants, if a person retains an attorney before he or she is picked up or arrested, the defense attorney can usually prevail upon the court to recall the bench warrant and permit the attorney to make an appearance for the defendant. Indeed, in virtually every misdemeanor charge, the defense attorney can make practically all of the court appearances for the defendant. On the other hand, in cases involving felony charges, the defendant is required to make all appearances until he/she signs what is called a 977 waiver in open court. In most cases, then the defendant with a felony charge only has to appear for evidentiary hearings, including trial.

Because the Federal Bureau of Investigation (FBI) operates what is referred to as the National Crime Information Center (NCIC), arrest warrants and bench warrants issued by virtually any court may literally reach anywhere throughout the nation. NCIC is a computerized index of criminal justice information (i.e., criminal record history information, fugitives, stolen properties, missing persons, etc.). It is available to Federal, state, and local law enforcement and other criminal justice agencies and is operational 24 hours a day, 365 days a year. The purpose for maintaining the NCIC system is to provide a computerized database for ready access by a criminal justice agency making an inquiry and for prompt disclosure of information in the system from other criminal justice agencies about crimes, criminals and fugitives from the law. This information assists authorized agencies in criminal justice and related law enforcement objectives, such as apprehending fugitives, locating missing persons, locating and returning stolen property.

SEARCH WARRANTS

A Search Warrant is an entirely different animal from a Bench Warrant or an Arrest Warrant.  A Search Warrant is a written order by a judge which permits a law enforcement officer to search a specific place, customarily a residential address, and particularly identifies the place and person(s) (if known) to be searched and any articles intended to be seized (often specified by type, such as weapons, drugs and drug paraphernalia, evidence of bodily harm).  Such a search warrant can only be issued upon a sworn written statement of a law enforcement officer (including a prosecutor) which affiant has provided the court with sworn facts establishing probable cause that a crime has been committed by the party against whom the search warrant is sought.  The 4th Amendment to the Constitution specifies: "And warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized."  By U.S. Supreme Court interpretation, the 14th Amendment applies to 4th Amendment search and seizure restrictions to the states (Mapp v. Ohio (1961) 367 U.S. 643, 655).  Because of the judicially-created exclusionary rule (Wong Sun v. U.S. (1963) 371 U.S. 471), in many instances evidence which is unconstitutionally seized cannot be used in court, nor can evidence traced through such illegal evidence (fruit of the poisonous tree doctrine) be used against a defendant.  The good faith exception to the exclusionary rule, however, has gone a long way to undermine the strength of the exclusionary rule.

Electronic/Telephonic Search and Arrest Warrants  California was an early adopter of electronic warrant procedures, and has been a progressive state in terms of expanding the methods by which an officer may apply for either a search and/or an arrest warrant.  California law allows a magistrate to take an oral statement made under oath from a field officer via telephone (PC §817(c)).  In addition, because many police cruisers are equipped with a form of personal computer, the applying officer may also send his written, signed proposal to the magistrate via facsimile transmission.  If the magistrate decides that probable cause exists, he/she may then complete the warrant, sign it, and send it back to the officer via facsimile, noting the exact date and time of execution on the copy retained at the courthouse.  In the event such transmission is unavailable, a magistrate may authorize the officer to sign his/her name on a “duplicate” original warrant prepared on location.  In 1998, California further amended its telephonic search warrant statute to include e-mail as an acceptable method of application.  An officer’s oath can still be taken over the telephone, but the warrant application and all supporting documents may also be transmitted using e-mail.  A digital signature is further required from the officer to ensure the application’s authenticity.   Under the new provision, a magistrate who decides to issue a warrant may return it to the applicant via either facsimile or e-mail.

By enacting PC §817, the California Legislature intended to (1) codify that portion of People v. Bittaker (1989) 48 C3d 1046; 774 P.2d 659; 259 CR 630, that upholds, under the doctrine set forth in People v. Ramey (1976) 16 C3d 263; 545 P.2d 1333; 127 CR 629, the legality of issuing an arrest warrant upon a complaint without that complaint instituting a criminal action, and (2) to provide for the issuance of telephonic arrest warrants in essentially the same manner as telephonic search warrants pursuant to PC §1526 (including facsimile, e-mail (internet) applications, affidavits and original warrants), and (3) to reaffirm, in accordance with the decision of the U.S. Supreme Court in Payton v. New York (1980) 445 U.S. 573; 100 S.Ct. 1371; 63 L.Ed. 2d 639, that an arrest warrant founded on probable cause implicitly carries with it the authority to enter a dwelling in which the suspect lives or, alternatively, a place of business in which the subject has a proprietary interest, in order to arrest the suspect, when there is reason to believe the suspect is in the dwelling or place of business, and (4) by amending PC §813, to codify that portion of People v. Sesslin (1968) 68 C2d 418; 439 P.2d 321; 67 CR 409, that clarifies that an arrest warrant shall issue on a complaint if, and only if, the magistrate is satisfied from the complaint that the offense complained of has been committed and that there is reasonable ground to believe that the person named in the warrant has committed the offense.  However, the Legislature made it clear that nothing in the law (or its subsequent amendments) shall be construed to abrogate the holding in Badillo v. Superior Court (1956) 46 C2d 269; 294 P.2d 23 (which case places the burden of proving the validity of a warrantless search or seizure on the prosecution.  Editor's Note:  While the above California statutory scheme is relatively recent, there are unfortunately no reported cases considering either the impact of this law on warrantless searches and/or seizures by the government, nor the validity of the process in general.  However, at least one Northern California District Attorney has considered the procedures involved in such a process.  (See Alameda County DA Point of View: E-Mail Warrants and has gone so far as to provide form search warrants on-line - see Alameda County DA Search Warrant Forms.)

In Kirk v. Louisiana (2002) 536 U.S. ___, in a per curiam decision, the U.S. Supreme Court held that a warrantless arrest of the defendant and the search of a defendant's home were unlawful absent a showing of probable cause and exigent circumstances to justify the warrantless intrusion.  The Court agreed with Louisiana's Chief Justice Calogero's dissent that, “The Fourth Amendment to the United States constitution has drawn a firm line at the entrance to the home, and thus, the police need both probable cause to either arrest or search, and exigent circumstances to justify a nonconsensual warrantless intrusion into private premises. . . . Here, the defendant was arrested inside an apartment, without a warrant, and the state has not demonstrated that exigent circumstances were present.  Consequently, defendant’s arrest was unconstitutional, and his motion to suppress should have been granted.”  In Payton v. New York (1980) 445 U.S. 573, 590, the high Court held, "We held that because 'the Fourth Amendment has drawn a firm line at the entrance to the house . .[, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant.'”  And we noted that an arrest warrant founded on probable cause, as well as a search warrant, would suffice for entry. Id., at p. 603.

SUBPOENAS AND CORPORATE SUMMONS

Because of certain provisions within both the federal and state constitutions, a defendant in a criminal case has the right to compulsory process - the right compel the attendance of witnesses on his or her behalf. The government has the same right to compel the attendance of witnesses. In either instance, the process used to compel the attendance of a witness is by way of a subpoena. There are two types of subpoenas: a subpoena, which requires a person to attend a hearing, and a subpoena duces tecum, which requires specified evidence to be produced in court. Although a subpoena may be issued by a judge, a district attorney or a defense attorney, it is, in fact, a lawful order of the court compelling that person to appear at a designated time and place. Failure to comply with a subpoena may be punishable by a contempt of court proceeding.

Penal Code §§1390-1397 requires that when an accusatory pleading is filed against a corporation, the court is required to issue a summons rather than an arrest warrant of arrest. The provides that the summons must be signed by the judge with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge, the time to be not less than 10 days after the issuing of the summons and service of the summons must be at least five (5) days before the appearance date. At the time appointed in the summons, the magistrate proceeds in the same manner as in other cases, although, a corporation may appear in court by its designated counsel.

ABOUT BAIL AND O.R.

•  OWN RECOGNIZANCE (O.R.)

Generally speaking, in matters involving infractions or misdemeanors, people who are arrested for committing the same and who do not wish to be taken immediately before a magistrate, must be released on signing a written promise to appear citation.  However, PC §853.6 provides that an arresting officer may decide not to release a person cited for a misdemeanor or infraction is the person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others; the person arrested required medical examination or medical care or was otherwise unable to care for his or her own safety; the person arrested is involved in reckless driving, DUI, hit & run or is caught after attempting to flee from a pursuing police officer; there are one or more outstanding arrest warrants for the person; the person could not provide satisfactory evidence of personal identification; the prosecution of the offense or offenses for which the person was arrested, or the prosecution of any other offense or offenses, would be jeopardized by immediate release of the person arrested; there was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested; the person arrested demanded to be taken before a magistrate or refused to sign the notice to appear; there is reason to believe that the person would not appear at the time and place specified in the notice (the basis for this determination shall be specifically stated).  If a person in the above circumstances is not released, PC §853.6 mandates that the arresting officer indicate the reason for not doing so on a form provided by the law enforcement agency.

If the offense is a misdemeanor or infraction of the Vehicle Code (VC), or an ordinance violation relating to a traffic offense, the defendant must be released unless he or she asks to be taken before a magistrate, or unless the person has no driver's license or other satisfactory evidence of identity; the person arrested refuses to give his or her written promise to appear in court; the person arrested is charged with a DUI.

Wobblers   A peace officer is permitted to release on a citation (i.e., a written promise to appear) a defendant arrested without a warrant for a violation that could be charged as either a felony or a misdemeanor (aka a "wobbler"). (See, 58 Ops Cal Atty Gen 886 (1975).)  However, in domestic violence cases, the police have a great amount of discretion in terms of charging the offense as either a felony or a misdemeanor offense.  The difference in terms of scheduled bail amounts is considerable.  Nevertheless, a person arrested for violating a protective order in a pending domestic violence case cannot be released on bail and must be taken before a magistrate unless there is no reasonable likelihood that the offense will continue, and if subject victim or his or her property are not in imminent danger.

In 1982, California voters approved Proposition 4, a ballot measure dealing with the criminal justice system. Proposition 4 is now codified in Article I, §12 of the California Constitution, and provides that [a] person may be released on his or her own recognizance in the court's discretion.  Discretionary own recognizance (OR) release is available both in the trial court as well as when a case is on appeal.  Penal Code (PC) §1270 provides that any person who has been arrested for, or charged with, an offense, other than a capital offense, may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant who has been arrested on an out-of-county arrest warrant. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanor offenses, shall be entitled to an OR release unless the court makes a finding on the record, in accordance with PC §1275, that an OR release will compromise public safety or will not reasonably assure the appearance of the defendant as required. Public safety is deemed by the statute to be of primary importance for the courts consideration. If the court makes one of those findings (public safety and/or appearance by defendant), the court shall then set bail and specify the conditions, if any, upon which the defendant shall be released from custody. However, the court is not, as a matter of constitutional law, required to give a written statement of the reasons for denying OR release. There are additional restrictions on OR releases of persons accused of committing a violent felony as described in PC §667.5(c). OR release of a defendant accused of committing a violent felony who willfully, and without excuse, failed to appear on an earlier felony, is statutorily prohibited from obtaining bail. In all other cases in which a violent felony (as described in PC §667.5(c)) is charged, a hearing must be held at which the judge must consider the existence of any outstanding felony warrants for the defendant, together with any the information any report prepared by the probation department (an OR Work-up), and any other information which may be presented by the prosecution at the time of the bail hearing.

Conditions Of Release On One's Own Recognizance (O.R. Release)  In cases where a party has a new misdemeanor charge, for example, a DUI misdemeanor, but also has a prior DUI conviction on his or her record within the past seven (7) years, in those instances (or similar situations involving any type of prior or probation violation), a judge may demand that the defendant sign a formal O.R. agreement in lieu of posting bail.   The limit on these agreements is seemingly subject only to the imagination of the judge.  Also, these O.R. agreements can seemingly be innocuous at first, but can prove truly devastating should the person have a subsequent run-in with the police while his or her case is pending.   For example, judges have imposed conditions such as prohibiting one from entering establishments which primarily sell alcohol (bars and liquor stores), and/or that the defendant attend X-number of AA or NA meetings per week while awaiting trial of the pending case, and/or that a defendant agree to waiver his or her 4th amendment rights against future warrantless searches and/or seizures by the police. 

Prosecutors contend that these blanket search and seizure waivers permit the police to stop and search a person for the presence of alcohol, drugs or other contraband (stolen property, etc.) on their person, in their body, in their vehicle or even in their residence, without there being any probable cause, nor reasonable suspicion in the first instance.  These draconian waivers should be resisted at all costs since, in many instances, the police will simply turn around and raid ones residence early the very next morning after a defendant has executed a blanket 4th waiver and been released by the judge on his or her O.R.  Indeed, there is an on-going controversy regarding these blanket, albeit mandatory, 4th Amendment waivers for parolees and probationers.  (See Probation-Parole - 4th Amendment section on this web site). 

The issue in the probation/parole cases is whether the police need to first have a reasonable suspicion of criminal activity at one's residence, prior to initiating a warrantless search of the same.  California and the Ninth Circuit seem split in terms of their interpretation of one's rights under the 4th Amendment, with California seemingly taking the more conservation approach - no reasonable suspicion required.  In People v. Woods (1999) 21 C4th 668, the California Supreme Court reaffirmed its long-standing position that the police could search the home of a Fourth waiveree for any reason not amounting to caprice or harassment, even when the search was a pretext to search someone else living in the home.  Conversely, the Ninth Circuit has repeatedly denounced this position, holding that federal authorities needed reasonable suspicion before searching the home of a California Fourth waiveree and, further, the search could only be conducted if its purpose was reasonably related to a term of probation/parole. 

Despite a recent U.S. Supreme Court decision that was supposed to settle the issue, U.S. v. Knights (2001) 534 U.S. 112, 151 L.Ed.2d 497, 122 S.Ct. 587, the U.S. Supreme Court decided what was then the Ninth Circuit's latest iteration of the position that the police require "reasonable suspicion" before they may search the residence of a probationer.  Instead, the U.S. Supreme Court expressly ducked the question, deciding only that reasonable suspicion for the probation search did exist in Knights. (In Pa. Bd. of Prob. & Parole v. Scott (1998) 524 U.S. 357, 362 n.3, the U.S. Supreme Court deferred the issue for parolees, as well.)    In Knights, the Court did say it did not matter whether the Fourth waiver search was conducted by police or probation officers.  However, the California Supreme Court and Ninth Circuit are still bitterly divided over whether the police need reasonable suspicion before they may search the homes of persons with Fourth Amendment waivers.  These waivers are usually imposed as a condition of probation in California, and are always imposed as a term of parole under PC §3067.  Currently, there are about 330,000 felony probationers and another 115,000 parolees living in California.

Recently, over a vigorous dissent by Justice Trott, a Ninth Circuit majority in U.S. v. Crawford, infra, (final opinion as modified on March 21, 2003), the Ninth Circuit reaffirmed its earlier holdings that reasonable suspicion was required before police could search a probationer’s home.  While there may be an en banc review in Crawford, or the U.S. Supreme Court could finally decide this issue, it is just as likely that Fourth Amendment waiver searches in California*, will continue to receive disparate treatment depending on whether state or federal agents are conducting the search.  This dichotomy is especially troublesome for defense counsel who lose a suppression motion in state court simply because they cannot file a writ with the federal district court - the only route is through the U.S. Supreme Court on a Petition for Certiorari (see, Stone v. Powell (1976) 428 U.S. 465.)  To date, the U.S. Supreme Court has rejected all such certiorari petitions.   *Editor's Note:  Regarding "mandatory" blanket 4th waivers, in U.S. v. Crawford, infra, the Ninth Circuit held that similar "mandatory" blanket 4th waivers may not generally be forced as a threshold condition of a parolee's release.  Whether this would be true for a defendant released O.R. with a blanket 4th waiver has not yet been decided.

As mentioned above, in U.S. v Crawford (2003) (3/21/03; ___ F.3d ___) in an amended opinion, the Ninth Circuit held that because law enforcement officials conducted a search of defendant's home without reasonable suspicion to believe that they would uncover evidence of criminal activity, the search violated the Fourth Amendment.  The fact that defendant signed a blanket “Fourth Waiver” as a mandatory condition of his parole, did not serve to waive the minimum constitutional protection of reasonable suspicion to which defendant and other parolees were entitled.  The Court held that parolees may not generally be forced as a threshold condition of their parole to surrender by blanket waiver their Fourth Amendment rights, including those so recently recognized by Knights, supra.  Moreover, as neither time, intervening events, nor the officers’ motives purged the taint of the unconstitutional search, the defendant's subsequent statements were likewise ordered suppressed.  Therefore, the Court reversed the district court’s denial of defendant's motion to suppress, and remanded the case back to the district court in order to permit the defendant to withdraw his guilty plea.

In terms of conditional or limited 4th Amendment waivers, in People v. Spence (2003) (4/9/03; 03 C.D.O.S. 3107; ___ CA4th ___) the Court of Appeals held that a search of a probationer's residence was per se unreasonable where it exceeds the scope of the probationer's consent as articulated in a probation search clause (4th waiver clause) (People v. Woods (1999) 21 C4th 668, 68; 981 P.2d 1019; 88 CR2d 88 and People v. Bravo (1987) 43 C3d 600, 607.)  Thus, the exclusionary rule applied to a probation search conducted by the police in reliance on a probation roster that, by its own design, omitted information concerning judicially imposed limitations on the authority of the police to conduct a probation search.  Therefore, where a probation roster cannot differentiate between a "general" search condition and a "limited" search condition, the "good faith " exception to the exclusionary rule will simply not apply in such a case since, the deterrent effect would be substantial if courts, police and probation officials, are put on notice that reliance on a faulty roster system in its present form will result in the exclusion of evidence.

RESISTING O.R. REVOCATION

Finally, persons with a pending DUI charge can sometimes incur another fresh DUI charge, thus, having two (2) pending DUI charges at the same time.  In those situations, courts vary in terms of how they proceed, but oftentimes a judge will attempt to revoke the defendant's O.R. status and set a seriously high amount of bail so that the person is, essentially, remanded to the custody of the county sheriff while his or her DUI case(s) proceed through the court system.  These efforts by a judge are nothing short of a blatant attempt to introduce preventive detention into the DUI arena.  Aside from a limited violent crime charges, preventive detention is per se illegal, and the setting of bail in anything other than a serious and violent felony after one has been released on his or her O.R., is only permitted in very rare circumstances.  Nevertheless, judges will routinely attempt such coercive tactics if not energetically opposed by defense counsel.  Of course, any attempt at establishing preventative detention of the defendant based upon a claim of public safety is simply not permitted, particularly, for misdemeanor offenses.  In those instances, one must resist strenuously any O.R. revocation, reminding the court that the DMV and its admin per se hearing procedures and processes are specifically, as well as statutorily, designed to supposedly remove the alleged offending drinking driver off of the road in a rapid manner.   Clearly, it takes a knowledgeable and experienced lawyer to assist a defendant in negotiating the trials and tribulations of remaining free from custody pending the outcome of one's DUI court case.  Therefore, you should always insist on speaking with a lawyer before signing any O.R. agreement, or before going into court without an attorney by your side.

BAIL

Superior court judges are responsible for adopting a countywide schedule of bail for any felony offense and/or for all misdemeanor and infraction offenses for which bail may be posted. The schedule typically lists the offense by code section and description, followed by a recommended bail amount. The bail schedule usually specifies additional amounts for cases in which sentence enhancing allegations (priors, use of a weapon, etc.) or other extraordinary facts are present. The jails, as well as the court clerk, will normally have copies of the bail schedules. Defendants may post the amount of bail listed in the bail schedule to effect his/her release before appearing in court. Once in court, however, a party (defendant or prosecutor) may argue before the court for either an upward or downward variance from the bail schedule. Additional amounts of bail may be requested by the prosecutor based upon any aggravating or enhancing factors, or for cases where a party re-offends while awaiting trial in another case. Conversely, defense counsel can argue for a downward departure from the bail schedule based on the existence of any and all mitigating factors.

Under the California Constitution, before trial, bail is a matter of right, save and except for cases involving offenses punishable by death, or in the case of a public safety exception which is proven by the prosecution. PC §292 provides that the public safety exception, allows for preventive detention, although, this exception applies only to certain classes of felonies and to certain listed offenses.

Bail Pending Appeal or Probation Application  In misdemeanor cases, after conviction, a defendant has the right to have bail fixed that will cover the period between conviction and the pronouncement of judgment. Frequently, on appeal in a misdemeanor case, if the defendant has been released on OR during the prosecution of his or her case, the court will permit the defendant to remain on his or her OR. On the other hand, after conviction in a felony case, the issue of bail on appeal is discretionary with the trial court or, in some cases, with the appellate court. The same is not true for any probation application, as prior to sentencing in a felony conviction, it may take a considerable period of time to complete a probation report, including any sentencing recommendation. If the defendant in a felony case has been released on bail pending trial, it is customary for the court to permit the defendant to remain out of custody (unless deemed a flight risk) pending his or her sentencing. If there is any parole hold or immigration hold on a defendant, bail cannot be posted, and the defendant remains in custody until the parole hold or immigration hold are lifted, or until any parole penalty is served by defendant or the defendant is taken fro deportation proceedings.

In People v. Seneca Insurance Co. (2003) 29 C4th 954; 62 P.3d 81; 129 CR2d 842, the California Supreme Court held that Penal Code §1166 is not applicable to a trial court's release of a defendant on bail after that same defendant has pled guilty to an underlying criminal charge.  Rather, PC §1166 applies only to the situation where a defendant has been convicted after a trial.  The Court went on to expressly state that it was not deciding "whether a trial court’s failure to comply with section 1166 in a case where that provision does apply would have the effect of exonerating bail by operation of law, nor do we decide whether compliance with section 1166 requires an evidentiary hearing with formal findings of fact."  Here, Seneca Insurance Company was required to forfeit its $70,000 bond due to the fact that the defendant failed to appear for his sentencing.

In People v. Ranger Insurance Co. (2003) (5/19/03; 03 C.D.O.S. ___; ___ CA4th ___), the appellant, Ranger Ins., contended the bond must be exonerated as a matter of law, claiming the trial court lost jurisdiction to declare a forfeiture by failing to do so at the defendant’s first non-appearance as required by PC §1305(a) for declaring forfeiture of a bond.  In Ranger’s view the defendant’s absence was without sufficient excuse because his counsel offered no explanation for his absence, and because counsel had not communicated with his client, could not have any information regarding the defendant’s whereabouts.  In reviewing the applicable bail statute, the Court stated that the general rules governing the interpretation of bail bond statutes: “The law traditionally disfavors forfeitures and this disfavor extends to forfeiture of bail.  Thus, PC §§1305 and 1306 dealing with forfeiture of bail bonds must be strictly construed in favor of the surety to avoid the harsh results of a forfeiture.  The standard of review, therefore, compels us to protect the surety, and more importantly the individual citizens who pledge to the surety their property on behalf of persons seeking release from custody, in order to obtain the corporate bond. §§1305 and 1306 are said to be ‘jurisdictional prescriptions.’  Failure to follow the jurisdictional prescriptions in §§1305 and 1306 renders a summary judgment on the bail bond void.”  However, under §1305.1 the trial court had authority and discretion to continue the case for a period it deemed reasonable to enable the defendant to appear without ordering a forfeiture of bail.  Accordingly, the court did not lose jurisdiction to later declare a forfeiture of bail when the defendant failed to appear at the continued hearing date.

California Constitution Article I, §12   California Constitution article I, §12 enumerates the standards governing the setting of bail. This constitutional provision was substantially amended by the passage of Proposition 4 in 1982, the of which has been to modify the former provisions of Cal Const art I, §12, which forbade the consideration of public safety or the dangerousness of the suspect in setting or denying bail. In other words, art I, §12 now allows preventive detention in specific cases. Proposition 4 also modified the state constitution to provide specifically for the denial of bail in non-capital cases in limited circumstances. In felony cases in which the facts are evident or the presumption great, the court can deny bail if the defendant inflicted acts of violence on another person, and the court finds, based on clear and convincing evidence, that there is a substantial likelihood that the person's release would result in great bodily harm to others, or if the court determines, based on clear and convincing evidence, that the person has threatened another with great bodily harm and there is substantial likelihood that the person would carry out the threat if released, or, as mentioned, the offense is a capital crime. PC §292 includes specific sex offenses within the state constitutions preventive detention scope. However, in any situation wherein bail is permitted, excessive bail is precluded by both the state and federal constitutions.

Bail During Pending Case   PC §1275 lists a number of factors that the court must consider in setting, reducing, or denying bail: public safety is the primary consideration; seriousness of the offense charged, including any injury alleged to the victim, or alleged threats to victim or witness to crime charged, or alleged use of firearm or other deadly weapon in commission of the crime charged, and any alleged use or possession of controlled substances by defendant.  A number of additional factors are routinely considered by courts in determining whether the defendant is likely to make future court appearances. Some of the more common areas of inquiry follow: defendants ties to the community; defendant living in the community; defendant's family ties in the community; defendants employment status in the community; defendants property ownership status in the community; defendant's relative wealth as it affects value to him or her to any posted bail bond.  Also, the court will consider if there are any indications that the defendant will not appear at future court hearings, including any prior record of failure to appear.

Conditions Of Bail   Similar to OR conditions discussed above, judges have the authority to set bail on conditions that they consider appropriate. These conditions can be similar to terms of probation, but in some instances they can be even drastic. For example, in drug possession cases where there is or are priors, in those instances (or similar situations involving any type of prior or probation violation), a judge may demand that the defendant sign a formal conditional release on bail. Similar to OR agreements, the limit on bail agreements is subject only to the imagination of the judge. Also, these bail agreements can seemingly be innocuous at first, but can prove truly devastating should the person have a subsequent run-in with the police while his or her case is pending. For example, judges have imposed conditions such as prohibiting one from entering establishments which primarily sell alcohol (bars and liquor stores), and/or that the defendant attend X-number of AA or NA meetings per week while awaiting trial of the pending case, and/or that a defendant agree to waiver his or her 4th amendment protections (search and seizure rights). These search and seizure waivers permit the police to stop and search a person for the presence of alcohol, drugs or other contraband (stolen property, etc.) on their person, in their body, in their vehicle or at their residence, without there being any probable cause, nor reasonable suspicion in the first instance. These draconian waivers should be resisted at all costs since, in many instances, the police will simply turn around and raid ones residence early the very next morning looking for any and all contraband.

Bail Forfeitures   In misdemeanor cases, defense counsel can statutorily make any and all appearances for the defendant, including trial. On the other hand, in felony cases, and in the absence of a 977 waiver having been previously sign by the defendant in open court, if a defendant fails to appears in court, the court may declare the bail forfeited. Upon the courts declaration of forfeiture of the bail bond, a bench warrant will typically issue, either setting a new bail amount or, alternatively, setting a no bail, no release term. Bench warrants may be issued and held by the court if defense counsel convinces the court that the defendant will appear at his or her next court appearance.

Exoneration of Bail and/or Bail Forfeiture   Termination of the obligation of bail is known as exoneration.  When bail has served its purpose, the depositor or the surety is relieved of the obligation and is entitled to return of the deposit. If the defendant is the depositor and the judgment includes a fine, the bail may be applied toward payment of the fine. Forfeiture of defendant's bail on the other hand is as a result of the defendant's failure to appear in court. However, prior to forfeiture, the surety or other person who deposited assets may surrender the defendant into custody to obtain exoneration of the bail bond.

Habeas Corpus   A writ of habeas corpus is the only extraordinary writ (See Writs and Appeals) for purposes of gaining pre-trial appellate court review of a bail issue (i.e., an excessively high amount of bail).

New Felony Committed While on Felony Bail or OR  A defendant released on bail or on his or her OR in a pending felony case (primary offense) and who later is charged with committing a fresh (secondary) felony offense any time before his or her conviction (or final determination on appeal) on the primary offense, may be punished separately under PC §12022.1.   Effective January 1, 1999, PC §12022.1 expands the definition of primary offense to include a felony offense for which the defendant is out of custody between the pronouncement of judgment and the time the person actually surrenders or is otherwise returned to custody.  Secondary offense means a felony offense alleged to have been committed while the person is released from custody on the primary offense.  The two (2) year enhancement called for in PC §12022.1 provides that the term for the enhancement must be served (imposed by the court) as a consecutive term as opposed to being served concurrently with any sentence for the underlying offense. 

In a recent California Supreme Court case, People v. Walker (2002) 29 C4th 577; 59 P.3d 150; 128 CR2d 75, the California Supreme Court held that a defendant who is convicted of the felony of willfully failing to appear in court as required while on bail, a violation of PC §1320.5, is subject, in addition to the sentence that statute prescribes, to a separate consecutive two-year sentence enhancement under PC §12022.1.  The court went on to hold that PC §12022.1 applied generally if a defendant charged with a felony is released on bail, is subsequently arrested for committing a second felony while on bail, and is convicted of both felony offenses.  Application of settled rules of statutory construction lead the court to conclude that the Legislature intended PC §12022.1 to apply where, as here, the only felony the defendant committed while released on bail was a failure to appear in violation of PC §1320.5.  The court further held that, because a PC §12022.1 sentence enhancement is not based on the same act or omission for which punishment is authorized under PC §1320.5, sentencing under both statutes may be imposed without violating PC §654's bar against multiple punishment.  Editor's Note:  In other words, a defendant while on bail can be convicted of a separate crime, punished for that crime, and have that second crime act as an enhancement for the pending charge (primary offense).  Of course, this is just another example why defendant's in felony cases should always sign a PC §977 waiver (of defendant's personal appearance) in open court as soon as practical so as to permit the defendant's attorney to make a proper appearance in the absence of the defendant.

Obviously, Bench Warrants, Arrest Warrants, Search Warrants, Subpoenas, a Corporate Summons and Bail issues are varied in their respective definitions and their respective effects upon an individual or a corporation. Thus, if you have missed a court appearance, or if you have been informed that there is a warrant outstanding for your arrest, either an arrest warrant or a bench warrant, or a corporate summons has been issued against a company, or if you know someone who has an outstanding warrant or summons, or if you need bail, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty and property interests in a court of law. At the MAYO LAW CLINIC we vigorously represent and defend individuals who have outstanding warrants for their arrest, or corporations which have had a summons issued for any number of offenses.  We also can, and regularly do, vigorously defend individuals and/or corporations who have been served with a search warrant.  Additionally, we can assist our clients in arranging for bail to be posted (in order that they may be released from custody) or set a bail hearing before the court, or even challenge a bail amount by way of filing a writ of habeas corpus. CALL US AT (530) 898-8468 TO SCHEDULE YOUR FREE CONSULTATION!