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1 California Law Review Volume 44 Issue 5 Article 1 December 1956 Bail in California Roy A. Gustafson Follow this and additional works at: Recommended Citation Roy A. Gustafson, Bail in California, 44 Cal. L. Rev. 815 (1956). Available at: Link to publisher version (DOI) This Article is brought to you for free and open access by the California Law Review at Berkeley Law Scholarship Repository. It has been accepted for inclusion in California Law Review by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 California Law Review VOL. 44 DECEMBER, 1956 No. 5 Bail in California Roy A. Gustafson* The purpose of this Article is to set forth in fairly general fashion the policies and procedures applicable to the release of a prisoner on bail. No attempt has been made to analyze every problem which might arise or which has arisen. To do so would require almost a book and would leave the reader in hopeless confusion-as is, indeed, the state of the law on this subject. Nevertheless, until the Legislature remedies, this condition it is at least possible for an attorney to learn the broad outlines of the subject and to be aware of some of the major defects in the existing law. Discussion of the subject of bail is clouded at the outset by the lack of any commonly accepted meaning of the word. The origin of the word "bail" has been variously ascribed to the Saxons, the French, and the Greeks.' It is often used to describe the bond or the cash deposit paid into court to obtain the release of a defendant.' Some courts consider "bail" a verb meaning the delivery' or release 4 of a prisoner. More often, however, bail refers to the person or persons into whose custody a defendant is admitted. instead of remaining in or going to jail., Use of the word in the California statutes is susceptible to all of the various definitions. The court's acceptance of a surety bond is "the taking of bail." 6 The order discharging a defendant whose appearance has been guaranteed is "admission to bail." 7 On the other hand, the persons who file an undertaking to secure the defendant's appearance are referred to as "the bail."' In the interests of clarity and because of prevailing usages, the word "bail" as used herein will denote the money, property, or other things * District Attorney, Ventura County. 1 See Worthen v. Prescott, 60 Vt. 68, 11 Atl. 690 (1887). 2 E.g., In re Wright, 228 N.C. 584, 46 S.E.2d 696 (1948). 3 E.g., State v. Sandy, 138 Iowa 580, 116 N.W. 599 (1908). 4 E.g., State v. Davis, 27 Utah 368, 75 Pac. 857 (1904). 5 E.g., Mitchell v. City of Dothan, 33 Ala. App. 19, 30 So. 2d 735 (1946) ; State v. Springer, 206 La. 312, 19 So. 2d 147 (1944) ; Johnson v. Shaffer, 64 Ohio App. 236, 28 N.E.2d 765 (1940). 6 CAL. PEN. CODE Id Id. 1279, 1280; CAL. Civ. CODE 2780.

3 CALIFORNIA LAW REVIEW [Vol. 44 of value deposited to obtain a defendant's release from custody.9 Persons who make the deposit will be designated "sureties." PURPOSE OF BAIL When a person has been taken into custody for the purpose of subjecting him to a criminal proceeding which may ultimately affect his liberty, there is often a long delay before the proceeding is terminated. If the proceeding terminates in his favor, he has obviously suffered great detriment by being confined in the interim. Even if he is ultimately convicted his confinement is unfair in that it need not be acknowledged by the authorities in fixing the length of the term he is to serve. 10 These factors led to inclusion in the California constitution of a provision that "all persons shall be bailable by sufficient sureties...,"i and in the California statutes of a provision that, with one exception, 12 a person charged with an offense "may be admitted to bail before conviction, as a matter of right."' 3 The sole purpose of bail, then, is to secure a person's attendance at a trial or other legal proceeding by some means other than his confinement in jail. 4 Presence of the accused person, and not pecuniary compensation to the state, is the object of requiring bail.1 5 Formerly, the only method to secure attendance of the accused was delivery of the person "into the friendly custody of his sureties, instead of being committed to prison."' 6 Today, as we shall see, sureties are no longer required, and the person may be released free of any custody by depositing his own money. WHEN BAIL MAY BE USED TO OBTAIN RELEASE FROM DETENTION General-Except where the offense is punishable by death," 8 all persons charged with a criminal offense are entitled to release on bail before conviction.' 9 Generally, however, only such persons so charged or convicted 20 9 Sawyer v. Barbour, 142 Cal. App. 2d 827, 833, 300 P.2d 187, 190 (1956). 1 0 In re Brumback, 46 Cal. 2d 810, 299 P.2d 217 (1956) ; People v. Rose, 41 Cal. App. 2d 445, 106 P.2d 930 (1940). See also note 62 infra. "1 CAL. CONST. art. I, A defendant charged with a capital offense is not bailable as a matter of right. CAL. PEVr. CODE CAL. PEN. CODE Sawyer v. Barbour, 142 Cal. App. 2d 827, 300 P.2d 187 (1956) ; People v. Calvert, 129 Cal. App. 2d 693, 277 P.2d 834 (1954). 15 General Cas. Co. v. Justice's Court, 41 Cal. App. 2d 784, 107 P.2d 663 (1940). 16 Devine v. State, 37 Tenn. (5 Sneed) 622 (1858). "The sureties had control of his person; they were bound at their peril, to keep him within the jurisdiction, and to have his person ready to surrender when demanded." Id. at 626. The "peril" to the sureties is the loss of money or property which they pledged to secure the person's appearance. 17 See text at note 103 infra. 18 See note 13 supra. But see discussion in text at note 52 infra. 19 See note 13 supra. 20 As to the right to ball after conviction, see text at note 58 infra.

4 1956] BAIL IN CALIFORNIA are so privileged. The statutes have made no provision for bail with respect to confined persons whose commitments are sought because they are mentally ill, 2 mentally deficient,' drug addicts,' inebriates,' sexual psychopaths, 2 or infected with communicable disease. 2 " However, a juvenile accused of crime in the regular courts and thereafter certified to juvenile court may be admitted to bail 2 7 pending the hearing, 2 even though a later order making him a ward of the court and committing him to an institution is not deemed to be a conviction of a crime." Bail provisions pending hearing for alleged illegal detention-the law requires that a person arrested without a warrant "must, without unnecessary delay, be taken before the nearest or most accessible magistrate in the county in which the arrest is made, and a complaint stating the charge against the person, must be laid before such magistrate."" 0 Failure to comply with this section results not only in civip' and criminal 2 liability to the arresting officer but allows the prisoner to be released on habeas corpus by a superior court. 33 Pending determination of the habeas corpus proceeding, the court may release the prisoner on bail if he is being "detained upon a criminal charge. ' 34 The sole purpose of bail in such a case is to secure the attendance of the prisoner at the hearing on the writ.! It is not 2 1 See CAL. WEr. & INST. CODE See id See id See id Contra, In re Henley, 18 Cal. App. 1, 121 Pac. 933 (1912), where the court, failing to recognize that bail is applicable only to one charged with an offense, held that an alleged inebriate is entitled to bail. No hearing was sought in the supreme court. A better understanding is evidenced by the court in In re Magnuson, 110 Cal. App. 2d 73, d 362 (1952). 25 See CAL. WELT. & INST. CODE Contra, In re Keddy, 105 Cal. App. 2d 215, 233 P.2d 159 (1951), where the majority held that an alleged sexual psychopath is entitled to bail. No hearing was sought in the supreme court. But see In re Magnuson, 110 Cal. App. 2d 73, 242 P.2d 362 (1952). 26 See CAL. HEALTn & SAsxTr CODE CAL. WELF. & INST. CODE In re Magnuson, 110 Cal. App. 2d 73, 242 P.2d 362 (1952). Bail is not applicable after commitment because juvenile court proceedings are not criminal in nature and no statutory provision for bail has been made. 29 CAL. WELT. & INsT. CODE CAL. PEN. CODE Williams v. Zelzah Warehouse Co., 126 Cal. App. 28, 14 P.2d 177 (1932). 32 CAL. PEN. CODE Id The procedure is to present a verified petition to a superior court judge, serve the district attorney or city attorney at least 24 hours before the writ is returnable, present proof at hearing, and obtain an order for discharge from custody. Id. 1474, 1475, 1484 and Id But see Matter of Murphy, 154 Cal. 168, 97 Pac. 188 (1908), indicating that defendant need not be personally present at the hearing on the writ.

5 CALIFORNIA LAW REVIEW [VCol. 44 for the purpose of securing his attendance in a criminal proceeding because (1) none has been instituted, and one may never be; (2) there is no method of determining in which court a case might be filed; and (3) there is no method of determining what the charges will be if and when a case is later filed. Release on bail pending hearing on the petition for a writ is permissive, not mandatory. 36 It should be cautiously exercised and sparingly used because at the time a request for release on bail is presented along with the petition for habeas corpus the judge is unaware of the merits of the petition and cannot know how serious the charges against the prisoner may be. The requirement that the district attorney must receive reasonable notice before the court releases on bail pending hearing on a writ 3 7 provides the law enforcement authorities with an opportunity to inform the judge on these matters before he acts. 8 Finally, furnishing bail on this type of habeas corpus proceeding should be distinguished from the situation where habeas corpus is used to obtain release on bail where criminal charges have already been filed."" Bail provisions for legal detention where no bail set-as stated above, when a complaint or indictment is filed, the defendant is entitled before conviction, unless the offense charged is punishable by death, 40 to release on bail. 41 If the statutory procedure has been followed, there is no problem because the warrant of arrest issued at the time of filing the charge 2 will state the amount of bail. 43 In the event that a warrant was not issued or bail was not fixed for any reason, the defendant may use a petition for a writ of habeas corpus for the special purpose of having bail fixed without alleging that he is illegally confined; 44 the judge, after fixing bail, may accept and file it in the proper court where the charge is pending.' 3 6 While a judge, upon "proper application," must order the writ to issue or forfeit $5,000, CAL. PEN. CODE 1505, he "may" admit the petitioner to bail, CAr.. PEN. Con It is inconceivable that any court would, in the light of the circumstances, hold that "may" means "shall" in this case. 37 CAL. PEN. CODE It quite frequently happens in practice that a judge allows release on bail pending hearing on a petition for habeas corpus when the petition shows on its face that the writ will not lie. For example, suppose Jones is arrested without a warrant Friday evening for drunk driving with injuries. The courts are closed Friday evening and will not reopen until Monday morning. Jones is not being illegally detained because there is no available magistrate to whom the officers can take Jones for the filing of a complaint. Since a truthful petition for a writ of habeas corpus presented to a judge before Monday morning would disclose no illegal detention, the writ should not be issued or if it is, release on bail pending hearing on the writ should be denied. Nevertheless, there is a widespread practice among superior court judges to release on bail pending hearing on writs even where the petitions are so obviously defective. 39 See text beginning at note 40 infra. 40 See note 13 supra. 41 CAL. PxE. CODE Id. 813 (complaints), 945 (indictments) a (complaints), 945, 981, and 982 (indictments). 44 Id Id

6 1956] BAIL IN CALIFORNIA WHEN BAIL MAY NOT BE USED TO OBTAIN RELEASE FROM DETENTION ON A CRIMINAL CHARGE Where the arrested person is accused of a crime punishable by death he is not entitled to bail "when the proof is evident or the presumption great." 48 Where a case has proceeded beyond the stage of a preliminary examination or a grand jury indictment and there is a transcript of evidence for a court to examine, the problem is not great. The court simply determines whether the evidence would sustain a conviction of a capital offense. If so, bail will be denied 7 and if not, it will be granted 4 If the preliminary examination has not been held or is waived by the defendant, the situation is unclear, but it would seem that the defendant cannot be released on bail. In the days when grand jury proceedings were not reported, it was held that the mere filing of an indictment charging a capital offense made the "presumption great" and therefore barred admission to bail. 49 The statute was thereupon amended to declare that the "finding of an indictment by a grand jury shall in no case be taken to create such a presumption as to preclude the Court in its discretion admitting a defendant to bail." 5' Nevertheless, in the absence of a transcript of the evidence presented to the committing magistrate on a premininary examination or to the grand jury, how is the judge to know whether "the proof is evident or the presumption great"? In any event, the author is unaware of any capital case wherein a judge has admitted the defendant to bail in the absence of a transcript of the evidence presented to the magistrate or to the grand jury. After conviction of a capital offense, the defendant may not be released on bail. 5 ' One situation in which it would seem that a defendant's right to remain free on bail should be terminated is where he has abused that right by failing, without excuse, to appear when required to do so. Yet there is considerable doubt on this point. When defendant fails to appear in superior court and bail is forfeited, section 1314 of the Penal Code provides that if an order of recommitment is issued by the judge, he "may fix the amount of bail, and may cause a direction to be inserted in the order that the defendant be admitted to bail in the sum fixed, which must be specified in the order." 52 It would appear that in this situation bail is discretionary. On the other hand, Penal Code section 979 provides that if a bench war- 4 6 CAL. CONST. art. I, 6; CAL. PEN. CODE Ex parte Curtis, 92 Cal. 188, 28 Pac. 223 (1891). 48 It re Westcott, 93 Cal. App. 575, 270 Pac. 247 (1928). 49 People v. Tinder, 19 Cal. 539 (1862). 5o CAL. STATS , c. 346, 1. Substantially similar language is now contained in CAL. PEN. CODE CAL. PEN. CODE Id (Emphasis added.) See also CAL. PEN. CODE 1310.

7 CALIFORNIA LAW REVIEW [Vol. 44 rant is issued upon defendant's failure to appear there must be a clause on the warrant admitting defendant to bail in the amount fixed therein." No reported decision has considered this problem. Apparently the practical solution has been to fix bail on the "order" or "bench warrant," but in an amount so high that defendant cannot meet it, or, if he can, that further "bail jumping" is not worth the loss. Even though a defendant is free on bail and has not yet been convicted, he may be ordered into custody by the court. Such an order, however, can be made only at the time of trial and only after the defendant has appeared in court. 54 While it has been indicated that the court could commit an abuse of discretion in this instance, 55 all of the cases examined have upheld the orders. 5 " Indeed, the following pronouncement of the California Supreme Court has never been questioned: 57 The growing frequencies [of escape] would suggest the propriety in all trials for felony, of promptly ordering the prisoner, regardless of his previous admission to bail, into actual custody, at the commencement of the trial, or immediately upon the retirement of the jury to consider their verdict. Upon being convicted by plea, or by finding or verdict of guilty, a defendant's right to remain free on bail generally has been terminated. 58 While there is no direct statutory authorization for a court to allow him to remain on bail until judgment is pronounced, 59 this has been held to be permissible because of the long period of time which often elapses between conviction and judgment. 6 " However, if defendant has appealed his conviction, he must be released upon deposit of bail unless he has been sentenced to confinement in the state prison. 1 In the event of such a prison 53 CaL. PEN. CODE 982, Id In re Ruef, 150 Cal. 665, 89 Pac. 605 (1907). 5 5 People v. Williams, 30 Cal. App. 2d 234, 240, 85 P.2d 974, 977 (1938). 56 People v. Crooms, 66 Cal. App. 2d 491, 152 P.2d 533 (1944) ; People v. Avery, 64 Cal. App. 2d 850, 149 P.2d 758 (1944) ; People v. Dysart, 39 Cal. App. 2d 287, 102 P.2d 1091 (1940); People v. Nickell, 22 Cal. App. 2d 117, 70 P.2d 659 (1937). 57 People v. Beauchamp, 49 Cal. 41, 42 (1874) ; see also People v. Williams, 59 Cal. 674 (1881). 58 Ex parte Brown, 68 Cal. 167, 8 Pac. 829 (1885), 59 CAL. Pm. CODE 1305 implies that the defendant may be allowed to remain on bail until judgment by providing that bail shall be forfeited if defendant does not appear for judgment. Similarly, the bail bond specified by CAL. PEN. CODE 1278 guarantees that defendant will "appear for judgment." However, CAL. PEN. CODE 1273, which purports to specify the appearances covered by bail does not mention any appearances beyond arraignment. 60 People v. Fidelity & Deposit Co., 107 Cal. App. 160, 290 Pac. 59 (1930). 61 C~AL. PEN. ConE Bail is declared to be a matter of right "when the appeal is from a judgment imposing a fine only" and "when the appeal is from a judgment imposing imprisonment in cases of misdemeanor." It is thus clear that a defendant who is fined $1,000 or sentenced to one year in jail on a misdemeanor case is entitled to bail on appeal. What if he is fined $5 and sentenced to one day in jail? Reason compels the conclusion that bail should be a matter of right in that situation as well as in the situation where defendant receives either a fine or imprisonment.

8 19561 BAIL IN CALIFORNIA sentence, 2 bail on appeal is a matter of discretion with the trial court. 63 No attack has been found on a trial court's order releasing a defendant on bail, but many attacks have been made on orders refusing release on bail. Because of the broad discretion vested in the trial court, nearly all of these attacks have failed." Only one reported case has been found where it was held that the trial court abused its discretion in denying bail and in that case there was severe illness involved.65 When a legal arrest is made without a warrant 68 and the arrested person is lodged in jail because no court is open before which he can be brought for charge and arraignment, the arrested person cannot, with two exceptions, 7 be released on bail. This is because bail is available only to a "defendant charged with an offense." 68 In other words, a formal complaint, information or indictment naming the person as a defendant and charging him with a particular crime must be on file in a court. Until that document is on file, the arrested person is not a "defendant. ' Since an order granting probation is now deemed a "judgment" for purposes of appeal, CAL. PEN. CODE 1237, there should be no question about the right to bail on appeal where a condition of probation is a fine or imprisonment in the county jail. These beliefs are fortified by the court's attitude in In re Torres, 80 Cal. App. 2d 579, 182 P.2d 573 (1947), decided before CAL. PEN. CODE 1237 was amended, where defendants were convicted of felonies but were admitted to probation without the imposition of any judgment. As conditions of probation the two defendants were ordered to spend six months and four months, respectively, in the county jail and each was required to pay a fine of $200. Since defendants were treated "similarly to misdemeanants in the important matter of punishment and probation," id. at 582, 182 P.2d at 575, the court held that "by analogy, in the matter of bail on appeal, defendants are entitled to be admitted thereto almost as a matter of right." Id. at 580, 182 P.2d at 574. See also In re McCaughan, 142 Cal. App. 2d 690, 298 P.2d 871 (1956). 6 2 The provisions of CAL. PEN. CODE 1243 should not be overlooked. They allow the trial or appellate court to grant a stay of execution of a sentence entirely apart from posting bail. Defendant then remains under custody of the sheriff and the time he spends in jail is "dead time." 63 CAL. PEN. CODE See. e.g., Ex parte Turner, 112 Cal. 627, 45 Pac. 571 (1896) ; Ex parte Marks, 49 Cal. 681 (1875) ; People v. Sullivan, 110 Cal. App. 2d 4, 242 P.2d 348 (1952) ; In re Fishman, 109 Cal. App. 2d 632, 241 P.2d 605 (1952). 65 In re Preciado, 30 Cal. App. 323, 158 Pac (1916). In three other cases the supreme court set bail for extremely ill defendants but did not claim the trial courts had abused their discretion. In re Pantages, 209 Cal. 535, 291 Pac. 831 (1930) ; In re Ward, 127 Cal. 489, 59 Pac. 894 (1900); Ex parte Azhderian, 123 Cal. 512, 56 Pac (1899). Where the trial court refuses to exercise its discretion, it will be directed to do so. In re Brumback, 46 Cal. 2d 810, 299 P.2d 217 (1956). 6 6 CAL. PEN. CODE 836. To test the legality of the arrest a habeas corpus proceeding is available. See text at note 30 supra. 67 See text at notes 71 and 72 infra. 68 CAL. PEN. CODE 1270, See note 69 infra. 69 In the legislation discussed in the text at note 72 infra, providing for a bail schedule for misdemeanants in municipal court districts, the legislature declared: "It has been the practice to admit most misdemeanants to bail within a few hours after arrest and before the filing of a complaint. However, the Los Angeles County Counsel has recently advised, and the interpre-

9 CALIFORNIA LAW REVIEW [Vol. 44 The first exception is when the arrest is made for any conduct which is made a misdemeanor by the Vehicle Code. 70 In those cases the amount of bail is determined from a uniform bail schedule which exists in each county. 71 The second exception is when the arrest for a misdemeanor is made and the person arrested is "booked" within a municipal court district. In those cases the amount of bail is determined from a uniform bail schedule fixed and approved by the judges of that court. 72 It is clear that, with the exceptions just noted, there is no authority for anyone, judge or officer, to release on bail a person legally arrested without a warrant and legally detained until a complaint can be filed. Nevertheless, illegal practices regarding release on bail exist in nearly every community in California. If the arrest is for a misdemeanor-for example, drunkenness, disturbing the peace, or battery-many jailers and court clerks, with the approval of their local justice courts, will release the prisoner on bail before a complaint has been filed in court. The determination of the amount may be from a schedule which has been prepared by the court or by telephoning the judge and ascertaining the bail he desires. If the arrest is for a felony-for example, bookmaking, or manslaughter in driving of a vehicle-many superior court judges will release the prisoner on bail before a complaint has been filed in court on presentation of a petition for writ of habeas corpus. As pointed out above,7 1 such a petition is defective, and no release on bail should be allowed when the arrest and detention are lawful. These illegal practices regarding release on bail have developed because of the hardships created and the unfairness involved in adhering to the law. It is fair to say that in most cases arrests are made without warrants. Consequently, there is no formal charge pending against the arrested person and no bail has been set. When such an arrest occurs on a Friday afternoon at a time too late to get to court, the prisoner must remain in jail until Monday morning if there is no Saturday or night court. The relief provided by the Legislature for misdemeanants in municipal court districts and for violators of the Vehicle Code 1 ' has only served, to bring inequities into sharper focus. Take a case which frequently happens in my county. A driver is arrested for driving while under the influence of intoxicating liquor in violation of section 502 of the Vehicle Code. His pastation appears correct, that because these sections are applicable only if the defendant has been 'charged,' these sections do not grant authority to admit to bail until a complaint has been filed... This bill... (makes] it clear that a misdemeanant can be admitted to bail at any time after arrest and booking." Cal. Stats. 1955, c. 803, See generally CAL.. VrH. CODE d , CAL. PEN. CODE 1269b. 73 See note 38 supra. 74 See notes 71 and 72 supra.

10 19561 BAIL IN CALIFORNIA senger is arrested for being intoxicated in violation of a city or county ordinance. The driver can be released on bail--cash or bond-under the provisions of sections and of the Vehicle Code. The passenger, whose offense is not nearly so serious, must wait until a complaint is filed the next court day. This is so because the passenger's offense is not a violation of the Vehicle Code but of a local ordinance. The provisions of the Penal Code give the passenger little aid. If the arrest occurred in a justice court district, section 1269b of the Penal Code gives the passenger no remedy because it is available only to those "arrested and booked" in a municipal court district. 7 5 Even if the arrest and booking of the passenger occurred in a municipal court district, the question of whether the passenger can be released on bail before the next court day probably depends on how much cash he has. For such an offense a jailer can accept cash bail only, not a bail bond; 76 if the passenger does not have the cash, his only hope is to file a bail bond with the clerk of the municipal court. 77 The difficulty here is that except in districts where there are three or more municipal court judges with a criminal department staffed with an after-hours clerk, 78 no clerk will be available to accept and approve the bond until the next court day. Obviously this is a field requiring careful study by the Legislature. There is no valid reason why any misdemeanant should not be able to gain his release on bail from the jailer regardless of his offense, regardless of the judicial district in which he is arrested or booked, and regardless of whether the bail tendered is cash or a bond. ORDERS ADMITTING RELEASE ON BAIL If arrest is pursuant to a warrant, the warrant will contain the following order made by the magistrate who issued it: "The defendant is to be admitted to bail in the sum of... dollars.1 79 In the event the magistrate has overlooked this order, the defendant should demand that bail be set when he is first taken before the magistrate. 8 0 If this period is too long to suit the defendant, or if the magistrate refuses to act, defendant may have the superior or appellate court order admission to bail in a special habeas corpus proceeding. 8 ' If the arrest is made without a warrant, the bail is first fixed when the 75 See text at note 72 supra. 76 CAL. PEN. CODE Authority to accept and approve bail bonds under CAL. VEHr. CooE is limited to Vehicle Code offenses. 7 7 CAL. PEN. CODE 1269b. 78 CAL. GoVT. CODE 72300, CAL. PEN. CODE 815a, 945, Id. 814, 848. si See text at note 44 supra.

11 CALIFORNIA LAW REVIEW [Vol. 44 arrested person is brought before the magistrate and a complaint file. against him. 2 Bail on appeal may be fixed either by the judge of the court where the conviction occurred or by any superior or appellate court judge. 5 If fixing of bail on appeal or a reduction thereof is sought in the district court of appeal or supreme court, there must be a showing that application "was made to the superior court and that such court unjustifiably denied the application." 84 AMOUNT OF BAIL The California constitution provides that "excessive bail shall not be required... " The statutes provide: 8 In fixing the amount of bail, the judge or migistrate shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his appearing at the trial or hearing of the case. The cases indicate that while the court must assume the defendant's guilt, 87 the amount of bail should not be disproportionate to the offense involved; 8 the fact that defendant is a fugitive from justice should be considered 9 as well as his pecuniary ability to furnish bail. 0 The appellate courts have warned that "bail should not be exacted for the purpose of punishing a person charged with crime, for no man is punishable for a felony except on his plea of guilty, or upon conviction by a jury of his peers."'" Neverthe- 8 2 There is no statutory or case law covering this situation, but such a conclusion is a necessary one for the proper administration of the criminal law. There are, of course, two situations in which a bail schedule determines the bail of persons arrested without warrants. See text at notes 71 and 72 supra. 83 CAL. PEN. CODE An appellate court will set bail on appeal (1) if the trial court abused its discretion in denying bail, or (2) if intervening extraordinary circumstances have arisen since bail was denied. In re Brumback, 46 Cal. 2d 810, 299 P.2d 217 (1956). 84 CApI. RuLns on APPEAL, RuLE 32 (b). 85 CAL. CONST. art. I, CAL. Pas. CODE In re Tsuji Horiuchi, 105 Cal. App. 714, 288 Pac. 708 (1930). 88 In re Williams, 82 Cal. 183, 23 Pac. 118 (1889). 89 In re Grimes, 99 Cal. App. 10, 277 Pac (1929). 9OLx parte Duncan, 54 Cal. 75 (1879). However, the court went on to say that this factor is "not in itself controlling. If the position of the counsel were correct, then the fact that the prisoner had no means of his own, and no friends who were able or willing to become sureties for him, even in the smallest sum, would constitute a case of excessive bail, and would entitle him to go at large upon his own recognizance." Id. at 78. Accord, Bx parte Ruef, 7 Cal. App. 750, 752, 96 Pac. 24, 25 (1908). 9 'Id. at 752, 96 Pac. at 25; see Ex parte Duncan, 54 Cal. 75, 77 (1879): "It is not the intention of the law to punish an accused person by imprisoning him in advance of his trial."

12 19561 BAIL IN CALIFORNIA less, no reported decision has held that any particular amount of bail was excessive? 2 Once the amount of bail has been determined, it may be increased or decreased by a judge of the court in which the charge is pending. 3 Although the statute provides that the district attorney must be notified of any application to reduce bail, 94 it may be increased without notice to the defendant. 5 However, change in the amount of bail must, in any event, be based "upon good cause shown." 9 TYPES OF BAIL The basic concept of bail, as heretofore indicated, is that sureties have the custody of defendant and obligate themselves to deliver him when his presence in court is necessary. In line with this concept, the law provides that bail "is put in by a written undertaking, executed by two sufficient sureties" 97 wherein the sureties- promise that the defendant "will appear and answer the charge... in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court, and if convicted, will appear for judgment and render himself in execution thereof."' 8 The form of the bond for release on bail on appeal is similar but 92 For examples of valid amounts, see In re Williams, 82 Cal. 183, 23 Pac. 118 (1889) ($8,000: forgery); Ex parte Duncan, 53 Cal. 410, 54 Cal. 75 (1879) ($113,000: forgery); In re Morehead, 107 Cal. App. 2d 346, 237 P.2d 335 (1951) ($7,500: sexual psychopath); In re Tsuji Horiuchi, 105 Cal. App. 714, 288 Pac. 708 (1930) ($15,000: criminal syndicalism); In re Grimes, 99 Cal. App. 10, 277 Pac (1929) ($20,000: false arrest) ; Ex parte Ruef, 7 Cal. App. 750, 96 Pac. 24 (1908) ($790,000: bribery). 93 CAL. PEN. CODE 1289, Id Frankfort v. Superior Court, 71 Cal. App. 357, 235 Pac. 60 (1925). 96 In In re Aydelotte, 97 Cal. App. 163, 275 Pac. 510 (1929), the trial court raised the bail from $2500 to $10,000 because defendant was not present when the case was called for trial. The uncontradicted evidence showed that defendant was seriously ill and could not appear. The appellate court held that the order increasing bail was invalid because no good cause was shown. See also lnre Berman, 105 Cal. App. 270, 287 Pac. 373 (1930). 97 CAL. PEN. CODE Ibid. The article of the code of which this section is a part is entitled "Bail upon Being Held to Answer Before Indictment." It would appear that this form of undertaking was intended for use only after defendant has had (or waived) a preliminary examination and has been held to answer for an offense triable in the superior court. Section 1287 of the Penal Code specifies a similar form for the situation where defendant has been indifted in the superior court and section 1316 specifies a similar form for the situation where a defendant, previously released on bail and recommitted (as where bail has been raised), seeks release on bail in the superior court. Section 1458 specifies a similar form for all situations involving misdemeanors triable in an inferior court. No form is provided for use where a defendant, arrested on a charge triable in the superior court, has not yet been held to answer. It seems obvious that the Legislature originally contemplated that a defendant in this situation could not be released on bail until after the preliminary examination. The courts, however, bridged this gap and held that release on bail is allowable and that the form provided by section 1278 is the appropriate one to use even though by its

13 CALIFORNIA LAW REVIEW [Vol. 44 with appropriate changes, of course, as to the undertaking of the sureties. 9 " The persons who sign the undertaking must also certify under oath that they are residents or property owners in the state and that they are "worth" the amount of the bond. 1 0 There is provision for calling and examining witnesses to "justify" the sureties. 101 The personal surety bond has largely been replaced in practice by a bond issued by a corporate surety 10 2 and sold by licensed bail bondsmen. Another type of bail is cash. 0 3 The deposit of cash may be made by the defendant himself and thus there are no persons into whose custody the defendant is placed. Similarly, defendant, or someone on his behalf, "may deposit bonds of the United States or of the State of California of the face value of the cash deposit required, and such bonds shall be treated in the same manner as a deposit of money or the defendant may give as security any equity in real property which he owns."' 4 If bonds are deposited, the definition of face value is the "value, written or printed on the face of said instruments and the unmatured coupons attached thereto, without reference to the actual or market value of said bonds."' 5 If defendant tenders his equity in real estate, a hearing is held "and if the magistrate finds that the value of such equity is equal to twice the amount of the cash deposit required he shall allow such bail."' 1 A word should be said here about the familiar practice of releasing a defendant "on his own recognizance" or, as is said in court, on "his O.R." There is a general misunderstanding of that term. Lawyers and judges generally think that it means that the defendant, well known to the judge and therefore "recognized" by him, is released on his honor, so to speak, without the necessity of posting bail. 7 Even the Legislature has fallen into this error. It has provided, with respect to a person arrested for a Vehicle Code words it is inapplicable. San Francisco v. Randall, 54 Cal. 408 (1880); People v. American Surety Co., 55 Cal. App. 756, 204 Pac. 419 (1921). In 1933 an attempt was made by the Legislature to make it clear that such a defendant could be released on bail. CAL. PE-. CODE 815a, 824. The job was only half done, however. No change was made in the forms of undertakings. As is true of so many of the statutes on bail, a thorough revision of these sections is necessary. It would be a simple matter to provide one form of undertaking covering all situations where bail may be posted. 99 CAL. PEN. CODE 1273, Id. 1279, 1280, 1280a. As to what the sureties must state in the affidavit accompanying the bond see CAL. CODE Cirv. PRoc CAL. PEN. CODE 1279, CAL. CODE Civ. PRoc CAL. PEN. CODE d Wilson v. Justice's Court, 22 Cal. App. 2d 278, 70 P.2d 695 (1937). 106 CAL. PEN. CODE See, for examples of the use of the term, Ex parte Duncan, 54 Cal. 75 (1879), and In re Berman, 105 Cal. App. 270, 287 Pac. 373 (1930), both indicating that no type of security is posted when one is released "on his own recognizance."

14 19561 BAIL IN CALIFORNIA misdemeanor, that the "person so taken before a magistrate shall thereupon be released from custody upon his own recognizance or upon such bail as the magistrate may fix."' 08 Actually "recognizance" is merely another word for "bond," 0 9 although at one time there was apparently some slight distinction between the two." The provision requiring the district attorney to "prosecute all recognizances forfeited in the courts"' has been held to relate to bail bonds." 2 Other statutes similarly use "recognizance" as the equivalent of "bond."11 Except for the misuse of the word in the Vehicle Code," 4 there is no provision permitting the defendant to be released from custody without posting bail in one of the authorized forms including a "bond" or "recognizance." Furthermore, section 1278 of the Penal Code makes it clear that the written undertaking, whether called "bond" or "recognizance," must be executed by two persons other than defendant. Defendant cannot, therefore, be released on his own recognizance, even if the recognizance is in proper form. Obviously there are defendants with respect to whom it is pointless to require security to assure their appearance in court. Provision ought to be made that when the judge is satisfied that the defendant will appear, he may be released without bail. This would legalize the practice which now prevails under the mistaken notion that a defendant may be released "on his own recognizance." POSTING OF BAIL One of the most confusing aspects of the subject of bail is the method of obtaining the release of a defendant by "posting bail." The defendant, let us say, is in jail and telephones his attorney to get him out immediately. What does the attorney do? The first thing that must be ascertained is whether the defendant was 108 CAL. VEer. CODE 738. (Emphasis added.) 109 County of Mendocino v. Lamar, 30 Cal. 627 (1866). "1 0 Western Surety Co. v. United States, 72 F.2d 457, 460 (9th Cir. 1934). 111 CAL. GovT. CODE People v. De Pelanconi, 63 Cal. 409 (1883). 113 CAL. GOVT. CODE requires the city prosecutor to "prosecute all recognizances or bail bond forfeitures arising from or resulting from the commission" of misdemeanors. CAL. GovT. CODE authorizes the coroner to take "recognizances" and CAL. GOVT. CODE specifies that a "recognizance shall be in writing and shall be subscribed by the parties to be bound." CAL. WELF. & INST. CODE 5360 refers to "entering into a recognizance for the appearance of the person upon trial or under conviction when required." 11 4 See note 108 supra. Obviously, under section 738 of the Vehicle Code the intent of the Legislature was to provide for release without bail since it has provided in section 739 for release without bail upon a written promise to appear on a traffic citation. Violation of that promise, however, is a distinct crime. CAL. VEH. CODE 742. Failure to appear when released upon one's "own recognizance" (using that term as meaning "recognition") results in no forfeiture and no criminal liability.

15 CALIFORNIA LAW REVIEW [Vol. 44 arrested with or without a warrant. If he was arrested without a warrant, release on bail prior to the filing of a formal accusatory pleading is permissible only in the very limited situations referred to above." 5 Assuming that the client is in one of the latter categories, a call to the jailer will furnish the amount set in the "bail schedule" for the offense involved. Several choices are then open. If the offense is listed in the bail schedule provided for by section of the Vehicle Code, or section 1269(b) of the Penal Code cash in whatever amount set may be deposited with, and must be accepted by, the jailer,"" provided that in the latter situation the sum is not over $1, A bail bond, either corporate or individual, may be posted with the jailer only for Vehicle Code violations. In such a case he is authorized to "approve" the bond.?' No such procedure of posting a bond is available for offenses listed in the bail schedule provided by section 1269(b) of the Penal Code. The jailer then notifies the arrested person of the time and place he is to appear for arraignment. 119 By the next day the jailer must forward the bail money to the appropriate court- 2 0 If the defendant happens to be in a municipal court district having a criminal department open at all hours, 2 ' ball may be posted with the clierk.lm However, the types of bail acceptable are limited to cash, United States Treasury Bonds and corporate security bonds. A court commissioner has the same authority as a clerk.' If, however, one of the "bail schedule" offenses is not involved, nothing can be done unless the arrested person has been held in jail longer than permitted by section 849 of the Penal Code."s If the person was arrested on a warrant, the first thing which must be ascertained is whether the warrant was issued from the county where the 115 Text at notes 71 and 72 supra Ops. CAL. Arr'Y GEq. 230 (1954). 117 CAL. PEN. CoDE 's CAL. VEir. CODE Id states that the jailer has authority "to issue and sign an order for the release of the person arrested, and to set a time and place for his appearance before the appropriate magistrate." CAL. PEN. CODE 1295 states that "Upon such deposit being made the defendant shall be notified of the time and place to appear for arraignment and discharged from custody." 12 0 CAL. VEn. CODE 737.1; CAL. Pair. CODE CAL. GovT. CoDE 72300, Id Id d Bail posted to obtain release from custody pending the hearing on the petition for a writ of habeas corpus guar~ntees the petitioner's appearance on the hearing on the writ and does not guarantee his appearance in any criminal proceeding which may subsequently be instituted against him. Although courts sometimes order the bail "transferred" to the subsequently instituted criminal proceeding, this is a useless act "because if defendant fails to appear, there can be no forfeiture since the sureties did not undertake that he would appear in any criminal proceeding. See text beginning at note 30 supra.

16 19561 BAIL IN CALIFORNIA person was arrested or from some other county. If the offense is a felony and the warrant is from another county, bail can be posted only in the county where the warrant was issued.' 26 On the other hand, if the offense is a misdemeanor, defendant immediately upon arrest may post bail with any judge of the county where he was arrested. 21 If the arrest is made in the county where the warrant was issued, whether felony or misdemeanor, bail may be posted upon arrest with any judge of that county.12 FORFEITURE OF BAIL If the defendant "neglects to appear for arraignment or for trial or judgment, or upon any other occasion when his presence in court is lawfully required, or to surrender himself in execution of the judgment, the court must direct the fact to be entered upon its minutes and the undertaking of bail, or the money deposited instead of bail, as the case may be, must thereupon be declared forfeited."' 2 It should be borne in mind that there are occasions when the presence of defendant is not necessary. Thus in a trial involving a misdemeanor, defendant may choose not to be personally present. 10 If he fails to appear for trial, his bail will not be forfeited.'' Forfeiture, however, does not of itself result in the irrevocable loss of the bail. There is a ninety-day period during which a showing may be made that will permit the forfeiture to be set aside." 2 In the first place, Penal Code section 1305 provides: If... the defendant is dead or is physically unable, by reason of illness or insanity, or by reason of detention by civil or military authorities, to appear in court at any time during said 90 days, and... the absence of the defendant was not with the connivance of the [sureties]... the court may direct the forfeiture of the undertaking or the deposit to be discharged upon such terms as may be just. While this wording is not as clear as it could be, this provision must be taken to mean that one of these reasons for defendant's non-appearance 126 CAL. PEN. CODE 821; Mansir v. Superior Court, 65 Cal. 582, 4 Pac. 627 (1884); Ex parte Hung Sin, 54 Cal. 102 (1880) CAL. PEN. CODE CAL. PEN. CODE 821, See also CAL. GovT. CODE 72302, Quaere: After being unable to post bail when first arrested, may defendant later post bail with any judge or only in the court where the case is pending? The latter is the better answer for efficient administration of justice. There are no-cases. 129 CAL. PEN. CODE l0 Id. 1043; Kehlor v. Municipal Court, 116 Cal. App. 2d 845, 254 P.2d 897 (1953). 131 Cases such as Pacific Indemnity Co. v. Superior Court, 102 Cal. App. 566, 283 Pac. 345 (1929), permitting the forfeiture of bail in inferior courts, are no longer law. They were based on CAL. PEN. CODE 1434 and not on The former has now been repealed and CAL. PEN. CODE 690 now makes the latter applicable to inferior as well as superior courts. 132 CAL. PEN. CODE 1305.

17 CALIFORNIA LAW REVIEW (Vol. 44 must exist at the time he is supposed to appear, must continue to exist until the time of the order setting aside the forfeiture, and that the court must be convinced that defendant will be unable, for that reason, to appear at any time before the ninetieth day. Section 1305 further provides that the forfeiture may be set aside: a If at any time within ninety days after such entry in the minutes, the defendant and his [sureties]... appear, and satisfactorily excuse the defendant's neglect or show to the satisfaction of the court that the absence of the defendant was not with the connivance of the [sureties]... This is a most liberal provision. Under it, a defendant who has posted a bail bond may deliberately fail to appear, yet the forfeiture may be set aside if he turns up in ninety days. Meanwhile, witnesses and the court have probably been inconvenienced and the case against him may have been weakened by the passage of time. Obviously the judge should in such cases require as a term of the discharge of the forfeiture the payment of some sum as a penalty for the willful failure to appear. The provision also discriminates against the defendant who posts cash bail. He cannot show that his absence "was not with the connivance of the bail" (himself), while his companion who posts a bail bond can do so. The apparent justification for this distinction is that the non-appearing bail bond defendant usually is returned to court within the ninety-day period, not on his own volition, but by the bondsman who has pursued him to try to prevent loss of the amount of bail. The order setting aside the forfeiture need not be made within the ninety-day period, but the motion must be made within that time.l u Since it is required that "the defendant and his bail appear," the court has no power to set aside the forfeiture unless both parties actually appear Although the statute uses the discretionary word "may" in delineating the power to set aside a forfeiture, the trial court does not have an arbitrary discretion and therefore must set the forfeiture aside upon a proper showing of excuse for non-appearance."' When the type of bail forfeited is cash, it is paid over to the county treasurer at the end of ninety days if the forfeiture has not been set aside. 137 If it is a bond, a procedure is prescribed which the court and district attorney are to follow in collecting the money from the sureties (Emphasis added.) Until 1955 the word "or" read "and." Cases such as Seaboard Surety Corp. v. Municipal Court, 208 Cal. 596, 283 Pac. 289 (1929), are no longer the law Leach v. Dinsmore, 22 Cal. App. 2d Supp. 735, 65 P.2d 1364 (1937) OPs. CAL. Air'y GEM. 212 (1947). 136 People v. Calvert, 129 Cal. App. 2d 693, 277 P.2d 834 (1954) ; People v. Niccoli, 102 Cal. App. 2d 814, 228 P.2d 827 (1951). 137 CAL. PEi. CODE Id

18 1956] BAIL IN CALIFORNIA One word of warning should be sounded about section 1306 of the Penal Code, providing for a refund to the surety on a forfeited bail bond if defendant appears and is convicted within one year after judgment on the bail forfeiture. That provision was held unconstitutional in It should, of course, be repealed by the Legislature. RELEASE OF SURETIES When the defendant is released upon the posting of a bail bond, the sureties are subject to liability until the conditions of the undertaking have been fulfilled, or failure to comply is excused, or the undertaking is properly cancelled. Fulfillment of the conditions is the most common method by which the sureties are relieved. The defendant appears at all proceedings at which his presence is required. No liability attaches because no condition has been breached. While no statute requires the court to declare this fact, in practice it is customary for the judge at the last appearance of defendant in the case to state "bail exonerated" and for the clerk to make that entry in the minutes. This is the case when defendant is acquitted or when, after conviction, judgment is pronounced and execution begun. The mere conviction of the defendant does not terminate the sureties' liability. Often a defendant is not remanded to jail pending the hearing on his application for probation and the pronouncement of judgment.:1 In such cases, the bail bond remains in effect.' Sometimes, after judgment is pronounced, the defendant asks for and gets a stay of execution for a short time. In this case, too, the bond remains in effect and if the defendant fails to appear at the later date the sureties are held liable. 1 ' The sureties are relieved of liability, even though the conditions have not been fulfilled, if the non-compliance is excused. This occurs where, after a forfeiture, the court sets aside the forfeiture for one of the reasons previously discussed 4 3 Again, there is no statutory requirement for an order declaring that liability is at an end, but it is common practice following an order setting aside a forfeiture for the judge to order "bail exonerated." In several situations the statutes specify that bail should be exonerated on the termination of the case in defendant's favor.' Pacific Indemnity Co. v. Myers, 211 Cal. 635, 296 Pac (1931) If he is remanded after conviction, bail is exonerated. CAL. PEN. CODE People v. Fidelity & Deposit Co., 107 Cal. App. 160, 290 Pac. 59 (1930). 142 United States Fidelity and Guaranty Co. v. Justice Court, 99 Cal. App. 2d 683, 222 P.2d 292 (1950). 143 See text beginning at note 132 supra CAL. PEN. CODE 997 (indictment or information set aside) ; 1008, 1009, 1384 (indictment or information dismissed) ; 1188 (order in arrest of judgment) ; 1117 (jury discharged because no offense stated) ; 1115, 1116 (jurisdiction in another county) ; 1371 (defendant found insane).