California Law Regarding Bail Hearings After Appellate Court Decision


I have previously written about the judicially appointed Pretrial Detention Reform Workgroup’s efforts to analyze and recommend reforms to the California bail system and the California Money Bail Reform Act. Both efforts are directed at reforming the inherently unfair bail system in California that sends poor people to jail before they are convicted of the crime because they cannot afford the bail ordered by the court.

Earlier this year, the Court of Appeal stepped in front of this issue. The court’s published decision in In re Humphrey, Court of Appeal, 1st Appellate Dist., 2nd Dv. (January 25, 2018) will force changes in the bail system, even if our representatives never get around to bail reform legislation. In this case, San Francisco resident Kenneth Humphrey was arrested and charged with robbery. Mr. Humphrey’s bail was set at an amount he could not afford. He was remanded to jail where he remained prior to any hearings or trial on his guilt or innocence.

This scenario is commonplace in California. Poor defendants languish in jail, sometimes for years, before they are convicted or acquitted, while defendants who can afford the bail—or who have family who can—are able to avoid pre-trial detention. This is not how the law is written but this has become the de facto bail system.

Courts are required to set a bail amount based on protection of the public and to ensure the defendant will remain in California and appear for trial. While it is statutorily incumbent on the trial court to consider these two factors in setting a bail amount, a defendant also has an absolute right under California law to release on bail in all cases except when there is “clear and convincing evidence” that releasing the defendant is substantially likely to result in great bodily harm to others or if the defendant is charged with a capital crime, or if the defendant is charged with certain violent felonies or sexual assaults. But when a judge orders a bail amount that is beyond the defendant’s ability to pay, the court has essentially denied bail to the defendant who has the right to be released on bail.

When none of the exceptions to denying bail are found by the court, the court must inquire into the defendant’s ability to pay bail. If the court finds that the defendant does not have the financial ability to pay the bail, the court is obligated to consider less restrictive alternatives to continued confinement in jail. Those alternatives might include, for example, orders that the defendant stay away from the victims or orders to participate in a supervised treatment program.

The decision by the appellate court will substantially change the way bail is set. In many counties, including Orange County, there is a bail schedule, which sets bail amounts for each crime. Courts often simply set the bail at that amount without any inquiry into the defendant’s ability to pay. Following the Humphrey decision, the bail schedules are a presumptive violation of the defendant’s due process rights and should no longer be treated as a default bail amount by the courts. How this will play out in the courts remains to be seen but this is a good start towards much needed bail reform in California.

Orange County criminal defense attorney William Weinberg has been serving the community for 25 years. He is available for a free consultation regarding your criminal matter. You may contact him at his Irvine office at 949-474-8008 or by email at