When it comes to arguing bail in one of the LA courtrooms at arraignment – I've been doing it for twenty-five years, so I think I have a pretty good feel for it – there are a lot of factors that go into what the bail is going to be set at and whether or not the person is going to be able to bail out at all.
The Judges in LA county have come up with what's called a bail schedule where basically they have a bail for almost every single crime there is and it's what they would call the presumptive bail – meaning that's usually going to be what the bail is. Now of course, the attorneys can argue for a higher or lower bail.
Obviously, the defense attorneys are usually arguing for a release or a lower bail. The prosecutors, on the other hand, sometimes will argue for a higher bail. They'll do what's called a bail deviation if they think they have grounds to make the bail higher.
When it comes to figuring out what the bail is, the Judge will look at a person's prior criminal record – whether they have ever failed to appear before in court, how dangerous they are to the community and whether they are a flight risk. So, when you talk about danger to the community the Judge is going to look at the crime, look what they have done in the past, look at the current conduct to see how dangerous it is – because if it's dangerous enough or the person may do it again – that could be grounds to either jack the bail up or make it no bail. Also, if the person is on probation, they could jack the bail up or make it no bail for another crime when they pick up the new case because there is a two-year enhancement if you're out on bail on a felony and you pick up a new felony case.
Another huge factor in addition to evaluating the person's danger level when it comes to setting bail is are they a flight risk. In other words, if the Judge gives them a bail and they bail out are they going to run away and never come back to court and then the bail bond company will lose the bail and the court will lose the defendant and not be able to deal with them, and if they stay away long enough, the prosecutor may well lose the case because witnesses disappear, they retire, they die or memories fade, so looking at whether or not the person is a flight risk is a very important thing.
When the Judge tries to figure out whether the person is a flight risk, they are going to look at, okay, do they have a job, do they have all their family here, do they have a business here, do they have a home here, do they have substantial assets here? Obviously, if the person has all those things then it's unlikely that they are just going to run away. But also, the Judge is going to look at the crime. If it's a serious enough crime where the person's looking at life in prison, that may be grounds for the person to run away. If the person is looking at multiple years in prison, that may be grounds for the person to run away. So, there's a whole bunch of different factors that the Judge will look at when setting bail and they have to do with the person's dangerousness level, their flight risk, their criminal record, what they did in the current case, and the Judge puts that altogether, listens to both attorney's arguments and may even get an OR report whether they are assessing whether the prisoner should be released on their own recognizance, but even they are not going to be released on their own recognizance, the report could still have value when the Judge tries to decide what the bail should be set at.
When It Comes To Bail In LA, Is It Likely To Change When The Judge Set It?
This is a big question because a lot of time they'll get on a case and the people will say, well the bail has already been set, but we want a lower bail – we want no bail – we want an OR release. And the bottom line is this – once that bail is set, that's what the bail is going to be unless the defense can show changed circumstances or the prosecutors can show changed circumstances to jack the bail up. For example, it happens all the time where the prosecutors will charge more charges, the person will be looking at a higher exposure in prison, and that is changed circumstances enough to put the bail higher. As far as from a defense standpoint, if the defense can do the preliminary hearing and get some charges knocked out or show the Judge that the current charges are over-inflated, then that might be grounds to show that there's changed circumstance and to either lower the bail or give the person an OR release. So, the hard and fast rule in LA county – and I've been doing this a long time – is listen, once that bail is set, that's the bail. They're not going to keep changing the bail up and down unless there's changed circumstances. If you can't prove changed circumstances, then they are not likely to change the bail. It's going to remain the same for the remainder of the case unless somehow there are some changed circumstances during the course of the case.
What Will The Bail Be Set At If The Person Has A Probation Violation?
This happens all the time where the person's on probation to a Judge, they violate that probation either by not doing what they are supposed to or picking up a new case, then the Judge can set a bail for their probation, and if a Judge does that, then the bail can be any bail the Judge deems appropriate. A lot of times what I see – especially if it's a serious case – the guy's on felony probation and the person's looking at prison time because of the violation – the Judge will just put it at no bail. Then the person can't get out until they face the Judge and then the Judge will make sure that they get their pound of flesh against them for violating their probation. So, it's very important that if you're on probation that you obviously violate your probation because you can get a no bail and when it comes to a probation violation you don't get a jury trial for that. The Judge decides whether or not you violated your probation. They have a hearing and they have to decide by at least 51% whether you violated your probation. If they decide you did, then they can sentence you to whatever the maximum term is for whatever your most serious charge was when you got put on probation.
