When it comes to setting bail, typically judges in Los Angeles County and all the courts across LA will set bail at what's called Bail Schedule. Bail Schedule basically is a list of all the crimes in a Bail Schedule book that the judges have come up with a particular bail for each crime. They basically evaluated how serious the crime is and how dangerous the person would be to the public who committed that crime, and then when a judge gets a case at the arraignment level and has to set bail on a case, they are going to start with the Bail Schedule. Typically, most cases are going to be set at Bail Schedule. Meaning that they're going to look at the charge, and they are going to set the case at whatever bail is supposed to be set for that particular person.

Now, there are a number of factors that can influence this – change it and alter things – as it relates to bail in Los Angeles County. One is, what if there are multiple charges? In sex crime cases, for example, if there are multiple charges, the prosecutors can try to stack the bail and get a bail for each charge stacked one on top of the other. Obviously, this is not good because it makes it much more difficult for someone charged with a crime in LA to get out. But prosecutors will typically try to do this, and obviously, a good defense attorney is going to try to block them from doing it. It is much more difficult than sex crime cases, but in other cases, it is possible to make a successful argument. Wait a minute – you're stacking bails. You charge/thing happened here, and you can only put one bail on it.

As far as bail deviation goes, what if the Bail Schedule is not what the prosecutors want, and they want a higher bail because they feel like the particular defendant is more dangerous than what the bail indicates? They have to file a written motion with the court called a bail deviation and basically indicate why they think the bail should be higher than the bail scheduled and, obviously, what exactly they think the bail should be. This would be a motion where they cite case authority. A lot of times they'll put a declaration in from the prosecutor or somebody else, indicating the dangerousness level of the defendant. Also, a lot of time, they will argue flight risk, that they have information that this particular defendant is going to run away. Maybe they have ties to different countries and multiple passports – it really just depends on the circumstances of the case.

I've seen cases recently where the bail should have been $150,000, and they got a bail deviation, and the bail was set at a million dollars. In that particular case, they were arguing the defendant had committed multiple other offenses. However, they were just uncharged offenses, and they were still investigating those offenses, so they needed the bail to be high. Otherwise the defendant could get out, run away, and then they would never be able to prosecute him for these other offenses if they were investigating him and he had a current very serious offense.

Other times I see bail deviations where there's a real extreme threat to the victim in the case. Maybe the guy or woman has threatened to kill a victim or a witness in a particular case. The prosecutors fail that if they don't set a high enough bail and the person gets out, then the victim or person they are concerned about would be in a position where they could be seriously injured or even killed if the defendant gets out. Then they have to tell the judge about that and explain it. Obviously, it has to make sense and be reasonable. It cannot be based on pure speculation and hunch. They actually have to have some articulable facts that this person is a danger or a flight risk, and then they can try to get the bail deviation.

So, the next question becomes, how do they figure out how much of a bail deviation—and really, this is a very nebulous thing? Prosecutors are basically just coming up with numbers that they think a particular defendant cannot post to block them from getting out so that they can protect whatever interest they need to protect.

What Can Defense Do When Prosecutors Are Seeking A Bail Deviation?

Obviously, the defense can argue against it and say – wait a minute – this particular defendant, for example, has no criminal record or didn't do any violence to anybody. Again, a lot of this is fact-specific, so you have to look at the facts of the case when you're thinking about blocking a bail deviation in LA. If the defendant has no prior criminal record and didn't cause any violence to anybody, and the prosecutors are basing their whole bail deviation argument on pure speculation, then the defendant would have a good argument with the judge to say no, you're not going to be able to jack this bail up that high when the prosecutors haven't given you a solid reason to do so.

One argument that the prosecutors make all the time when the defendant is trying to get a bail set below the Bail Schedule is that it's the Bail Schedule. That's what the judges have come up with. The defendant shouldn't be able to get out of that, and for purposes of a criminal case, the judge is to assume the charges are true when they set bail, but that, of course, only relates to charged offenses. So, that's one argument that can be successful, which is – hey, wait a minute. Suppose they're saying we need a Bail Deviation because we're investigating this person for other crimes. In that case, the defense can argue back – wait a minute, you haven't charged him, so you don't have the evidence of those other crimes, so there's no way the judge is to assume that those other crimes are true for purposes of bail. This would be a good argument.

So, again, when it comes to these bail deviation arguments, it is a subjective thing. It is a feel thing, and if a judge feels that a particular defendant is dangerous and the prosecutors have a good argument, then you can bet your bottom dollar they're going to put that bail up right where the prosecutors want it. A lot of the judges are looking, of course, to protect the public – but I think also to protect themselves. They don't want to set a bail that's too low when they have a dangerous criminal defendant, and then that person gets out and does something bad. Obviously, that's going to be on the judge's shoulders. The judge is going to be thinking – wait a minute. Why did I let that person out? That's definitely a consideration. They don't want someone to get out and do something bad on their watch.

So, if you have a bail deviation situation, you will need a great attorney who has been down this road before and knows how to handle these cases correctly.