Bail - Revision history

Sysop: /* Humphrey and Kowalczyk */

2026-09-16T07:13:37Z

Humphrey and Kowalczyk

← Older revision		Revision as of 07:13, 16 September 2026
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	"When it comes to considering monetary bail, the defendant must do more than present conclusory assertions of indigency or an inability to pay." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 625.)		"When it comes to considering monetary bail, the defendant must do more than present conclusory assertions of indigency or an inability to pay." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 625.)

	Kowalczyk said "a defendant cannot rely on conclusory assertions of excessiveness to prevail in every case," and quotes with approval Ex Parte Duncan, "Consistent with the totality of the circumstances approach we adopt here, we reasoned with respect to excessiveness: 'Undoubtedly the extent of the pecuniary ability of a prisoner to furnish bail is a circumstance among other circumstances to be considered in fixing the amount in which it is to be required, but it is not in itself controlling. [Otherwise], ... '''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.'''' (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 627.)		Kowalczyk said "a defendant cannot rely on conclusory assertions of excessiveness to prevail in every case," and quotes with approval Ex Parte Duncan, "Consistent with the totality of the circumstances approach we adopt here, we reasoned with respect to excessiveness: 'Undoubtedly the extent of the pecuniary ability of a prisoner to furnish bail is a circumstance among other circumstances to be considered in fixing the amount in which it is to be required, but it is not in itself controlling. [Otherwise], ... '''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.'''' (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 627.)


			"'''This does not mean that, once a court determines that setting monetary bail is necessary to vindicate state interests, it must set bail in an amount that is easily affordable or convenient to the defendant, or that a court should accept a defendant's conclusory allegations regarding indigency, excessiveness, or an inability to pay. That is, if a defendant alleges the inability to pay a certain bail amount, the burden is on the defendant to support that allegation with reliable evidence.'''" (In re Kowalczyk (2026) 19 Cal.5th 593, 630.)

			"When defendants are accused of felonies involving domestic abuse, child neglect, or drug trafficking, detention may be authorized under section 12 if the charges involve violence or threatened violence. In some cases, detention may be authorized even when the defendant was not the direct perpetrator." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 634 (conc. opn. of Groban, J.)

			"The issues in this case pertain to pretrial bail." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 610, fn. 4.)

	==Bail==		==Bail==

Sysop at 07:04, 16 September 2026

2026-09-16T07:04:40Z

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	"The ~~California Supreme Court has recognized~~ that release on bail ~~and OR release are separate and distinct procedures~~." (''~~Williams v. County of San Joaquin~~'' (~~1990~~) ~~225~~ Cal.~~App~~.~~3d 1326~~, ~~citing~~ ''~~Van Atta v. Scott~~'' (~~1980~~) 27 Cal.~~3d 424~~, ~~452 [~~"~~Release~~ on own ~~recognizance~~ and ~~release on~~ bail ~~are alternative~~ and ~~complementary systems"]]~~


			==Humphrey and Kowalczyk==

			"The totality of the circumstances also includes a defendant's financial situation and resources available to satisfy a monetary bail order. '''This does not mean that bail may only be set in an amount that is easily affordable or convenient to the defendant, or that the court must accept unsupported, conclusory assertions of indigency or an inability to pay.''' Rather, consistent with constitutional framework regarding bail determinations and our prior precedent, bail must generally be set in an amount that is reasonably attainable, in order to effectuate the defendant's constitutional right to pretrial release on bail." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 607-608.)

			"When it comes to considering monetary bail, the defendant must do more than present conclusory assertions of indigency or an inability to pay." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 625.)

			Kowalczyk said "a defendant cannot rely on conclusory assertions of excessiveness to prevail in every case," and quotes with approval Ex Parte Duncan, "Consistent with the totality of the circumstances approach we adopt here, we reasoned with respect to excessiveness: 'Undoubtedly the extent of the pecuniary ability of a prisoner to furnish bail is a circumstance among other circumstances to be considered in fixing the amount in which it is to be required, but it is not in itself controlling. [Otherwise], ... '''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.'''' (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 627.)





	==Bail==		==Bail==

			"The California Supreme Court has recognized that release on bail and OR release are separate and distinct procedures." (''Williams v. County of San Joaquin'' (1990) 225 Cal.App.3d 1326, citing ''Van Atta v. Scott'' (1980) 27 Cal.3d 424, 452 ["Release on own recognizance and release on bail are alternative and complementary systems"]]


	==Own Recognizance (OR) Release==		==Own Recognizance (OR) Release==

Sysop: /* Supervision revocation */

2026-09-10T05:45:21Z

Supervision revocation

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	The constitutional and statutory provisions with respect to right to bail, while absolute except in a narrow class of cases, pertain only to persons incarcerated on a charge of the commission of a criminal offense, and do not entitle to release on bail a person subject to a “parole hold” by reason of alleged parole violation. (''In re Law'' (1973) 10 Cal.3d 21, 25-26.)		The constitutional and statutory provisions with respect to right to bail, while absolute except in a narrow class of cases, pertain only to persons incarcerated on a charge of the commission of a criminal offense, and do not entitle to release on bail a person subject to a “parole hold” by reason of alleged parole violation. (''In re Law'' (1973) 10 Cal.3d 21, 25-26.)

			In re Law was interpreting California Constitution Article I, section 6, which is now section 12.

			Federal 8th Amendment doesn't apply to probation revocation. (In re Whitney (1st Cir. 1970) 421 F.2d 337, 338.)

	Kowalczyk does cite to In re Law and in no way suggests it is overruling In re Law. "The issues in this case pertain to pretrial bail. Different principles apply to bail pending appeal. (In re Kowalczyk (2026) 19 Cal.5th 593, 610, fn.4)		Kowalczyk does cite to In re Law and in no way suggests it is overruling In re Law. "The issues in this case pertain to pretrial bail. Different principles apply to bail pending appeal. (In re Kowalczyk (2026) 19 Cal.5th 593, 610, fn.4)

	Probationers have limited constitutional rights to due process under Morrisey and Vickers.		Probationers have limited constitutional rights to due process under Morrisey and Vickers, such as right to counsel, right to present evidence, right to confront and cross-examine witnesses,

Sysop at 05:35, 10 September 2026

2026-09-10T05:35:21Z

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	What is final judgment? For purposes of appeal, under PC1237, order granting probation is final judgment. But People v. McKenzie (2018) 25 Cal.App.5th 1207, gives many distinctions. “It is true that, under [Penal Code] section 1237, an order granting probation is deemed a ‘final judgment’ for the purpose of taking an appeal. [Citation.] [The Supreme Court has] explained, however, that such an order ‘does not have the effect of a judgment for other purposes.’ ” (People v. Chavez (2018) 4 Cal.5th 771, 786, 231 Cal.Rptr.3d 634, 415 P.3d 707; Howard, supra, 16 Cal.4th at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 [“The probation order is considered to be a final judgment only for the ‘limited purpose of taking an appeal therefrom.’ ”]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636 [same].) Indeed, it has been held that an order granting probation does not have the effect of a final judgment in the context of Estrada's retroactivity. (In re May (1976) 62 Cal.App.3d 165, 169, 133 Cal.Rptr. 33 (May) [order suspending proceedings and granting probation did not have the effect of a final judgment for purposes of this case; “the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final”].)		What is final judgment? For purposes of appeal, under PC1237, order granting probation is final judgment. But People v. McKenzie (2018) 25 Cal.App.5th 1207, gives many distinctions. “It is true that, under [Penal Code] section 1237, an order granting probation is deemed a ‘final judgment’ for the purpose of taking an appeal. [Citation.] [The Supreme Court has] explained, however, that such an order ‘does not have the effect of a judgment for other purposes.’ ” (People v. Chavez (2018) 4 Cal.5th 771, 786, 231 Cal.Rptr.3d 634, 415 P.3d 707; Howard, supra, 16 Cal.4th at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 [“The probation order is considered to be a final judgment only for the ‘limited purpose of taking an appeal therefrom.’ ”]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636 [same].) Indeed, it has been held that an order granting probation does not have the effect of a final judgment in the context of Estrada's retroactivity. (In re May (1976) 62 Cal.App.3d 165, 169, 133 Cal.Rptr. 33 (May) [order suspending proceedings and granting probation did not have the effect of a final judgment for purposes of this case; “the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final”].)

			==Supervision revocation==

			The constitutional and statutory provisions with respect to right to bail, while absolute except in a narrow class of cases, pertain only to persons incarcerated on a charge of the commission of a criminal offense, and do not entitle to release on bail a person subject to a “parole hold” by reason of alleged parole violation. (''In re Law'' (1973) 10 Cal.3d 21, 25-26.)

			Kowalczyk does cite to In re Law and in no way suggests it is overruling In re Law. "The issues in this case pertain to pretrial bail. Different principles apply to bail pending appeal. (In re Kowalczyk (2026) 19 Cal.5th 593, 610, fn.4)

			Probationers have limited constitutional rights to due process under Morrisey and Vickers.

Sysop: /* PC12022.1 On bail enhancement */

2025-11-18T02:33:17Z

PC12022.1 On bail enhancement

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	If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)		If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)

			If the primary offense pleads out to a misdemeanor, then no PC12022.1 enhancement. (''People v. Reyes'' (2016) 3 Cal.App.5th 1222, 1227.)

			Determination of whether primary offense is a felony is at time of sentencing. (''People v. Smith'' (2006) 142 Cal.App.4th 923, 935, fn. 4.)

	An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)		An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)

Sysop: /* PC12022.1 On bail enhancement */

2024-05-05T16:14:04Z

PC12022.1 On bail enhancement

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 ==PC12022.1 On bail enhancement==
 This is a two-year enhancement for committing a crime while released on bail or own recognizance. Subdivision (c) specifically states that the allegation may be pleaded in a Complaint, but need not be proved at the preliminary hearing. The allegation must, however, be pleaded in the Information or Indictment
@@ Line 58: / Line 61: @@
 )	and that he was taken into custody for the commission of Count YYYY”

Sysop: /* PC12022.1 On bail enhancement */

2024-02-05T02:09:12Z

PC12022.1 On bail enhancement

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	''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.		''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

	''People v. Smith'' (2006)		''People v. Smith'' (2006) held that the conviction of the primary offense is not an element of the enhancement that has to be found by a jury.

	The appropriate jury instruction is CALCRIM 3250.		The appropriate jury instruction is CALCRIM 3250.

Sysop: /* PC12022.1 On bail enhancement */

2024-02-03T15:54:01Z

PC12022.1 On bail enhancement

← Older revision		Revision as of 15:54, 3 February 2024
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	''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.		''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

			''People v. Smith'' (2006)

			The appropriate jury instruction is CALCRIM 3250.

			“If you find the defendant guilty of the crime charged in Count XXX, you must then decide whether the People have proved the additional allegation that at the time of the commission of Count YYYY, that the Defendant was released from custody on bail or his own recognizance for Count XXXX,

			To prove this allegation, the People must prove that

			1) At the time the Defendant committed the acts alleged in Count YYYY, he had been released from custody on bail or on his or her own recognizance pending trial for Count XXX,
			and

			2) and that he was taken into custody for the commission of Count YYYY”

Sysop: /* PC12022.1 On bail enhancement */

2024-02-03T15:52:06Z

PC12022.1 On bail enhancement

← Older revision		Revision as of 15:52, 3 February 2024
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	An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)		An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)

			''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

Sysop: /* PC12022.1 On bail enhancement */

2024-02-03T15:48:06Z

PC12022.1 On bail enhancement

← Older revision		Revision as of 15:48, 3 February 2024
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	If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)		If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)

			An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)