The Right to Bail in California and The Exceptions

In Kern County and throughout the state of California, a criminal defendant who is charged with a noncapital offense may be admitted to bail before conviction as a matter of state law. However, our California Constitution restricts this right under the following circumstances:

• If an accused is charged with a violent felony or a felony sexual assault offense when the facts are evident or the presumption great and the court finds, based on clear and convincing evidence, that there is a substantial likelihood the person’s release would result in great bodily harm to others, or

• If the defendant is charged with any felony when the facts are evident or the presumption great and a Judge finds, based on clear and convincing evidence, that the person has threatened another with great bodily injury and that there is a substantial likelihood that the defendant will carry out the threat if released.

The language “when the facts are evident or the presumption great” has been defined by the Courts as follows: “It is not necessary that the evidence should be so convincing as to justify a verdict against the accused, but it is sufficient if it points to him and induces the belief that he may have committed the offense In determining whether there is a “substantial  likelihood” that the defendant will cause great bodily injury to another if released, the magistrate or judge must review the specific circumstances on a case-by-case basis.  Most prosecutors, particularly those in conservative counties such as Kern,  will apply the exceptions liberally and ask for no bail in serious cases.  It is important to seek the counsel of an experienced criminal defense lawyer to argue that bail should be allowed.  A hearing can be held to permit the Court to hear evidence militating towards a release on bail.

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