The Use of Bail in Domestic Violence Misdemeanors

The most effective way to learn new law is to have something happen to you in court.  Here’s something I learned this week: bail can be used in misdemeanor domestic violence cases to give the prosecution the upper hand in plea bargaining.

The general rule is that misdemeanor arrestees get released on their own recognizance.  (Pen. Code § 1270.)  But there is an exception for domestic violence.  If a defendant is arrested for a domestic violence misdemeanor, such as a violation of Penal Code § 243(e)(1) or 273.5, she cannot be released without a bail reduction hearing.  (Pen. Code § 1270.1(a).)  In this situation the prosecutor must be given a two-court-day written notice and an opportunity to be heard on the matter.  (Pen. Code § 1270.1(b).)

So imagine that defendant is in custody for a violation of Penal Code § 273.5.  Defense counsel asks that he be released on his own recognizance.  Is this legal?

No.  Defendant cannot be released OR on this charge unless defense counsel provides the prosecutor with two days written notice.  This will allow us time to contact the victim and find out their position on OR release.  It will also give us time to carefully review defendant’s criminal history.

This means two additional days in custody for your defendant, a powerful incentive for them to plead the case away.  Defendants often want to get out of jail as soon as possible, and will plead guilty to do it.

There is an important exception to this rule.  Bail reduction hearings can be done at arraignment without an additional two days written notice.  This was the holding of Dant v. Superior Court (1998) 61 Cal.App.4th 380.  In that case, the defendant was arrested for violating Penal Code 273.5.  (Ibid at p. 383.)  He was arrested and then arraigned four days later.  (Id.)  At arraignment, defendant made a motion to be released on his own recognizance.  The court declined to rule on the motion because the defendant failed to give the prosecutor two court days’ written notice.  (Id.)  The Court of Appeal held that this was error.  It reasoned that the purpose of § 1270.1 is to prevent release of a defendant OR before she is brought to court.  It specifically mentions the situation where a judge is on duty over the weekend and releases the defendant OR without a hearing or ex parte.  (Id. at pp. 386, 390.)  If a court wanted to provide notice to the prosecutor, the Court of Appeal recommended that a magistrate deny OR and grant a reasonable continuance to obtain additional information relevant to the propriety of such a release.  (Id. at p. 390.)

This rule can also be tricky.  If you argue to the court that the defendant is so dangerous that he needs to be held on bail, you don’t want to then offer him a time-served plea bargain.  You will be saying “he’s dangerous” out of one side of your mouth and “he’s harmless” out of the other.  It will damage your credibility with the court.  Make sure you are asking for jail if you use this technique.  If you are intending to release him anyway, you will hurt your credibility in the future.