How does bail work in California, and how do you get released before trial?

In California, a person who is arrested must be brought before a judge within 48 hours, not counting Sundays and holidays (Penal Code § 825). Before that first hearing, release is usually possible by posting the amount on the county bail schedule; at the hearing, the judge can release the person on their own recognizance, set bail with conditions, or, in limited cases, order them held. Since 2021, the California Supreme Court has required judges to consider whether a person can actually pay the bail they set.

Bail is often the first problem in a criminal case, and families feel it right away. A call comes from the jail late at night, someone needs to find money or a bail agent, and nobody knows when the next court date is. This page explains how release before trial works under California law and in the Orange County courts, step by step. It sits under the firm's criminal defense and family law practice areas, and it links to the pages on the charges that most often lead to a bail hearing.

How release before trial works in Orange County, step by step

The order of events is set by the Penal Code. The details below follow the statutes and the Orange County Superior Court's own pages.

1. Arrest and booking. After an arrest, the person is booked into a city jail or the county jail. From that moment, any attorney licensed in California may visit at the request of the person or any relative (Penal Code § 825(b)). A family member can make that request.
2. Bail from the schedule. Before anyone has seen a judge, bail is the amount on the warrant or, if there is no warrant, the amount on the uniform countywide bail schedule (§ 1269b(b)). The judges of each county prepare and revise that schedule every year (§ 1269b(c)). The jail officer or the court clerk can accept the scheduled amount in cash or as a surety bond issued by a certified, admitted surety insurer, and then release the person with a court date (§ 1269b(a)).
3. The 48-hour rule. A person who stays in custody must be taken before a judge without unnecessary delay and within 48 hours, excluding Sundays and holidays (§ 825(a)(1)). If the 48 hours run out when court is not in session, the time extends to the next court session (§ 825(a)(2)).
4. The first court date (arraignment). In Orange County, many in-custody arraignments are heard in Department CJ1, a courtroom inside the Men's Central Jail complex at 550 N. Flower St., Building 50, Santa Ana. The court lists misdemeanor and felony complaint arraignments there Monday to Friday, 8:00 a.m. to 4:00 p.m., for select hearings from the Central, Harbor and North Justice Centers. A person who was released goes to the justice center that serves the city where the case arose.
5. The bail decision. At arraignment the judge can release the person on their own recognizance (§ 1270), set or change bail, or add conditions. Once a person has appeared before a judge, bail is the amount that judge fixed (§ 1269b(b)).
6. The release agreement. Anyone released on their own recognizance signs an agreement promising to appear at every date, to obey reasonable conditions, not to leave California without the court's permission, and to waive extradition if they fail to appear and are found outside the state (§ 1318(a)).
7. Every court date after that. Missing court has its own consequences. A warrant can issue, posted bail or a bond can be forfeited, and willful failure to appear can be a new crime (§§ 1320, 1320.5). The Orange County court says that to appear or post bail on a warrant, a person must report to the Criminal Operations Department of the justice center that issued the warrant by 8:00 a.m., Monday to Friday.

What a California judge weighs at a bail hearing

When a judge sets, lowers or denies bail, the law lists what must be considered: protection of the public, the seriousness of the offense charged, the person's criminal record, and how likely the person is to appear at trial and at hearings. Public safety is the primary consideration (Penal Code § 1275(a)(1)). In judging seriousness, the judge looks at any alleged injury to the victim, alleged threats to a victim or witness, alleged use of a firearm or other deadly weapon, and alleged use or possession of controlled substances (§ 1275(a)(2)).

In March 2021, the California Supreme Court decided In re Humphrey. The court held that conditioning freedom only on whether a person can afford bail is unconstitutional. Where a money condition is needed, the judge must consider the person's ability to pay, along with the seriousness of the charge and the record, and set bail at a level the person can reasonably afford unless there is a valid basis for detention. The court also noted that other conditions, such as electronic monitoring, regular check-ins with a pretrial case manager, and drug and alcohol treatment, can in many cases protect safety and ensure appearance. A judge may hold someone without release only after finding, by clear and convincing evidence, that no less restrictive condition will do.

In practice this means the bail hearing is an argument about facts: who the person is, how long they have lived in Orange County, where they work, who depends on them, what they can pay, and what conditions would make the judge comfortable. That is the part a defense attorney prepares, and it is why the hours before the first court date matter. Readers who want to know who would be standing next to them in court can read about Sourena Sarbazevatan and his California license.

What changes the answer?

The same arrest can lead to very different bail outcomes. These are the factors that move it most, each with its rule.

• Misdemeanor or felony. A person in custody who is arraigned on a misdemeanor is entitled to own-recognizance release unless the judge finds on the record that release would compromise public safety or would not reasonably assure appearance (Penal Code § 1270(a)). Felonies have no such starting point.
• Charges that require a hearing in open court. For serious and violent felonies, felony corporal injury to a partner (§ 273.5), felony criminal threats (§ 422), stalking (§ 646.9), domestic battery (§ 243(e)(1)) and some restraining-order violations, the judge cannot release on own recognizance or depart from the scheduled amount without a hearing in open court. The prosecutor and defense get two court days' written notice, and the hearing must still happen within the § 825 time limit (§ 1270.1(a), (b)). The domestic violence charges page explains those cases in more detail.
• Serious or violent felony below the schedule. To lower bail below the schedule for a serious or violent felony, the judge must find unusual circumstances and state them on the record. Having made every past court date, or having no new offenses, does not count as unusual by itself (§ 1275(c)).
• A sworn officer's declaration. For a bailable felony, or a misdemeanor violation of a domestic violence order, a judge can raise bail above the schedule without a hearing, based on a peace officer's declaration under penalty of perjury (§ 1270.1(e)).
• Weapons, injury and threats. An alleged firearm or deadly weapon, injury to the victim or threats to a witness weigh on seriousness (§ 1275(a)(2)). Readers facing that kind of allegation can read the page on weapon and firearm charges in California.
• Ability to pay. Where money bail is set, the judge must consider what the person can afford (In re Humphrey).
• A warrant amount. If an arrest warrant already set bail, that amount applies until the person appears before a judge (§ 1269b(b)).

Questions clients ask about bail hearings

• Arrested in Orange County: what happens between arrest and arraignment?
• Arrested in Orange County: what to do in the first week, and what to bring to your attorney
• Can you travel outside the U.S., for example to Iran, while a California criminal case is open?
• Is there a warrant for your arrest in Orange County or San Diego? How to check and what to do
• Arrested in San Diego County: what happens between arrest and arraignment?
• Public defender or private attorney in Orange County: how do you decide?
• What drives the cost of a criminal defense in Orange County?
• What is a preliminary hearing in a California felony case, and when does it happen?
• How long can a California criminal case take? Speedy trial deadlines under Penal Code 1382
• Not a U.S. citizen: how can a California criminal case affect your green card or visa?

A worked example

For example, imagine a man in his forties who lives in Irvine, works as an engineer, and has a permanent resident card. This is a made-up situation, not a real client. On a Friday evening, after an argument at home, Irvine police arrest him on suspicion of domestic battery under Penal Code § 243(e)(1). His sister, who speaks Persian with their parents and English at work, gets the call from the jail.

Because domestic battery is on the § 1270.1 list, he cannot be released on his own recognizance, or on a bail amount different from the schedule, without a hearing in open court. He can still post the scheduled amount before that hearing (§ 1269b). The 48-hour clock does not count Sunday, and if it ends when court is closed, it carries to the next court session (§ 825). So the family has the weekend to decide whether to post scheduled bail or wait for the hearing, and to collect what the judge will want to know: a letter from his employer, a copy of the lease, the names of people who can drive him to court, and where he could stay if the court orders him away from the home.

Two other facts change the planning. He had booked a flight to Tehran next month to visit his mother. If he is released on his own recognizance, the agreement he signs includes a promise not to leave California without the court's permission and to waive extradition (§ 1318(a)(3), (4)). The trip is off unless a judge allows it, and he should not book anything until the case is resolved or permission is granted. Second, he is not a U.S. citizen. The Orange County court's own guidance warns that a conviction can lead to deportation for noncitizens. This office does not give immigration advice, so he should also speak with a separate immigration attorney before any plea is discussed. At the hearing, the judge may also issue a criminal protective order, which affects whether he can go home, and that order can matter later in any child custody case in a California family court.

If the family's documents are in Persian, an English translation helps the attorney use them. If his parents come to court and need an interpreter, the Orange County court asks people to request one from the clerk's office or the courtroom when they arrive.

Common mistakes after an arrest

• Talking about the facts on jail phone calls. Keep calls from custody to logistics: where to find documents, who to call, when court is. Save what happened for a private meeting with the defense attorney.
• Paying a bail agent before asking whether the judge may release on own recognizance. For many misdemeanors, release without money is the starting point under § 1270(a), so the fee a bail agent charges may be a cost the family does not need to pay.
• Showing up at the hearing with nothing to show. The judge decides on facts. Proof of work, residence, family ties and a realistic place to stay are the facts.
• Ignoring the conditions after release. A stay-away order or a travel limit is a court order. Breaking it can mean a new arrest and the loss of release.
• Booking international travel. Leaving California without permission breaks the release agreement (§ 1318(a)(3)), and missing court can be a separate crime (§§ 1320, 1320.5).
• Missing a court date because of a wrong address. Check the case online on the court's site and keep the notice; a missed date can lead to a warrant and forfeited bail.

What to do this week

1. Find out where the person is held and the booking number, and write down the next court date and courthouse.
2. Ask whether bail has been set from the schedule or a warrant, and how much it is.
3. Call a California criminal defense attorney before paying a bail agent, so the choice between posting bail and asking for own recognizance is made with the full picture.
4. Gather documents: proof of employment, lease or mortgage, school enrollment for children, medical needs, and a list of people who can attend court.
5. If the person is not a U.S. citizen, note their status and contact a separate immigration attorney; this office does not give immigration advice.
6. Cancel or postpone any trip outside California, including any trip to Iran, until the court says otherwise.
7. After release, read every condition, keep the paperwork, and set reminders for each court date.

When the arrest involves alcohol and driving, there is a second deadline with the DMV that runs separately from bail; the page on how a California DUI case works covers it. Charges of theft and fraud, which often start with a citation rather than custody, are on the page about theft and fraud charges in California.

Bail and booking in San Diego County follow that county's own schedule and jails; see our San Diego County page.

Frequently asked questions

How long can police hold someone before they see a judge in California?

The law requires the person to be taken before a judge without unnecessary delay and within 48 hours of arrest, excluding Sundays and holidays (Penal Code § 825(a)(1)). If that period ends while court is closed, it extends to the next court session. An arrest on a Wednesday after court has closed for the day has its own rule: the hearing must be no later than Friday, if Friday is not a court holiday.

Who sets the bail amount before the first hearing?

The judges of each county adopt a uniform countywide bail schedule every year, and that schedule applies until the person appears before a judge, unless a warrant set a different amount (§ 1269b(b), (c)). After the first appearance, bail is whatever the judge fixed.

What does release on own recognizance mean?

It means release without posting money, on a signed promise to appear, to follow conditions, not to leave California without permission, and to waive extradition (§§ 1270, 1318). For a misdemeanor in custody it is the starting point, unless the judge makes findings on the record against it.

Can a judge refuse to release someone at all?

In limited cases. Under In re Humphrey, a judge may detain a person only after finding by clear and convincing evidence that no less restrictive condition can reasonably protect public or victim safety or assure the person's appearance.

What happens to the bail money when the case ends?

Cash bail posted with the court is handled by the court, and the Orange County Superior Court has a page on bail refunds and payment questions. Money paid to a bail agent is a separate matter, governed by the agent's own contract rather than the court's refund process.

Can a family member talk to the attorney?

Yes. A relative can ask a California attorney to visit the person in custody (§ 825(b)), and a Persian-speaking parent or sibling is often the family's main contact. The family can help with documents, logistics and court dates, while the details of what happened should be discussed by the arrested person directly with the attorney.

Does a bail hearing decide guilt?

No. It decides only release and conditions while the case goes on. The charge itself is decided later, by plea, dismissal or trial.

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in bail hearing and criminal defense matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.