PC 1275.1 Specialists

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Believe it or not, the PC 1275.1 statute was an improvement over existing law.  Prior to it's enactment in 1998 (under SB55 by Senator Kopp) the law stated that no bail was to be accepted unless the judge or magistrate was absolutely convinced that no portion of the collateral  provided was feloniously obtained. The law, however, did not establish what the burden of proof was.  As a result, people accused of certain crimes were being held without bail and with no way to effectively meet the burden of proof required by the law. 

The PC 1275.1 statute now requires the prosecutor or peace officer to establish probable cause that some portion of the bail was feloniously obtained before the burden is met and a magistrate can place a hold on a person's release on bail.  Additionally, the new law put in place a number of important changes:

1) A judge can only order a hold on the release of a defendant from custody if either a peace officer or a prosecutor files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. 

2) Provides the defendant and his or her attorney must be provided with a copy of the declaration within 48 court hours after defendant's arrest.

3) Provides that if the declaration that is filed with a judge is not acted on within 24 hours, the defendant must be released from custody upon posting of the amount of bail set.  

4) Provides that once a judge has determined that probable cause does exist a defendant bears the burden of establishing by a preponderance of the evidence that no part of any consideration, security or indemnification given or promised for its execution was obtained by felonious means.

5) Provides once a defendant has met the burden, the judge release the hold previously ordered and the defendant be released under the authorized amount of bail.

6) Defines "feloniously obtained" as any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution which is possessed, received, or obtained through an unlawful act, transaction, or occurrence.  Please note, although it says "feloniously" this also includes funds gathered through acts which may be considered midemeanors.

7) Provides this bill does not deny the defendant the right, either personally or through a representative, to apply with the magistrate for bail or to prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained.

8) Provides a judge may choose to close from the general public an evidentiary hearing inquiring into the source of the funds if such a request is made by any person providing any portion of the consideration, pledge, security, deposit or indemnification.

Sometimes, during the pc1275 hearing, a judge or prosecutor will try and bring in additional factors in an attempt to prohibit the posting of bail.  It is important to understand that the PC1275 hold is strictly about proving the source of bail funds and not about the guilt or innocence of the defendant or the indemnitors (co-signers).  As such, it is important to understand the history of this legislation and the Legislative Intent behind it. 

We have gone back to the original senate records to reveal the author's original purpose and the legislative intent behind this law:

1.  Expressed Purpose of the Bill

According to the sponsor:

     The wording of Penal Code Section 1275 allows for 
     great misuse.  Each time I have been before a 
     judge of the Courts of Sacramento County the 
     jurists point out the great ambiguity in the law 
     and the total lack of direction given to the 
     courts by the Legislature.  There is no mention 
     of burdens, there are no standards to determine 
     when a 1275 hold should be ordered, there are no 
     guidelines on how much evidence needs to be 
     presented for a judge to "be satisfied" that the 
     funds have not been obtained from felonious 
     sources.

2.  Probable Cause Required to Place a Hold on Bail

Current law provides that

     [n]o bail shall be accepted unless the judge or 
     magistrate is convinced that no portion of the 
     consideration, pledge, security, deposit, or 
     indemnification paid, given, made, or promised 
     for its execution was feloniously obtained.

However, the existing statute does not set forth in any 
more detail the burden of proof required to show that a 
portion of the bail was feloniously obtained.  This bill 
states that the prosecutor or peace officer must establish 
probable cause to believe that some portion of the bail was 
feloniously obtained before the burden is met and a 
magistrate can place a Penal Code Section 1275 hold on a 
person's release on bail.

3.  Probable Cause Declaration

This bill makes a declaration filed under penalty of 
perjury by either a prosecutor or a peace officer a 
prerequisite to any hold being placed on a defendant's 
release from custody on bail.  Thus, under this bill, 
without such a declaration, no hold can be placed on a 
defendant's release on bail.  Current law required such a 
declaration by a peace officer but not a prosecutor, and 
only in certain specified narcotics offenses.  This bill 
states that such a declaration must be filed in any case 
where the prosecutor or police agency is seeking to 
preclude a defendant from being released on bail prior to a 
magistrate making a determination of whether any portion of 
that bail or the security for such bail was feloniously 
obtained, or when the judge has probable cause to believe 
that the bail security was feloniously obtained.

4.  Definition of "Feloniously Obtained "

Current law does not specifically define "feloniously 
obtained".  This bill defines "feloniously obtained" as any 
consideration, pledge, security, deposit, or 
indemnification paid, given, made, or promised for its 
execution which is possessed, received, or obtained through 
an unlawful act, transaction, or occurrence.  However, it 
includes consideration obtained by means not amounting to a 
felony.

Remember, Failure On The First Attempt May Result In The Bail Being Raised
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