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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

JOHN K. VAN DE KAMP
 

Attorney General
 

:

 OPINION : 

:

 of : 

:

 JOHN K. VAN DE KAMP : No. 87-401

 Attorney General :

 : MARCH 3, 1988

 RODNEY O. LILYQUIST : 

Deputy Attorney General : 

:

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THE HONORABLE JOHN A. DOUGHERTY, DISTRICT ATTORNEY, 

SACRAMENTO COUNTY, has requested an opinion on the following questions: 

1. Does state law require a defense attorney to file a written declaration of 

supporting facts under penalty of perjury when applying for a reduction in bail or an own 

recognizance release on behalf of a defendant? 

2. Does state law require a defense attorney to notify the district attorney when 

applying for a reduction in bail or an own recognizance release on behalf of a defendant? 

CONCLUSIONS 

1. State law does not require a defense attorney to file a written declaration of 

supporting facts under penalty of perjury when applying for a reduction in bail or an own 

recognizance release on behalf of a defendant. 

2. State law requires a defense attorney to notify the district attorney when 

applying for a reduction in bail on behalf of a defendant after an information or indictment has 

been filed, when an own recognizance release is sought following arrest for one or more 

specified violent felonies, and where admission to bail is a matter of discretion rather than a 

matter of right. 
 

 

ANALYSIS 

When a person is arrested for committing a crime, he or she must generally 

remain in the custody of the person making the arrest or of the peace officers to whom he or she 

is delivered. Of course, the person is ultimately released after any court trial in which he or she 

has been found not guilty or after serving any sentence upon being convicted of the crime. The 

law also authorizes, however, release while criminal proceedings are still pending. 

The traditional method of obtaining the release from custody of a defendant 

pending a criminal trial is by posting "bail." Bail is normally thought of as a sum of money that 

is deposited with the court and forfeited if the defendant fails to appear when his or her presence 

is required. (See Cal. Const., art. I, § 12; Pen. Code, §§ 1268, 1273; In re Boyle (1974) 11 

Cal.3d 165, 169; 1 Erwin, et al., Cal. Criminal Defense Practice (1987) § 12.01, pp. 4-11; Cal. 

Criminal Law Procedure and Practice (Cont.Ed.Bar 1986), §§ 3.18-3.19, pp. 48-49 (hereafter 

CEB); George, 1986 Cal. Superior Court Criminal Trial Judges' Benchbook (1986) p. 94; 2 La 

Fave & Israel, Criminal Procedure (1984) § 12.1, pp. 113-115; Fricke & Alarcon, Cal. Criminal 

Procedure (8th ed. 1974) pp. 60-63; Witkin, Cal. Criminal Procedure (1963) §§ 148-151, pp. 

141-144.)1 

More recently courts have been authorized to order the release of a defendant on 

his or her "own recognizance" while the proceedings are pending. Under this procedure the 

defendant agrees to appear in court as required and acknowledges that a willful failure to appear 

constitutes a separate offense. (See Cal. Const., art. I, § 12; §§ 1269c, 1270, 1318-1320; Van 

Atta v. Scott (1980) 27 Cal.3d 424, 431-432; 1 Erwin, supra, § 12.10, pp. 50-58; CEB, supra, §§ 

3.10-3.17, pp. 45-48; George, supra, p. 98; Witkin, supra, § 166, pp. 158-159.) 

While bail may be posted in cash by or on behalf of the defendant (see § 1295), a 

surety bond is also often used whereby the surety guarantees payment of the amount of the bail if 

1

All references hereafter to the Penal Code are by section number only. In Sawyer v. Barbour 

(1976) 142 Cal.App.2d 827, 833-834, the court stated:

 "Various connotations have been accorded the term 'bail.' Strictly speaking, 

bail is the person in whose custody the defendant is placed when released from 

jail and who acts as surety for the defendant's later appearance in court. The term 

is also used to refer to the undertaking by the surety into whose custody the 

defendant is placed that he will produce the defendant in court at a stated time and 

place. [Citations.] The popular meaning of 'bail' is simply that it is '[t]he security 

given for the due appearance of a prisoner in order to obtain his release from 

imprisonment.' [Citation.] When used in this sense, bail can mean either cash 

or bond. The courts of this state recognize that bail may have this broad meaning. 

[Citations.]" 

2. 87-401
 
 

the defendant does not appear as required (see §§ 1269, 1269b). Government bonds and equity 

in real property may also be accepted in posting bail. (§ 1298.) The bail amount is determined 

in one of three ways: (1) a bail schedule is adopted by the judges of the county fixing the 

amount of the bail for each offense, (2) when a warrant of arrest is issued by a magistrate, the 

amount of the bail is endorsed on the warrant, and (3) when a defendant appears in court, the 

judge fixes the amount of the bail. (§§ 815a, 1269b.) Subdivision (b) of section 1269b states: 

"If a defendant has appeared before a judge of the court on the charge 

contained in the complaint, indictment, or information the bail shall be in the 

amount fixed by such judge at the time of such appearance; if no such appearance 

has been made, the bail shall be in the amount fixed in the warrant of arrest or, if 

no warrant of arrest has been issued, the amount of bail shall be pursuant to the 

uniform countywide schedule of bail for the county in which the defendant must 

appear, previously fixed and approved . . . ." 

The court in which the action is pending may increase or decrease the amount of a 

defendant's bail upon the application of either party. (§§ 1269c, 1289.)2 The two questions 

presented for analysis concern whether state law requires a defense attorney (1) to file a written 

declaration under penalty of perjury in support of an application to reduce the amount of the bail 

or to release the defendant on his or her own recognizance and (2) to notify the district attorney 

of such application. 

1. Written Declaration 

Hearings held to set or reduce bail or to release the defendant on his or her own 

recognizance have traditionally been informal. (See CEB, supra, § 3.21, p. 49; George, supra, p. 

94; 2 La Fave & Israel, supra, § 12.1, pp. 116-117.) As described in one textbook: 

"A bail hearing is conducted by a judge or magistrate. It may be set at the 

request of the defendant or the prosecutor. The purpose of the hearing is for the 

magistrate to fix or change the amount of bail. Traditionally, the bail hearing is 

informal and devised to discover salient information relating to permissible 

guidelines for setting bail. Either side may produce evidence through testimony, 

declarations, or representations. See Van Atta v. Scott (1980) 27 Cal.3d 424, 437, 

166 CR 149, 155. Usually the magistrate considers the defendant's record and 

oral representations from both sides without requiring a formal oath or 

declaration. However, the magistrate may require actual testimony, or affidavits 

or declarations. See 27 Cal.3d at 441, 166 CR at 157. Local court rules 

2

At least one judge of the superior, municipal, or justice court must "be reasonably available 

on call as a magistrate for the setting of orders for discharge from actual custody upon bail . . . at 

all times when a court is not in session in the county." (§ 810, subd. (a).) The judges of each of 

the courts are magistrates. (§ 808.) 

3. 87-401
 
 

frequently establish procedures for the hearing. Both parties should be prepared 

to present evidence acceptable to the magistrate." (CEB, supra, § 3.21, p. 49.) 

The editors of another textbook have suggested that a written declaration may be "helpful": 

"Although an oral motion to reduce bail may be made in the early stages 

of the proceeding, the usual practice is to make a written motion. . . . Any 

favorable changes in the defendant's case since bail was set should be emphasized 

in a written memorandum accompanying the motion, and if declarations would be 

helpful, they should be included." (1 Erwin, supra, § 12.02[3][a], p. 18.) 

Another textbook writer, however, has recommended against the taking of sworn testimony in a 

bail hearing: 

"A hearing may be held on . . . any . . . application for bail. However, 

taking evidence in the nature of sworn testimony is not recommended. The 

statements of counsel, make-sheets or reports counsel stipulate the judge can read 

are usually sufficient, but care should be taken to avoid making any factual 

finding adverse to the defendant which could disqualify the judge in future 

proceedings." (George, supra, p. 94.) 

We have found only one statute that remotely suggests a written declaration under 

penalty of perjury must accompany a bail reduction or own recognizance release application. 

Section 1269c states: 

"In any case in which a defendant is arrested without a warrant for a 

bailable felony offense and a peace officer has reasonable cause to believe that 

the amount of bail set forth in the schedule of bail for that offense is insufficient 

to assure defendant's appearance, the peace officer shall prepare a declaration 

under penalty of perjury setting forth the facts and circumstances in support of his 

belief and file it with a magistrate, as defined in Section 808, in the county in 

which the offense is alleged to have been committed or having jurisdiction of the 

person of defendant, or a commissioner of such magistrate, requesting an order 

setting a higher bail. The defendant, either personally or through his attorney, 

friend, or member of family, also may make application to such magistrate for 

release on bail lower than that provided in the schedule of bail or on his own 

recognizance. The magistrate or commissioner to whom such application is made 

is authorized to set bail in such amount as he deems sufficient to assure the 

defendant's appearance, and to set such bail on such terms and conditions as he, in 

his discretion, deems appropriate, or he may authorize the defendant's release on 

his own recognizance. If, after such an application is made, no order changing the 

amount of bail is issued within eight hours after booking, the defendant shall be 

entitled to be released on posting the amount of bail set forth in the applicable bail 

schedule." (Emphasis added.) 

4. 87-401
 
 

 

It is, however, the peace officer who must file the declaration of supporting facts and 

circumstances under penalty of perjury when attempting to have the bail amount increased, not 

the defendant or someone acting on his or her behalf seeking a reduction of bail. The Legislature 

knew how to require a written declaration and did so in the one situation but not the other. (See 

Safer v. Superior Court (1975) 15 Cal.3d 230, 237-238; Santa Fe Transp. v. State Board of 

Equal. (1959) 51 Cal.2d 531, 538-539; Kaiser Steel Corp. v. County of Solano (1979) 90 

Cal.App.3d 662, 668.) "'"When different language is used in the same connection in different 

parts of a statute it is presumed the legislature intended a different meaning and effect."'" 

(People v. Moore (1986) 178 Cal.App.3d 898, 903.) Section 1269c is plain and unambiguous in 

requiring only peace officers to file written declarations; we are not free to add words to the 

statute to require declarations from anyone else in the guise of statutory construction. (See 

People v. Boyd (1979) 24 Cal.3d 285, 294; Great Lakes Properties v. City of El Segundo (1977) 

19 Cal.3d 152, 155; Solberg v. Superior Court (1977) 19 Cal.3d 182, 198.) 

In answer to the first question, therefore, we conclude that state law does not 

require a defense attorney to file a written declaration of supporting facts under penalty of 

perjury when applying for a reduction in bail or an own recognizance release on behalf of the 

defendant.3 

2. District Attorney Notification 

An application for the reduction of bail or for an own recognizance release may 

be made at several stages of the proceedings. (See §§ 1269b, 1273, 1277, 1284; 1 Erwin, supra, 

§§ 12.02, 12.10, pp. 11-19, 50-53; CEB, supra, §§ 3.21, 3.42-3.50, pp. 49, 57-60; 2 La Fave & 

Israel, supra, § 12.1, pp. 113-119; Witkin, supra, §§ 152-154, 157, 166, pp. 145-147, 150, 158-

159.) As previously noted, a magistrate is available day and night for ruling upon such 

applications. (§ 810, subd. (a).) 

The Legislature has required that the district attorney be notified of a bail 

reduction or own recognizance release application in three separate situations. We believe that 

these statutory provisions limit the extent to which notice is required under state law.4 

3

Whether the filing of a written declaration on behalf of a defendant applying for a bail 

reduction or an own recognizance release may be required by a magistrate (see CEB, supra, § 

3.21, p. 49) or local court rules (see CEB, supra, § 3.53, p. 61) is beyond the scope of this 

opinion. 

4

As with the requirement of written declarations, we were not asked to address whether a 

magistrate may request that the district attorney be notified in a particular case (see George, 

supra, p. 106.16) or whether the local court rules may so specify (see 1 Erwin, supra, § 

12.10[7][a], p. 57). 

5. 87-401
 
 

Once an indictment or information has been filed, notification to the district 

attorney is required in all cases where the defendant seeks a reduction of the bail amount. 

Section 1289 states: 

"After a defendant has been admitted to bail upon an indictment or 

information, the Court in which the charge is pending may, upon good cause 

shown, either increase or reduce the amount of bail. If the amount be increased, 

the Court may order the defendant to be committed to actual custody, unless he 

gives bail in such increased amount. If application be made by the defendant for 

a reduction of the amount, notice of the application must be served upon the 

District Attorney." 

Section 1289 would be applicable to an application for an own recognizance release since such 

application would in effect seek the "reduction" to zero of the bail amount. 

Another statutory provision requiring notice to the district attorney involves 

arrests for certain violent felonies. Section 1319 states: 

"Before any person arrested for a violent felony is released on his or her 

own recognizance, a hearing shall be held in open court before the magistrate or 

judge, and the prosecuting attorney shall be given notice and a reasonable 

opportunity to be heard on the matter. A defendant charged with a violent felony 

shall not be released on his or her own recognizance where it appears by clear and 

convincing evidence that he or she previously has been charged with a felony 

offense and has willfully and without excuse from the court failed to appear in 

court as required while that charge was pending. 

"The judge or magistrate who, pursuant to this section, grants or denies 

release on a person's own recognizance shall, within the time period prescribed in 

Section 825, state the reasons for that decision in the record. This statement shall 

be included in the court's minutes. 

"As used in this section, the term 'violent felony' means any crime defined 

in Section 667.5."5 

5

Subdivision (c) of section 667.5 provides: 

 "(c) For the purpose of this section, 'violent felony' shall mean any of the 

following: 

 "(1) Murder or voluntary manslaughter.

 "(2) Mayhem. 

6. 87-401
 
Finally, we note that section 1274 provides: 

"When the admission to bail is a matter of discretion, the court or officer 

to whom the application is made must require reasonable notice thereof to be 

given to the district attorney of the county." 

In our view section 1274 applies to an application to reduce bail previously fixed as well as one 

to make the initial bail determination and also to an application for the release of the defendant 

on his or her own recognizance. Admission to bail is a matter of discretion in certain 

circumstances after the defendant has been convicted at trial and seeks release from custody 

while applying for probation or appealing the conviction. (§ 1272; see 1 Erwin, supra, § 12.01, 

pp. 9-10; CEB, supra, § 38.16, p. 817; Witkin, supra, §§ 673-680; pp. 660-665.) Normally, prior 

"(3) Rape as defined in subdivision (2) of Section 261. 

 "(4) Sodomy by force,violence, duress, menace, or fear of immediate and 

unlawful bodily injury on the victim or another person. 

 "(5) Oral copulation by force, violence, duress, menace, or fear of immediate 

and unlawful bodily injury on the victim or another person. 

"(6) Lewd acts on a child under 14 as defined in Section 288. 

 "(7) Any felony punishable by death or imprisonment in the state prison for 

life. 

"(8) Any other felony in which the defendant inflicts great bodily injury on any 

person other than an accomplice which has been charged and proved as provided 

for in Section 12022.7 on or after July 1, 1977, or as specified prior to July 1, 

1977, in Section 213,264, and 461, or any felony in which the defendant uses a 

firearm which use has been charged and proved as provided in Section 12022.5. 

"(9) Any robbery perpetrated in an inhabited dwelling house or trailer coach, 

as defined in the Vehicle Code, or in the inhabited portion of any other building, 

wherein it is charged and proved that the defendant personally used a deadly or 

dangerous weapon, as provided in subdivision (b) of Section 12022, in the 

commission of that robbery.

 "The Legislature finds and declares that these specified crimes merit special 

consideration when imposing a sentence to display society's condemnation for 

such extraordinary crimes of violence against the person. (As amended by 

chapter 611, Statutes of 1987.)" 

7. 87-401
 
to conviction a defendant must be admitted to bail as a matter of right and not as a matter of 

judicial discretion. Section 12 of article I of the Constitution states in part: 

"A person shall be released on bail by sufficient sureties, except for: 

"(a) Capital crimes when the facts are evident or the presumption great; 

"(b) Felony offenses involving acts of violence on another person when 

the facts are evident or the presumption great and the court finds based upon clear 

and convincing evidence that there is a substantial likelihood the person's release 

would result in great bodily harm to others; or 

"(c) Felony offenses when the facts are evident or the presumption great 

and the court finds based on clear and convincing evidence that the person has 

threatened another with great bodily harm and that there is a substantial likelihood 

that the person would carry out the threat if released." 

In section 1270.5 the Legislature has additionally provided: 

"A defendant charged with an offense punishable with death cannot be 

admitted to bail, when the proof of his or her guilt is evident or the presumption 

thereof great. The finding of an indictment does not add to the strength of the 

proof or the presumptions to be drawn therefrom." 

Hence a court must exercise discretion in a capital crime case in determining whether "the proof 

of [the defendant's] guilt is evident or the presumption thereof great." (See In re Weinberg 

(1918) 177 Cal. 781.) Similarly, with respect to felony offenses involving acts of violence on 

another person, the court must exercise discretion in determining whether the facts are evident or 

the presumption great and there is a substantial likelihood that the person's release would result 

in great bodily harm to others. Lastly, with respect to felony offenses, the court must exercise 

discretion in determining whether the facts are evident or the presumption great and there is a 

substantial likelihood that the person will carry out a threat of great bodily harm to another. We 

believe that in these capital and violent felony cases, bail is discretionary within the meaning of 

section 1274 and thus notice to the district attorney would be required. 

We know of no other constitutional or statutory requirement for the notification of 

the district attorney when a defendant applies for a bail reduction or an own recognizance 

release. Two recent Supreme Court decisions support the conclusion that no other notification is 

necessary. 

In Van Atta v. Scott, supra, 27 Cal.3d 424, the Supreme Court examined whether 

the pretrial release and detention system then employed in San Francisco was constitutional. 

One aspect of the program was that a detainee was allowed to seek release on his or her own 

recognizance "to the court at a formal hearing or upon an ex parte motion in chambers." (Id., at 

8. 87-401
 
 

 

p. 432, fn. 4.) While the court found the program to be deficient in several respects (Id., at p. 

446), it did not question the authority of a magistrate to act upon a motion where the district 

attorney had not been given notice.6 

In Di Sabatino v. State Bar (1980) 27 Cal.3d 159, the Supreme Court considered 

the ethical obligations of a defense attorney who repeatedly sought a reduction in bail from a 

judge and two bail commissioners during a 24-hour period. The last motion was made without 

notification to the district attorney. (Id., at p. 161.)7 The Supreme Court did not publicly 

reprove the attorney for making the third attempt an ex parte application but rather for failing to 

tell the second commissioner of the two previously unsuccessful motions. (Id., at p. 164.) 

In answer to the second question, therefore, we conclude that state law requires a 

defense attorney to notify the district attorney when applying for a reduction in bail or an own 

recognizance release on behalf of a defendant after the information or indictment has been filed, 

after an arrest for specified violent felonies, and where admission to bail is a matter of discretion 

rather than a matter of right. 

* * * * * 

6

Section 1319 was enacted after the Van Atta decision. (Stats. 1986, ch. 543, § 1.) 

7

The district attorney had not opposed the first two motions. (Ibid.) 

9. 87-401