Ordinarily a person charged with a crime has a right to post bail witout any hindrance. However, in some criminal cases Penal Code section 1275.1(c) holds that “[o]nce a magistrate or judge has determined that probable cause exists, as provided in subdivision (b), a defendant bears the burden by a preponderance of the evidence to show that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means. Once a defendant has met such burden, the magistrate or judge shall release the hold previously ordered and the defendant shall be released under the authorized amount of bail.”
In many criminal cases, particularly the ones involving sales of drugs, the defendant must initiate the process of showing the bail money is legitimate. Courts have held pursuant to Penal Code section 1275.1 that the Defendant must prove by a preponderance of the evidence that the source of bail funds was not obtained by felonious means. Pursuant to Penal Code sections 1275.1(e) et seq., the Defendant has the right to a hearing within 24 hours to determine whether or not funds offered to finance the Defendant’s bail came from felonious source.
“(e) Nothing in this section shall prohibit a defendant from obtaining a loan of
money so long as the loan will be funded and repaid with funds not
(f) At the request of any person providing any portion of the consideration,
pledge, security, deposit, or indemnification paid, given, made, or promised
for its execution, the magistrate or judge, at an evidentiary hearing to
determine the source of the funds, may close it to the general public to protect
the person’s right to privacy in his or her financial affairs.
(g) If the declaration, having been filed with a magistrate or judge, is not acted on within 24 hours, the defendant shall be released from custody upon posting
of the amount of bail set.
(h) Nothing in this code shall deny the right of the defendant, either personally or through his or her attorney, bail agent licensed by the Department of
Insurance, admitted surety insurer licensed by the Department of Insurance,
friend, or member of his or her family from making an application to the
magistrate or judge for the release of the defendant on bail.
Matthew Ruff is a Torrance Criminal Defense Attorney focusing on serious and complex cases involving an exposure of substantial time in state prison. Any questions about this post can be directed to him at his website.