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What One Should Know About OR (Own Recognizance) Release
A judge has discretion to release a defendant arrested for or charged with a noncapital offense on his or her own recognizance (OR) if the judge could also release that person on bail. Penal Code § 1270. A capital case is one where defendant faces the death penalty.
Own recognizance release is also prohibited in cases involving violent felonies when it appears by clear and convincing evidence that defendant failed to appear in another felony case. Penal Code §§ 1270(a), 1319(h). A violent felony includes those listed at Penal Code § 667.5(c).
In a Nutshell: If one is released from jail on his or her own recognizance (OR) after an arrest and does not have to post any bail, it is important to appear in court as ordered because if one does not, the judge can then issue a bench warrant and when defendant eventually comes to court, the judge can set bail or even hold defendant without bail, depending on the facts.
Defendants in custody who are charged with misdemeanor violations are entitled to OR release unless the judge finds on the record that OR release will compromise public safety or will not reasonably assure the defendant’s appearance later in court. Penal Code § 1270(a).
A defendant who is arrested for or charged with a nonviolent felony offense may be released on OR at the judge’s discretion. Cal Const art I, § 12. Although there are no statutory guidelines as to what factors a judge must consider in deciding whether to grant OR release, most judges apply the factors listed in Penal Code § 1275(a).
In determining whether defendant will return to court if released on OR, the court must consider the defendant’s ties to the community, the defendant’s record of appearance at past hearings or of flight to avoid prosecution, and the severity of the possible sentence defendant faces. Van Atta v. Scott (1980) 27 Cal. 3d 424, 438, 166 Cal. Rptr. 149. In evaluating defendant’s record of appearance at past hearings, the judge will look to whether a bench warrant has ever been issued for defendant and if so, how long ago. The judge may also consider defendant’s past criminal history.
Long Beach CourthouseDefendant bears the burden of producing evidence of community ties, including employment and other sources of income, and the duration and location of defendant’s residence, property holdings and family attachments. The prosecution bears the burden of producing evidence of defendant’s record of appearance at prior court hearings and the severity of a possible sentence. Van Atta, supra, 27 Cal. 3d at 438. The prosecution also bears the burden of proof concerning defendant’s likelihood of appearing at future court hearings. Id., at 444.
If someone is released on OR and then fails to reappear in court, that person is subject to recommitment or imposition of bail. Penal Code §§ 978.5(a)(3), 1318(a)(1).
Defendants charged with violent felonies as defined by Penal Code § 667.5(c), with serious felonies as defined by Penal Code § 1192.7(c), or with specific domestic violence offenses may not be released on their own recognizance without an open court hearing. Penal Code § 1270.1(a). The judge must give both the prosecutor and the defense attorney two court days’ written notice an opportunity to be heard on the matter at the OR hearing. If defendant does not have an attorney, the judge must appoint one for purposes of the bail / OR hearing. Penal Code § 1270.1(b).
The OR hearing must be held within 48 hours after a defendant’s arrest, excluding Sundays and holidays.
In determining whether to grant OR release in violent felony cases under Penal Code § 1318.1, the judge must consider the existence of any outstanding felony warrants, any information provided by the prosecution, and any other information from the Penal Code § 1318.1 investigative report, if one is prepared. Penal Code § 1319(b).
In cases involving domestic violence, the judge should also consider information provided by the prosecution regarding the defendant’s prior convictions for domestic violence, other forms of violence or weapons offenses, and any current protective or restraining orders issue by a civil or criminal court judge. See Penal Code § 273.75(a).
It merits mention that in most cases, a judge will look with favor to the fact that a defendant has maintained a regular residence for an extended period of time. In domestic violence cases, however, the judge may weigh this fact differently, as it gives rise to an inference that the defendant, if released, will return to the residence and this may give rise to additional domestic violence. If this is the case, we recommend that defendant advise the court of an alternative location where he or she can stay so as to ease this concern for the judge in deciding on OR release.
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