4. Own-Recognizance Release
Misdemeanors and Nonviolent Felonies
A defendant may request a release from custody in exchange for a written promise to appear, otherwise known as an own-recognizance “OR” release. You have the discretion to release a defendant on his or her own recognizance unless the defendant is charged with capital offenses or with certain violent felonies. [Cal Const art I, §12; PC §§1270(a), 1319(b).]
A defendant may move for an OR release whenever he or she could make a motion for bail. [PC §1270(a).] Some courts give defendants release application forms during their initial court appearance. In counties where there are pretrial release programs, investigators review defendants’ eligibility for OR release and report their findings and recommendations to the court.
A defendant who is in custody and is arraigned on a complaint alleging a misdemeanor offense, or who appears before you on an out-of-county warrant arising from a case involving misdemeanors, must be released on his or her own recognizance unless you find on the record that his or her release would compromise public safety or would not reasonably ensure that the defendant would make his or her next court appearance. [PC §1270(a).]
You have discretion to release a defendant who is charged with a nonviolent felony on his or her own recognizance. [Cal Const art I, §12.] Due to the passage of Proposition 9 you must consider the safety of the victim and the victim’s family before releasing a defendant. There are no further statutory guidelines as to what factors you must consider but many courts apply the factors contained in PC §1275(a). Those factors are [PC §1275(a)]:
- the consideration and protection of the public, as the primary factor,
- the seriousness of the of the offense charged,
- the previous criminal record of the defendant, and
- the probability that the defendant will make his or her appearances.
Notice to the prosecutor is not required when a defendant charged with a misdemeanor or nonviolent felony requests release on his or her own recognizance. Williams v County of San Joaquin (1990) 225 CA3d 1326, 1333, 275 CR 302. Notice is required, however, when the defendant is charged with a violent felony. [PC §1319(a).]
CAUTION: Due to the passage of Proposition 9, crime victims are entitled to notice and the right to be heard at all public proceedings. [Cal Const art I, §28(b).]