What Happens After Arraignment in California? Conditions of Release Explained

Penal Code section 1275 makes public safety the primary consideration when a judge sets, reduces, or denies bail. Section 1270 makes release on your own recognizance the default in misdemeanor cases unless the court finds on the record that releasing you would compromise public safety or would not reasonably assure your appearance.

In re York (1995) 9 Cal.4th 1133 held that conditions of OR release do not have to relate solely to assuring appearance, and upheld conditions that implicate constitutional rights, including random drug testing and warrantless search terms. York assumed, without deciding, that a defendant who posts bail could not be given conditions unrelated to appearance. In re Webb (2019) 7 Cal.5th 270 rejected that assumption and held that trial courts may impose reasonable public safety conditions on defendants released on bail, provided there is a sufficient nexus between the condition and public safety. Cite Webb, not York, for authority over a defendant who has posted bail.

In re Humphrey (2021) 11 Cal.5th 135 held that conditioning pretrial release solely on ability to afford bail is unconstitutional. Where the record shows a flight risk or a risk to public or victim safety, the court must first consider whether nonfinancial conditions would reasonably address it. Only then does it turn to money, and it must consider ability to pay. Detention requires clear and convincing evidence that no condition, or combination of affordable bail and conditions, will work.

In re Kowalczyk (2026) 19 Cal.5th 593 added two things. In noncapital cases, a court may deny bail only for the offenses listed in article I, section 12, subdivisions (b) and (c) of the California Constitution, and section 28(f)(3) does not expand that list. And bail must be set in an amount reasonably attainable for the defendant, based on an individualized assessment of the totality of the circumstances, because courts “cannot use artificially high or objectively unattainable bail as an end run to effectuate pretrial detention where such detention is not authorized under section 12.”

Penal Code section 1318 requires a signed release agreement containing a promise to appear as ordered, a promise to obey all reasonable conditions imposed by the court, a promise not to depart California without leave of court, a waiver of extradition, and an acknowledgment that the defendant has been informed of the penalties for violating conditions of release. All five elements are required. A defendant released without the written agreement has not been released on OR for purposes of section 1320 (People v. Mohammed (2008) 162 Cal.App.4th 920).

A person released on OR is considered to be in constructive custody (In re Smiley (1967) 66 Cal.2d 606; People v. McCaughey (1968) 261 Cal.App.2d 131). Willful failure to appear is a separate offense under Penal Code sections 1320 and 1320.5.

Under In re York (1995) 9 Cal.4th 1133, a court may order random drug and alcohol testing as a condition of release, notwithstanding that such conditions implicate constitutional rights. SCRAM devices, which continuously test perspiration for alcohol, may be imposed as a pretrial condition, particularly in DUI and domestic violence cases where alcohol is a documented risk factor. See People v. International Fidelity Ins. Co. (2017) 11 Cal.App.5th 456 (DUI defendant subject to pretrial no-driving and SCRAM conditions).

In re Humphrey (2021) 11 Cal.5th 135 expressly identified drug and alcohol treatment among the nonfinancial conditions a court should consider before resorting to money bail.

On cost: Penal Code section 1203.25, effective January 1, 2024, governs release pending a formal probation violation hearing. Subdivision (b) lists alcohol use detection devices among the reasonable conditions of release a court may impose, and provides that “the person shall not be required to bear the expense of any conditions of release ordered by the court.” That provision sits in the probation-violation context and has not been squarely extended to pretrial release generally, so raise it rather than assume it.

Vehicle Code section 23575.3 is the statewide mandatory IID statute, applicable to violations of sections 23152 and 23153 occurring on or after January 1, 2019. For a violation of section 23152, a first offense with no priors is discretionary only: the court may order an IID for up to six months. With one prior the term is a mandatory 12 months, with two priors 24 months, and with three or more priors 36 months. For a violation of section 23153, DUI causing injury, the mandatory term is 12 months with no priors, 24 months with one prior, 36 months with two priors, and 48 months for a conviction with one prior punishable under section 23550.5. The court notifies DMV through the abstract of conviction; DMV places the restriction on the license record and monitors compliance.

Pretrial imposition is less settled. No case retrieved holds that a court may order an IID as a condition of pretrial release, and section 23575.3 is triggered by conviction. The argument would rest on the general public safety authority in In re York (1995) 9 Cal.4th 1133 and In re Webb (2019) 7 Cal.5th 270. Separately, In re Brown (2022) 76 Cal.App.5th 296 lists surrender of a driver’s license among the nonfinancial conditions a court must specifically address before imposing unaffordable bail or ordering detention. Read Brown alongside In re Kowalczyk (2026) 19 Cal.5th 593, which granted review in part to resolve a conflict involving Brown on setting bail above a defendant’s ability to pay.

Penal Code section 136.2 authorizes a court with jurisdiction over a criminal matter to issue a protective order on good cause to believe that harm to, intimidation of, or dissuasion of a victim or witness has occurred or is reasonably likely to occur. Orders under subdivision (a) are operative during the pendency of the criminal proceedings, and the court’s authority under that subdivision generally ceases at sentencing (People v. Beckemeyer (2015) 238 Cal.App.4th 461).

Post-conviction orders are a separate track. Section 136.2, subdivision (i)(1), directs the sentencing court in domestic violence, human trafficking, specified sex offense, and gang cases to consider a no-contact order valid for up to 10 years. On a conviction under section 273.5, subdivision (j)(1) allows a restraining order valid for up to 15 years.

In domestic violence cases, Penal Code section 273.75 requires the prosecutor to conduct a criminal history investigation and present the results to the court when setting bail or granting OR release at arraignment. Penal Code section 1270.1 requires a noticed hearing in open court before release on OR, or at a bail amount off the schedule, in serious or violent felony cases and where a defendant violated a domestic violence order by making threats, using violence, or appearing at the protected party’s residence or workplace.

A criminal protective order and a civil restraining order may coexist, and a criminal protective order already in place is not a reason to deny a DVRO (Lugo v. Corona (2019) 35 Cal.App.5th 865). Where both exist, the criminal court order has precedence in enforcement (Pen. Code, § 136.2, subd. (e)(2)).

A person subject to a protective order under Penal Code section 136.2 is prohibited from owning, possessing, purchasing, or receiving a firearm while the order is in effect (§ 136.2, subd. (d)(1)), and the court must order relinquishment pursuant to Code of Civil Procedure section 527.9 (§ 136.2, subd. (d)(2)). Section 527.9 supplies the mechanics: relinquishment within 24 hours of service, either by surrender to local law enforcement or sale to a licensed dealer, with a receipt filed with the court within 48 hours. If no receipt is filed within 48 hours, the clerk must immediately notify law enforcement, and violations are reported to the prosecuting attorney within two business days of the hearing. Violation of the possession prohibition is punishable under section 29825.

Penal Code section 29825.5, effective January 1, 2025, imposes a parallel 24-hour relinquishment and proof-of-surrender requirement, but it applies to protective orders issued under section 273.5, subdivision (j), section 368, subdivision (l), and section 646.9, subdivision (k). Those are post-conviction orders, not pretrial section 136.2 orders. Penal Code section 29810 governs relinquishment on conviction of a firearms-prohibiting offense; a defendant may name a non-prohibited third party as designee, but the designee must still surrender to law enforcement, sell to a licensed dealer, or transfer to a dealer for storage under section 29830. No statute permits a relative to keep the firearm as the end disposition.

Penal Code section 273.75, subdivision (d), applies where the court has information or evidence that the defendant owns or possesses a firearm or ammunition. If proof of compliance is not provided within 48 hours of service of the protective order, the clerk must notify the prosecuting agency and law enforcement within two business days, and those agencies must take all actions necessary to obtain the firearms.

Penal Code section 18250 requires officers to take temporary custody of firearms found at the scene of a domestic violence incident.

In re Humphrey (2021) 11 Cal.5th 135 identified electronic monitoring as a prototypical nonfinancial condition courts should consider before setting unaffordable bail. On remand, Humphrey was released on electronic monitoring, a stay-away order as to the victim and his residence, and a residential substance abuse treatment program.

A concurring opinion in In re Kowalczyk (2026) 19 Cal.5th 593 recognized that where a court is concerned about a defendant fleeing the state or the country, GPS monitoring and surrender of travel documents are appropriate conditions. That language is in the concurrence, not the majority.

On custody credit, the test is whether the terms of release were as custodial or restraining as a statutory home detention program under Penal Code section 1203.018 (People v. Gerson (2022) 80 Cal.App.5th 1067). Applying Gerson, People v. Brown (2024) 108 Cal.App.5th Supp. 17 held that the particular supervised OR conditions with GPS monitoring before it fell short of that standard, so preconviction credits were not available. Brown is an Appellate Division decision and is persuasive only. The question is condition-specific, not categorical.

Penal Code section 1305 requires the court to declare bail forfeited in open court when a defendant fails to appear as required. The surety then has 180 days to produce the defendant or show sufficient cause for the failure to appear, after which summary judgment may enter against the bond. Willful failure to appear is separately punishable under Penal Code sections 1320 and 1320.5.

There is no longer a statute requiring a finding in open court before OR release is revoked. Former Penal Code section 1318.6 imposed that requirement after a 1974 amendment, but it was repealed by Stats. 1982, c. 1376, section 8, operative December 31, 1985. In re Annis (2005) 127 Cal.App.4th 1190 held that with the repeal, “the matter of revoking OR is again a matter of the trial court’s discretion,” and that the court there complied with section 1289 by holding a substantial hearing after the defendant was held to answer. People v. Standish (2006) 38 Cal.4th 858 cited Annis for the proposition that a finding of probable cause is itself a changed circumstance that may warrant reconsideration of custody status. Section 1289 permits an increase in bail on good cause shown and commitment to custody absent the increased bail. Article I, section 28(f) of the California Constitution requires the reasons for granting or denying bail or OR to be stated in the record and included in the minutes.

Penal Code section 1269c allows a peace officer to file a sworn declaration seeking bail higher than the schedule amount, and allows the defendant, personally or through an attorney, friend, or family member, to apply for bail below the schedule or for OR release, except where the defendant is charged with an offense listed in section 1270.1, subdivision (a). The magistrate may set bail in an amount deemed sufficient and impose conditions in his or her discretion. If no order changing bail issues within eight hours after booking, the defendant is entitled to release at the schedule amount.

Where a court declines to modify, review is generally sought by writ of habeas corpus or mandate, the route taken in York, Humphrey, and Annis, because pretrial custody questions tend to evade ordinary appellate review.

Post-conviction protective orders in corporal injury cases follow a stricter path. Under Penal Code section 273.5, subdivision (j)(2), modification or termination of an order issued under subdivision (j)(1) requires a written petition by the prosecuting attorney, the defendant, or the victim, with all parties noticed at least 15 days before the hearing. That procedure governs the post-conviction order, not the pretrial conditions discussed above.