When someone is arrested in San Diego, bail is initially set from a county schedule tied to the charge, before any judge has looked at the person or the facts. That figure is often out of reach, and families respond by scrambling for a bond they cannot really afford, on the assumption that the amount is fixed.

It is not. Bail can be reduced, and release without money is frequently available. The window for making that argument is short, and it opens at the first court appearance. Marc Kohnen has been appearing in San Diego custody courts since 2008, and getting a client out early changes the entire case that follows.

Ability to Pay Is Now Part of the Analysis

California law on this changed meaningfully with the California Supreme Court's 2021 decision in In re Humphrey. The court held that where a financial condition of release is necessary, the judge must set it at an amount the person can reasonably afford, and may not effectively detain someone solely because they lack the resources to post the scheduled amount. Before ordering detention, the court must first find — by clear and convincing evidence — that no non-financial condition of release could reasonably protect public and victim safety and assure your appearance.

That gives the defense a concrete argument rather than a plea for sympathy: if detention is going to be based on money, the court has to confront whether the money is achievable and whether conditions short of custody would adequately protect public safety and secure your appearance. Making that argument requires documentation — income, dependents, employment, housing — and it works far better presented than asserted.

What the Judge Weighs

Penal Code section 1275 directs the court to consider public safety, the seriousness of the charged offense, your prior criminal record, and the probability that you will appear. Public safety is the primary consideration.

In practice a bail argument is built out of the things that answer those factors directly:

Ties to San Diego — how long you have lived here, family, housing
Employment or school enrollment, and what custody would cost you
Prior record, and in particular any history of failing to appear
The real strength of the People's case, not just the charge as filed
Available conditions — supervision, GPS or electronic monitoring, stay-away orders, surrendering a passport, treatment
Whether anyone was actually harmed or threatened

Release on Your Own Recognizance

Own recognizance release, authorized under Penal Code section 1318, means you are released on a written promise to appear rather than on money. No bond, no premium, nothing paid to a bail agent. For many misdemeanors and a good number of felonies it is a realistic objective, particularly for a person with local ties and no failure-to-appear history.

Supervised release is the middle ground — released without money but with conditions such as check-ins, monitoring, or treatment. Where straight OR release is a hard sell, proposing a specific and credible set of conditions is usually more persuasive than asking for a lower number, because it answers the court's actual concern instead of negotiating around it.

The Timing Is Everything

After an arrest you must generally be brought before a judge within 48 hours, excluding certain days, and arraignment is the first opportunity for a judge to revisit the schedule amount. Whether anyone shows up prepared for that hearing largely determines the outcome.

An attorney retained before arraignment arrives with the documentation already gathered — proof of employment, letters from family, a housing address, a treatment enrollment if that is relevant. Without that, the schedule amount tends to carry by default, and the next realistic opportunity is a separate bail review motion days or weeks later. If bail was already set at arraignment, that motion is still available, and changed circumstances or new information about the case can support revisiting the amount.

Bail Holds and Source-of-Funds Hearings

Some cases carry complications that a bond alone will not solve. Under Penal Code section 1275.1, bail cannot be accepted where there is probable cause to believe the money itself came from the commission of a felony. Clearing that hold requires a hearing where the lawful source of the funds is established, which is a documentary exercise — bank records, pay records, a lender's paperwork.

Other holds come from elsewhere entirely: a probation or parole hold, an outstanding warrant in another county, or an immigration detainer. Each has to be identified and addressed separately, because posting bail on the new case accomplishes nothing while another hold keeps you in custody. Part of the first day's work is finding out what is actually holding you.

Why Getting Out Changes the Case

Pretrial release is not only about comfort. A client in custody is under pressure to accept whatever resolution ends the custody soonest, and that pressure produces bad plea decisions in cases that were defensible. A client who is out keeps working, keeps supporting their family, and can participate in preparing their own defense — gathering records, identifying witnesses, sitting down to go through the discovery.

It also changes how the case looks at sentencing. Months of demonstrated compliance, continued employment, and voluntary treatment are the concrete mitigation that moves a judge. None of that is available from a cell.

If a family member is in custody in San Diego County, call (619) 398-2500. Marc is available 24 hours and moves quickly on bail — the first appearance comes fast, and being ready for it is the whole point.

San Diego Bail Hearing Attorney