Can I Get Bail While My Appeal of My Felony Is Pending?

So you were convicted of a felony, but strongly believe there is an issue or issues to appeal?  The sentence is probation or, perhaps, state prison.  Can you remain free of custody on bail while the appeal is pending?

This is a question our office is asked quite a bit.

It is important to recognize from the outset that bail in this situation is discretionary and if the judge is to grant bail, execution of the sentence must be ordered stayed as well.  The reasoning behind this obviously is to prevent someone from undermining the court’s interest in finality by filing frivolous appeals merely to delay going to jail or prison, or worse yet, allow oneself the time to flee the country.

It is equally prudent to recognize that the gist of the appeal argues that the same judge who has the power to deny or grant bail is the judge who made a mistake in trial.  In other words, the request for bail and to stay execution of the sentence must be done carefully, respectfully and gently.

The request for bail is based on Penal Code § 1272, which states, “[a]fter conviction of an offense not punishable with death, a defendant who has made an application for probation or who has appealed may be admitted to bail… as a matter of discretion in felony cases.”

To have the judge allow bail, the defendant must show by clear and convincing evidence, the defendant is not likely to flee.  Penal Code § 127.1(a).

There are three important issues that the judge will consider in evaluating the defendant’s likelihood to flee.  They are the defendant’s ties to the community including his employment history, the length of time residing at the home of record, his family’s location and work history, as well as any real property defendant owns.  Our office, in addressing this issue, will add information concerning defendant’s community involvement, such as for example, being a member of a local church, coaching a youth soccer team or baseball team, volunteering with the Boy Scouts, or being a member of any other community organization.

The judge will also consider defendant’s record of appearing in court, not only on the case that resulted in the conviction at issue, but also in earlier cases, if there are any.  If there were bench warrants in earlier cases, it is good to explain why the client did not appear in court and address how long the warrant remained outstanding. 

Third, the judge will consider the severity of the sentence imposed.  If probation is granted, “the circumstances will also warrant a release on bail pending appeal.” People v. McNiff (1976) 57 Cal.App.3d 201, 205.  Some people find this obvious and take for granted the right to bail on appeal if probation is granted, but it is a mistake to do so.  The motion should still be filed to confirm the court’s position on this.

The California Supreme Court has taken the McNiff ruling one step further.  It has noted that several appellate courts found it an abuse of discretion for a judge to deny bail on appeal after sentencing to a term which is “equivalent to a misdemeanor sentence,” i.e. probation with a jail term.  See In re McCaughan (1956) 142 Cal.App.2d 690, 692 [298 P.2d 871]; In re Torres (1947) 80 Cal.App.2d 579, 581 [182 P.2d 573].

As the felony sentence becomes longer and longer, the likelihood of bail decreases.

If the judge does grant bail, however, execution of the sentence pending appeal should be granted because it is needed to effectuate the order regarding bail.
 
Lastly, it should be noted that even if bail is granted pending appeal, the aspects of probation that do not involve custody remain in effect.  Penal Code § 1243.  This means defendant must still pay restitution or make restitution payments as ordered, perform community service, go to court-ordered classes, stay away from the victim, i.e.

Finally, if the judge denies bail pending appeal, defendant can still and should request that he or she remain in county jail pending resolution of the appeal and not transported to state prison, if that otherwise was the sentence.

For more information about bail in general, please click on the following articles:
  1. How Is Bail Set?
  2. When Can a Judge Attach Conditions to Bail or Deny Bail? 
  3. Trial Court May Not Increase Bail from $90,000 to $1 Million Based on Confidential Information That Prosecutor Provides to Judge in Private Meeting
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