Prosecutor’s Burden to Show Bail Funding Stems from Illegal Activity
PC 1275.1 Overview of Motion to Examine Source of Bail
Upon application of a prosecutor, the defendant might be required to show the court where she acquired the funds for bail. If, after examining the source of bail funding, the judge determines that any part of the source of bail funding stemmed from illegal conduct, then then judge may either forfeit the defendant’s bail and remand her into custody, raise the defendant’s bail, or release the defendant on her own recognizance.
Note: If the defendant is found to have acquired any part of her bail from illegal activity, then the judge must withdraw the defendant’s bail current bail. Also, an “own recognizance release” is allowed after the defendant loses a PC 1275.1 motion, but an “OR” release is very unlikely after the judge finds that the defendant paid for some portion of his bail with funds derived from her illegal. The more likely result would be to substantially raise the defendant’s bail and hold a further PC 1275.1 motion to examine the source of any new bail funding by the defendant.
Cases where a PC 1271.5 Any case where the defendant is likely to have gathered money or property by her illegal conduct is a case that is subject to a PC 1271.5 motion, including the crimes of pimping, pandering, possession of narcotics for sale, embezzlement, receipt of stolen property, elder theft, looting, misuse of public funds, unauthorized practice of law, unauthorized practice of medicine, welfare fraud, illegal gaming, human trafficking, bribery, money laundering, racketeering, and auto insurance fraud.
Prosecutor’s Burden to Show Bail Funding Stems from Illegal Activity
The district attorney, law enforcement officer, or judge (on her own motion) must show the court that there is a reasonable justification for examining the source of bail. In other words, the fact that a particular criminal case involves receiving illegal funds is not, by itself, a proper foundation for examining the source of bail.
For example, if the defendant is charged with pimping, and the judge releases the defendant on bail, the district attorney may not simply rely on the fact pimping involves the receipt of money from illegal conduct to support a PC 1275.1 motion. Evidence beyond the elements of the crime charged itself must be shown.
After the prosecutor has met the initial burden of showing that there is a reasonable likelihood that the source of bail funding stemmed from illegal activity, then the burden shifts to the defendant to show, by a preponderance of the evidence, that the source of bail stems from legal activity. The “preponderance of evidence” standard means that “more likely than not” the defendant’s source of bail stems from legal activity. Preponderance of the evidence is a relatively low burden of proof standard and far below the “beyond a reasonable doubt” standard used to find guilt of the underlying crime.
Felonious Conduct Required to Prove PC 1275.1 Allegations
Per Penal Code 1275.1, a defendant may have her source of bail examined if the defendant is reasonably believed to have received the funds for her bail from “felonious” conduct. “Felonious” conduct means that the funds used to fund bail were the received product of illegal conduct amounting to a felony. However, the felony conduct alleged by the district attorney in her application for PC 1275.1 hearing does not have to be a charged offense.
For example, if the defendant is charged with unauthorized practice of medicine, the district attorney may bring a PC 1275.1 motion to examine the source of bail, even though the district attorney believes that the source of bail funding stems from felony money laundering that is not related to the underlying charge of unauthorized practice of medicine.
Defense of PC 1275.1 Motions
A defendant may defend against a motion to examine the source of bail by either showing the motion itself is not supported by evidence beyond the criminal charge itself, or by providing proof that the source of bail was acquired legitimately (i.e., loan from a family member or friend, credit cards, sale of property legally acquired, etc.).
Witnesses to Bail Funding: It is not uncommon for defense to bring witnesses to testify in response to a PC 1275.1 motion. These witnesses usually include bondmen, defendant’s family members, defendant’s friends, and more. The defense evidence will usually include receipts, title to property documents, bank transfer of money records, receipts for sale of property, and more.
Note: When the defense brings witnesses to court who declare that they loaned cash to the defendant for bail, then the judge may order an inquire into that witness’ source of cash. This is common in drug cases where defendant’s family member claims the defendant was loaned a large amount of cash for bail, but the defendant’s family member has no reason to have such a large amount of cash on hand, or in the bank, before the defendant was arrested.
Closed Court Proceedings for Defense Witnesses
A judge may, and often will, keep the court proceedings private for non-defendant defense witnesses who testify at a PC 1275.1 hearing. This is true even though the defendant herself generally has a right to open proceedings. The reason for the closed proceedings in a PC 1275.1 motion when defense witness testify is that the witness’ financial protection outweighs the prejudice caused, if any, by closed proceedings outside the presence of a jury.
Penal Code Section 1275.1 Laws (Abbrev.)
PC 1275.1(a): Bail, pursuant to this chapter, shall not be accepted unless a judge or magistrate finds that no portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained.
PC 1275.1(b): A hold on the release of a defendant from custody shall only be ordered by a magistrate or judge if any of the following occurs:
A peace officer, as defined in Section 830, files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained (PC 1275.1(b)(1)).
A prosecutor files a declaration executed under penalty of perjury setting forth probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained. A prosecutor shall have absolute civil immunity for executing a declaration pursuant to this paragraph (PC 1275.1(b)(2)).
The magistrate or judge has probable cause to believe that the source of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was feloniously obtained (PC 1275.1(b)(3)).
PC 1275.1(c): Once a magistrate or judge has determined that probable cause exists, as provided in subdivision (b), a defendant bears the burden by a preponderance of the evidence to show that no part of any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution was obtained by felonious means. Once a defendant has met such burden, the magistrate or judge shall release the hold previously ordered and the defendant shall be released under the authorized amount of bail.
PC 1275.1(d): The defendant and his or her attorney shall be provided with a copy of the declaration of probable cause filed under subdivision (b) no later than the date set forth in Section 825 (within 48 hours, not including weekends and court holiday) [Parenthesis Added].
PC 1275.1(e): Nothing in this section shall prohibit a defendant from obtaining a loan of money so long as the loan will be funded and repaid with funds not feloniously obtained.
PC 1275.1(f): At the request of any person providing any portion of the consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution, the magistrate or judge, at an evidentiary hearing to determine the source of the funds, may close it to the general public to protect the person s right to privacy in his or her financial affairs.
PC 1275.1(g): If the declaration, having been filed with a magistrate or judge, is not acted on within 24 hours, the defendant shall be released from custody upon posting of the amount of bail set.
PC 1275.1(h): Nothing in this code shall deny the right of the defendant, either personally or through his or her attorney, bail agent licensed by the Department of Insurance, admitted surety insurer licensed by the Department of Insurance, friend, or member of his or her family from making an application to the magistrate or judge for the release of the defendant on bail.
PC 1275.1(i): The bail of any defendant found to have willfully misled the court regarding the source of bail may be increased as a result of the willful misrepresentation. The misrepresentation may be a factor considered in any subsequent bail hearing.
PC 1275.1(j): If a defendant has met the burden under subdivision (c), and a defendant will be released from custody upon the issuance of a bail bond issued pursuant to authority of Section 1269 or 1269b by any admitted surety insurer or any bail agent, approved by the Insurance Commissioner, the magistrate or judge shall vacate the holding order imposed under subdivision (b) upon the condition that the consideration for the bail bond is approved by the court.
PC 1275.1(k): As used in this section, feloniously obtained means any consideration, pledge, security, deposit, or indemnification paid, given, made, or promised for its execution which is possessed, received, or obtained through an unlawful act, transaction, or occurrence constituting a felony.
To learn more about California Penal Code Section 1275.1, or a motion to examine the source of bail funding, contact our criminal defense lawyers today for a free constitution. Our defense lawyers have experience with defending PC 1275.1 motions and our team is always available to discuss with you your rights and defense options. We represent all persons charged with any misdemeanor or felony offense in the Inland Empire, including the cities of Grand Terrace, Yucaipa, Fontana, Rancho Cucamonga, Ontario, San Bernardino, Eastvale, Adelanto, Redlands, Victorville, and more. Call today!
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