When an individual is arrested in California, one of the most urgent questions is whether they will be released while awaiting trial or held in custody (remanded).

Under California law, pretrial release decisions are heavily driven by Pretrial Risk Assessments governed by California Penal Code §§ 1320.7 through 1320.35.

Rather than relying solely on traditional cash bail, California courts utilize Pretrial Assessment Services (PAS) and validated assessment tools to evaluate public safety risks and the likelihood that an arrestee will return for scheduled court appearances. 

Understanding how these risk scores are calculated—and how defense counsel can challenge them at arraignment—is essential to securing an individual's immediate release.

Pretrial Release Status by Risk Level & Offense Category

• Low Risk Arrestees: Released automatically on Own Recognizance (OR) without court review under PC § 1320.10, provided the charge is not statutorily excluded. Arrestees must agree to standard court conditions, obey all laws, and submit to jurisdiction.

• Medium Risk Arrestees: Released on Own Recognizance (OR) or Supervised Own Recognizance (SOR) under PC § 1320.10. Supervision conditions may include electronic GPS monitoring, drug testing, or routine check-ins, though PAS may hold certain medium-risk cases for judicial review.

• High Risk Arrestees: Mandatory detention for court review under PC § 1320.13. Release requires judicial approval at arraignment, and the arrestee faces potential preventive detention if the prosecution files a motion under PC § 1320.18.

• Statutorily Excluded Offenses: Ineligible for automatic PAS release under PC § 1320.10(e), regardless of risk score. Includes violent felonies, domestic battery (PC § 243(e)(1)), corporal injury on a spouse (PC § 273.5), stalking (PC § 646.9), protective order violations within 5 years, or having 3+ failure-to-appear warrants in the past 12 months.

• Preventive Detention Hearing: Required under PC § 1320.20 when the prosecution moves to detain high-risk or violent offenders. A judge determines whether non-monetary or supervised conditions can reasonably assure public safety and court attendance.

Legal Definitions & Key Concepts

Navigating California's pretrial custody framework requires an understanding of specific statutory terms and evidentiary standards under Penal Code § 1320:

• Pretrial Risk Assessment: An algorithmic evaluation conducted by Pretrial Assessment Services (PAS) under PC § 1320.7 using validated tools to calculate an arrestee's statistical probability of failing to appear in court or committing new criminal activity while on release.

• Pretrial Assessment Services (PAS): The public agency or court department tasked under PC § 1320.9 with gathering criminal history, gathering demographic data, conducting risk evaluations, and filing pretrial release recommendations with the court.

• Supervised Own Recognizance (SOR): A non-monetary release status permitting an arrestee to remain out of custody prior to trial under specific court-ordered restrictions, such as GPS location tracking, mandatory counseling, or travel limitations.

• Preventive Detention Hearing: A formal judicial hearing conducted pursuant to PC § 1320.20 where the court evaluates whether clear and convincing evidence demonstrates that no release conditions can reasonably protect public safety or guarantee court attendance.

• Validated Risk Assessment Tool: An objective scoring instrument established under PC § 1320.24 that uses empirical data and scientific research to predict pretrial outcomes while minimizing racial and implicit bias.

Penalties & Consequences of Pretrial Violations

While a pretrial risk assessment is not a conviction or a criminal sentence, violating the conditions of pretrial release or failing to appear in court triggers immediate legal penalties under the California Penal Code.

Revocation of Pretrial Release

Under Penal Code § 1320.13, if an arrestee on Own Recognizance (OR) or Supervised Own Recognizance (SOR) violates any condition of release—such as failing a drug screen, tampering with an electronic monitor, or violating a protective order—the court may issue a bench warrant, revoke release, and remand the defendant into custody pending trial.

Additional Criminal Charges

• Failure to Appear on Misdemeanor Charges (PC § 1320(a)): Willfully failing to appear in court after being released on OR is a separate misdemeanor, punishable by up to 180 days in county jail and fines.

• Failure to Appear on Felony Charges (PC § 1320(b)): Willfully failing to appear on a felony charge after an OR release is a separate felony offense, punishable by up to 3 years in state prison.

Related Laws, Statutes, and Legal Provisions

Pretrial release decisions under PC § 1320 interact directly with several constitutional safeguards and procedural statutes in California:

• California Penal Code § 1320.8 (Immediate Misdemeanor Release): Mandates that individuals arrested for most misdemeanors be released immediately or within 12 hours of booking without requiring court intervention.

• California Penal Code § 1320.17 (Least Restrictive Conditions): Requires courts at arraignment to release defendants on Own Recognizance using the least restrictive non-monetary conditions necessary to assure public safety.

• California Penal Code § 1270 (Own Recognizance Release): Governs the general statutory right of arrestees charged with non-capital offenses to seek release on their own recognizance.

• California Rules of Court, Rule 4.105 (Bias Mitigation in Pretrial Tools): Enforces PC § 1320.24 requirements to systematically validate assessment tools and mitigate racial and socioeconomic bias in risk algorithms.

• California Penal Code § 1368 (Competency Proceedings): Suspends criminal proceedings and pretrial assessments if there is a doubt regarding the defendant's mental competence to understand the court process.

Understanding these related statutes matters because pretrial release is highly procedural.

If Pretrial Assessment Services improperly scores an arrestee using biased criteria or fails to apply the "least restrictive conditions" mandate under PC § 1320.17, defense counsel can invoke these specific statutes at arraignment to secure an immediate release that would otherwise be denied.

Hypothetical Examples of Pretrial Risk Assessment Outcomes

• An individual with no criminal record is arrested for non-violent grand theft; PAS rates them as "Low Risk," triggering an automatic Own Recognizance release under PC § 1320.10 without waiting for a judge.

• A defendant charged with misdemeanor domestic battery scores as "Medium Risk"; despite the score, PC § 1320.10(e) prevents automatic PAS release, requiring a judge to review the case and order Supervised Own Recognizance with a protective order.

• A person on felony probation is arrested for armed robbery and scored as "High Risk"; the prosecutor files a motion for preventive detention under PC § 1320.18, leading to a formal hearing under PC § 1320.20 to determine if remand is required.

Frequently Asked Questions

What is the main purpose of a Pretrial Risk Assessment in California?

The assessment provides courts with an objective, data-driven score estimating an arrestee's likelihood of missing future court dates or committing new crimes if released prior to trial.

Can I be released from jail before seeing a judge?

Yes. Under PC § 1320.8 and § 1320.10, individuals arrested for most misdemeanors or scored as "Low Risk" or "Medium Risk" by PAS can be released on Own Recognizance prior to arraignment.

How does Pretrial Assessment Services calculate my risk level?

PAS evaluates factors such as criminal history, past failures to appear in court within 3 years, the severity of the current charge, and verified socioeconomic or demographic stability indicators.

What happens if Pretrial Assessment Services classifies me as High Risk?

High-risk arrestees cannot be automatically released by PAS. They must be held for a court appearance where a judge determines whether to grant Supervised Own Recognizance or schedule a preventive detention hearing.

Are pretrial risk assessment algorithms biased?

Critics, including the Public Policy Institute of California, note that risk tools can reflect systemic racial bias because historical arrest and conviction data overrepresent minority communities. California rules under PC § 1320.24 attempt to mandate regular validation to mitigate this implicit bias.

Can a prosecutor request that I be held in jail without bail?

Yes. Under PC § 1320.18, prosecutors can file a motion for preventive detention if the crime involves violence, severe bodily injury, deadly weapons, witness intimidation, or if the arrestee was already on post-conviction supervision.

What conditions can a judge place on my pretrial release?

Judges can impose non-monetary conditions under PC § 1320.17, including electronic GPS monitoring, mandatory check-ins, travel restrictions, drug testing, and court-ordered stay-away mandates.

What should I do if I am at risk of being remanded at my arraignment?

Retain an experienced criminal defense attorney immediately. Counsel can present mitigating evidence, challenge flawed PAS risk scores, demonstrate strong community ties, and advocate for the least restrictive release conditions.

Speak With an Experienced Defense Attorney

If you or a loved one has been arrested and faces a pretrial risk assessment or preventive detention hearing in California, securing immediate legal representation is critical to preserving your freedom.

An experienced defense lawyer can challenge inaccurate PAS risk scores, present favorable evidence at your arraignment, and argue for immediate release under Penal Code § 1320.17.

Contact Esfandi Law Group today to protect your rights and fight for your release. Call (310) 274-6529 or submit an inquiry through our online contact form to speak directly with an experienced California criminal defense attorney.