The California Crime of "Failure to Appear"
Penal Code 1320 & 1320.5 PC

You can be charged with the crime of “failure to appear” (“FTA”) in California if:

  1. You are charged with or convicted of a California crime,
  2. You are released from custody, and
  3. You willfully fail to appear in court when required to do so, in order to evade the process of the court.1

California Penal Code 1320 sets out the crime of “failing to appear” for defendants who are released on their own recognizance.2 Penal Code 1320.5 describes “failure to appear” for California defendants who are released on bail.3

Examples

Here are some examples of how a criminal defendant could violate Penal Code 1320 or 1320.5 PC, California's “failure to appear” (“FTA”) laws:

  • A teenager is charged with Penal Code 594 PC vandalism. He pleads guilty and is released on his own recognizance, with instructions to come back to court for his sentencing hearing. When he does not show up at the sentencing hearing, he is charged with Penal Code 1320 failing to appear.
  • A defendant is charged with Penal Code 236.1 human trafficking. He is released on bail. Instead of showing up for his trial, he leaves the state. In addition to forfeiting his bail, he may be charged under Penal Code 1320.5 PC.

Penalties

The penalties for failure to appear in California depend on the type of crime you were initially charged with or convicted of.

If you are charged with or convicted of a California misdemeanor and released on your own recognizance, then failure to appear is a misdemeanor.4 The penalties include up to six (6) months in county jail, and/or a fine of up to one thousand dollars ($1,000).5

But if you are either

  • Charged with or convicted of a felony, and released on your own recognizance, OR
  • Charged with or convicted of a felony, and released on bail,

then failure to appear will be a felony in California law.6

Potential penalties include:

  • a fine of up to five thousand dollars ($5,000) if you were released on your own recognizance, or ten thousand dollars ($10,000) if you were released on bail,
  • a county jail sentence of up to one (1) year, and/or
  • a prison sentence of sixteen (16) months or two (2) or three (3) years.7

In any of these cases, a judge will issue a California bench warrant for your arrest on failure to appear charges.

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Legal defenses

Failing to appear may seem like a pretty straightforward crime. But in fact there are several legal defenses you can use to fight these charges.

These include:

  • You did not willfully fail to appear when you were required to do so;
  • You did not have the required specific intent (to evade the process of the court);8 and
  • You did not sign an agreement when you were released on your own recognizance.9

In order to help you better understand the California crime of “failing to appear,” our California criminal defense attorneys will address the following:

1. The Legal Definition of “Failing to Appear” in California

2. Penalties for the California Crime of Failing to Appear

2.1. Penal Code 1320(a) penalties
2.2. Penal Code 1320(b) penalties
2.3. Penal Code 1320.5 penalties

3. Legal Defenses Against Failure to Appear Charges

4. Vehicle Code 40508 Failure to Appear

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on O.R. Release (Release on Own Recognizance) in California; How to Get Someone Released on Bail in California; Penal Code 594 PC Vandalism; Sentencing Hearings in California Criminal Law; Penal Code 236.1 Human Trafficking; Legal Definition of a California Misdemeanor; Legal Definition of a Felony in California Law; California Bench Warrants; Common Legal Defenses to California Crimes; Understanding California Bail Hearings; Penal Code 118 PC Perjury; Receiving Stolen Property Penal Code 496 PC; California Securities Fraud Criminal Laws; California Drug Crimes; California Appeals of Criminal Court Convictions; Misdemeanor (Summary) Probation in California; and Felony (Formal) Probation in California.

1. The Legal Definition of “Failing to Appear” in California

The legal definition of failing to appear (“FTA”) in California revolves around certain “elements of the crime.” These are facts that the prosecutor must prove in order for you to be guilty of this offense.

The elements of failure to appear are:

  1. You have been charged with or convicted of a California crime;
  2. You are released from custody, either on bail or on your own recognizance;
  3. You willfully fail to appear before the court as required; and
  4. You do so with the intent to evade the process of the court.10

Let's explore some of these elements a bit more to get a better sense of what they mean.

Released on bail or on your own recognizance

California law provides that criminal defendants who are released from custody will either be:

  1. Released on bail, or
  2. Given an “own recognizance” (“O.R.”) release (i.e., allowed to leave custody without posting bail).11

Judges determine who will have to post bail (and how much), and who will be released on their own recognizance.12

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However, the default for defendants charged with or convicted of misdemeanors is an O.R. (no bail) release.13 And sometimes felony defendants persuade a judge to allow them to be released on their own recognizance at a California bail hearing.

Defendants who are released on their own recognizance are required to sign a written agreement with the court, in which they agree to the following:

  1. They will appear before the court when ordered to do so;
  2. They will obey all reasonable conditions imposed by the court;
  3. They will not leave the state without the court's permission;
  4. They will waive extradition if they fail to appear and are apprehended outside of California; and
  5. They acknowledge that they have been informed of the consequences of violating the terms of release.14

If you are released without bail—but you do not sign an O.R. agreement—then you may not be convicted of Penal Code 1320 failure to appear.15

Example: Sally is charged with Penal Code 118 PC perjury. She is released on her own recognizance and then fails to show up for her trial. She is charged with Penal Code 1320 failure to appear.

But Sally's criminal defense lawyer points out that she never signed a release agreement as required under California law. This means she was technically never released on her own recognizance. As a result, she cannot have violated Penal Code 1320 PC—and is not guilty of failing to appear.16

However, if you sign an O.R. agreement that only contains some—but not all—of the conditions listed above, you can still be prosecuted for FTA.17

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Example: Renee is released on her own recognizance after being charged with receiving stolen property. She does sign a release agreement which contains all of the conditions listed above except a promise to obey all reasonable conditions imposed by the court, and a promise not to leave California without permission.

Renee then fails to appear at her first scheduled court appearance. Unlike Sally, though, she is guilty of failure to appear, even if her release agreement didn't contain all of the terms required by law.

This is because the terms that were missing were not the ones that relate to the requirement that she appear in court when directed to do so.18

Willfully

Willfully means with a purpose or intention to commit the criminal act—in this case, not showing up for a court date. It isn't necessary that you intend to break the law.19

Example: Mark is charged with securities fraud and is released on bail.

Mark's wife is devastated by the charges and grows increasingly mentally unstable as Mark's trial approaches. On the date of Mark's trial, his wife ties him up and won't let him leave the house to attend.

Even though Mark has failed to attend his trial, he did not do so willfully—and so is not guilty of FTA.

Fail to appear before the court “as required”

You can be charged under Penal Code 1320 or 1320.5 if you fail to appear before the court for any criminal proceeding that you are required to attend. It is not necessary that there have been a specific court order issued regarding your attendance.20

Example: David is charged with a felony California drug crime and is convicted. He files an appeal of his criminal court conviction, but the appeal is denied. David is out on bail this whole time.

The appeals court sends his case back down to the trial court, which sends a letter to David's criminal defense lawyer asking him to have David appear on a specific date. David does not come to that court date.

David is guilty of Penal Code 1320.5 failure to appear even though there was no specific court order requiring him to appear. The letter to his lawyer is considered enough to establish that David was “required to appear.”21

With intent to evade the process of the court

Failure to appear is what is known as a “specific intent” crime. This means that you are not guilty of this offense unless—when you failed to appear at a hearing or court date—you specifically intended to avoid the process of the court.22

If you willfully fail to appear in court within fourteen (14) days of the date when you were supposed to do so, then there is a presumption that you had the required specific intent for this crime.23

But this is only a presumption. The jury is allowed to rely on that fact to conclude that you intended to evade court process—but they are not required to do so.24

2. Penalties for the California Crime of Failing to Appear

The penalties, punishment and sentencing for failure to appear depend on which section of California's failure to appear (“FTA”) law you are charged with.

2.1. Penal Code 1320(a) penalties

If you

  1. were charged with or convicted of a misdemeanor initially, and
  2. were released on your own recognizance,

then you will be charged with failure to appear under Penal Code 1320(a) PC.

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This offense is a California misdemeanor.25 The potential penalties are:

2.2. Penal Code 1320(b) penalties

If you were released on your own recognizance—but the crime with which you were charged or convicted was a felony—then you will be charged under Penal Code 1320(b).

Charges under this section of the FTA law are felony charges. The potential penalties are:

  • Felony (formal) probation ,
  • A county jail sentence of up to one (1) year, or sixteen (16) months or two (2) or three (3) years in prison, and/or
  • A fine of up to five thousand dollars ($5,000).27
2.3. Penal Code 1320.5 penalties

Finally, if you were charged with or convicted of a felony, AND you were out on bail, you will be charged with failure to appear under Penal Code 1320.5 PC.

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Penalties under this FTA statute are:

  • Felony (formal) probation,
  • A county jail sentence of up to one (1) year, or sixteen (16) months or two (2) or three (3) years in prison, and/or
  • A fine of up to ten thousand dollars ($10,000).28

And, of course, if you were released on bail and fail to appear—you will very likely have to forfeit the bail you have posted.29

3. Legal Defenses Against Failure to Appear Charges

According to Santa Ana criminal defense lawyer Neil Shouse30:

“Failure to appear is no small matter in California criminal law. The penalties can seem awfully harsh for a crime that has no real victim—and consists of a failure to act rather than an actual act. Fortunately, with the help of a good criminal defense lawyer you can fight these charges.”

Some common legal defenses that may help you do so are:

Your failure to appear was not willful

As we discuss above, “willfulness” is an element of the California crime of failure to appear.31 If the facts of your case suggest that you may not have acted willfully, you may be able to avoid a conviction for this offense.

For example, perhaps you were genuinely unaware that you had a court date on a particular day—and there was no reason why you should have known about it. Perhaps you had the dates wrong. Or factors beyond your control may have kept you from attending.

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You did not specifically intent to evade the process of the court

Specific intent to evade court process is another element of Penal Code 1320 and 1320.5 failure to appear charges. If you didn't have this intent, you are not guilty of this offense.32

Let's say you deliberately missed a court date because you were scared of what would happen at the proceeding—but then you immediately contacted the court to apologize and try to reschedule. Behavior like this could show that you did not have the required specific intent for this crime.

You were released on O.R. without signing an agreement

As we discuss above, you are not considered to have been released on your own recognizance unless you signed an agreement that set forth the terms of your release.33

If you are charged under Penal Code 1320 PC, you and your criminal defense lawyer will want to investigate what happened on your release to see if you did in fact sign such an agreement. Any deficiency in the process of you agreeing to the terms of O.R. release could help you get your failure to appear charges dismissed.

4. Vehicle Code 40508 Failure to Appear

You can also be charged with “failure to appear” under California Vehicle Code 40508 VC.34 This offense may be charged if you are issued a traffic ticket that requires you to appear in traffic court—and then you do not show up as required.

The elements of Vehicle Code failure to appear are:

  1. You received a traffic citation;
  2. In connection with the citation, you signed a written promise to appear in court (usually traffic court); and
  3. You then willfully failed to appear.35

Incredibly enough, this minor-seeming offense is a misdemeanor.36 The potential penalties could include:

  • Up to six (6) months in county jail,
  • A fine of up to one thousand dollars ($1,000),37 and/or
  • Suspension of your driver's license.38

Call us for help…

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For questions about California's failure to appear (“FTA”), or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

For more information on “bench warrants” for failure to appear in Nevada, please visit our page on “bench warrants” in Nevada and the crime of failure to appear in Las Vegas Nevada courts.

Legal References:


1 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty. (“(a) Every person who is charged with or convicted of the commission of a misdemeanor who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a misdemeanor. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. (b) Every person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony, and upon conviction shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment pursuant to subdivision (h) of Section 1170, or in the county jail for not more than one year, or by both that fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.”)

Penal Code 1320.5 PC – Release on bail; willful failure to appear. (“Every person who is charged with or convicted of the commission of a felony, who is released from custody on bail, and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony. Upon a conviction under this section, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) or by imprisonment pursuant to subdivision (h) of Section 1170, or in the county jail for not more than one year, or by both the fine and imprisonment. Willful failure to appear within 14 days of the date assigned for appearance may be found to have been for the purpose of evading the process of the court.”)

2 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

3 Penal Code 1320.5 PC – Release on bail; willful failure to appear, endnote 1, above.

4 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

5 Penal Code 19 PC – Punishment for misdemeanor [including misdemeanor failure to appear]; punishment not otherwise prescribed. (“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.”)

6 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

Penal Code 1320.5 PC – Release on bail; willful failure to appear, endnote 1, above.

7 See same.

See also Penal Code 1170(h) PC. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)

8 See People v. Forrester (1994) 30 Cal.App.4th 1697, 1701. (“An element of the crime of failure to appear is that the failure must be with the specific intent to evade the process of the court.”)

9 See People v. Mohammed (2008) 162 Cal.App.4th 920.

10 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

Penal Code 1320.5 PC – Release on bail; willful failure to appear, endnote 1, above.

11 See Penal Code 1270 PC – Release on recognizance [may give rise to failure to appear charges]; non-capital offense; offense; considerations; public safety; procedure. (“(a) Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out-of-county warrant. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, shall be entitled to an own recognizance release unless the court makes a finding on the record, in accordance with Section 1275, that an own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required.”)

12 See same. See also Penal Code 1275 PC – Setting, reducing or denying bail; considerations.

13 See same.

14 Penal Code 1310 PC – 1318. Release agreement [must be signed for failure to appear charges to lie]; necessity; filing; signature; contents. (“(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes: (1) The defendant's promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending. (2) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate. (3) The defendant's promise not to depart this state without leave of the court. (4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California. (5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.”)

15 People v. Mohammed, endnote 9, above, at 923. (“In conclusion, because there was no evidence in this case of a written agreement conforming to section 1318 produced at trial, there was insufficient evidence to convict appellant of willful failure to appear while out on OR. Accordingly, we reverse the judgment.”)

16 Based on the facts of the same.

17 People v. Carroll (2014) 222 Cal.App.4th 1406, 1418. (“We conclude that in this case, the doctrine of substantial compliance applies, and we decline to follow Mohammed [and overturn a failure to appear conviction] because that court relied upon inapposite contract law.”)

18 Based on the facts of the same.

19 California Jury Instructions—Criminal (“CALJIC”) 1.20 – Willfully, defined. (“The word “willfully” when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act [in this case, stalking] or to make the omission in question. The word “willfully” does not require any intent to violate the law, or to injure another, or to acquire any advantage.”)

20 People v. Jimenez (1995) 38 Cal.App.4th 795, 798-99. (“The plain language of the statute does not specify a court order is necessary to make the defendant's presence “required,” and Jimenez does not direct us to legislative history showing the Legislature intended otherwise.”)

21 Based on the facts of the same.

22 People v. Forrester, endnote 8, above.

23 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

Penal Code 1320.5 PC – Release on bail; willful failure to appear, endnote 1, above.

24 People v. Forrester, endnote 8, above, 30 Cal. App.4th at 1703. (“Henceforth, in prosecutions for violation of Penal Code section 1320, subdivision (b), when the People have produced proof of defendant's willful failure to appear within 14 days of defendant's assigned appearance date, the trial court should instruct the jury that it is permitted, but not required, to infer therefrom that defendant intended to evade the process of the court.”)

25 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

26 Penal Code 19 PC – Punishment for misdemeanor [including misdemeanor failure to appear]; punishment not otherwise prescribed, endnote 5, above.

27 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

28 See same.

29 See Penal Code 1305 PC – Nonappearance of defendant; jurisdiction; vacation of forfeiture and exoneration of bond. (“(a) A court shall in open court declare forfeited the undertaking of bail or the money or property deposited as bail if, without sufficient excuse, a defendant fails to appear [commits the California crime of failing to appear] for any of the following: (1) Arraignment. (2) Trial. (3) Judgment. (4) Any other occasion prior to the pronouncement of judgment if the defendant's presence in court is lawfully required. (5) To surrender himself or herself in execution of the judgment after appeal. However, the court shall not have jurisdiction to declare a forfeiture and the bail shall be released of all obligations under the bond if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment.”)

30 Our Santa Ana criminal defense lawyers handle the gamut of felony and misdemeanor cases and represent clients at courthouses throughout the Los Angeles County and San Bernardino County court systems.

31 Penal Code 1320 PC – Failure to appear after release upon own recognizance; violation; presumption; penalty, endnote 1, above.

Penal Code 1320.5 PC – Release on bail; willful failure to appear, endnote 1, above.

32 People v. Forrester, endnote 8, above.

33 People v. Mohammed, endnote 9, above.

34 Vehicle Code 40508 VC – Promise to appear [Vehicle Code failure to appear]; fine payment; court order condition; violations; driver's license impoundment. (“(a) A person willfully violating his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court or before a person authorized to receive a deposit of bail is guilty of a misdemeanor regardless of the disposition of the charge upon which he or she was originally arrested.”)

35 Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2240 – Failure to Appear (Veh. Code, § 40508(a)). (“The defendant is charged [in Count ] with failing to appear in court [in violation of Vehicle Code section 40508(a)]. To prove that the defendant is guilty of this crime, the People must prove that: 1 The defendant received a citation; 2 In connection with that citation, the defendant (signed a written promise to appear (in court/[or] before a person authorized to receive a deposit of bail)/ [or] received a lawfully granted continuance of (his/her) promise to appear); AND 3 The defendant willfully failed to appear (in court/[or] before a person authorized to receive a deposit of bail). Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.”)

36 Vehicle Code 40508 VC – Promise to appear [Vehicle Code failure to appear]; fine payment; court order condition; violations; driver's license impoundment, endnote 34, above.

37 Penal Code 19 PC – Punishment for misdemeanor [including misdemeanor failure to appear]; punishment not otherwise prescribed, endnote 5, above.

38 Vehicle Code 13365 VC – Section 40508 [failure to appear] violations. (“(a) Upon receipt of notification of a violation of subdivision (a) or (b) of Section 40508, the department shall take the following action: (1) If the notice is given pursuant to subdivision (a) or (b) of Section 40509, if the driving record of the person who is the subject of the notice contains one or more prior notifications of a violation issued pursuant to Section 40509 or 40509.5, and if the person's driving privilege is not currently suspended under this section, the department shall suspend the driving privilege of the person. (2) If the notice is given pursuant to subdivision (a) or (b) of Section 40509.5, and if the driving privilege of the person who is the subject of the notice is not currently suspended under this section, the department shall suspend the driving privilege of the person. (b) A suspension under this section shall not be effective before a date 60 days after the date of receipt, by the department, of the notice given specified in subdivision (a), and the notice of suspension shall not be mailed by the department before a date 30 days after receipt of the notice given specified in subdivision (a). The suspension shall continue until the suspended person's driving record does not contain any notification of a violation of subdivision (a) or (b) of Section 40508.”)

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