Penal Code § 1320 PC & § 1320.5 PC – Failure to Appear in Court

Penal Code §1320(a) PC is the California statute that makes it a crime to willfully fail to appear in court when required to do so. If the underlying charge is a misdemeanor, then failing to appear is a misdemeanor. Though failure to appear on a felony charge is a felony crime.

While this statute applies when you are released “on your own recognizance,” PC § 1320.5 is a similar code section that applies to your failure to appear when:

1. you have been charged or convicted of a felony, and
2. you have been released on bail.

1320 a PC states that “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.

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…”

Examples

• John pleads guilty to a Penal Code 594 vandalism charge, but does not return to court for his sentencing hearing.
• Isabel is charged with “shoplifting” under Penal Code 459.5, but rather than appear for her trial, she leaves the state.
• Willis fails to appear for his arraignment after being charged with assault with a deadly weapon under Penal Code 245a1.

Defenses

Luckily, there are several legal defenses that you can raise if accused of a crime under these sections. These include showing that you:

• did not act willfully,
• did not attempt to avoid the court process, and
• were falsely accused.

Penalties

The penalties depend on the type of crime you were initially charged with or convicted of.

If you are charged with or convicted of a misdemeanor, then failure to appear is also a misdemeanor – punishable by up to six months in county jail.

If you are charged with or convicted of a felony, then failure to appear is also a felony – punishable by either:

• a jail sentence of up to one year, or
• a state prison sentence of up to three years.

Note that if you are convicted of an offense under PC 1320, this conviction, on its own, will have no:

• negative immigration consequences (if applicable), or
• negative consequences regarding your gun rights.

Also note that if you are convicted of this offense, you can seek to have it expunged once you successfully complete:

• probation (if imposed), or
• any jail time (if imposed).

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is prohibited under California Penal Code 1320 PC?
  • 1.1. Released on own recognizance vs. released on bail
  • 1.2. Penal Code 1320.5
• 2. Are there legal defenses to failure to appear?
  • 2.1. No willful act
  • 2.2. No attempt to avoid the court process
  • 2.3. Falsely accused
• 3. What are the penalties?
• 4. Are there immigration consequences if I fail to appear?
• 5. Can I get an expungement?
• 6. Does a failure to appear conviction affect my gun rights?
• 7. Are there laws related to the failure to appear?
  • 7.1. Failure to appear – VC 40508
  • 7.2. Fines for failure to appear – PC 1214.1

1. What is prohibited under California Penal Code 1320 PC?

Penal Code 1320 PC is the California statute that makes it a crime to willfully fail to appear in court when required to do so.¹

A prosecutor must prove four things in order to successfully convict you under this statute. These are that you:

1. were charged with or convicted of a California crime (either a misdemeanor or a felony),
2. were released from custody on your own recognizance,
3. willfully failed to appear before the court as required, and
4. did so with the intent to evade the process of the court.²

“Willfully” means with a purpose or intention to commit the criminal act—in this case, not showing up for a court date. It is not necessary that you intended to break the law.³

1.1. Released on own recognizance vs. released on bail

PC 1320 applies when you have been released from custody on your own recognizance (also known as an “O.R. release”).

An O.R. release is when a judge allows you to leave custody without posting bail.

If you are released on your own recognizance, you are required to sign a written agreement with the court, in which you agree to:

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

Note that a judge does have the option to refuse an O.R. release and:

• set a bail, and
• keep you in custody until you post bail.

In this situation, if you post bail, then you are said to have been released from custody on bail. You will remain in custody if you cannot afford to post bail.

1.2. Penal Code 1320.5

Penal Code 1320.5 PC is the California statute that makes it a crime to fail to appear in court, in felony cases, after being released from custody on bail.

This statute says:

“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.”

PC 1320.5 differs from PC 1320 in that it only applies to you if you have been:

1. charged with or convicted of a felony, and
2. released on bail.

A violation of this statute is charged as a felony. The crime is punishable by:

• imprisonment in the county jail for up to three years,
• a maximum fine of $10,000, OR
• a state prison sentence of up to three years.

2. Are there legal defenses to failure to appear?

If you are accused of a crime under this statute, then you can challenge the accusation by raising a legal defense. A good defense can often get a charge reduced or even dismissed.

Three common defenses to PC 1320 accusations are:

1. no willful act
2. no attempt to avoid the court process, and/or
3. falsely accused

2.1. No willful act

Recall that you are only guilty under this code section if you willfully failed to appear in court. This means it is always a legal defense to show that you did not act willfully. For example, perhaps you failed to appear in court because you forgot about a court date.

2.2. No attempt to avoid the court process

Also recall that you are only guilty of violating PC 1320 if you failed to show up in court in order to avoid the court process. It is a solid defense, therefore, to show that you did not attempt to avoid the court by not appearing. For example, perhaps you failed to appear because you had to address an emergency.

2.3. Falsely accused

Unfortunately, it is not at all uncommon to get prosecuted based on false allegations. People levy falsely accusations out of

• jealousy,
• revenge, and
• anger.

Thus, it is a valid defense to say that a party falsely accused you of violating Penal Code 1320.

3. What are the penalties?

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

If charged with or convicted of a misdemeanor, then failure to appear is a misdemeanor.⁵ The penalties include:

• imprisonment in the county jail for up to six months, and/or
• a fine of up to $1,000.⁶

If charged with or convicted of a felony, then failure to appear is charged as a felony.⁷ The crime is punishable by:

• imprisonment in county jail for up to one year,
• a fine of up to $5,000, OR
• a state prison sentence of 16 months, two years, or three years.⁸

4. Are there immigration consequences if I fail to appear?

A PC 1320 conviction, on its own, will generally have no negative immigration consequences.

Note that under United States immigration law, certain kinds of criminal convictions in California can lead to a non-citizen being deported. Some convictions can also make an immigrant “inadmissible.”

The major categories of “deportable” or “inadmissible” crimes are:

• crimes of moral turpitude,
• aggravated felonies,
• controlled substances (drug) offenses,
• firearms offenses, and
• domestic violence crimes.⁹

A violation of PC 1320 does not fall into one of these categories. However, note that if your underlying charge (the one you failed to appear on) does, you may face negative immigration consequences.

5. Can I get an expungement?

If you are convicted under PC 1320, you can try to get the offense expunged.

Under Penal Code 1203.4, an expungement releases you from virtually “all penalties and disabilities” arising out of the conviction.¹⁰

One particular benefit is that an expunged conviction does not need to be disclosed to potential employers.

As a basic rule, PC 1203.4 authorizes an expungement for a misdemeanor or felony offense provided the applicant:

1. successfully completed probation (either felony probation or misdemeanor probation), and
2. is not currently:

• charged with a criminal offense,
• on probation for a criminal offense, or
• serving a sentence for a criminal offense.¹¹

This means that once you have successfully completed probation for violating PC 1320 (and your underlying offense), or serving a jail term for the same, you may begin trying to get the crime expunged.

6. Does a failure to appear conviction affect my gun rights?

A conviction under Penal Code 1320, on its own, does not have an effect on your gun rights.

Note that some felony and misdemeanor convictions will result in you losing your rights to own a gun in California.

Also note that some misdemeanors carry a 10-year firearm ban.

Though a conviction of failure to appear will not result in you losing ownership of your gun or being banned from the gun for a period of time.

7. Are there laws related to the failure to appear?

7.1. Failure to Appear – VC 40508

Vehicle Code 40508 VC is the California statute that says it is a crime if you fail to appear in court for a traffic ticket.

A prosecutor must prove three things to successfully convict you under this statute. These 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.¹²

A violation of VC 40508 is charged as a misdemeanor. The crime is punishable by:

• up to six months in county jail,
• a fine of up to $1,000,¹³ and/or
• suspension of your driver’s license.¹⁴

7.2. Fines for failure to appear – PC 1214.1

Penal Code 1214.1 PC is the California statute that says you must pay a $300 fine if you fail to appear in a court-ordered criminal proceeding.¹⁵

This proceeding can be for any of the following crimes:

• infractions,
• misdemeanors, or
• felonies.¹⁶

Note that a prosecutor must prove two things in order for you to be fined under PC 1214.1. These are:

1. a notice was sent to you telling you to appear in court, and
2. you ignored the notice “without good cause.”¹⁷

For additional help…

If you or someone you know has been accused of a crime under Penal Code 1320 PC, we invite you to contact us for a free consultation. We can be reached 24/7.

For similar accusations in Nevada, please see our article on: “Nevada Laws re “Failure to Appear” (NRS 199.335), Explained by Las Vegas Criminal Defense Lawyers.”

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