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:
- you have been charged or convicted of a felony, and
- 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.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What PC 1320 Does
- 2. Defenses
- 3. Penalties
- 4. Immigration Consequences
- 5. Expungements
- 6. Gun Rights
- 7. Related Laws
- Additional Reading
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. What PC 1320 Does
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 Prosecutors must prove beyond a reasonable doubt four elements of the jury instructions to convict you under this statute:
- were charged with or convicted of a California crime (either a misdemeanor or a felony),
- were released from custody on your own recognizance,
- willfully failed to appear before the court as required, and
- 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
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:
- appear in court when ordered to do so,
- obey all reasonable conditions imposed by the court,
- not leave the state without the court’s permission,
- waive extradition if you fail to appear and are apprehended outside of California, and
- 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.
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:
- charged with or convicted of a felony, and
- 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. Defenses
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 the following.
There Was 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.
There Was 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.
You Were 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.
A violation of this crime can result in a fine and/or jail time
3. 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. Immigration Consequences
A PC 1320 conviction, on its own, is not deportable. However, if your underlying charge (the one you failed to appear on) does, you may face negative immigration consequences.
5. Expungements
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
Once you have 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.11
6. Gun Rights
A conviction under Penal Code 1320, on its own, does not have an effect on your gun rights. You can still possess firearms as long as you are not otherwise prohibited from doing so.
7. Related Laws
- Vehicle Code 40508 VC – Failure to appear for a traffic ticket
- Penal Code 1214.1 PC – Failure to appear in a court-ordered criminal proceeding
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Who Skips? An Analysis of Bail Bond Failure to Appear – Journal of Applies Security Research.
- What Predicts Failure to Appear for Court Hearings? – Criminal Justice Policy Review.
- Reducing courts’ failure-to-appear rate by written reminders – Psychology, Public Policy, and Law.
- Behavioral nudges reduce failure to appear for court – Science.
- Examining the congruence between predictors of ror and failures to appear – Journal of Criminal Justice.
Legal References:
- California Penal Code 1320.
- See same.
- California Jury Instructions—Criminal (“CALJIC”) 1.20 – Willfully, defined. See also People v. Lara (1996), 44 Cal.App.4th 102.
- California Penal Codes 1310-1318. Note that, given this agreement, a violation of PC 1320 is partly grounded in the violation of a contractual agreement by you to appear in court. See People v. Jenkins (1983), 146 Cal. App. 3d 22. CALCRIM No. 3002. Failure to Appear While on Own Recognizance Release (Pen. Code, § 1320) Judicial Council of California Criminal Jury Instructions (2024 edition)
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant was (charged with/convicted of) the commission of a (felony/misdemeanor) in (this case/case number );
2. The defendant was released from custody on (his/her) own recognizance pursuant to a signed written release;
3. The defendant willfully failed to appear in court as required;
AND
4. When the defendant willfully failed to appear in court as required, (he/she) did so in order to evade the process of the court.CALCRIM No. 3001. Failure to Appear While on Bail (Pen. Code, § 1320.5) Judicial Council of California Criminal Jury Instructions (2024 edition)To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant was (charged with/convicted of) the commission of a felony in (this case/case number );
2. The defendant was released from custody on bail in (this/that) case;
3. The defendant was required to appear in court at a specific date, time and place in (this/that) case;
4. The defendant willfully failed to appear in court as required;
AND
5. When the defendant willfully failed to appear in court as required, (he/she) did so in order to evade the process of the court. - Penal Code 1320 PC.
- Penal Code 19 PC.
- California Penal Code 1320 PC.
- See same. See also California Penal Code 1170h.
- See INA 237 (a) (2) (A).
- California Penal Code 1203.4 PC.
- See same.