Penal Code 853.7 PC – Violating a Written Promise to Appear in Court

Updated September 20, 2020

Penal Code 853.7 PC is the California statute that makes it a crime for a person willfully to violate a written promise to appear in court. A defendant often signs a written agreement to appear when released from custody on his or her own recognizance.

853.7 PC states that “any person who willfully violates his or her written promise to appear or a lawfully granted continuance of his or her promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the charge upon which he or she was originally arrested.”

Examples

• failing to show in court for a ticket after signing a court document promising to appear.
• not appearing in court for a sentencing hearing after giving a written promise to do so.
• ditching a court hearing after filing with the court a document that promises to show up.

Defenses

A defendant can challenge a charge under this statute with a legal defense. Common defenses include:

• no willful act,
• appeared in court, and/or
• necessity.

Penalties

A violation of this law is a misdemeanor. This is opposed to a felony charge or an infraction.

The offense is punishable by:

• custody in county jail for up to six months, and/or
• a maximum fine of $1,000.

A judge can award misdemeanor (or summary) probation in lieu of jail time.

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

• 1. When is failure to appear a crime under 853.7 PC?
• 2. Are there legal defenses?
  • 2.1. No willful act
  • 2.2. Appeared in court
  • 2.3. Necessity
• 3. What are the penalties?
• 4. Can a person get a conviction expunged?
• 5. Are there related offenses?
  • 5.1. Failure to appear in court (after O.R. release) – PC 1320
  • 5.2. Failure to appear in court (after release on bail) – PC 1320.5
  • 5.3. Failure to appear in court on traffic citation – VC 40508

1. When is failure to appear a crime under 853.7 PC?

PC 853.7 makes it a crime for a person willfully to violate his written promise to appear in court. This is commonly referred to in California as a “failure to appear.”

A prosecutor must prove the following to convict a person under this statute:

1. the accused gave a written promise to appear in court, or
2. he gave a written promise to appear and the court date was lawfully continued (See 1050 PC), and
3. the defendant willfully failed to appear.¹

A person commits an act “willfully” when he does it:

• willingly, or
• on purpose.

Note that a person is guilty of this offense even if he is innocent of any underlying crime.²

2. Are there legal defenses?

A defendant can try to beat a charge under this statute with a good legal defense.

Three common defenses are to show that:

1. the defendant did not “willfully” fail to appear,
2. the accused did in fact appear in court, and/or
3. the defendant failed to show out of necessity.

2.1. No willful act

Recall that a person is only guilty under this statute if he willfully failed to appear. This means it is a defense for an accused to say that he did not fail to show up in court on purpose. Perhaps, for example, an accused was a no show because he forgot a court date.

2.2. Appeared in court

Sometimes a person can get charged with this offense on accident. Perhaps, for example, the accused made a court date and the court made an error. In these situations, the defendant can show evidence that he appeared, and the charge will go away.

2.3. Necessity

This defense shows that an accused had a good reason to commit a crime. In the context of PC 853.7, a defendant could say he had no other choice than to violate the statute. Perhaps, for example, the accused had to miss court to take care of an emergency.

3. What are the penalties?

A violation of this law is a misdemeanor.

The offense is punishable by:

• custody in county jail (as opposed to state prison) for up to six months, and/or
• a maximum fine of $1,000.³

4. Can a person get a conviction expunged?

A person can get an expungement if convicted of this offense.

An expungement is favorable since it erases many of the burdens of a conviction.

A judge will grant an expungement if a convicted party successfully completes:

• probation, or
• his jail term (whichever was imposed).

5. Are there related offenses?

There are three crimes related to violating a written promise to appear in court. These are:

1. failure to appear in court (after O.R. release) – PC 1320,
2. failure to appear in court (after release on bail) – PC 1320.5, and
3. failure to appear in court on traffic citation – VC 40508.

5.1. Failure to appear in court (after O.R. release) – PC 1320

Penal Code 1320 PC applies after a person has been released from custody on his own recognizance. This is also referred to as an “O.R. release.”

The code section makes it a crime for a person to fail to appear in court when:

1. he has been released on his own recognizance, and
2. he is required to appear in court via a court order.

5.2. Failure to appear in court (after release on bail) – PC 1320.5

This statute applies after a defendant has been released from custody upon posting bail.

Penal Code 1320.5 PC makes it a crime for a person to fail to appear in court when:

1. he has been released on bail, and
2. he is required to appear in court via a court order.

5.3. Failure to appear in court on traffic citation – VC 40508

Vehicle Code 40508 VC is the California statute that makes it a crime for a person to:

1. break a promise to appear in court following a traffic ticket, or
2. fail to pay bail following a ticket.

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

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