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


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

While this statute applies to defendants that are released “on their own recognizance,” PC 1320.5 is a similar code section that applies to a defendant's failure to appear when:

  1. he has been charged or convicted of a felony, and
  2. he has been released on bail.

PC 1320 states:

“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 of illegal acts under PC 1320 include:

Defenses

Luckily, there are several legal defenses that a person can raise if accused of a crime under Penal Code 1320 (and PC 1320.5). These include showing that the defendant:

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

Penalties

The penalties under Penal Code 1320 depend on the type of crime a defendant was initially charged with or convicted of.

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

If 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 a person is convicted of an offense under PC 1320, this conviction, on its own, will have no:

Also note that a person convicted of this offense can seek to have it expunged once he successfully completes:

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

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

judge unhappy that defendant did not show up in court
Penal Code 1320 PC is the California statute that makes it a crime for a person to willfully fail to appear in court when required to do so.

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

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

A prosecutor must prove four things in order to successfully convict a person under this statute. These are that the defendant:

  1. was charged with or convicted of a California crime (either a misdemeanor or a felony),
  2. was released from custody on his 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 the defendant intended to break the law.3

1.1. Released on own recognizance vs. released on bail

PC 1320 applies when a person has been released from custody on his own recognizance (also known as an “O.R. release”).

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

Defendants who are released on their own recognizance are required to sign a written agreement with the court, in which they 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 they fail to appear and are apprehended outside of California, and
  5. acknowledge that they 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 the defendant in custody until he posts bail.

In this situation, if a party posts bail, then he is said to have been released from custody on bail. A party will remain in custody if he 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 for a person 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 a defendant that has 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 accusations of violating PC 1320?

If a person is accused of a crime under this statute, then he 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 an accused is only guilty under this code section if he willfully failed to appear in court. This means it is always a legal defense for an accused to show that he did not act willfully. For example, perhaps he failed to appear in court because he forgot about a court date.

2.2. No attempt to avoid the court process

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

2.3. Falsely accused

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

  • jealousy,
  • revenge, and
  • anger.

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

money under gavel representing a fine
A violation of this crime can result in a fine and/or jail time

3. What are the penalties for violating Penal Code 1320?

The penalties for failure to appear in California depend on the type of crime the defendant was 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 a person fails 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 the defendant's underlying charge (the one he failed to appear on) does, he may face negative immigration consequences.

5. Can a person get an expungement after a Penal Code 1320 conviction?

A person convicted under PC 1320 can try to get the offense expunged.

Under Penal Code 1203.4, an expungement releases an individual 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 a defendant has successfully completed probation for violating PC 1320 (and his underlying offense), or serving a jail term for the same, he may begin trying to get the crime expunged.

man holding gun
A conviction under Penal Code 1320 does not have an effect on the convicted party's gun rights.

6. Does a failure to appear conviction affect a person's gun rights?

A conviction under Penal Code 1320, on its own, does not have an effect on the convicted party's gun rights.

Note that some felony and misdemeanor convictions will result in the defendant losing his rights to own a gun in California.

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

But a conviction of failure to appear will not result in a person losing ownership of his gun or being banned from the gun for a period of time.

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

There are three laws related to failure to appear in court. These are:

  1. failure to appear – VC 40508,
  2. fines for failure to appear – PC 1214.1, and
  3. hold on a driver's license – VC 40509.5.

7.1. Failure to Appear – VC 40508

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

A prosecutor must prove three things to successfully convict a person under this statute. These are:

  1. the accused received a traffic citation,
  2. in connection with the citation, the accused signed a written promise to appear in court (usually traffic court), and
  3. the accused 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 the defendant's 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 a person must pay a $300 fine if he fails 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 a defendant to be fined under PC 1214.1. These are:

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

7.3. Hold on a driver's license – VC 40509.5

Vehicle Code 40509.5 VC is the California statute that allows the State to put a hold on a person's driver's license if he fails to appear in traffic court for a ticket or citation.18

A hold on a driver's license could result in the suspension of a driver's driving privileges and it remains in place until a motorist appears in court or pays the applicable fine.

Were you accused of failure to appear in California? Call us for help…

california criminal defense
Call us for help at (855) LAW-FIRM

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 at 855-LawFirm.

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.”


Legal References:

  1. California Penal Code 1320. This code section states: “(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…”

    “(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…”

  2. See same.

  3. California Jury Instructions—Criminal (“CALJIC”) 1.20 – Willfully, defined. See also People v. Lara (1996), 44 Cal.App.4th 102.

  4. 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 the defendant to appear in court. See People v. Jenkins (1983), 146 Cal. App. 3d 22.

  5. Penal Code 1320 PC.

  6. Penal Code 19 PC.

  7. California Penal Code 1320 PC.

  8. See same. See also California Penal Code 1170h PC.

  9. See INA 237 (a) (2) (A).

  10. California Penal Code 1203.4 PC.

  11. See same.

  12. Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 2240 – Failure to Appear (Veh. Code, § 40508a).

  13. California Penal Code 19 PC.

  14. California Vehicle Code 13365 VC.

  15. California Penal Code 1214.1 PC. This code section states: “In addition to any other penalty in infraction, misdemeanor, or felony cases, the court may impose a civil assessment of up to three hundred dollars ($300) against a defendant who fails, after notice and without good cause, to appear in court for a proceeding authorized by law…”

  16. See same.

  17. See same.

  18. California Vehicle Code 40509.5 VC.

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