California Penal Code section 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”
When is it a crime to fail to appear in court?
Failing to appear in court constitutes a crime if the following 4 elements are fulfilled. The elements are:
- The defendant was charged or convicted of a misdemeanor or felony
- The defendant was released from custody
- The defendant willfully failed to appear at court when required to do so
- The defendant tried to avoid the legal process by failing to appear
It is important to note that for the second element that regards being released from custody, there are different ways of being released that can result in different penal code violations.
- If the defendant is released WITHOUT posting bail (on their own recognizance), and fails to appear in court, they could be charged with violating PC 1320
- If the defendant is released WITH bail, in a felony case, this is actually a violation of PC 1320.5, which carries more severe punishments
What are the punishments for failing to appear?
Failing to appear in court is a wobbler offense in California, meaning that it can sometimes be charged as either a misdemeanor or a felony. In the case of PC 1320, the evading court on a misdemeanor case will result in a misdemeanor, while evading a felony court date will result in a felony offense. As previously stated, there are other factors, such as the payment of bail, that can also affect the severity of the punishments given.
When failing to appear for a court date of a misdemeanor offense, the crime is charged as a misdemeanor, and the punishments can consist of:
- Up to 6 months in a county jail
- A maximum fine of $1,000
When failing to appear for a court date of a felony offense, the crime is charged as a felony, and the punishments can consist of:
- A maximum fine of $5,000
- Either up to 1 year in county jail OR a maximum sentence of 3 years in a state prison
When failing to appear for a court date of a felony offense when bail has been posted, the crime is charged as a felony, and the punishments can consist of:
- A maximum fine of $10,000
- Up to 3 years in a county jail or state prison
Are there legitimate defenses for failing to appear in court?
There are several ways to defend yourself if you are wrongfully accused of criminally failing to appear in court. Some of these include:
- You didn’t willfully miss your court date
- You didn’t mean to avoid the legal process by failing to appear
- You missed your court date based on a mistake made by the court
It is required that you failed to appear intentionally in order to be charged with a crime. There are several reasons why this may not be the case. Simply forgetting about your court date is not a crime, you must have knowledge of the court date and willfully decide not to go.
Even if you did purposefully fail to appear, it is only a crime to do so if you were trying to avoid the legal process. There are many legitimate reasons as to why you would have to miss a court date. For example, you may have been sick or injured.
Lastly, sometimes our legal system does make mistakes in coordinating dates for court appearances. It is not uncommon for the court to expect you to come on an incorrect date, or one that is different from what they told you. If you were charged with failing to appear because of a mistake on the court’s side, this would easily be a legitimate defense.