Failure to Appear

Failure to Appear under Section 1320

Failure to appear in a criminal case can be charged as either:

• a misdemeanor violation of section 1320, subdivision (a) for failure to appear on misdemeanor charges; or
• a felony violation of section 1320, subdivision (b) for failure to appear on felony charges.

Under Penal Code section 1320, subdivision (a), a defendant released on his or her own recognizance after being charged with or convicted of a misdemeanor, who willfully fails to appear as required, is guilty of a misdemeanor.

Under Penal Code section 1320, subdivision (b), a defendant released on his or her own recognizance after being charged with or convicted of a felony, who willfully fails to appear as required, is guilty of a felony.

Failure to Appear in a Felony under Section 1320.5

Under Penal Code section 1320.5, a defendant charged with or convicted of a felony, who is released on bail, and who willfully fails to appear as required, is guilty of a felony. Not only must the individual intend to fail to appear, but also he or she must intend the failure to appear to “achieve some additional purpose,” i.e., “to evade the process of the court.”

Because section 1320.5 does not designate a specific state prison term, under section 18 a violation of section 1320.5 is punishable by imprisonment in state prison “for 16 months, or two or three years.” Section 18 provides in pertinent part:

“Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony … is punishable by imprisonment in any of the state prisons for 16 months, or two or three years ….”

When the California Legislature amended section 1320.5 in 1985 to make the failure-to-appear offense a felony rather than a misdemeanor, a number of legislative reports explained that according to the District Attorney, failure to appear (FTA) when released on bail is occurring with alarming frequency.

Because a conviction in an FTA case previously resulted in only misdemeanor penalties, defendants accused of felonies with harsh penalties would sometimes fail to appear in order to postpone hearings and waste time, hoping that witnesses will disappear or forget what happened.” (Assem. Com. on Pub. Safety, Rep. on Sen. Bill No. 1393 (1985–1986 Reg. Sess.) as amended May 6, 1985, p. 1; Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1393 (1985–1986 Reg. Sess.) as amended May 6, 1985, p. 2; Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill No. 1393 (1985–1986 Reg. Sess.) as amended May 6, 1985, p. 1.)

In many of these cases, after the defendants jump bail and were subsequently apprehended, the underlying felony could not be prosecuted due to the unavailability or poor recollection of witnesses.’ ” (Assem. Com. on Pub. Safety, Rep. on Sen. Bill No. 1393 (1985 1986 Reg. Sess.) as amended May 6, 1985, p. 1; see also Assem. Com. on Pub. Safety, Republican analysis of Sen. Bill No. 1393 (1985–1986 Reg. Sess.) as amended May 6, 1985, p. 1.

History of the Failure to Appear Statute in California

In California, failure to appear became a distinct crime in 1959 when the California Legislature authorized the release of a defendant on his or her own recognizance. (Stats.1959, ch. 1340, pp. 3612–3613.) This statute read as follows: “Every person who is charged with the commission of a felony who is released on his own recognizance pursuant to this article who willfully fails to appear as he has

“Every person who is charged with the commission of a felony who is released on his own recognizance pursuant to this article who willfully fails to appear as he has agreed is guilty of a felony, punishable as provided in Section 18 and 19a.” When the failure to appear statute

When the failure to appear statute was first enacted it was clearly a general intent crime because it required only the intent to do the act of willfully failing to appear. See People v. McCaughey, 261 Cal.App.2d 131, 136, 67 Cal.Rptr. 683 (1968).

In 1979, Section 1319.4 was repealed. It was replaced by section 1320 as part of legislation allowing a defendant’s release on bail by posting ten percent of the amount set for bail. The new statute, in pertinent part, provided:

“Every person who is charged with 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, and upon conviction shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both such fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.” (§ 1320, subd. (b).)

The Pacific Law Journal analyzed the new statute and concluded:

“The new law adds the intent of evading the process of the court as an element of the crime and specifies that a felony defendant who willfully fails to appear within fourteen days of the date set for his or her appearance is presumed to have intended to evade the process of the court. Both presumptions appear to be rebuttable.” (Review of Selected 1979 California Legislation (1979–80) 11 Pacific L.J. 428.)

Four years later, the California Legislature enacted section 1320.5, making it a crime to fail to appear after posting bail. (Stats.1983, ch. 403, § 1, pp. 1669–1670.) Section 1320.5 mirrors the language of section 1320 except for the last sentence addressing an evidentiary matter. Section 1320.5 allows an evidentiary finding from a given state of facts (a defendant’s failure to appear within 14 days), while section 1320 creates a rebuttable presumption from those same facts. Both sections contain distinct phrases which describe a defendant’s state of mind in similar terms: willful failure to appear “in order to evade the process of the court.” Section 1320 makes express that the mental state is willful failure “intended to evade the process of the court.”

Additional Resources

§ 993. Penalty for Failure to Appear in Court – Visit the website of the San Francisco Decoded to find the San Francisco Health Code to find the laws in San Francisco with inline definitions, cross-references, and modern API.  Under Section 993 for failing to appear in court, “any person who willfully violates his written promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the original charge upon which he was arrested, and upon conviction of such misdemeanor, shall be punished by fine not exceeding $25 or by imprisonment in the County Jail for a period not exceeding five days, or both such fine and imprisonment.”

Attorney for Failing to Appear in Criminal Court in San Francisco

If you failed to appear in traffic court on a civil traffic infraction or in criminal court in a felony or misdemeanor case, then contact an experienced criminal defense attorney. We can help you at all stages of the case. It helps to hire the attorney as quickly as possible. If the failure to appear was not willful, the attorney can sometimes get the court to just withdraw the warrant for your arrest and reset the case in court.

Call today to discuss the specific facts of your case to receive legal advice. We represent clients throughout the city and county of San Francisco.

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