Understanding “Failure to Appear”

Under California Penal Code § 1320, a person who has been charged with or convicted of a crime and is released on their own recognizance (O.R.) commits a crime if they willfully fail to appear in court for the purpose of evading the process of the court.

A closely related statute, Penal Code § 1320.5, applies to defendants who are released on bail and then fail to appear as required.

Both offenses are serious. A failure to appear can transform a minor case into a major one—resulting in new charges, additional jail or prison time, higher bail, and long-term damage to credibility before the court.

At Radford & Rome, LLP, our attorneys are former prosecutors who have handled these cases from both sides of the courtroom. We understand how District Attorneys approach failure-to-appear allegations and how to strategically resolve them before they escalate.

Elements the Prosecution Must Prove

To obtain a conviction under Penal Code § 1320, the prosecution must establish the following:

  1. The defendant was charged with or convicted of a crime.
  2. The defendant was lawfully released from custody on their own recognizance.
  3. The defendant willfully failed to appear at the time and place required by the court.
  4. The failure to appear was done in order to evade the process of the court.

For Penal Code § 1320.5, the elements are nearly identical except that in that case, the release must have been on bail, and the case must involve a felony. The penalty is also higher.

These requirements are outlined in the California Criminal Jury Instructions (CALCRIM 2240), which governs “Failure to Appear While on Bail or Own Recognizance.” The text of the penal code section also says that it is presumed that someone intentionally failed to appear if they don’t come within 14 days of their court appearance. Some district attorneys have lists automated so that any time 14 days pass after an initial failure to appear they can file charges accordingly.

Penalties and Consequences

Under Penal Code § 1320

  • If the underlying case was a misdemeanor, failure to appear is also a misdemeanor, punishable by up to six months in county jail and a fine of up to $1,000.
  • If the underlying case was a felony, failure to appear may be charged as a felony, carrying 16 months, 2 years, or 3 years in county jail and a fine of up to $5,000.

Under Penal Code § 1320.5

  • Applies when a person is released on bail in a felony case.
  • The failure to appear is a felony, punishable by up to three years in state prison and a fine of up to $10,000.

Additional Consequences

  • A bench warrant is automatically issued for arrest.
  • The underlying case may become more difficult to resolve favorably.
  • Future release on O.R. or bail becomes far less likely.
  • Professional licensing boards and immigration authorities may treat a failure to appear as a significant negative factor.

Common Scenarios

Failure-to-appear charges can arise from a variety of circumstances, including:

  • Forgetting or misunderstanding a court date.
  • Illness, hospitalization, or transportation failure.
  • A deliberate decision to avoid court after learning of potential penalties.
  • Failure to receive notice of a continued hearing.

While some situations may be honest mistakes, prosecutors often presume intent to evade justice. That’s why it’s crucial to have experienced counsel to explain, document, and correct the record immediately.

The Law Firm of Radford & Rome, LLP approaches these cases with the same precision we bring to any of our high-stakes felony defense. Common defenses include:

  • Lack of Willfulness: The absence was not intentional or was due to circumstances beyond the client’s control.
  • No Intent to Evade: The defendant did not miss court to avoid prosecution.
  • Improper Notice: The defendant never received proper notice of the court date.
  • Clerical or Court Error: Miscommunications or administrative errors in calendaring can result in false allegations.

We also move swiftly to quash bench warrants, restore bail or O.R. status, and negotiate reinstatement before new charges are filed. Early intervention often prevents additional felony exposure.

Why Clients Choose Radford & Rome, LLP

Our attorneys are seasoned former prosecutors who have handled failure-to-appear cases from both perspectives. We know how to navigate:

  • Warrant recalls and reinstatement hearings.
  • Negotiations with judges and prosecutors for dismissal or reinstatement.
  • Re-calendar motions and bail reinstatement petitions.
  • Downward negotiations that prevent new felony filings under Penal Code § 1320.5.

When we act quickly, we often prevent the client from ever being taken into custody or facing additional sentencing exposure.

Contact Radford & Rome, LLP

If you have missed a court date or have an active bench warrant under Penal Code § 1320 or § 1320.5, do not wait for law enforcement to find you. Call Radford & Rome, LLP immediately for a confidential consultation.

We can often appear in court on your behalf, recall the warrant, and restore your standing without additional jail time.

Serving clients throughout Los Angeles, Riverside, San Bernardino, Kern, Orange, and Ventura Counties.