13.2 PC 1305 Appearance Period, Notice, and Extensions

PC 1305 Appearance Period, Notice, and Extensions

Quick Answer: If the defendant fails to appear without sufficient excuse, the court shall declare the undertaking forfeited in open court (Penal Code 1305(a)). If the amount exceeds $400, the clerk mails notice to the surety and the bail agent within 30 days. The surety then has 180 days, plus 5 days if notice was mailed, to produce the defendant or otherwise qualify for relief. A timely motion may be heard within 30 days after that period. Penal Code 1305.4 allows a good-cause extension of up to 180 days from the court's order.

Forfeiture is a court event, not an agent's invoice. The face amount still belongs to the people of the State of California until the court either vacates the forfeiture and exonerates or enters a 1306 summary judgment. Premium already collected does not reduce that face amount, and 10 CCR 2090's pre-appearance refund rule is no longer the path.

Declaring the forfeiture: open court and the 15-day complaint bar

Penal Code 1305(a)(1) requires the court, in open court, to declare forfeited the undertaking, or money or property deposited as bail, if, without sufficient excuse, the defendant fails to appear for arraignment, trial, judgment, any other occasion prior to pronouncement of judgment when presence is lawfully required, or to surrender in execution of the judgment after appeal. A silent minute order that never says the word "forfeited" in open court is not a 1305 declaration.

The court shall not have jurisdiction to declare a forfeiture, and the bail is released, if the case is dismissed or no complaint is filed within 15 days from the date of arraignment, unless that window is extended up to 90 days from the arraignment date originally set by the jailer under Penal Code 1269b(a) because the prosecutor or the defendant requested more time in writing or in open court (1305(a)(2)). That 15-day bar is a jurisdiction defect taught again in 13.3. Count it from arraignment, not from booking, and do not confuse it with 1303's 15-day post-dismissal hold on exoneration.

Forfeiture notice: $400, 30 days, both addresses, plus 5

If the amount of the bond or deposit exceeds four hundred dollars ($400), Penal Code 1305(b)(1) requires the clerk, within 30 days of the forfeiture, to mail notice of the forfeiture to the surety or the cash depositor. At the same time, the court shall mail a copy to the bail agent whose name appears on the bond. The clerk shall execute a certificate of mailing and place it in the court's file. If notice of forfeiture is required to be mailed, the 180-day period is extended by five days to allow for mailing.

For an authorized corporate surety, if the bond plainly displays the mailing address of the corporate surety and the bail agent, notice shall be mailed to the surety at that address and to the bail agent. Mailing alone to the surety or the bail agent shall not constitute compliance (1305(b)(2)).

The surety or depositor is released of all obligations if any of the following is true (1305(b)(3)):

• the clerk fails to mail the notice within 30 days after entry of the forfeiture;
• the clerk fails to mail the notice to the surety at the address printed on the bond; or
• the clerk fails to mail a copy to the bail agent at the address shown on the bond.

That release is automatic. It is not a 1305.4 motion and it is not a favor from County Counsel. An agent who sees a notice addressed only to the home office, or who never receives a copy at the address printed on the bond, is looking at a notice defect, not at a reason to start paying the face amount.

Counting the 180-day period

Count the clock the way the statute writes it:

Penal Code 1305(j) is the calendaring valve. A motion filed in a timely manner within the 180-day period may be heard within 30 days of the expiration of that period. The court may extend the 30-day period upon a showing of good cause. The motion may be made by the surety insurer, the bail agent, the surety, or the depositor of money or property, in person or through an attorney. Filing on day 181 is not timely. Filing on day 170 and arguing the motion on day 200 can be timely if the 30-day window, or a good-cause extension of that window, still covers the hearing.

Penal Code 1305(k) then adds a notice condition that trips unprepared agencies. In addition to any other notice required by law, the moving party shall give the prosecuting agency a written notice at least 10 court days before a hearing held pursuant to subdivision (f), (g), or (j), as a condition precedent to granting the motion. Ten court days is not ten calendar days, and it is not a courtesy copy the morning of the hearing.

1305.4: extending the statutory period for good cause

Penal Code 1305.4 is the extension statute the blueprint names. Notwithstanding 1305, the surety insurer, the bail agent, the surety, or the depositor may file a motion, based upon good cause, for an order extending the 180-day period. The motion shall include a declaration or affidavit that states the reasons showing good cause. The court, upon a hearing and a showing of good cause, may order the period extended to a time not exceeding 180 days from its order. The motion may be filed and calendared as provided in 1305(j). In addition to any other notice, the moving party shall give the prosecuting agency written notice at least 10 court days before the hearing as a condition precedent to granting the motion.

Two counting traps sit in that paragraph. First, the new 180 days runs from the extension order, not from the original forfeiture and not from the date the motion was filed. An order signed on day 175 of the original period can push the deadline nearly six more months from that order. Second, 1305.4 does not replace the need to file inside the original period (or the mailed-notice period) if you are using the 1305(j) calendaring path. An extension motion filed after the appearance period has already died is not a 1305.4 motion; it is a late paper.

California scenario — Clara Shortridge Foltz. A $100,000 felony defendant fails to appear in Department 30. The court declares the forfeiture in open court on March 3. The clerk mails notice to the surety and the agent on March 7. The appearance period is 180 days plus 5. On day 160 the agent has a last-known address in Mexicali and a declaration of active locate work, but not yet a body. A 1305.4 motion with that declaration, served on the prosecutor at least 10 court days before the hearing, can extend the period up to 180 days from the court's order. A motion served on the prosecutor the afternoon before the hearing fails the condition precedent even if the declaration is excellent.

Warrants: who serves them, and how you verify they are live

The appearance period is not a hunting license. The court issues process; peace officers serve it; the agent verifies that the process is real before treating a pickup as a 1305 surrender or arrest.

Penal Code 816 directs a warrant of arrest generally to any peace officer, or to any public officer or employee authorized to serve process where the warrant is for a violation of a statute or ordinance that person has a duty to enforce. Those officers execute the warrant. Penal Code 817's form of a probable-cause arrest warrant is likewise commanded to any peace officer of the State. Penal Code 983 then says a bench warrant may be served in any county in the same manner as a warrant of arrest. Penal Code 980(a) lets the clerk, after the order for a bench warrant is made, issue the bench warrant to one or more counties whether or not the court is sitting.

A licensed bail agent is not on the 816 list. Completing the 40-hour PC 832 course does not make the agent a peace officer and does not authorize the agent to "serve" the bench warrant. The agent's body-production power is Penal Code 1301 before final discharge and, after FTA, the Fugitive Recovery Persons Act taught in the next chapter. The warrant is still the court's pickup order, and it still has to be live.

Penal Code 980(b) is the NCIC rule for private surety-bonded felony bench warrants. The clerk shall require the appropriate agency to enter each such warrant into the national warrant system (National Crime Information Center (NCIC)). If the agency fails to enter it, and the court finds that this failure prevented the surety or bond agent from surrendering the fugitive, prevented the fugitive from being arrested or taken into custody, or resulted in the fugitive's subsequent release, the court shall, upon petition, set aside the forfeiture and exonerate the bond. That is a technical-relief holding taught in 13.3; the operational lesson here is that NCIC entry is the felony-surety default, and a missing entry is both a locate problem and a possible defense.

Before any pickup, verify warrant status in three places, because they do not always match:

Do not take a family's word that "the warrant was recalled." Do not take a six-week-old printout to a recovery. Do not assume a misdemeanor bench warrant is in NCIC; 980(b) is a felony private-surety entry rule. If local records show recalled, CLETS shows active, or NCIC is empty on a felony surety warrant, stop and reconcile before you put hands on anyone. Persons authorized to serve the warrant remain the peace officers 816 and 983 describe. Your job is to confirm the paper is live, then use the surrender or recovery authority the Penal Code actually gives you.

Traps. 180 plus 5 is not 90, not 120, and not 1304's two-year written-notice exoneration. The clerk's 30-day mailing deadline is not the appearance period. Dual-address mailing is mandatory when the bond displays both addresses; mailing only the surety or only the agent is a release. 1305.4's 180 days run from the order, not from the original FTA. Ten court days of prosecutor notice is a condition precedent on 1305(f), (g), (j), and 1305.4. A timely motion may be heard within 30 days after the period; that is not a license to file after the period. Agents do not serve bench warrants as peace officers. Verify local, CLETS, and NCIC before treating a warrant as live.