"The California Supreme Court has recognized that release on bail and OR release are separate and distinct procedures." (Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, citing Van Atta v. Scott (1980) 27 Cal.3d 424, 452 ["Release on own recognizance and release on bail are alternative and complementary systems"]]
Own Recognizance (OR) Release
PC1318 defines the legal agreement for OR Release.
Compliance with PC1318 by written agreement
In order to be legally considered an OR release, PC1318 must be complied with. (People v. Jenkins (1983) 146 Cal.App.3d 22 ["However else it might be characterized, a release without bail which does not comply with the specific requirements of section 1318 is not a release 'under an own recognizance'"] There must be a written agreement. Otherwise, it is not an OR release. (People v. Hernandez (2009) 177 Cal.App.4th 1182, 1191 [holding that compliance with PC1318 includes "the necessity of a signed release agreement containing the required stipulations, an essential part of what constitutes an O.R. release."].) In Jenkins, the defendant signed an agreement for a release, but it did not contain a provision "inform[ing] of the consequences and penalties applicable to violation of the conditions of release." (Penal Code, §1318, subd. (a)(4).) Because of that, it could not be considered legally an OR release, so PC1320 was not violated. In People v. Mohammed (2008) 162 Cal.App.4th 920, there was no written agreement, but it was argued that PC1318 was substantially complied with. Mohammed rejected substantial compliance as an excuse for not complying with PC1318. On the other hand, People v. Carroll (2014) 222 Cal.App.4th 1406, held that substantial compliance with PC1318 will permit a PC1320 prosecution. In Carroll, the defendant signed a written agreement that did contain language from PC1318(a)(2) ("The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.") or PC1318(a)(3) ("The defendant’s promise not to depart this state without leave of the court.") The written agreement did include the consequences of FTAing. The missing language had no effect on the FTA. So contrary to Mohammed, Carroll held there was substantial compliance and that substantial compliance was a valid theory for PC1320 prosecutions.
"Similar to a bail bond being in the nature of a contract between the government and the surety that ensures the appearance of the defendant ([citation].), an OR written agreement is a contract between government and the defendant in which the defendant not only promises to appear, but is informed of the consequences of nonappearance." (People v. Mohammed (2008) 162 Cal.App.4th 920.)
Penal Code section 1318
(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:
- (1) The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.
- (2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.
- (3) The defendant’s promise not to depart this state without leave of the court.
- (4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.
- (5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.
Failure to Appear (FTA)
PC1320 punishes FTAs for OR release. FTA on a misdemeanor is a misdemeanor. FTA on a felony is a felony. PC1320.5 punishes FTA while on bail for felonies.
FTA is in itself a crime. It does not matter what happened on the underlying offense. (People v. Walker (2002) 29 Cal.4th 577, 583 ["The language and history of section 1320.5 also reflect the Legislature's view that fulfillment of this purpose requires punishment whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered."].)
On bail enhancement
On bail for a case outside of California counts as being on bail. (People v. Griffin (2005) 128 Cal.App.4th 1112.)