Penal Code § 1305: Bail Forfeiture

Penal Code § 1305 is the statute that decides what happens to a bail bond after a defendant fails to appear. It sets a 180-day window in which a forfeiture can be undone, lists the specific circumstances in which a court must vacate the forfeiture and exonerate the bond, and — through § 1306 — fixes the point at which the surety is simply liable for the full amount. This page walks the section in order, subdivision by subdivision, with the statutory language rather than a summary of it.

What forfeiture is, and what it is not

A forfeiture is an order declaring the bond broken. It is not a judgment, and by itself it does not require anyone to pay anything. Under § 1305(a)(1) a court shall, in open court, declare forfeited the undertaking of bail — or the money or property deposited as bail — if, without sufficient excuse, a defendant fails to appear for any of the following:

• Arraignment.
• Trial.
• Judgment.
• Any other occasion prior to the pronouncement of judgment where the defendant’s presence in court is lawfully required.
• Surrender in execution of the judgment after appeal.

Three phrases in that sentence carry most of the weight. In open court means a forfeiture entered in chambers, or noted only in the minutes, is open to challenge. Without sufficient excuse means the court has to make a finding, not simply observe an empty chair. And the list is closed: a missed appointment that is not one of these occasions is not a § 1305 failure to appear, whatever else it may be.

What follows a forfeiture is a period in which it can be set aside. What follows the end of that period, if nothing has been done, is summary judgment under § 1306 — and that is the stage at which money actually changes hands.

When the court has no power to forfeit at all

Subdivision (a)(2) is easy to miss and decisive when it applies. Except as provided in subparagraph (B), the court shall not have jurisdiction to declare a forfeiture, and the bail shall be released of all obligations under the bond, if the case is dismissed or if no complaint is filed within 15 days from the date of arraignment.

That 15-day limit can be extended to not more than 90 days from the arraignment date originally set by the jailer under § 1269b(a), but only if one of two things happens:

• The prosecutor requests, in writing or in open court, that the arraignment be continued to allow time to file the complaint; or
• The defendant requests the extension, in writing or in open court.

Absent one of those requests, a bond written on an arrest that never becomes a filed case does not stay live indefinitely.

Notice of forfeiture: the 30-day and $400 rules

Subdivision (b) governs notice, and its details are frequently litigated because they control when the clock starts.

• If the amount of the bond, or the money or property deposited, exceeds $400, the clerk of the court shall mail notice of the forfeiture to the surety, or to the depositor of money posted instead of bail, within 30 days of the forfeiture.
• At the same time, the court shall mail a copy of the forfeiture notice to the bail agent whose name appears on the bond.
• The clerk shall execute a certificate of mailing of the forfeiture notice and place that certificate in the court’s file.
• Where notice is required, the 180-day period is extended by five days to allow for the mailing.

Subdivision (b)(2) adds that where the surety is an authorized corporate surety and the bond plainly displays the mailing address of both the corporate surety and the bail agent, notice is to be mailed to those addresses. Subdivision (b)(3) addresses the situation where the clerk fails to mail a copy of the notice to the bail agent at the address shown on the bond. In practice this is why the addresses printed on the face of a bond matter far more than they look like they should.

The 180-day period

This is the heart of the section. The period runs 180 days from the date of forfeiture, or 180 days from the date the notice was mailed where notice is required under subdivision (b) — plus the five days that subdivision adds for mailing.

(c)(1) — the defendant appears

If the defendant appears, either voluntarily or in custody after surrender or arrest, in court within the 180 days, the court shall — on its own motion, at the time the defendant first appears in court on the case in which the forfeiture was entered — direct the order of forfeiture to be vacated and the bond exonerated. If the court fails to act on its own motion, the surety’s or depositor’s obligations under the bond shall be immediately vacated and the bond exonerated regardless.

The statute adds that an order vacating the forfeiture and exonerating the bond may be made on terms that are just and do not exceed the terms imposed in similar situations with respect to other forms of pretrial release — a phrase that recurs throughout the section.

(c)(2) — surrendered or arrested inside the county, then released

If, within the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, and is subsequently released from custody before appearing in court, the court shall on its own motion vacate the forfeiture and exonerate the bond. The same fallback applies: if the court does not act, the obligations are vacated anyway.

(c)(3) — surrendered or arrested outside the county

If, outside the county where the case is located, the defendant is surrendered to custody by the bail or is arrested in the underlying case within the 180-day period, the court shall vacate the forfeiture and exonerate the bail. No court appearance is required for this subdivision to operate.

(c)(4) — reinstatement instead of exoneration

In lieu of exonerating the bond, the court may order the bail reinstated and the defendant released on the same bond, but only if both conditions are met: the bail is given prior notice of the reinstatement, and the bail has not surrendered the defendant.

Death, illness and detention: subdivisions (d) and (e)

The statute treats permanent and temporary inability to appear differently.

Permanent disability — (d). The court shall direct the forfeiture to be vacated and the bond exonerated if, within the 180-day period, it is made apparent to the court’s satisfaction that both conditions are met: the defendant is deceased or otherwise permanently unable to appear by reason of illness, insanity, or detention by military or civil authorities; and the absence of the defendant is without the connivance of the bail.

Temporary disability — (e). Here the remedy is tolling rather than exoneration. The court shall order the 180-day period tolled during the period of temporary disability, provided it appears to the court’s satisfaction that the defendant is temporarily disabled by reason of illness, insanity, or detention by military or civil authorities; that the defendant is unable to appear in court during the remainder of the 180-day period because of it; and that the absence is without the connivance of the bail. The tolling is then extended for a reasonable period after the disability ends, at the court’s discretion, to allow the defendant to be returned to the jurisdiction of the court.

The recurring condition in both is connivance. The relief exists for absences the bail did not arrange.

Defendants outside the jurisdiction: (f), (g) and (h)

(f) — in custody elsewhere, no extradition. In all cases where a defendant is in custody beyond the jurisdiction of the court that ordered the bail forfeited, and the prosecuting agency elects not to seek extradition after being informed of the defendant’s location, the court shall vacate the forfeiture and exonerate the bond on terms that are just.

(g) — located but not in custody. This subdivision covers the situation where a defendant is not in custody and is beyond the jurisdiction of the state, and all of the following are true: the defendant is temporarily detained by the bail agent in the presence of a local law enforcement officer of the jurisdiction where the defendant is located; that officer positively identifies the defendant as the wanted defendant in an affidavit signed under penalty of perjury; and the prosecuting agency, after being informed of the location, elects not to seek extradition. The court shall then vacate the forfeiture and exonerate the bond.

(h) — tolling by agreement. In cases arising under (g), if the bail agent and the prosecuting agency agree that additional time is needed to return the defendant to the jurisdiction of the court, and the prosecuting agency agrees to tolling, the court may toll the 180-day period on the basis of that agreement, for up to the length of time the parties agreed.

Timing of the motion: subdivision (j)

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 that 30-day window on 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. The distinction that matters is between filing and hearing: the filing must be inside the 180 days; the hearing need not be.

Extending the 180 days: Penal Code § 1305.4

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 must include a declaration or affidavit stating the reasons showing good cause. On a hearing and a showing of good cause, the court may order the period extended to a time not exceeding 180 days from its order — measured from the date of the order, not from the original forfeiture. The motion may be filed and calendared as provided in § 1305(j), and the moving party must give the prosecuting agency written notice in addition to any other notice required by law.

What happens when the period runs out: Penal Code § 1306

This is where a forfeiture stops being a procedural event and becomes money.

• (a) When a bond is forfeited and the § 1305 period has elapsed without the forfeiture having been set aside, the court that declared the forfeiture shall enter summary judgment against each bondsman named in the bond, in the amount for which the bondsman is bound. The judgment is the amount of the bond plus costs, and no penalty assessments may be levied or added to it.
• (b) If a court grants relief from forfeiture, it shall impose a monetary payment as a condition of relief to compensate the people for the costs of returning the defendant to custody, except where the court determines that no costs should be imposed in the best interest of justice. The amount must reflect the actual costs. Failure to pay that amount cannot be the basis for summary judgment on the underlying bond amount — a summary judgment for failure to make that payment applies only to the costs owing at the time it is entered, plus administrative costs and interest.
• (c) If, because of a court’s failure to promptly perform its duties under the section, summary judgment is not entered within 90 days after the date on which it may first be entered, the right to do so expires and the bail is exonerated.
• (d) A dismissal of the complaint, indictment or information after the default of the defendant does not release or affect the obligation of the bail bond.
• (e) The district attorney or county counsel shall demand immediate payment within 30 days after the summary judgment becomes final, and if the judgment remains unpaid 20 days after demand, shall enforce it as money judgments are generally enforced.
• (f) The right to enforce a summary judgment entered against a bondsman expires two years after its entry.

Subdivision (c) is the one worth reading twice. A court’s own delay can exonerate a bond that would otherwise have been reduced to judgment.

Two related sections that are easy to overlook

§ 1303 — dismissal. If an action against a defendant admitted to bail is dismissed, the bail is not exonerated until 15 days have elapsed since entry of the order of dismissal. If within that period the defendant is arrested and charged with a public offense arising out of the same act or omission, the bail is applied to that new offense. Where an undertaking is on file, the clerk must promptly mail notice to the surety and to the bail agent who posted the bond whenever bail is applied this way.

§ 1304 — the two-year limit. Bail, money or bonds deposited in lieu of bail, equity in real property posted as security, or an own-recognizance agreement shall be exonerated two years from the effective date of the initial bond — provided the court is informed in writing at least 60 days before that two-year point that the bond is to be exonerated, and unless the court determines otherwise and informs the party executing the bail of its reasons.

A worked timeline

The following is a generic illustration of how the dates stack up. It describes no actual case.

1. Day 0. The defendant fails to appear at a hearing where their presence is lawfully required. The court declares forfeiture in open court.
2. Within 30 days. Because the bond exceeds $400, the clerk mails notice of forfeiture to the surety and the court mails a copy to the bail agent named on the bond. A certificate of mailing goes into the file.
3. Day of mailing + 180 + 5. The appearance period runs from the mailing date, extended by five days for the mailing itself.
4. Inside that window. Any of the § 1305(c) events — an appearance, an in-county or out-of-county surrender or arrest in the underlying case, a hold placed on the case while the defendant is in custody elsewhere — triggers the court’s duty to vacate and exonerate.
5. Still inside the window. A motion under § 1305.4 for good cause can extend the period by up to 180 days from the date of the order. A motion filed in time under § 1305(j) can be heard up to 30 days after expiry.
6. After expiry. Summary judgment under § 1306(a) for the amount of the bond plus costs. If the court does not enter it within 90 days of the date it first could, § 1306(c) exonerates the bail.

Six things people get wrong about § 1305

• “The forfeiture means we owe the full bail now.” It does not. Liability attaches at summary judgment under § 1306, after the § 1305 period has run without the forfeiture being set aside.
• “The 180 days runs from the missed court date.” Usually not. Where notice is required under (b), it runs from the mailing date, plus five days.
• “He has to come back to court for the bond to be exonerated.” Subdivisions (c)(2) and (c)(3) both operate on a surrender or arrest in the underlying case without any court appearance.
• “He is in custody in another state, so nothing can be done.” Subdivision (f) addresses exactly that, where the prosecuting agency elects not to extradite.
• “The case was dismissed, so the bond is finished.” Under § 1306(d) a dismissal after the defendant’s default does not release the obligation, and under § 1303 a dismissal does not exonerate bail until 15 days have passed.
• “The motion has to be heard within 180 days.” It has to be filed within the period. Subdivision (j) allows it to be heard within 30 days after expiry, extendable for good cause.

What a forfeiture notice means if you are the cosigner

A cosigner — an indemnitor — signed an agreement with the bail agency, not with the court. The § 1305 process runs between the court and the surety. What it means for the cosigner is that a clock has started, and that the single most useful thing anyone can do during it is get the defendant back in front of the court.

Two points are worth stating plainly. First, the statute gives the court a duty to vacate the forfeiture when the defendant appears within the period — so an appearance is not a formality, it is the remedy. Second, nothing about the forfeiture stage is improved by waiting; every one of the routes in subdivision (c) is time-limited, and the extension under § 1305.4 has to be sought before the period ends.

If you are a cosigner on a bond we wrote and you have received a notice, call the office that handled it. If you are a cosigner elsewhere, call whoever wrote the bond. Questions about your own liability under an indemnity agreement are legal questions, and we will tell you that rather than guess at the answer.

Where a forfeiture is vacated, or where a case simply ends without one, the bond is exonerated — the routes are set out on our bail exoneration page, together with the reason exoneration is not the same thing as getting money back.

Where these cases are heard locally

Orange County forfeiture matters are heard in the criminal department of the justice center where the underlying case sits — most often the North Justice Center in Fullerton for the north county cities we serve. A defendant picked up on the underlying case is booked through the Intake Release Center in Santa Ana, and a hold placed there while the defendant is in custody on other charges is within subdivision (i).

The most common precursor to a forfeiture is the one covered on our failure to appear page, and the most common consequence is the bench warrant that issues alongside it. Where the missed appearance arises out of a supervised case, the probation violation process runs in parallel and on its own rules.

Questions we are asked about forfeiture

How long do I have after a bail forfeiture in California?

180 days from the date of forfeiture, or 180 days from the date the notice of forfeiture was mailed where notice is required under § 1305(b), plus five days for the mailing. The period can be extended under § 1305.4 by up to 180 days from the date of the court’s order, on a showing of good cause.

What happens if the defendant is found after the 180 days?

The statutory routes in § 1305(c) are tied to the period. Once it has run and summary judgment has been entered under § 1306, the position is a judgment, not a forfeiture, and it is enforced as money judgments generally are. Whether anything can be done in a particular case is a question for the surety’s counsel.

Does the bond get exonerated automatically when the defendant appears?

Under § 1305(c)(1) the court is to vacate the forfeiture on its own motion when the defendant first appears on the case; and if the court fails to act on its own motion, the obligations under the bond are immediately vacated and the bond exonerated in any event.

Is a forfeiture the same as a bench warrant?

No. A bench warrant is an order to arrest the defendant. A forfeiture is an order declaring the bond broken. They usually issue at the same hearing and are dealt with separately.

Can the 180 days be paused?

Yes, in defined circumstances. Subdivision (e) requires tolling during a temporary disability meeting its conditions, and subdivision (h) allows tolling by agreement between the bail agent and the prosecuting agency in cases arising under subdivision (g).

Who can bring a motion to vacate the forfeiture?

Under § 1305(j), the surety insurer, the bail agent, the surety, or the depositor of money or property.

Does a dismissal end the obligation?

Not automatically. Section 1306(d) provides that a dismissal after the defendant’s default does not release the obligation of the bond, and § 1303 provides that bail is not exonerated until 15 days after entry of an order of dismissal — during which a new charge arising from the same act or omission causes the bail to be applied to that offense.

Related

Reinstatement, and summary judgment under PC 1306

Reinstatement. Where a defendant who missed court returns quickly, a court may vacate the forfeiture and reinstate the bond, so the defendant stays out on the same bond rather than needing a new one. Whether that happens is up to the court, and usually requires the surety’s agreement. It is the best outcome available after a missed date, and it depends on acting fast — see warrant recall.

Summary judgment. If the Penal Code 1305 period expires without the forfeiture being set aside, Penal Code 1306 directs the court to enter summary judgment against the surety for the bail amount. That is the point at which a co-signer’s indemnity obligation becomes a live demand for the full amount. See removing a co-signer and does the co-signer go to court.