Explanation of California Probation & Probation Violation Hearings
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California law defines probation as a type of supervisory sentence that a judge may impose in lieu of — or in addition to — incarceration. Both misdemeanor and felony convictions are typically eligible for a probationary sentence. But there are some exceptions, which will be addressed below.
Think of probation this way…You plead guilty to a crime or are convicted by a jury. At sentencing, the judge says to you:
“I could put you in jail (for, let’s say, up to one year). But instead, I’m willing to let you stay free if you agree to be on probation. I will give you a checklist of certain things you must do, and certain things you cannot do. If you follow these rules, your probation will expire in 3 years and the case will be over. But if you violate any of these rules, I can — and probably will — put you in jail for the whole year.”
Though misdemeanor probation and felony probation are structured differently, they each have certain terms and conditions which are strictly enforced. The failure to complete or abide by any of the terms and conditions may result in a probation violation hearing.
In order to understand better how California probation is imposed and how to win a probation violation hearing (also referred to as a probation revocation hearing), we will address the following:
1. An Overview of California Probation Law
2. How Misdemeanor Probation Works in California
3. How Felony Probation Works in California
4. Probation Violation Hearings
If, after reading this article, you would like more information, we invite you to contact us at the Law Office of William Daley, your probation violation lawyer.
You may also find helpful information in our related articles on California DUI Probation, Arrest Warrants, Bench Warrants, Search Warrants, Parole, and California Expungement Law.
1. An Overview of California Probation Law
California Penal Code 1203 PC and its related sections regulate California probation law. Although Penal Code 1203 PC was originally enacted in 1872, the law didn’t actually address probation until 1903. At that time, the law bestowed upon a judge much of the discretionary powers that he/she still holds today in determining what type of probationary sentence to impose.
In 1909, the California Legislature added in a section relating to expunging one’s conviction (which is addressed later in this article) if the individual successfully completed his/her probation sentence.
A 1927 amendment increased the court’s power with respect to punishment. It authorized the judge to impose jail, fines, or both in connection with probation. It also included a section that, in the event of a probation violation, any time spent in jail would be credited towards the violation.
Then in 1931, the Legislature excluded certain persons from receiving a probationary sentence. Those who were convicted of certain listed offenses (including burglary, rape, or kidnapping) would be ineligible from being placed on probation.
As the years went on, a number of changes were made to the statute, some major, some minor. Today, probation very much rests in the hands of the judge, as he/she is given a great amount of discretion to determine if and how a probationary sentence should be imposed.
According to California courts, the purpose of probation is to rehabilitate rather than to punish. In reality, judges impose it with both goals in mind.
2. How Misdemeanor Probation Works in California
This is generally imposed when a person gets convicted of a misdemeanor crime. Misdemeanor probation (also sometimes called “summary probation”) typically lasts from one to three years, although in some cases, it can last as long as five.
No “Probation Officer” with misdemeanor probation
When serving a misdemeanor probation sentence, you do not report to a probation officer. Probation officers are only assigned in felony probation sentences, discussed below under “Felony Probation”).
With misdemeanor probation, instead of reporting to a probation officer, you are typically expected to appear in court for periodic “progress reports.” At these progress reports, the judge will review your case to make sure you are completing all the conditions required of you.
As long as you continue to abide by the court’s requirements, you will successfully complete probation and it will expire. If, however, you violate probation, you face a probation violation hearing (discussed below under “Probation Violation Hearings”).
Unlike California parole (which is granted after an individual is released from prison), probation is a part of the sentencing process. When imposed, misdemeanor probation allows you either to (1) remain out of jail, or (2) shorten the length of your jail sentence.
Probation reports generally not required in misdemeanor cases
California law only requires that the judge obtain a probation report before issuing a misdemeanor probation sentence if you were convicted of a California sex offense that requires registration as a sex offender. For any other misdemeanor, the decision whether to order a probation report or simply to impose the probationary sentence lies with the judge.
Judges have discretion as to imposing conditions of probation
California Penal Code 1203 allows a judge to exercise quite a bit of discretion when imposing probation requirements.
As long as the requirements logically relate to the offense for which you were convicted, the judge can impose any conditions he/she sees fit. Of course, if the conditions seem too strict or burdensome, you are always free to reject the misdemeanor probation sentence and to serve a jail sentence instead.
Some of the most commonly imposed misdemeanor probation requirements include (but are not limited to):
- a mandatory restitution fine,
- a restraining order (if your offense involved California domestic violence or another act of violence),
- abstaining from alcohol and/or drug use and possible attendance in a drug or alcohol program such as AA or NA (if your offense was drug or alcohol related),
- not driving with any measurable amount of alcohol and not refusing to submit to a chemical DUI blood or breath test (if placed on California DUI probation),
- installation of an ignition interlock device or a SCRAM ankle bracelet (generally imposed in connection with a multiple offense DUI conviction)
- “search conditions” (a provision in which you agree to allow the police to search you person or property at any time with or without a California search warrant)
- individual or group therapy,
- community service or Cal-Trans roadside work, and
- an order not to violate any additional laws.
3. How Felony Probation Works in California
If you get convicted of a felony crime and get placed on probation, it will be felony probation (also sometimes called “formal probation”). This operates very similar to misdemeanor probation. It too may be imposed for up to five years. But there are two major differences.
The first difference is with respect to supervision. When the court places you on felony probation, you are assigned to a probation officer. Generally, you must report to the probation officer once a month, although the judge has the discretion to require a greater or lesser frequency. Failing to remain in contact with your probation officer can itself trigger a probation violation / revocation hearing.
The purpose of this supervision is to ensure that you remain in the state and that you are complying with all the terms and conditions imposed on you by the court. Your probation officer (otherwise known as a P.O.) may also
- verify your employment (assuming that one of your probation requirements is to seek and maintain employment), and
- administer drug tests.
On occasion, your probation officer may enter your home to verify that you don’t possess any illegal drugs or weapons (an event generally known as a “probation search”).
State prison if you violate felony probation
The second major difference is that if you violate felony probation, the court can send you to California State Prison for up to the maximum term. Depending on the offense for which you were originally convicted, the maximum term is 18 months or longer. If you do get sentenced to state prison, you will get credit for any custody time you already served on the case (dating back to the original arrest).
Probation reports required in felony cases
Prior to placing you on felony probation, the judge must obtain a probation report. These are reports are prepared by the county probation department, based on a review of the alleged crime and the defendant’s personal and criminal history. Often times, the investigating detective, any alleged victims, and the defendant him/herself will be interviewed.
- hearsay (a type of evidence which is typically excluded from trial, it refers to information that is relayed through a second-hand source), and
- illegally obtained evidence (such as drugs that were obtained by the police during an illegal search and seizure)
are permissible in a probation report and may be considered by the judge for sentencing purposes.
However, if any wrongfully obtained evidence was previously suppressed or excluded during a suppression motion hearing…and that suppression resulted in a dismissal of the criminal charge…it will not be admissible during a probation revocation hearing (discussed in detail, below).
But “It’s almost irrelevant what evidence is admissible because a good criminal defense lawyer will find a way to challenge any and all detrimental information contained in your probation report.”
Probation not available for certain felony crimes
Certain felony convictions will render you ineligible from receiving a probation sentence. These include
- violent felonies under California Penal Code 667.5 PC, or
- serious felonies under California Penal Code 1192.7(c)
if you were on felony probation at the time you picked up the new felony offense.
In addition, there are other felony offenses that will render you ineligible for probation unless the judge believes that placing you on probation will best serve the interests of justice. These include (but are not limited to):
- the commission of certain serious felonies if you unlawfully carried or used a deadly weapon at the time,
- offenses where you willfully inflicted great bodily injury (“GBI”) or torture on another person, and
- California Penal Code 451 PC arson.
If convicted of any of these offenses, the judge will evaluate (1) the facts of the case, and (2) your personal history in order to determine whether the “interests of justice” will be best served by placing you on probation.
4. California Probation Violation Hearings
Even though California courts state that the primary purpose of probation is to rehabilitate, violations will be punished. Some of the most common misdemeanor and felony probation violations include (but are not limited to):
- failure to pay a fine or restitution “FTP”,
- failure to appear for a court date “FTA”,
- failure to comply with a court order,
- failure to report to your probation officer,
- committing a new crime, and
- not submitting to, or failing, a drug test (if submitting to drug testing was a probation requirement).
If you are suspected of any one of the above, you will likely face a probation violation hearing (otherwise known as a “PVH” or a probation revocation hearing). Depending on the circumstances, either
- an officer will arrest you and bring you before a judge (if, for example, the officer arrested you for another crime), or
- a judge will issue a California arrest warrant for your arrest (if for example, you failed to report to your probation officer).
And on a similar note, if you fail to appear for your scheduled probation revocation hearing, the judge will issue a California bench warrant for your arrest.
∗Note also that once you have a warrant out for your arrest, it is advisable that you immediately try to clear it. Voluntarily appearing before the judge is almost always treated more favorably than being brought to court, in custody, by the police. That said, it is a good idea to consult with an experienced California criminal defense to prepare a solid defense before doing so.
Along these same lines, it is also advisable to try to complete as many of your probation requirements as possible before returning to court. The fact that, for example, you failed to attend your AA meetings shouldn’t prevent you from continuing to fulfill your other obligations.
Your lawyer may be able to help you reestablish contacts or reenroll you in a program, which is why you should contact him/her immediately upon a probation violation.
Probation revocation hearing rights
A California probation violation hearing operates much like a mini-trial. But instead of a jury, a judge presides over the hearing. The person accused of the probation violation enjoys certain due process rights. These include:
- theright to be represented by an attorney,
- the right to call witnesses, and to use the subpoena power of the court to compel witnesses to come to court and testify on your behalf,
- the right to cross-examine and confront witnesses (unless the judge finds that a witness isn’t necessary and admits hearsay evidence instead),
- the right to present any mitigating or extenuating circumstances that contributed to the alleged probation violation, and
- the right to testify on your own behalf.
Unlike a criminal trial where the prosecutor must prove the case “beyond a reasonable doubt“, the prosecutor need only prove by a preponderance of the evidence that you violated probation.
“Preponderance of the evidence” is what’s known as a burden of proof. This particular standard only requires the prosecution prove that it is “more likely than not” that you are guilty.
Certain Hearsay Evidence is Admissible at the Probation Violation hearing
In addition to this relaxed “burden of proof”, hearsay evidence is generally admissible in a probation revocation hearing, just like it is in a probation report. So long as the hearsay evidence appears reliable, California courts will generally consider it.
Even so, the court will still likely balance the defendant’s right to confront and cross-examine witnesses against the government’s reason for not producing that witness before admitting the hearsay evidence.
At the conclusion of the hearing, the judge makes a finding as to whether or not you violated any terms and conditions of probation.
If the judge finds that you did indeed violate probation…
Then the judge will consider factors such as
- your criminal history,
- how long into your probationary sentence you violated probation,
- the seriousness of the violation, and
- any recommendations made by the probation department
in order to determine what penalties to impose. After considering all of these factors, the judge has several options. He/she may
- reinstate your probation on the same terms and conditions,
- modify your probation with new terms and conditions, or
- revoke your probation and sentence you to serve your jail or prison sentence (if this is the option that the judge exercises, you are entitled to credit for any time that you previously spent in a jail, prison, or residential treatment facility).
Even if the judge determines that you are in violation of your probation…and intends to revoke it…an experienced California criminal defense attorney can sometimes persuade the judge to simply modify your probation instead. This may allow you to serve an alternative sentence (such as Cal-Trans) in lieu of incarceration.
Expungements if you successfully complete probation
If you ultimately successfully complete probation, you may be entitled to an expungement under California expungement law. But any violation of probation could preclude you from ultimately being able to expunge your conviction.
An expungement effectively removes your criminal conviction from your record, although there are certain restrictions on expungements as well. Depending on the circumstances of your conviction, you may be required to apply for a Governor’s Pardon or a Certificate of Rehabilitation instead. To learn more about the benefits and limitations of these applications, please read our articles on California expungement law.
For more information about California probation law, or to discuss your case confidentially with one of our California criminal defense attorneys, please don’t hesitate to contact us.