In California, there are two forms of probation—summary (informal) probation and formal probation. Whether or not you are placed on summary or formal probation, you have to abide by the terms and conditions of your probation. If you do not fulfill any one of these terms or conditions, or if you are accused of committing another crime during your probation, you are deemed to have violated your probation. In that case, you will have to attend a probation violation hearing, during which a judge may decide to revoke your probation and impose jail time, reinstate your probation on the same terms and conditions, or change the terms of your probation.
In contrast to parole, which is granted after an individual’s early release from prison, probation is granted as part of the sentence for a misdemeanor or felony conviction. The traditional purpose of probation is rehabilitation. Most judges, however, impose probation as a rehabilitative as well as a punitive measure.
Probation is a type of supervisory sentence authorized by Penal Code section 1203 PC. Probation can be imposed either in lieu of or in addition to incarceration. Code section 1203 authorizes the grant of probation for either a felony or a misdemeanor conviction. Conditions that are normally imposed with probation can include a restitution fine, requirement that you do community service or community labor, requirement that you keep a certain grade point average or be gainfully employed, and a requirement that you refrain from any drug or alcohol use. For certain drug-related convictions, a condition of probation can also be random and unannounced searches of your car or home. If you violate any of the terms of your probation, you face a probation violation.
For example, Jill is on probation for a grand theft that was induced by drug use. As a condition of her probation, Jill is to complete a regimented outpatient program and test clean throughout the duration of her probation. Jill does well for six weeks, but she relapses when her father passes away. When the program tests her, she tests positive for cocaine. Consequently, Jill is called before a court for a probation violation hearing. If the judge revokes Jill’s probation, he could impose the period of incarceration allowed under the underlying conviction for grand theft. Thankfully, Jill’s skilled defense attorney convinces the judge to reinstate probation with new terms and conditions. This time, the new terms and conditions is that Jill completes a 6-month residential treatment program and reports to court for a progress report every month.
WHAT ARE SOME COMMON PROBATION CONDITIONS
Under Penal Code section 1203 PC, a judge has discretion to impose whatever terms or conditions that he or she deems appropriate as part of a probationary sentence. These terms and conditions, however, have to relate to the underlying conviction. In other words, they have to be warranted by the facts of the underlying offense. For example, if you are convicted of petty theft, a judge cannot require that you drug test every month as a condition of your probation, unless the judge is convinced that you suffer from a drug addiction and that your addiction contributed to or caused you to commit the petty theft.
Some common terms and conditions of probation include, but are not limited to, the following:
- Mandatory restitution fine;
- If you are convicted of a domestic violence charge, a requirement that you do not contact in any way the alleged victim;
- If you are convicted of a drug or alcohol related offense, a requirement that you abstain from the use of alcohol or drug and/or you attend alcohol or drug classes;
- If you are convicted of a DUI, a requirement that you not drive with any measurable amount of alcohol in your system.
- A requirement that you agree to random search and seizure conditions—that is, you allow the police to search your home, person, or property at any time;
- A requirement that you engage in individual or group therapy;
- A requirement that you become or remain gainfully employed;
- A requirement that you remain on electronic monitoring for at least a part of your probation.
- If you are convicted of a sex offense, a requirement that you register as a sex offender.
As mentioned before, the exact terms and conditions of probation depend on the specific circumstances of your underlying conviction.
For example, Jack is convicted of a third time DUI within 2 years. In lieu of jail time, Jack is placed on 4 years of formal probation. The conditions of Jack’s probation include electronic monitoring for one year, 18 months of alcohol classes, and 52 AA’s. In addition, Jack is not to drive with any measureable alcohol in his system. These conditions of probation are warranted because Jack’s conviction was for an alcohol-related offense.
TYPES OF PROBATION—INFORMAL AND FORMAL
Misdemeanor (summary or informal) probation
If you have suffered a misdemeanor conviction, you will be subject to informal or summary probation. The maximum duration of a misdemeanor probation is five years. A misdemeanor probation is considered informal probation, because you do not have to report to a probation officer and no probation report is required. You do, however, have to appear in court for periodic progress report hearings. During these hearings, a judge will review your file to make sure that you are fulfilling all the terms and conditions of your probation.
A judge may request a report from probation before deciding whether or not to grant probation on a misdemeanor conviction. However, if you are convicted of a sex offense that requires you to register as a sex offender under Penal Code section 290 PC, a judge has to obtain a probation report before granting you a probationary sentence.
Felony (formal) probation
If you are convicted of a felony offense, you will be placed on felony, or formal, probation. Felony probation typically lasts from 3 to 5 years. In contrast to misdemeanor probation, which makes a probation report only optional, felony probation requires a probation report before a judge can sentence you to probation. Probation reports are generated and prepared by your county’s probation department. Your probation officer, who is assigned by the department to your case, will review the alleged crime and your entire criminal history. He or she might also interview any alleged victims and the investigative detective in your case. Based on this comprehensive review, he or she will then recommend whether or not you are suitable for a sentence of probation.
If you are granted probation by the court, then you have to report to your assigned probation officer. Generally, you report once or twice a month. Failure to report to your probation officer in a timely manner is considered a violation of your probation and can in and of itself trigger a probation violation hearing.
The purpose of felony probation is to keep a tight leash on you—that is, to ensure that you remain in the State and that you fulfill all the terms and conditions of your probation. At all times, you are to notify your probation officer of any change in your address and to seek his or her permission to leave the county for any purpose. Failure to do so is considered a violation of your probation.
Your probation officer is also assigned the task of verifying your employment and, depending on the exact nature of your underlying charge, to administer drug tests. Your probation officer may also enter your home unannounced to search for any illegal drugs or weapons. This is known as a “probation search.”
PROBATION VIOLATION HEARINGS
Conduct that constitutes a probation violation and hence triggers a probation violation hearing includes failing to pay a fine or restitution, failure to appear at your mandatory court hearings, failure to report to your probation officer, committing a new offense, and failing to submit to a drug test or testing positive for drugs. If you are accused of any such violations of your probation, your probation officer or a law enforcement officer may bring you before a judge for a violation hearing, or a judge may issue a warrant for your arrest upon learning of the probation violation.
At your probation violation hearing, you are entitled to the following constitutional rights:
- The right to be represented by counsel;
- The right to subpoena witnesses to testify on your behalf or to use the subpoena power of the court to force such witnesses to court to testify on your behalf;
- The right to present any mitigation factors or extenuating circumstances that may have led to your violation of probation;
- The right to testify on your behalf; and
- The right to be informed of and provided with the evidence that the prosecution will be using against you.
At a probation violation hearing, unlike at a jury trial, you do not have the right to a jury. Only a judge presides over your probation violation hearing. Also, unlike in a criminal trial, where the burden of proof on the prosecution is “beyond a reasonable doubt,” the prosecutor in a probation violation hearing need only prove by a “preponderance of the evidence” that you violated your probation. A “preponderance of the evidence” is a “more likely than not” standard, a much lower standard than “beyond a reasonable doubt.” Also in contrast to criminal trials— where hearsay evidence (any out of court statement offered for the truth of the matter) is inadmissible unless certain exceptions apply— hearsay evidence is admissible at a probation violation hearing so long as the evidence is reliable. Nonetheless, before admitting the hearsay evidence, the judge at your probation violation hearing will balance your right to confront and cross-examine the witnesses against you with the prosecutor’s reason for not producing those witnesses.
For example, after a conviction for criminal threats against his neighbor, Joe, Jack is placed on summary probation. One of the conditions of Jack’s probation is that he has no contact with Joe. Jack violates this condition by showing up unannounced at Joe’s home and pounding on his door. Joe calls the police and informs them of Joe’s unannounced and threatening visit. At Jack’s probation violation hearing, the prosecutor seeks to introduce this fact through the testimony of the reporting officer. Joe, however, does not appear to testify because he is too afraid to confront Jack in court. The judge balances Jack’s right to confront and cross-examine the declarant (Jae) of this hearsay testimony with the prosecution’s reason for not producing Joe. The judge decides that the reliability of the officer’s testimony and the trauma imposed on Joe if he were to testify outweigh Jack’s need to cross examine the declarant of the testimony. The judge therefore allows the hearsay testimony. Note, however, that if this were a jury trial, the prosecution could not admit the hearsay evidence. Joe would have to testify in court to it.
OUTCOME OF A PROBATION VIOLATION HEARING
At the end of your probation violation hearing, a judge has to conclude whether or not you violated the terms of your probation. If the judge finds that you violated your probation, then before imposing a punishment, the judge will consider your criminal history, the seriousness of the violation, the reasons for the violation, your overall performance on probation, and any recommendations by your probation officer. After considering these factors, the judge can either revoke and reinstate probation, termination probation and impose jail time, or reinstate probation with new terms and conditions.
HOW A CRIMINAL ATTORNEY CAN HELP
Actual Case: In People v. J.F (Los Angeles Superior Court Case No. SA085545), the defendant, J.F., suffered a third conviction for grand theft. J.F. was placed on formal probation with 6 years suspended, which meant that, if she violated her probation, she would automatically go to prison for 6 years. J.F. struggled with a drug addiction, which was the underlying basis for her felony conviction. And as part of her probation, J.F. was to complete a regimented outpatient program and test negative for drugs. Unfortunately, due to a series of misfortunes, J.F. relapsed and tested positive for opiate. At the same time, she was accused of committing petty theft. J.F.’s probation officer reported the probation violations and a warrant was issued for J.F.’s arrest. Negin was hired by J.F.’s mother to represent J.F. at the probation violation hearing. Negin postponed the probation violation hearing, and immediately put J.F. in a residential treatment program. Negin’s strategy was to allow J.F. to garner solid progress. This strategy paid off. The court reinstated J.F.’s probation and allowed her to complete the residential treatment program.
Our strategy: Negin understands that rehabilitation is the main goal of probation. Consequently, when defending an alleged probation violation, Negin places her clients in the best possible position to demonstrate rehabilitation and progress. And if the alleged probation violation is based on faulty or false information, Negin will not simply submit to the judge’s or prosecutor’s assessment. She will work diligently to divulge the basis for the accusation and to thereby exonerate her client. Contact our Los Angeles criminal defense attorney today for a free consultation.