After a conviction for a particular criminal offense, it is usually up to the judge to either send the convicted person to prison or put them on probation. His/her decision mainly depends on the type of offense the convicted person had committed, their criminal history, and whether or not it will be safe to release him/her back into the community. However, probation comes with specific conditions that the defendant must meet for them to continue serving their sentence out of incarceration.
Sometimes probation violations happen, and this calls for new sentencing as well as additional penalties in some cases. Some people violate their probation without meaning to do so. If that is your case, it is advisable to have legal representation during your hearing for a probation violation. At The LA Criminal Defense Law Firm, we have a team of experienced defense attorneys who could help you in the trial to ensure that the court does not revoke your probation.
Understanding California Probation
The state of California imposes probation as an alternative sentence to jail or prison term. When this happens, the defendant is usually released back to his/her community to serve part or their entire sentence. In return to their release, the court provides certain conditions by which the offender must agree to abide. These specific guidelines are called probation conditions. Note that these conditions are usually tailored to every offender as per the type and nature of offense they have been charged with.
California probation is very different from parole. The court grants parole after the defendant has been released from incarceration, while probation is part of the California sentencing process. When a person is given probation after conviction, they are allowed to remain out of jail. Alternatively, their jail sentence could be shortened, so that they can spend part of it out of incarceration. The main reason why California courts grant probation is to rehabilitate offenders, as opposed to punishing people who are facing conviction for certain offenses. The reality is that judges give probation with both punishment and rehabilitation in their minds.
To understand California probation better, let us look into the two main types of probation and California offenders who are likely to get them:
California Misdemeanor Probation
Also called summary or informal probation, this is the kind of punishment that the court grants an offender who is facing a sentence for a misdemeanor offense. The length of time for such probation is usually a maximum of five years. The main features of California informal probation are:
- The court will not require a probation report on the offender’s conduct during the probation period. After granting misdemeanor probation, a judge might choose between getting a probation report before the offender is released on probation or to allow the probation anyway, even without any report on the offender. If, for instance, the offender got a conviction for a sex-related offense that requires him/her to register as a sex offender, state laws require the judge to obtain a report in that offender before he/she grants probation.
- The court will require progress reports from the offender instead of placing him/her under a probation officer. What this means is that an offender on misdemeanor probation does not necessarily have to report to a probation officer. The court will, however, require them to appear in court periodically for progress reports. During these appearances, the judge will review their case to make sure that they are abiding by all the conditions provided. In case a violation is spotted, the offender will receive a summons to a hearing for a probation violation.
California Felony Probation
It is the type of probation granted to an offender who is facing conviction for a felony offense. Felony probation is also called formal probation. It usually lasts for between three to five years. There are two main differences between a misdemeanor and felony probation in the state of California:
- A probation report will always be necessary for an offender that is on felony probation. For misdemeanor probationers, a probation report is still optional, but the judge will need a report on an offender before he can send them on felony probation.
In most cases, the preparation of these reports occurs at the probation department in the county where the defendant is facing conviction. The probation department will depend on the review for the alleged offense as well as the offender's criminal and personal history to prepare this report. Sometimes the department may be forced to interview alleged victims and the defendant him/herself to compile a complete report.
- Supervision of a probation officer is mandatory when one gets felony probation. Again, this is not necessary when an offender is out on misdemeanor probation. A probation officer is assigned to the defendant to supervise their activities, ensure that they are not violating their probation conditions or any other law.
For that reason, the court will expect to receive regular reports from the probation officer, at least once a month, on the progress of the probationer. The probationer is expected to keep in touch with his/her probation officer, failure to which he/she might get a hearing for probation.
- The need for this kind of supervision is to make sure that the offender remains in the state and that they are abiding by all the terms and requirements of their probation.
Other than keeping a close eye on the probation, the court allows probation officers to do the following:
- Administer tests for alcohol or drugs on offenders on probation
- Verify the offender's employment information, in cases where getting and maintaining a job, was one of the probation conditions
- Verifying that the offender does not have weapons or drugs in his/her home by entering and searching their homes
California Probation Conditions
As mentioned above, California courts do not sentence offenders to probation without setting some probation conditions. The setting of these conditions is according to the type of offense the offender is facing conviction of, as well as their criminal history. California judges enjoy total discretion in setting these conditions and probation terms, as provided under Section 1203 of California laws. It means that it is usually up to the judge to set the conditions he/she sees fit as per the nature of your offense. The most popular probation conditions in California include:
- Mandatory requirement to pay restitution to the victims or their families
- A mandatory requirement not to make any contact with the victim. The term is common in cases involving violence such as domestic violence
- The need by the court to stay away from drugs and/or alcohol for alcohol/drug-related offenses. the condition is usually accompanied by a mandatory requirement to attend a court-approved alcohol or drug program
- Not operating a vehicle with any level of liquor in your system - Again, this is common with alcohol-related offenses such as DUI. In addition to that, the court will require you to submit to all chemical tests, either breath or blood, administered during your probation period, to determine your BAC level.
- A mandatory requirement to install an IID system or SCRAM device in your vehicle. It is a condition that the court imposes on offenses such as multiple convictions for DUI-related offenses
- Yielding to impromptu searches - The conditions will allow law enforcement officers to conduct searches in your property or person any time, even without a search warrant.
- Mandatory requirement to register and attend a group or individual therapy
- Mandatory need to take part in community service
- An obligation to seek and maintain gainful employment. It will keep you in the state and within reach of a probation officer
- A condition to allow the court to monitor you electronically. It might be necessary if you are facing conviction for a particular sex offense which requires you to register as a sex offender
- A court directive not to infringe any other law while on probation
Example: Mary is arrested and convicted of DUI. It is her first DUI conviction in the state, and so, the DMV suspends her driver's license, and she gets summary probation for three years in place of her jail time. Among the probation conditions, Mary can get in such a case is to stay away from liquor during the probation period. If the court determines that Mary has a drinking problem, it might send her to AA meetings for a predetermined period as another condition for her probation.
Most Common Probation Violations in California
There is always no guarantee that an offender will abide by all the set conditions for their probation. Some probationers violate these conditions deliberately, while others mistakenly. Either way, the court will summon the probationer for a hearing for a probation violation as soon as it gets to report on any condition violation, however minor it may seem. Here are the most common probation condition violations that happen in California:
- Missing an appointment with your probation officer: This violation is only possible if the court gives you supervised probation. In such probation, you are required to keep in touch with your probation officer by meeting with him/her from time to time. The officer usually sets the time and duration for such meetings. If the probation misses any or more of these appointments, the court expects the officer to report it to the court as a probation violation
- Missing one or more court hearings: Once the court releases a person on probation, the judge may require them to attend court hearings after a stated period. The setting of these court hearings is to review the progress of the probationer. if the probationer fails to attend one or more of these hearings, it is considered a severe and blatant violation of their probation
- Failing to pay court fines and/or restitution: If the judge ordered you to pay fines and restitution as a condition for your punishment, failing to do so will be considered a significant violation of your probation. Sometimes the judge may give you a payment schedule, by which you must abide. failing to keep up with that schedule is itself a new offense, for violation a condition for your probation
- Failing to complete community service: This, too, is a grave violation if you have been convicted to community service for a particular number of hours within a set period.
- Going to certain places or meeting certain people: if a court sentenced you to probation on conditions that you will not visit certain areas or meet with certain people, doing so would be considered a violation of your probation. If, for instance, you had been a gang member, the court may order you to cut communication with your colleagues as a condition for your probation. Getting in contact with any member of your gang or even going to places you are likely to meet them will be considered a violation for this probation
- Not getting employment: A requirement to obtain and maintain a job will keep you in the state. This condition is given mostly to offenders who are at risk of fleeing the state if granted probation. not getting a job, in this case, may cause the judge to revoke your probation
- Violating another law: The underlying condition for any kind of probation is for the offender not to commit another crime while on probation. It means that even a minor offense such as a traffic infraction will get you into trouble and could cause the judge to revoke your probation.
Probation Violation Consequences in California
Any violation of a probation condition is taken seriously in California, and so, the court never overlooks it. There is always a consequence for such violations. They depend on the type of probation violation and the underlying offense. The most common results of probation violation include:
The worst sentence a person can get after a conviction is a jail sentence. No one wants to spend time locked up in jail, however short the jail term will be. That is why the probation sentence is an excellent idea for most offenders in California. However, all this can end with a single violation of a probation condition. Once the court revokes your probation, the judge can impose the original sentence. It means that the court will send you to jail for the full punishment you had received for the offense of which you had been convicted.
Also, the judge may revoke your probation and give you the maximum jail sentence provided by the law for your offense. If, for instance, the conviction you got was for a felony offense, with a jail sentence of 16 months, two or three years, the judge may revoke your probation and send you to jail for three years.
Extension of Probation Term
Alternatively, the court may extend your probation term. When a California judge makes this decision, he/she will revoke the original probation terms and reinstate new terms with a longer probation term.
Again, based on the kind of violation, the judge may order counseling or the probationer. The type of counseling required in this case will be, for instance, advice against substance abuse or anger management. The court will add counseling to the original terms of the probation.
Additional Probation Conditions
Some probation violations will call for other terms to the original probation terms. The judge will choose those terms that he/she is sure will serve the interest of justice.
Involvement in Community Service
A probationer may also be required to take part in community service either for a government entity such as CalTrans or a charitable organization.
Registration in a Treatment Program
If the violation is related to a habit the probationer is unable to leave even after getting a probation sentence, the judge may decide to order him/her to register in a treatment program. It could be an anger management program or an alcohol/drug rehabilitation program.
California Probation Hearings
As mentioned earlier, there are several reasons why some probationers violate probation conditions. The reason why courts hold probation hearings in California is for them to determine the reasons why the probationer violated his/her probation, and what could be done about it. As soon as the judge learns that you have broken your probation conditions, he/she will summon you for a hearing. Most of these conditions are not easy to meet, and so, most probationers in California end up violating their probations.
Depending on the type of violation you have committed, the police or probation officer may arrest and accuse you in court before a judge. If not, the judge will issue an arrest, with which you could be arrested from wherever you might be found. Once you have been arraigned in court, the court allows the defendant to explain to the court their reasons for violating their probation.
Defendants attending a probation hearing have similar rights to those enjoyed by defendants in a California criminal court. These rights include:
- Right to legal representation by an experienced defense attorney
- A right to subpoena or call in a witness. If a witness is not willing to come to court, your attorney can use the court's subpoena powers to force them to go to court and testify on your behalf
- Right to bring up any justifying or mitigating circumstances that could have caused them to violate their probation
- Right to give evidence in court on their behalf
- The right to know of any evidence against them
A probation hearing will be different from a criminal case proceeding, even though both will take place in a criminal court. Unlike during a criminal case proceeding, a probation hearing will not have a jury but a judge, who will preside over it. Again, there is no requirement for the prosecutor to prove the issue beyond a reasonable doubt in a probation hearing, unlike in a criminal case. The prosecutor, in this case, will only be expected to prove the evidence against you of the probation violation. The only thing the court needs to hear is that there is a high chance that you might be guilty of the accusations presented in the hearing.
Also, probation hearings admit hearsay proof, unlike criminal trials. The evidence has to appear reliable, though, for it to be accepted and used by the judge to make the final ruling. Hearsay proof, in this case, is any statement offered for its truthfulness and one that is not made by a witness testifying at a hearing.
What is the Result of Probation Hearing?
By the end of the probation hearing, the judge will have decided on whether or not to believe that you indeed violated the terms and conditions of the probation. If he/she has a good reason to believe that the defendant breached their probation, the judge will consider other factors before deciding on the course of action to take against him/her. These factors include:
- The offender’s criminal history
- How far into their probation that the offender committed the violation offense
- The severe nature of the violation
- Whether or not there are recommendations by the state’s probation department
Once all these factors have been considered, the judge will choose any of the consequences mentioned above for your actions.
Is Expungement Possible After Probation Violation?
Yes! California law provides that anyone that completes probation can enjoy relief through the state's expungement law. It means that there is still a possibility to have your conviction removed from your record. However, even though this is not impossible after a probation violation, it may be difficult to achieve if you have been found guilty of the offense. That is why you need the best legal representative during your hearing for a probation violation.
Find a Los Angeles Criminal Defense Law Firm Near Me
All the consequences of probation violations in California are grave. That is why you need the best legal defense services if you are facing a hearing for a probation violation. At The LA Criminal Defense Law Firm, we have enough experience in handling probation violation hearings to ensure that your case is a success. Call us at 310-935-1675 if you are in Los Angeles, CA, and let us influence the outcome of your trial.