While probation is obviously preferable to incarceration, it is still subject to a number of restrictions. Probation rules and regulations in California vary drastically based on the specifics of the case. While a probation officer or a lawyer can offer some guidance when you have questions about your sentence, it can still be easy to run afoul of the law because there are so many restrictions. Fortunately, if you violate your probation, you will still have an opportunity to explain your situation to a judge in a probation revocation hearing before being sentenced to additional penalties.
What Is Probation?
Essentially, probation is a court-supervised criminal sentence that allows you to serve your time outside of prison or jail. While many people confuse probation with parole, probation is used as an alternative to prison or jail and is sentenced at the time of conviction. Parole is a similar, court-supervised form of correction, but it allows someone already in prison or jail to be released early. Those on both probation and parole have a number of strict rules they must follow in order to avoid violating the terms of their agreement, which could result in prison or jail time.
Probation is one of the most commonly used punishments in the California legal system. In fact, of those serving court-ordered supervised sentences, 54 percent are on probation, while 22 percent are in prison, 15 percent are in jail and only 9 percent are on parole. That's because probation is the least costly form of correction available to the court. In fact, it costs more than half as much as parole and around one-tenth of what it costs to put someone in prison or jail.
Types of Probation in California
There are two different types of probation in California: Probation for misdemeanor crimes is known as summary probation, which is subject to much less strict rules. If you are sentenced to summary probation, you generally are just required to stay out of legal trouble, although you may be required to attend drug or alcohol classes and be subject to other minor restrictions, depending on the crime you were charged with.
Felony crimes are subject to formal probation, which has a more stringent set of probation rules in California. When people talk about probation, they usually formal probation. Formal probation requires you to register with the Adult Probation Department in your county and regularly check in with a probation officer, whereas summary probation does not.
It is worth noting that some crimes that get probation could be charged as either a misdemeanor or felony, and the severity of the charges and the type of probation will largely be up to the prosecution, although these matters may be debated between the prosecutor and the defense lawyer as part of a plea agreement.
Crimes That Get Probation
Most crimes in California are subject to probation as part or all of the sentence. That being said, the law defines a handful of felony crimes as completely ineligible for probation or as unlikely to obtain probation. If you have a prior conviction for certain violent or serious felonies, if you are already on probation or if you committed certain aggravated sex crimes, you will not be able to obtain probation under any circumstances. Many offenses subjected to this restriction are those that are considered a strike under California's three strikes law.
You are unlikely to obtain probation if you committed a crime involving the infliction of great bodily injury, the use of a deadly weapon, a drive-by shooting that resulted in injury or death, the distribution of PCP, grand theft where the value of goods was over $100,000 or if you are a public official who committed bribery or embezzlement. In these cases, the court will determine whether your specific circumstances may still qualify you for probation, for example, because you are too old to serve time in prison or because you suffer from a mental condition that resulted in a diminished ability to understand that what you were doing was wrong.
Probation Rules and Regulations
Probation restrictions in California will often vary based on the specific crime, but there are some rules that everyone on formal probation needs to obey. For example, you must submit to police searches of your residence, person, car and belongings without a warrant. You must submit to a drug test when asked to do so. You cannot possess, own or purchase firearms. Additionally, you must meet your probation officer when ordered to do so. Usually you will have weekly meetings to start, but these appointments will reduce in frequency as time progresses. While you may leave the county and even the state, you must coordinate any travel with your probation officer prior to leaving, or it may be seen as an attempt to evade the restrictions of your probation. Moving to another county or state while on probation is a particularly complex process that requires a court order.
You may be subjected to additional restrictions based on what the judge deems appropriate or on what your defense attorney and district attorney have agreed upon as part of a plea bargain. For example, you might be ordered to attend alcohol, drug or anger management classes; pay restitution to the victim; find and/or keep employment; perform community service; submit to electric monitoring; and avoid contacting specific people or entire groups of people. For example, sex offenders are generally banned from making contact with children.
Summary Probation Rules
Probation rules can vary drastically among those serving summary probation. The only rule most people on summary probation must follow is to avoid breaking any further laws, although getting a traffic ticket or other minor infraction usually will not violate the terms of probation. But those on summary probation could still be subjected to many of the same rules of formal probation, though these will generally be based specifically on the charges they were convicted for. While you will not probably face any firearm restrictions for a DUI, for example, you might be banned from owning a gun if you are convicted for assault. On the other hand, someone who committed assault will likely not have to install an ignition interlock device on their car to test if they have been drinking before driving, while someone who was convicted of drunk driving likely will. Common summary probation conditions for those convicted of misdemeanors may include alcohol, drug or anger management classes; community service; restitution to the victim(s); and regular drug or alcohol testing.
While you are not subject to any travel restrictions while on summary probation, it is important to remember that you are required to comply with all conditions of your probation. That means if you are required to attend a DUI class or perform community service, you may not be able to travel without violating your probation. You can petition the court to modify the terms of your summary probation if you need to move or travel and cannot do so without violating the existing agreement.
It is worth noting that anyone convicted of misdemeanor domestic violence charges loses their right to own or possess a firearm for life. Breaking that rule during probation is a violation of the summary probation agreement.
Length of Probation in California
While judges can issue sentences for any amount of probation up to the length of the maximum jail or prison sentence for a given crime, they generally stick with one of two specific time frames. Summary probation usually lasts no more than one year and formal probation usually will continue for three to five years. If you have successfully completed the program requirements, you may petition the court to have probation terminated early. A petition for early termination of summary probation can be done at any time, but courts generally deny such requests in cases involving domestic violence or drunk driving.
Applying for early termination of formal probation can usually only be done if you have already successfully served 18 months. Additionally, you must show that there are circumstances justifying early termination, such as the probation is making it difficult for you to secure gainful employment or the need to move to another state to care for a family member.
California Probation Violation Consequences
If you are accused of violating the terms of probation, you will be arrested and held in jail until a probation revocation hearing. You will have the opportunity to defend yourself at the hearing and may have a lawyer to represent you, but you have no right to a jury trial or a speedy trial. That means you will have to wait out the time before your hearing in jail and you could end up waiting for months. Once your hearing date rolls around, the entire decision will rest on one judge, not a jury of your peers.
Judges in probation revocation trials must decide first if you violated your probation and then, if you are found guilty, what to do about it. Generally, judges have five options when it comes to sentencing those who violated their probations. They can:
- Reinstate the probation with the same rules and restrictions.
- Reinstate the probation with modifications, such as adding or eliminating the need to attend alcohol treatment classes.
- Terminate the probation and impose the original suspended sentence.
- Terminate the probation and impose any new sentence suitable for the original crime.
- Terminate the probation and impose the maximum sentence allowed under California law.
One thing that will make a big difference in your hearing will be whether your probation was an Imposition of Sentence Suspended or Execution of Sentence Suspended. ISS probation means that no sentence will be imposed unless you violate probation, while ESS means you have already been sentenced and that the probation was used in place of that sentence. In ISS cases, the judge has more leeway to modify your probation or sentence, whereas judges in ESS cases are limited by the original sentence.
Essentially, if your probation was ISS, and you are found guilty of violating probation, the judge could choose any of the above options, including simply modifying your probation, whereas if he determines you violated an ESS probation, you will be forced to serve either your original probation or original sentence no matter how the judge feels about the specifics of the case.
Should You Accept Probation?
Many people think that they must accept probation if it is offered, and others believe probation is always the best possible option. But probation may not be the right solution for everyone. The strict restrictions on those serving probation can sometimes make it a worse option than simply serving your time behind bars, especially if you believe yourself likely to violate the terms of probation. A few weeks in jail may be better than spending a whole year on summary probation if the terms of the probation are particularly strict. It is important to discuss your options with an attorney before making a decision.