Under California law, after the court has convicted a defendant of a criminal offense or an act of juvenile delinquency, it may include probation as part of the defendant's jail sentence. Probation is intended to limit the activities of a person who has been sentenced. The court typically places a person on informal probation after convicting them of a misdemeanor.
Informal probation, also known as court probation or summary probation, usually lasts for three years. It does not require the supervision of a probation officer. The court may place a person with a felony conviction on formal probation for five years. Formal probation involves reporting to a probation officer.
Informal Probation Is Supervised
The court supervises informal probation. A county, state and federal probation department is not involved with monitoring informal probation. Informal probation may require a person to get and keep a job, serve jail time, pay fines, complete classes, finish community service hours or attend counseling for their term of probation.
Conditions of probation can include paying restitution, the damages for costs to the victim, submitting to drug tests, submitting to search and seizure by law enforcement officers, and being subject to certain restrictions, such as abiding by a curfew. The court assesses whether a defendant has successfully completed the required tasks.
How Juvenile Probation Differs
Unlike adult informal probation, juvenile informal probation usually involves being assigned to a probation officer and reporting to that person on a regular basis. Juvenile informal probation can also involve a six-month diversion program. If the juvenile successfully completes the program, the court may dismiss the charges and close the case.
If the juvenile does not successfully complete the program, the court will rule that the juvenile committed a delinquent act and sentence the juvenile. The penalty may involve a term in a juvenile detention center.
Violation of Probation Case
A person who does not abide by the rules in the court’s order regarding informal probation may see their probation revoked and a warrant issued for their arrest. A person can resolve the warrant by turning themselves in to law enforcement rather than being apprehended by law enforcement officers. It is not possible to post bail for violation of probation.
After the defendant is in custody, the court will hold a hearing to determine whether they violated the terms of their probation. The prosecutor usually presents evidence showing that the defendant did not complete their required tasks. One of the typical requirements for a person on probation is to not get charged in a new criminal case. Someone who has complied with all other terms of their informal probation can violate their probation if they are charged with a new offense.
Types of Evidence Allowed
In a violation of probation (VOP) hearing, the state can present hearsay evidence. Hearsay is defined as an out-of-court statement made by a person who is not the witness testifying at the hearing. Hearsay is offered to prove the truth of the matter stated. For example, if a neighbor of the defendant said that their child said the defendant was out past the defendant’s curfew, the neighbor’s recollection of their child’s statement would be admissible as hearsay evidence. Hearsay evidence is typically not admissible in a regular criminal case.
Preponderance of the Evidence Burden
The burden of proof in a violation of probation (VOP) case is preponderance of the evidence. This means that the state has to show by a preponderance of the evidence, or roughly 51 percent proof, that the defendant failed to abide by the requirements of the informal probation. This burden is lower than the state’s burden in a regular criminal case. When the state is trying to prove that a defendant committed the crime as charged, the burden of proof is beyond a reasonable doubt, or 95 to 99 percent proof.
Result of Probation Violation Case
The court can sentence a person who has violated informal probation to the maximum amount of jail time and set the highest fine for their offense that the statute allows. The judge is required to count the time in custody the defendant has already served, and may require that the person pay additional fines or accept new conditions of probation. A successful completion of probation ensures that the court will close the defendant's case.
When a defendant who violates probation does so because they are sick or the obligations of probation are too great for them, the court has the option to modify their probation or to terminate it altogether. The court can terminate probation early. For example, if a person requires dialysis several days a week, they may not feel well enough to complete all their community service hours for probation.
The court may accept the hours they have already done and terminate their probation. A defendant or their attorney can petition the court to change a probation order.
Probation in Multiple Counties
A defendant may be placed on informal probation in different counties at the same time, for different cases and charges. When a person is on informal probation in more than one county, they should tell the court about their obligations in the other areas. That will allow the court to craft an order with which the defendant can comply.
Leaving the State of California
A person who is on informal probation may be able to leave the state. The probation order from the court should explain whether the person can leave the state. If the order does not discuss this matter, they should consult a criminal defense lawyer or ask the court directly whether they can leave the state before they do.
One of the conditions of probation may be a no-contact order with the victim in the case. The convicted individual is not allowed to have any type of contact with the victim, directly or through a third party. The convicted individual may also be required to stay away from the victim’s home, place of work, school and place of worship for the duration of probation.
The victim can get a restraining order against the convicted individual on top of a no-contact probation order. This means that if the convicted individual calls, texts, emails or visits the victim, they could get a VOP case in criminal court and also a civil case for a violation of the restraining order. It is not a defense to the VOP case or the civil case for violation of the restraining order if the victim consented to the contact, requested the contact, or initiated the contact.
Voting Rights and Probation
In California, an individual who is serving a misdemeanor sentence can vote and register to vote. This is not true if they are also serving a state or federal prison term for the conviction of a felony. A person can be serving time concurrently if they have been convicted of a misdemeanor and a felony.
- Superior Court of California, County of Sacramento: Sacramento County Probation
- County of Los Angeles: Adult Probation FAQs
- California Evidence Code: Section 1200, Hearsay Evidence
- California Penal Code: Section 1203.2, The Judgment
- California Secretary of State: Voting Rights: Persons With a Criminal History
- Mono County, California: Types of Juvenile Probation
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.