Most criminal convictions in California require defendants to serve probation as a part of their sentence. An alternative to serving a full term of incarceration, probation is actually a supervised, conditional release that California judges often impose instead of, or in addition to, jail time.
Compliance with all the terms and rules of the imposed probation is not negotiable. Failure to comply with court mandated probation can result in a charge of probation violation that could mean you’ll not only be returned to jail to serve the remaining time on your jail sentence, but you may also have to serve additional jail time for the probation violation.
California imposes two types of probation: 1) informal probation, which usually involves completing certain tasks as assigned by a judge, related to the offense for which you were convicted, and simply staying out of trouble; and 2) formal probation, which requires report requirements or a visit with a probation officer once a month as well as an assignment of tasks to complete related to the offense for which you were convicted. Both types of probation can also require defendants to undergo drug testing, perform community services, attend counseling or complete assigned physical labor chores. Failure to comply with the terms of your probation could result in a probation violation charge and revocation of the probation.
Misdemeanor Probation Violations and Felony Probation Violations in California
Most misdemeanor probation scenarios do not require that you report to a probation officer, but instead require that you present periodic progress reports to the court, often at a court appearance. A felony probation scenario always involves an assignment of a probation officer to supervise your activities and progress. Generally, those placed on felony probation must report to their probation officer at least once per month; the specific time frame is determined at the discretion of the judge in your case. Failure to remain in contact with your assigned probation officer may result in an automatic probation violation and a revocation hearing to determine what penalty the probation violation should incur.
Commonly Seen Probation Violations
Some of the most commonly seen probation violations include:
Failure to report to a probation officer as scheduled
Failure to pay restitution
Failure to complete community service tasks
Failure to enroll or complete a required rehabilitation program
Failure to appear in court as required
Commission of new crimes
Association with known criminals
Possession of illegal items like guns and drugs
Drunk driving (DUI)
Penalties for Probation Violation
The punishment for probation violation is governed by California Penal Code Section 1203, and is dependent on the type and seriousness of the violation and the underlying criminal conviction that caused you to be put on probation in the first place. For a minor probation violation, you may simply be scolded and given a second chance to fulfill your probation requirements under the same terms and conditions. For a more serious probation violation, you could face harsh consequences like being arrested, and having to appear at a formal probation violation hearing for incurrence of further penalties. If you are found to be guilty of a probation violation during this formal hearing, you could face the following types of punishments or penalties.
- Extension of your probationary period
- Additional probation terms and conditions
- A sentence of jail or prison time
- A revocation of your probation that results in having to serve the previously-imposed jail or prison time
- Reinstatement of your probation with modified (often additional) terms
- An addition of community service requirements
- Court mandated counseling, rehabilitation or treatment
Dependent upon what the judge who oversees your probation violation hearing takes into account when hearing your case, your probation violation repercussions are usually determined by the seriousness and nature of the violation, the number of times, if any, you have violated your probation, the circumstances of the probation violation, and the recommendation of the prosecutor involved in your case.
What Probation in California Hopes to Accomplish
The purpose of probation in California is for rehabilitation, not punishment. However, the reality of the situation is that judges often impose probation as both a punishment and an opportunity for rehabilitation. In addition certain felony convictions in California render defendants ineligible for probation. Felony convictions that prevent a defendant from being eligible for probation include violent and/or serious felonies as defined under California Penal Codes 667.5 PC and 11927(c) (murder, involuntary manslaughter, rape, lewd acts with a child, burglary, mayhem, kidnapping, arson, extortion, etc.).
Your Rights Should You Be Accused of a Probation Violation in California
While not heard in a trial setting, probation violation charges are heard at probation revocation hearings. However, just as in a trial, at your probation revocation hearing, you have the right to be represented by a lawyer, the right to call witnesses using the court’s power to subpoena witnesses, the right to cross-examine and/or confront witnesses concerning the alleged violation, the right to present extenuating or mitigating circumstances contributing to your alleged probation violation, and the right to testify on your own behalf.
Unlike your initial criminal trial, though, the prosecutor attempting prove your probation violation must only prove that a preponderance of the evidence verifies that you violated your probation as opposed the beyond a reasonable doubt standard required at trial—meaning that all the prosecutor has to show is that you are more likely than not guilty of probation violation.
A Lack of Probation Violations May Result in Expungement of your Conviction
Once you have successfully completed probation, you may be able to have your conviction expunged pursuant to California’s expungement law. Unfortunately, if you have a proven probation violation on your record, expungement of your conviction is not permitted. What an expungement action does is remove your criminal conviction from your record. While there is no guarantee that expungement will be the result of an expungement request, lack of a probation violation on your record will greatly increase your chances for an expungement.
For more information about expungement of a criminal record or for assistance with a probation violation hearing, contact Michael Ross, San Francisco Criminal Defense Attorney. An experienced, highly-talented criminal defense attorney, Mr. Ross will explain your options following an accusation of probation violation in California, honestly tell you if he thinks you have a chance of winning back your freedom, and help you form a strategy to ensure that the best possible outcome results from your probation violation hearing. If you need any kind of criminal defense assistance or have questions about a California probation violation action, contact Mr. Ross today.