When someone is convicted of a felony crime in California and is placed on felony probation, it means that person can serve his or her sentence in the community instead of prison.
But felony probation comes with conditions. The probationer must report to a probation officer, make restitution to the victim, and comply with a host of other conditions imposed by the judge and probation officer. Felony probation can also include a stint in county jail.
Felony probation typically lasts between three and five years. Sometimes it is referred to as "formal probation." If you violate the terms of your felony probation the judge can send you to prison.
Our California Criminal Defense Attorneys represent defendants in all kinds of felony cases in California. We know how to negotiate with prosecutors to get the least restrictive felony probation conditions for our clients.1
In this article, we provide an overview of felony probation in California. We cover:
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
Felony probation is an alternative to California state prison. Felony probation allows people convicted of a felony crime in California to serve their sentences out of custody so long as they comply with probation conditions imposed by the judge and probation officer.2
Under California felony sentencing laws, the judge can either impose and execute a prison sentence at the time of sentencing (for example, two years in California state prison). Or the judge can give the defendant a break by "suspending execution" of that sentence so long as the defendant complies with probation conditions.
The judge can also place the defendant on probation and suspend imposing any specific prison sentence yet.
If the defendant violates the probation condition, the judge can revoke probation and send the defendant to California state prison to serve out the initial sentence.
Felony probation is different from misdemeanor probation, which we discuss in our related article Misdemeanor (Summary) Probation in California.
Felony probation is also different from a recently enacted category of felony punishment found in California Penal Code Section 1170(h). As a result of "realignment" in California, many felony crimes will now be punished outside of prison and either in county jail and/or under the "mandatory supervision" of county probation departments.
Although "mandatory supervision" shares attributes with traditional felony probation, they are separate sentencing schemes.3 We discuss this currently evolving scheme in our related article Probation, Realignment and Creative Sentencing in California.
If you have been convicted of a felony crime in California, you may be eligible for felony probation...if the judge and county probation department agree that you can safely be rehabilitated and held accountable within the community.
However, people convicted of certain violent and serious crimes are not eligible for felony probation in California. Other categories of crimes can render someone presumptively ineligible for felony probation.
Because the area of felony probation is complex and changing, we recommend discussing your case with a California Criminal Defense Attorney.
To determine if someone should be placed on probation instead of in prison for a felony conviction, judges look at a number of factors specified in California Rule of Court 4.414. Probation eligibility factors include:
- The seriousness and circumstances of the crime compared with others like it
- Whether the defendant was armed
- The vulnerability of the victim
- The degree of monetary loss to the victim
- Whether the crime was carried out in a criminally sophisticated manner
- The defendant's prior record, if any, as an adult or juvenile
- The defendant's willingness to comply with the terms of probation
- The likely effect of imprisonment on the defendant and his or her dependents4
At the defendant's sentencing hearing in California, the defendant can argue why he or she is amenable to probation and should be placed on felony probation instead of being incarcerated.
Likewise, the prosecutor has an opportunity to argue the opposite: why state prison would be a more appropriate punishment than felony probation.
Ultimately, the judge decides.
Before a judge decides whether to sentence a defendant to felony probation, the judge is required to request a probation report from the county probation department.
The probation department evaluates the defendant's eligibility for probation and makes a recommendation to the judge as to the appropriateness of probation as well as the length and conditions of probation.5
The probation report includes recommendations as to issues such as the amount the defendant should pay in restitution and, for cases involving
sex crimes in California, whether the defendant should be required to
Register as a Sex Offender in California.6
In preparing the probation report, the probation department interviews the alleged victim as well as the investigating law enforcement officer and other sources of value to a sentencing judge. If there is material that could help the defendant, like good conduct reviews or psychological reports, the defendant's attorney should make sure the probation department considers them and discusses them in the probation report.
Probation reports can include material relevant to sentencing that may be inadmissible for other purposes, such as
- Hearsay statements7
- Illegally obtained evidence8
- Evidence of sustained juvenile petitions in California9
Let's look at an example:
Example: As a juvenile, Carl was found to have committed murder in violation of California Penal Code 187 pc murder. As a result of this sustained juvenile petition in California, Carl was sentenced to the California Youth Authority.
The role of the juvenile court in California is to rehabilitate offenders so they can lead law-abiding lives. Unfortunately, in the case of Carl, the role of the juvenile court in California did not work. Carl continued to get into trouble even after he became an adult.
Shortly after being released from the California Youth Authority, Carl was convicted of violating California Penal Code
207 pc kidnapping. When the probation department prepared the probation report in Carl's California Penal Code 207 pc kidnapping case, the department included Carl's juvenile adjudication for California Penal Code 187 pc murder.
In part because of this juvenile adjudication, Carl received the highest possible term in prison for his kidnapping case.
Even though juvenile sustained petitions in California are not technically "convictions," and the role of the juvenile court in California is to rehabilitate youth offenders and not tarnish their chances later in life, nevertheless the judge in an adult case may consider past juvenile adjudications as factors in aggravation when it comes to sentencing.
People convicted of certain kinds of crimes are not eligible for probation, regardless of mitigating factors. These crimes include:
- If the person has a prior conviction for one of the violent felonies under Penal Code 667.5 or serious felonies under Penal Code 1192.7, any current felony conviction10
- If the person is on felony probation, any current conviction for one of the violent felonies under Penal Code 667.5 or serious felonies under Penal Code 1192.711
- Certain sex crimes in California committed under aggravated circumstances12
Note that these crimes often involve "strikes" under
California Three Strikes Law.
The law also makes a PRESUMPTION that people convicted of certain crimes will NOT be eligible for probation "except in unusual cases where the interests of justice would best be served" if the person is granted probation.
The following lists a few examples of offenses that will render you presumptively ineligible for probation:
- An offense where you inflicted great bodily injury ("GBI") on the victim
- An offense where you used a deadly weapon
- If you are a public official, an offense where you committed bribery or embezzlement in California
- An offense where you hurt or killed someone in a drive-by-shooting
- An offense where you furnished Phencyclidine ("PCP")13
- A grand theft where you took over one hundred thousand dollars ($100,000)14
In these cases the court looks at factors specified in California Rule of Court 4.413 to decide whether the defendant should get probation despite the presumption of ineligibility. Factors in Rule 4.413 include the seriousness of the defendant's crime in relation to others, indicators of reduced culpability, and whether the defendant is youthful or aged.15
Let's look at an example:
Example: The sheriff of an Eastern California county is convicted of embezzlement in California for embezzling nearly $200,000 in public funds. The judge places him on probation. The prosecutor seeks review of that decision, arguing that the sheriff must be sentenced to prison and not placed on probation.
The reviewing judge agrees with the prosecutor. The sheriff is presumptively ineligible for probation on two grounds - the nature of the offense (embezzlement in California) and the amount of it (over $100,000). Because the sheriff did not introduce any evidence to persuasively rebut that presumption of ineligibility based on the factors set forth in Rule 4.413, the sheriff cannot get probation.16
Felony probation in California generally lasts between three and five years.17
Felony probation often includes conditions such as the following:
- Meetings with your probation officer as often as required, generally once a month
- Payment of restitution18
- Participation in individual or group therapy
- Submission to drug testing, in cases of certain drug crimes in California
- Performance of community service or community labor
- Agreement to submit to peace officer searches of your person or property with or without a warrant (referred to as "search conditions")
- Compliance with stay away orders not to harass victims, in cases of felony violations of California Penal Code 273.5 pc corporal injury on a spouse and other offenses
- Compliance with orders not to associate with gang members
- Spending a certain amount of time in county jail (for example, this is required in cases of probation granted for second or third violations of California Penal Code 273.5 pc corporal injury on a spouse)
- Agreement not to violate any laws
These are just examples of common probation conditions. There could be others, so long as they are reasonable and logically related to the offense at hand.19 Judges have wide discretion to come up with probation conditions that are "fitting and proper to the end that justice may be done."20
If you are interested in Proposition 36 in California, which mandates probation and rehabilitation for felony convictions of certain nonviolent drug crimes in California, please see our article on Proposition 36 in California.
If you violate the terms of your felony probation in California, you should expect to face consequences. In the best case, the judge might give you a warning and reinstate your probation on the same terms in hopes you do better in the future.
The judge might also modify the terms of your probation to include harsher terms...such as a stint in county jail.
In the worst case, the judge will revoke your probation and send you to state prison for a period of years.
Let's look at an example:
Example: Peter is convicted of a felony violation of California Penal Code 273.5 pc corporal injury on a spouse. At his sentencing hearing in California, the judge imposes a sentence of the middle term for that offense (three years in prison) but suspends execution of that sentence and places Peter on felony probation.
Peter violates the terms of his probation on several occasions. The first two times, the judge gives Peter a break and modifies his probation to make it stricter. However, when that does not work, the judge revokes Peter's probation and executes the initial sentence. Peter must go to prison for three years.
Change the facts: At Peter's sentencing hearing in California for violating California Penal Code 273.5 pc corporal injury on a spouse, the judge places Peter on probation but holds off on imposing any particular sentence. This gives the judge more options down the line. If Peter ends up violating probation such that the judge revokes it, the judge will have discretion as to whether to sentence Peter at that time to the low, middle or upper term... two, three of four years in prison.21
Note that before the judge can revoke your felony probation in California, you are entitled to a hearing and due process of law. For a discussion of probation revocation, please see our related article Probation Violation Hearing in California.
The good news is that in most cases so long as you have completed all the terms of your felony probation, and are not on probation for or charged with another offense, you will be able to expunge your felony conviction. This means that the judge will reopen your case, allow you to withdraw your guilty plea or set aside your guilty verdict, and dismiss the charge.22
Note that if you received a felony conviction for a "wobbler" crime in California, you can apply to have your felony reduced to a misdemeanor prior to expunging that conviction.23 An example of a wobbler crime in California is California Penal Code 273.5 pc corporal injury on a spouse, which can be charged as either a misdemeanor or a felony.
We discuss this process in more detail in our related articles Reducing Felony to a Misdemeanor in California, Expungements of Criminal Record in California, and Five Benefits of an Expungement in California.
If you were sentenced to California state prison for conviction of a felony crime, you will not be able to expunge your conviction. However, you can still apply for a Certificate of Rehabilitation in California, which will help clean up
Rap Sheet in California and provide other important post-conviction benefits.
Our California Criminal Defense Attorneys Can Help...
If you or loved one is in need of help with felony probation and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
1 Our California Criminal Defense Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2 California Penal Code Section 1203(a) provides: "As used in this code, "probation" means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. As used in this code, "conditional sentence" means the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer. It is the intent of the Legislature that both conditional sentence and probation are authorized whenever probation is authorized in any code as a sentencing option for infractions or misdemeanors."
3 See Prosecutors' Analysis of the 2011 Criminal Justice Realignment, September 2011, by Kathryn Storton and Lisa Rodriguez.
4 California Rule of Court Rule 4.414. provides - "Criteria affecting probation -- Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. (a) Facts relating to the crime -- Facts relating to the crime include: (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; (2) Whether the defendant was armed with or used a weapon; (3) The vulnerability of the victim; (4) Whether the defendant inflicted physical or emotional injury; (5) The degree of monetary loss to the victim; (6) Whether the defendant was an active or a passive participant; (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; (8)Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. (b) Facts relating to the defendant -- Facts relating to the defendant include: (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; (2) Prior performance on probation or parole and present probation or parole status; (3) Willingness to comply with the terms of probation; (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; (5) The likely effect of imprisonment on the defendant and his or her dependents; (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; (7) Whether the defendant is remorseful; and (8) The likelihood that if not imprisoned the defendant will be a danger to others."
5 California Penal Code Section 1203(b) provides: "(1) Except as provided in subdivision (j), if a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment. (2) (A) The probation officer shall immediately investigate and make a written report to the court of his or her findings and recommendations, including his or her recommendations as to the granting or denying of probation and the conditions of probation, if granted. (B) Pursuant to Section 828 of the Welfare and Institutions Code, the probation officer shall include in his or her report any information gathered by a law enforcement agency relating to the taking of the defendant into custody as a minor, which shall be considered for purposes of determining whether adjudications of commissions of crimes as a juvenile warrant a finding that there are circumstances in aggravation pursuant to Section 1170 or to deny probation."
6 California Penal Code Section 1203(b)(2)(C) and (D) provides: "(C) If the person was convicted of an offense that requires him or her to register as a sex offender pursuant to Sections 290 to 290.023, inclusive, or if the probation report recommends that registration be ordered at sentencing pursuant to Section 290.006, the probation officer's report shall include the results of the State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO) administered pursuant to Sections 290.04 to 290.06, inclusive, if applicable. (D) The probation officer shall also include in the report his or her recommendation of both of the following: (i) The amount the defendant should be required to pay as a restitution fine pursuant to subdivision (b) of Section 1202.4. (ii) Whether the court shall require, as a condition of probation, restitution to the victim or to the Restitution Fund and the amount thereof."
7People v. Otto 26 Cal.4th 200, 212 (2001) ("Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his level of culpability when selecting an appropriate sentence... This includes the court's assessment of aggravating and mitigating factors, such as whether the crime involved great bodily harm or other act disclosing a high degree of viciousness, cruelty, or callousness, whether the victim was particularly vulnerable, whether the crime was carried out with sophistication, whether the defendant took advantage of a position of trust or confidence, whether the defendant played a minor role in the crime, whether the victim participated in the incident and, if so, under what circumstances, and whether the defendant exercised caution to avoid harm or damage.")
8People v. Brewster, 184 Cal.App.3d 921, 927 (1986) ("As we have pointed out, the exclusionary rule permitting suppression of evidence is not required by the state or federal Constitution....We further note that federal Courts of Appeals with near unanimity have held that illegally seized, and even as here, previously suppressed, evidence may properly be used in imposing sentence....A sentencing judge ... is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics...." (internal quotation marks omitted))
9People v. Hubbell, 108 Cal.App.3d 253, 257 (1980) ("The need to protect society from persons who have demonstrated an inability to reform and obey the law is of paramount concern...A defendant's juvenile record may reveal a pattern of lawbreaking and a lack of response to previous rehabilitative efforts...thus, a sentencing court's consideration of factors relating to a defendant's life, characteristics, background and behavior during his juvenile years is essential to an informed sentencing decision....We conclude it is not only a legislative mandate, but also a constitutionally permissible and sound policy for a sentencing court to take into consideration an adult offender's juvenile record in determining the appropriate sentence to impose.")
10 California Penal Code Section 667 provides in part: "(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d), the court shall adhere to each of the following: (1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction. (2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.... (d) Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a felony shall be defined as: (1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state."
11 California Penal Code Section 1203(k) provides: "Probation shall not be granted to, nor shall the execution of, or imposition of sentence be suspended for, any person who is convicted of a violent felony, as defined in subdivision (c) of Section 667.5, or a serious felony, as defined in subdivision (c) of Section 1192.7, and who was on probation for a felony offense at the time of the commission of the new felony offense."
12 California Penal Code Section 667.61 provides: "(a) Except as provided in subdivision (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life. (b) Except as provided in subdivision (a), (j), (l), or (m), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life. (c) This section shall apply to any of the following offenses: (1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261. (2) Spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of Section 262. (3) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1. (4) Lewd or lascivious act, in violation of subdivision (b) of Section 288. (5) Sexual penetration, in violation of subdivision (a) of Section 289. (6) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286. (7) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a. (8) Lewd or lascivious act, in violation of subdivision (a) of Section 288. (9) Continuous sexual abuse of a child, in violation of Section 288.5. (d) The following circumstances shall apply to the offenses specified in subdivision (c): (1) The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c). (2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c). (3) The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense in violation of Section 205 or 206. (4) The defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c). (5) The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (2), (3), or (4) of this subdivision. (6) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8. (7) The defendant personally inflicted bodily harm on the victim who was under 14 years of age."
13 California Penal Code Section 1203 provides in part: "(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: (1) Unless the person had a lawful right to carry a deadly weapon, other than a firearm, at the time of the perpetration of the crime or his or her arrest, any person who has been convicted of arson, robbery, carjacking, burglary, burglary with explosives, rape with force or violence, torture, aggravated mayhem, murder, attempt to commit murder, trainwrecking, kidnapping, escape from the state prison, or a conspiracy to commit one or more of those crimes and who was armed with the weapon at either of those times. (2) Any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted. (3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted. (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony. (5) Unless the person has never been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony, any person who has been convicted of burglary with explosives, rape with force or violence, torture, aggravated mayhem, murder, attempt to commit murder, trainwrecking, extortion, kidnapping, escape from the state prison, a violation of Section 286, 288, 288a, or 288.5, or a conspiracy to commit one or more of those crimes. (6) Any person who has been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony, if he or she committed any of the following acts: (A) Unless the person had a lawful right to carry a deadly weapon at the time of the perpetration of the previous crime or his or her arrest for the previous crime, he or she was armed with a weapon at either of those times. (B) The person used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the previous crime. (C) The person willfully inflicted great bodily injury or torture in the perpetration of the previous crime. (7) Any public official or peace officer of this state or any city, county, or other political subdivision who, in the discharge of the duties of his or her public office or employment, accepted or gave or offered to accept or give any bribe, embezzled public money, or was guilty of extortion. (8) Any person who knowingly furnishes or gives away phencyclidine. (9) Any person who intentionally inflicted great bodily injury in the commission of arson under subdivision (a) of Section 451 or who intentionally set fire to, burned, or caused the burning of, an inhabited structure or inhabited property in violation of subdivision (b) of Section 451. (10) Any person who, in the commission of a felony, inflicts great bodily injury or causes the death of a human being by the discharge of a firearm from or at an occupied motor vehicle proceeding on a public street or highway. (11) Any person who possesses a short-barreled rifle or a short-barreled shotgun under Section 16590, a machinegun under Section 12220, or a silencer under Section 12520. (12) Any person who is convicted of violating Section 8101 of the Welfare and Institutions Code. (13) Any person who is described in paragraph (2) or (3) of subdivision (g) of Section 12072. (f) When probation is granted in a case which comes within subdivision (e), the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by that disposition."
14 California Penal Code Section 1203.045 provides: "(a) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person convicted of a crime of theft of an amount exceeding one hundred thousand dollars ($100,000). (b) The fact that the theft was of an amount exceeding one hundred thousand dollars ($100,000) shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury. (c) When probation is granted, the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by such a disposition."
15 California Rule of Court Rule 4.413 provides: "Probation eligibility when probation is limited (a) Consideration of eligibility -- The court must determine whether the defendant is eligible for probation. (b) Probation in unusual cases -- If the defendant comes under a statutory provision prohibiting probation "except in unusual cases where the interests of justice would best be served," or a substantially equivalent provision, the court should apply the criteria in (c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation. (c) Facts showing unusual case -- The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: (1) Facts relating to basis for limitation on probation -- A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. (2) Facts limiting defendant's culpability -- A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including: (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses."
16People v. Superior Court (Dorsey), 50 Cal.App.4th 1216, 1225 (1996) ("As discussed above, Dorsey was doubly presumptively ineligible for probation-once, because he was convicted of embezzling public funds, and again, because the amounts taken exceeded $100,000.... Rule 413 contains only limited criteria which can clearly satisfy the condition that a grant of probation must be in the interests of justice because the case is unusual....It is immediately apparent that none of these factors exists here.")
17 California Penal Code Section 1203.1(a) provides: "The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case. However, where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years."
18 California Penal Code Section 1202.4 provides in part: "(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. (2) Upon a person being convicted of any crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464. (3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: (A) A restitution fine in accordance with subdivision (b). (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment. (b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor. (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted. (c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court may specify that funds confiscated at the time of the defendant's arrest, except for funds confiscated pursuant to Section 11469 of the Health and Safety Code, be applied to the restitution fine if the funds are not exempt for spousal or child support or subject to any other legal exemption."
19People v. Carbajal, (1995) 10 Cal.4th 1114, 1120 ("In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1....The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct not itself criminal be reasonably related to the crime of which the defendant was convicted or to future criminality." Internal quotation marks and citations omitted)
20 California Penal Code Section 1203.1(j) provides: "The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer, and that should the probationer violate any of the terms or conditions imposed by the court in the matter, it shall have authority to modify and change any and all the terms and conditions and to reimprison the probationer in the county jail within the limitations of the penalty of the public offense involved. Upon the defendant being released from the county jail under the terms of probation as originally granted or any modification subsequently made, and in all cases where confinement in a county jail has not been a condition of the grant of probation, the court shall place the defendant or probationer in and under the charge of the probation officer of the court, for the period or term fixed for probation. However, upon the payment of any fine imposed and the fulfillment of all conditions of probation, probation shall cease at the end of the term of probation, or sooner, in the event of modification. In counties and cities and counties in which there are facilities for taking fingerprints, those of each probationer shall be taken and a record of them kept and preserved."
21 California Penal Code Section 273.5(a) provides: "(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment."
22 California Penal Code Section 1203.4 provides: "(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or herprobation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery. Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6. Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office. This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970. (b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of subdivision (b) of Section 42001 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a,Section 288.5, or subdivision (j) of Section 289, any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction. (c) (1) Except as provided in paragraph (2), subdivision (a) does not apply to a person who receives a notice to appear or is otherwise charged with a violation of an offense described in subdivisions (a) to (e), inclusive, of Section 12810 of the Vehicle Code. (2) If a defendant who was convicted of a violation listed in paragraph (1) petitions the court, the court in its discretion and in the interests of justice, may order the relief provided pursuant to subdivision (a) to that defendant. (d) A person who petitions for a change of plea or setting aside of a verdict under this section may be required to reimburse the court for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the court not to exceed one hundred fifty dollars ($150), and to reimburse the county for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the county board of supervisors not to exceed one hundred fifty dollars ($150), and to reimburse any city for the actual costs of services rendered, whether or not the petition is granted and the records are sealed or expunged, at a rate to be determined by the city council not to exceed one hundred fifty dollars ($150). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person's eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the costs for services established pursuant to this subdivision. (e) Relief shall not be granted under this section unless the prosecuting attorney has been given 15 days' notice of the petition for relief. The probation officer shall notify the prosecuting attorney when a petition is filed, pursuant to this section. It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court. (f) If, after receiving notice pursuant to subdivision (e), the prosecuting attorney fails to appear and object to a petition for dismissal, the prosecuting attorney may not move to set aside or otherwise appeal the grant of that petition. (g) Notwithstanding the above provisions or any other provision of law, the Governor shall have the right to pardon a person convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, if there are extraordinary circumstances."
23 California penal Code Section 17(b) provides: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: (1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. (2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor. (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor. (4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint. (5) When, at or before the preliminary examination or prior to filing an order pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint."