So you've been sentenced to misdemeanor probation in California. What can you expect?
Misdemeanor probation in California typically lasts for between one and three years (though it can last up to five) and involves conditions like paying fines and performing community labor. Instead of checking in with a probation officer, as is the case with felony probation, people placed on misdemeanor probation are required to appear before a judge for periodic "progress reports."
Misdemeanor probation is also referred to as summary probation or informal probation.
As former prosecutors and now defense lawyers, our California Criminal Defense Attorneys know the best ways to challenge misdemeanor cases and secure outcomes with the least restrictive probation conditions.1 In this article, we cover:
If you have further questions after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
Misdemeanor summary probation is designed for criminal offenders convicted of misdemeanor crimes in California who don't pose such a risk to the community that they need to be placed in jail.
Although misdemeanor probation can include time in county jail, the general point of probation is to serve your time under court supervision and out of jail custody.
For example, someone convicted of violating misdemeanor California Penal Code 245(a)(1) pc assault with a deadly weapon ADW might receive three years of summary probation that includes 30 days county jail among other summary probation conditions.
(California Penal Code 245(a)(1) pc assault with a deadly weapon ADW is a "wobbler" crime in California, which means that it can either be charged as a misdemeanor crime in California or a felony crime in California.)
The goals of misdemeanor probation are to protect the public, restore the victim and rehabilitate the offender.2
The formal definition of misdemeanor probation is found in California Penal Code Section 1203(a):
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.3
In plain English, what this means is that if you are placed on misdemeanor probation, the judge is agreeing not to place you in jail or impose a fine called for by law so long as you agree to the summary probation conditions crafted by the judge.
If you don't comply with the conditions, and thus violate the terms of your probation, the judge can modify or revoke your probation and send you to jail.
If the judge has already imposed a sentence by "pronouncing judgment," the judge can simply carry out that already-decided sentence. Alternatively, if the judge has not yet imposed a sentence, the judge can impose a sentence of up to the maximum penalty for the offense(s) of which you were convicted.4
In our example from above, if the defendant who got three years summary probation for California Penal Code 245(a)(1) pc assault with a deadly weapon ADW violates probation, the judge can revoke that probation and carry out (or impose) a sentence of up to one year in county jail.5
There's a big difference between misdemeanor probation and felony probation in California.
In most misdemeanor cases, for example, the judge does not request a "probation report" from the county probation department to help determine probation terms. But the judge is required to get such a report in felony cases as well as in misdemeanor cases involving sex crimes in California.6
Another difference is that misdemeanor probationers are not required to report to a "probation officer" like felony probationers. Instead, misdemeanor probationers have to go to back to court every now and then to appear before the judge and report on their summary probation progress.
For more information about what a felony probationer can expect, please visit our related article Felony Probation in California.
Misdemeanor probation in California is designed to hold people who violate the law accountable for their actions, provide redress for victims, and rehabilitate offenders.
The judge has a wide degree of discretion to craft probation conditions that are "fitting and proper to the end that justice may be done."7 However, the law requires that such conditions must be reasonable and logically related to the offense at hand.8
In some cases specific probation conditions are required by law, like completion of a batterer's program in cases involving certain domestic violence crimes in California.
Here are examples of common probation conditions:
- Pay restitution fines and/or victim restitution9
- Participate in individual or group therapy
- Complete community service or Cal-Trans roadside work
- Seek gainful employment
- Be subject to a restraining order, for offenses involving domestic violence crimes in California
- Abstain from alcohol and/or drugs and attend a substance abuse program, in cases involving Driving Under the Influence DUI in California or certain drug crimes in California
- Not drive with any measurable amount of alcohol and not refuse a chemical DUI blood or breath test, if placed on California DUI Probation
- Install an ignition interlock device or SCRAM ankle bracelet (generally imposed in connection with a multiple offense DUI conviction)
- Agree not to violate any laws
Let's look at an example of how misdemeanor probation might play out in a case involving Driving Under the Influence DUI in California:
Example: Ron is accused of Driving Under the Influence DUI in California. He hires California Criminal Defense Attorney John Murray to defend his case at the Los Angeles Metropolitan Court House. Ron has a fairly serious case that involves aggravating factors. However, there are also weaknesses in the prosecutor's case, which California Criminal Defense Attorney John Murray is able to spot during the discovery process.
Attorney John Murray has handled countless Driving Under the Influence DUI cases in the Los Angeles Metropolitan Courthouse and is familiar with its judges, prosecutors and procedures.
In the end, Attorney John Murray negotiates a very favorable resolution of the case that keeps Ron out of jail and saves Ron time and money. Ron's California DUI probation terms include: three years informal probation, driver's license suspension, fines, California DUI school, and installation of an ignition interlock device. He is also required to participate in Alcoholics Anonymous meetings.
We discuss probation conditions in more detail in our related article Probation, Realignment and Creative Sentencing in California.
So let's say you are placed on misdemeanor probation. How does the judge make sure you comply with all the conditions?
Easy...you have to come back to court and give the judge updates about your progress. These are what we call progress reports.
For example, in our example with Ron, he (or his attorney John Murray) will be required to return to court and report about having completed things like enrolling in California DUI school and attending Alcoholics Anonymous meetings.
If you don't appear when you are told to, or if you appear but have violated one of your probation conditions, you will have a problem. Not only will a failure to appear ("FTA") result in the judge issuing a California bench warrant for your arrest, the FTA is itself a probation violation.
If you do everything you are supposed to do...by the date you are supposed to do it...then the judge will appreciate your good progress. You will be one step closer to getting off misdemeanor probation in California.
Our California Criminal Defense Attorneys always feel proud and gratified when our clients fulfill (and even exceed) the expectations of judges during progress reports!
The judge has discretion to modify the terms of probation. A modification of probation can be initiated by the judge, the defendant or by the prosecutor.
In some cases, a modification may not be helpful to the probationer. This would be the case, for example, if the judge extends the period of probation or increases the confinement period in response to a probation violation.
But in other cases, probation modifications can help defendants. This is good news because, as we all know, "life sometimes gets in the way" of doing what we need to do...even when we have the best of intentions.10
Let's return to our example involving Ron who is on misdemeanor probation for Driving Under the Influence DUI in California:
Example: Ron is several months into his misdemeanor probation for Driving Under the Influence DUI in California. He is completing his alcohol education classes on schedule and almost everything else required of him. His one problem is that he fears he will be late paying one of the installments on his fine, because he lost his job and also is having to help support his sister's children.
California Criminal Defense Attorney John Murray has seen this type of situation before and knows how to handle it. He appears with Ron at his next progress report at the Los Angeles Metropolitan Court House and explains the situation to the judge. The judge agrees to modify Ron's probation to create a more manageable payment schedule.
In some cases, when someone pulls through probation with shining colors...completing everything early without any violations...judges will consider an early termination of probation. This means that someone can "get off probation" before the term expires.11
However, please note that many judges are not receptive to early termination of probation in cases involving Driving Under the Influence DUI in California and Domestic Violence Crimes in California.
If you violate the terms of your probation, the judge can revoke probation and either carry out or impose judgment.12 This means you might end up in jail.
We discuss probation violations in more detail in our related article Probation Violation Hearing in California.
Just as you can sometimes get a second chance during probation (in the form of a probation modification), you can often get a second chance after probation. If you successfully complete the terms of your probation, including payment of any and all restitution, you can clean up your Rap Sheet in California.13
Once you have completed summary probation, you or your lawyer can apply to have your initial charges "dismissed in the interest of justice," all as explained in more detail in our article Expungements of Criminal Record in California.
Having a conviction expunged in California can be very beneficial. It can help restore your sense of self-esteem for having redirected your life in a positive manner and completed the hard work necessary to do it.
It can also help with employment opportunities, as many private employers are prohibited from asking you about expunged convictions in California.
Although an expunged conviction will still shown up on your official government rap sheet in California, it should not be reported on Criminal Records Background Checks in California conducted by private record search firms.
So, to finish with our example of Ron, once he completes his misdemeanor probation for Driving Under the Influence DUI in California he can apply for an expungement of that conviction. You can read about how this can benefit Ron as he moves on with his life in our related article Five Benefits of an Expungement in California.
Our California Criminal Defense Attorneys
If you are interested in learning more about misdemeanor probation in California, we invite you to call us at Shouse Law Group for a consultation.
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 1202.7 provides: "The Legislature finds and declares that the provision of probation services is an essential element in the administration of criminal justice. The safety of the public, which shall be a primary goal through the enforcement of court-ordered conditions of probation; the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant shall be the primary considerations in the granting of probation. It is the intent of the Legislature that efforts be made with respect to persons who are subject to Section 290.011 who are on probation to engage them in treatment."
3 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. 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. The following shall apply to this subdivision: (1) The court may fine the defendant in a sum not to exceed the maximum fine provided by law in the case. (2) The court may, in connection with granting probation, impose either imprisonment in a county jail or a fine, both, or neither. (3) The court shall provide for restitution in proper cases. The restitution order shall be fully enforceable as a civil judgment forthwith and in accordance with Section 1202.4 of the Penal Code. (4) The court may require bonds for the faithful observance and performance of any or all of the conditions of probation."
4 California Penal Code Section 1202(c) provides: "Upon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. However, if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect. In either case, the person shall be delivered over to the proper officer to serve his or her sentence, less any credits herein provided for."
5 California Penal Code Section 245(a)(1) provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment."
6 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. (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. (E) The report shall be made available to the court and the prosecuting and defense attorneys at least five days, or upon request of the defendant or prosecuting attorney nine days, prior to the time fixed by the court for the hearing and determination of the report, and shall be filed with the clerk of the court as a record in the case at the time of the hearing. The time within which the report shall be made available and filed may be waived by written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court. (3) At a time fixed by the court, the court shall hear and determine the application, if one has been made, or, in any case, the suitability of probation in the particular case. At the hearing, the court shall consider any report of the probation officer, including the results of the SARATSO, if applicable, and shall make a statement that it has considered the report, which shall be filed with the clerk of the court as a record in the case. If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation. If probation is denied, the clerk of the court shall immediately send a copy of the report to the Department of Corrections and Rehabilitation at the prison or other institution to which the person is delivered. (4) The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that there shall be no waiver unless the court consents thereto. However, if the defendant is ultimately sentenced and committed to the state prison, a probation report shall be completed pursuant to Section 1203c."
7 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."
8People 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)
9 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."
10 See California Penal Code Section 1203.1(j) supra.
11 California Penal Code Section 1203.3(a) provides: "The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held."
12 See California Penal Code Section 1202(c), supra.
13People v. Covington, 82 Cal.App.4th 1263, 1271 ("In summary, we hold that, for purposes of section 1203.4, a defendant has not fulfilled a restitution condition of probation unless he or she has made all court-ordered payments 'for the entire period of probation' and has paid his or her obligation in full. Here Covington satisfied the first requirement but not the second. Therefore, she was not entitled to have her grand theft conviction expunged.")