If you violate the conditions of your California misdemeanor probation or felony probation, you will have to attend a California probation violation hearing—also known as a probation revocation hearing—before a judge.1
Depending on the circumstances of your case, the judge at your probation violation hearing may decide to:
- Reinstate your probation on the same terms and conditions,
- Change the terms of your probation to make them more stringent, or
- Revoke your probation – and send you to jail.2
California probation law and conditions
California law, Penal Code 1203 PC, defines probation as a type of supervisory sentence that a judge may impose either
- instead of, OR
- in addition to,
incarceration in county jail or state prison.3
Probation in California always comes with certain conditions attached.5 These may include:
- a mandatory restitution fine,6
- a requirement that you work on public works construction projects,7
- a requirement that you remain gainfully employed,8
- a requirement that you refrain from drug and/or alcohol use,9 and/or
- for certain California sex crimes, a requirement that you wear an electronic monitoring device.10
You will face a probation violation hearing if you violate any of the particular conditions that apply to your probation.
Example: Jacob is convicted of California petty theft, a misdemeanor, for shoplifting from a department store. Instead of a county jail sentence, the judge sentences him to probation, with a requirement that he pay restitution to the store from which he stole merchandise.
Jacob falls behind on his restitution payments. As a result, he is called before the court for a probation revocation hearing. He is represented at his hearing by a California criminal defense lawyer.
Thanks to arguments by Jacob's lawyer, Jacob's probation is not revoked, and he is not sent to jail. But the conditions of his probation are altered so that he is now also required to hold down paid employment that will allow him to afford the restitution payments.
In order to help you better understand California probation violation hearings, our California criminal defense attorneys11 will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Unlike California parole, which is granted after an individual is released from prison, probation is a part of the sentencing process. Probation allows you either to
(1) remain out of jail, or
(2) shorten the length of your jail sentence.12
According to California courts, the purpose of probation is to rehabilitate—rather than to punish—people convicted of a California crime.13 In reality, judges impose probation with both of these goals in mind.
Penal Code 1203 PC gives the judge in a California criminal case wide discretion to set the terms and conditions of probation. As long as the requirements logically relate to the offense for which you were convicted, the judge can impose any conditions s/he sees fit.14
Some of the most commonly imposed probation requirements include:
- a mandatory restitution fine,15
- a requirement that you not make contact with your victim (if your offense involved California domestic violence or another act of violence),
- a requirement that you abstain from alcohol and/or drug use and/or attend a drug or alcohol program such as Alcoholics Anonymous or Narcotics Anonymous (if your offense was drug or alcohol related),
- a requirement that you not drive with any measurable amount of alcohol in your system and not refuse to submit to a chemical DUI blood or breath test (if you are placed on California DUI probation),
- installation of an ignition interlock device or a SCRAM device (generally imposed in connection with a multiple offense DUI conviction),16
- "search conditions" (a provision in which you agree to allow the police to search your person or property at any time with or without a California search warrant),
- individual or group therapy,
- community service or Cal-Trans roadside work,17
- a requirement that you be gainfully employed,18
- a requirement that you be electronically monitored (if you are convicted of certain sex crimes for which California sex offender registration is required),19 and/or
- an order not to violate any additional laws.
Example: Peter is convicted of a first-time California DUI. In lieu of jail time, he receives a driver's license suspension and 3 years of misdemeanor (summary) probation. His probation conditions include a requirement that he attend AA meetings and refrain from drinking alcohol during the term of his probation.
Example : Mercedes is convicted of Penal Code 211 PC robbery. At the time of her conviction, she is unmarried, has two children, and is pregnant with another child.
Her sentence includes a period of probation. One of the conditions of her probation is that she not get pregnant again unless she is married. She becomes pregnant on probation and is called in for a probation violation hearing.
But the court decides that she cannot be punished for violating this probation condition because it is invalid. Getting pregnant has nothing to do with her robbery conviction or the chances of her engaging in future criminal activity.20
When probation is imposed in connection with a conviction for a California misdemeanor, it is known as misdemeanor probation—or sometimes as “informal” probation or “summary” probation.
The period of misdemeanor probation may last up to five (5) years.21
The basic features of misdemeanor probation are:
Probation report not required
In most misdemeanor cases, the judge may choose between
- requesting a probation report before deciding whether to grant probation, and
- deciding on his/her own whether to grant probation, without the benefit of a report.22
California law only requires that the judge obtain a probation report before issuing a misdemeanor probation sentence if you were convicted of a California sex offense that requires registration as a sex offender.23
Progress reports instead of a probation officer
For misdemeanor probation, you do not generally need to report to a probation officer.24 Instead, you are typically expected to appear in court for periodic “progress reports.”
At these progress reports, the judge will review your case to make sure you are completing all the conditions required of you. If you are not, you may then be required to attend a probation revocation hearing.
If you get convicted of a felony crime and get placed on probation, it will be felony probation (also sometimes called "formal probation").
Felony probation is typically imposed for a term of three (3) to five (5) years.25
There are two key differences between felony probation and misdemeanor probation:
Probation report required
Unlike with misdemeanor probation, where the probation report is optional, in felony cases the judge is required to request a probation report before sentencing the defendant to probation.26
These reports are prepared by the county probation department, based on a review of the alleged crime and the defendant's personal and criminal history. Frequently, the investigating detective, any alleged victims, and the defendant him/herself will be interviewed.
Probation officer supervision
Also, on felony probation, you are assigned to a probation officer for supervision.27
Generally, you must report to the probation officer once a month, although the judge has the discretion to require a greater or lesser frequency. Failing to remain in contact with your probation officer can itself trigger a probation violation hearing.
The purpose of this supervision is to ensure that you remain in the state and that you are complying with all the terms and conditions imposed on you by the court—that is, not committing any probation violations. Your probation officer (otherwise known as a P.O.) may also
- verify your employment (assuming that one of your probation requirements is to seek and maintain employment), and
- administer drug tests.
On occasion, your probation officer may enter your home to verify that you don't possess any illegal drugs or weapons (an event known as a "probation search") in violation of your probation.
If you violate the conditions of your probation, you will face a probation violation hearing.28
The burdensome conditions often placed on probationers in California mean that a large number of defendants end up violating their probation. In 2007, about 40 percent of California probationers had their probation revoked or modified because of a violation.29
Some of the most common misdemeanor and felony probation violations include:
- willful failure to pay a fine or restitution (known as “FTP”) when you have the ability to pay,30
- failure to appear for a court date (“FTA”),
- failure to report to your probation officer,
- committing a new crime, and
- not submitting to, or failing, a drug test (if submitting to drug testing was a probation requirement).
If you are suspected of any one of the above, your probation officer or a law enforcement officer may arrest you and bring you before a judge. Alternatively, the judge may issue a California arrest warrant for your arrest (if, for example, you failed to report to your probation officer).31
Defendants in a California probation violation hearing enjoy many of the same rights as defendants in California criminal jury trials. These include:
- the right to be represented by a criminal defense attorney,32
- the right to call witnesses, and to use the subpoena power of the court to force witnesses to come to court and testify on your behalf,
- the right to present any mitigating or extenuating circumstances that may have contributed to your alleged probation violation,
- the right to testify on your own behalf, and
- the right to disclosure of the evidence against you.33
One major difference between a probation violation hearing and a criminal trial is that a judge presides over the hearing—there is no jury.34
Also, unlike a criminal trial where the prosecutor must prove the case “beyond a reasonable doubt,” the prosecutor in a probation revocation hearing only needs to prove by a preponderance of the evidence that you violated probation.35
This means that the prosecution only needs to prove that it is “more likely than not” that you are guilty.36
Hearsay evidence in probation revocation hearings
Finally, at a probation violation hearing, hearsay evidence is usually admissible—as long as it appears reliable.37
(Hearsay evidence is any statement, offered for its truth, that is not made by a witness testifying at the hearing. It is usually banned in California courts because it denies the defendant the right to cross-examine the person who made the statement.38
Even so, the court will still likely balance the defendant's right to confront and cross-examine witnesses against the government's reason for not producing that witness before admitting the hearsay evidence in a parole revocation hearing.39
Example : After a domestic violence conviction, Scott is placed on probation. One of the conditions of his probation is that he have no contact with his ex-wife Lorraine, who was the domestic violence victim. Lorraine contacts the police to tell them that Scott came to her house—which would be a probation violation.
Scott is called in for a probation revocation hearing. One piece of evidence against him is a letter from Lorraine saying he came to her house—but Lorraine does not testify at the hearing.
In a normal jury trail, the letter would be hearsay and would not be admissible evidence. But the judge at Scott's parole violation hearing may choose to allow the letter as evidence anyway.
But as Palm Springs criminal defense attorney Michael Scafiddi40 explains,
“It's almost irrelevant what evidence is admissible . . . because a good criminal defense lawyer will find a way to challenge any and all detrimental information the prosecution tries to introduce at your parole revocation hearing.”
At the conclusion of your probation violation hearing, the judge makes a finding as to whether or not you violated any terms of your probation.
If the judge finds that you did indeed violate probation, then s/he will consider factors such as
- your criminal history,
- how long into your probationary sentence you violated probation,
- the seriousness of the violation, and
- any recommendations made by the probation department,
in order to determine what penalties to impose.
After considering all of theses factors, the judge has several options. S/he may
- reinstate your probation on the same terms and conditions,
- modify your probation with new, stricter terms and conditions, or
- revoke your probation and sentence you to serve your jail or prison sentence.41
If the judge selects the last of these options, you are entitled to credit for any time that you previously spent in a jail, prison, or residential treatment facility.42
Even if the judge determines that you are in violation of your probation…and intends to revoke it…an experienced California criminal defense attorney can sometimes persuade the judge to simply modify your probation instead.
If you ultimately successfully complete probation, you may be entitled to an expungement under California expungement law. An expungement effectively removes your criminal conviction from your record.43
Expungement is not impossible even if you are found—at a California probation violation hearing—to have violated your probation. But it will be more difficult to achieve. A judge will have wide discretion over whether to grant your petition for expungement in spite of a probation violation.44
Call us for help . . .
If you or loved one has violated 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.
To learn more about probation revocation hearings in Nevada, please visit our page on probation revocation hearings in Nevada.
You may also find helpful information in our related articles on California Misdemeanor Probation; How “Felony Probation” Works in California; Legal Definition of a California Misdemeanor Conviction; Legal Definition of a California Felony Conviction; California Sex Crimes; California Petty Theft Penal Code 484 & 488 PC; Explanation of California Parole Law; California Domestic Violence; California DUI Probation; Ignition Interlock Devices in California DUI Law; The “SCRAM Device” in California DUI Law; Understanding California Search Warrants; How California Sex Offender Registration Works; First-Time California DUI; Penal Code 211 PC Robbery; What to Do if You Have a California Arrest Warrant; California Criminal Jury Trials: How It Works; The California Rule About Hearsay Evidence; and Expungement of Criminal Records in California.
1 Penal Code 1203.2 PC – Rearrest of supervised person [after probation violation]; probable cause; revocation of supervision; tolling of period of supervision; judgment; notice; commitment to Division of Juvenile Facilities; revocation of suspended sentence; setting aside revocation of probation. (“(a) At any time during the period of supervision of a person (1) released on probation under the care of a probation officer pursuant to this chapter, (2) released on conditional sentence or summary probation not under the care of a probation officer, (3) placed on mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, (4) subject to revocation of postrelease community supervision pursuant to Section 3455, or (5) subject to revocation of parole supervision pursuant to Section 3000.08, if any probation officer, parole officer, or peace officer has probable cause to believe that the supervised person is violating any term or condition of his or her supervision, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the supervised person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. However, the court shall not terminate parole pursuant to this section. Supervision shall not be revoked for failure of a person to make restitution imposed as a condition of supervision unless the court determines that the defendant has willfully failed to pay and has the ability to pay. Restitution shall be consistent with a person's ability to pay. The revocation, summary or otherwise, shall serve to toll the running of the period of supervision.”)
2 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications. (“(j) 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.”)
3 Penal Code 1203 PC – Probation. (“(a) 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.”)
4 See same. (“(b)(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. . . . (d) If a person is convicted of a misdemeanor, the court may either refer the matter to the probation officer for an investigation and a report or summarily pronounce a conditional sentence.”)
5 See, e.g., Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications. (“(a) . . . 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.”)
6 See same. (“(b) The court shall consider whether the defendant as a condition of probation shall make restitution to the victim or the Restitution Fund. Any restitution payment received by a court or probation department in the form of cash or money order shall be forwarded to the victim within 30 days from the date the payment is received by the department. Any restitution payment received by a court or probation department in the form of a check or draft shall be forwarded to the victim within 45 days from the date the payment is received, provided, that payment need not be forwarded to a victim until 180 days from the date the first payment is received, if the restitution payments for that victim received by the court or probation department total less than fifty dollars ($50). In cases where the court has ordered the defendant to pay restitution to multiple victims and where the administrative cost of disbursing restitution payments to multiple victims involves a significant cost, any restitution payment received by a probation department shall be forwarded to multiple victims when it is cost effective to do so, but in no event shall restitution disbursements be delayed beyond 180 days from the date the payment is received by the probation department.”)
See also Penal Code 1202.4 PC – Restitution fines. (“(a)(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.”)
7 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications. (“(c) In counties or cities and counties where road camps, farms, or other public work is available the court may place the probationer in the road camp, farm, or other public work instead of in jail. In this case, Section 25359 of the Government Code shall apply to probation and the court shall have the same power to require adult probationers to work, as prisoners confined in the county jail are required to work, at public work. Each county board of supervisors may fix the scale of compensation of the adult probationers in that county.”)
8 See same. (“(d) In all cases of probation the court may require as a condition of probation that the probationer go to work and earn money for the support of his or her dependents or to pay any fine imposed or reparation condition, to keep an account of his or her earnings, to report them to the probation officer and apply those earnings as directed by the court.”)
9 See same, subdivision (j), endnote 2, above.
10 Penal Code 1202.8 PC – Probation; supervision by county officer; assessment and electronic monitoring of sex offenders; report on monitoring of offenders. (“(b) Commencing January 1, 2009, every person who has been assessed with the State Authorized Risk Assessment Tool for Sex Offenders (SARATSO) pursuant to Sections 290.04 to 290.06, inclusive, and who has a SARATSO risk level of high shall be continuously electronically monitored while on probation, unless the court determines that such monitoring is unnecessary for a particular person. The monitoring device used for these purposes shall be identified as one that employs the latest available proven effective monitoring technology. Nothing in this section prohibits probation authorities from using electronic monitoring technology pursuant to any other provision of law.”)
11 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.
12 Penal Code 1203 PC – Probation, subdivision (a), endnote 3, above.
13 People 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 [California] Penal Code section 1203.1.”)
14 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications, subdivision (j), endnote 2, above.
See also People v. Lent (1975) 15 Cal.3d 481, 486. (“The Legislature has placed in trial judges a broad discretion in the sentencing process, including the determination as to whether probation is appropriate and, if so, the conditions thereof. (Pen. Code, § 1203 et seq.) A condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality ....” Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.”)
15 See endnote 6, above.
16 Vehicle Code 23575 VC – Court-mandated use of ignition interlock device [as condition of probation]. (“(a)(1) In addition to any other law, the court may require that a person convicted of a first offense violation of Section 23152 or 23153 install a certified ignition interlock device on any vehicle that the person owns or operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device.”)
17 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications, subdivision (c), endnote 7, above.
18 See same, subdivision (d), endnote 8, above.
19 Penal Code 1202.8 PC – Probation; supervision by county officer; assessment and electronic monitoring of sex offenders; report on monitoring of offenders, endnote 10, above.
20 Based on People v. Dominguez (1967) 256 Cal.App.2d 623.
21 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications. (“(a) 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. “)
22 California Penal Code 1203 – Probation. (“(d) If a person is convicted of a misdemeanor, the court may either refer the matter to the probation officer for an investigation and a report or summarily pronounce a conditional sentence. If the person was convicted of an offense that requires him or her to register as a sex offender pursuant to [California Penal Code] Sections 290 to 290.023, inclusive, or if the probation officer recommends that the court, at sentencing, order the offender to register as a sex offender pursuant to Section 290.006, the court shall refer the matter to the probation officer for the purpose of obtaining a report on the results of the State-Authorized Risk Assessment Tool for Sex Offenders administered pursuant to [California Penal Code] Sections 290.04 to 290.06, inclusive, if applicable, which the court shall consider. If the case is not referred to the probation officer, in sentencing the person, the court may consider any information concerning the person that could have been included in a probation report. The court shall inform the person of the information to be considered and permit him or her to answer or controvert the information. For this purpose, upon the request of the person, the court shall grant a continuance before the judgment is pronounced.”)
23 See same.
24 Penal Code 1203 PC – Probation, subdivision (a), endnote 3, above.
25 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications, endnote 21, above.
26 Penal Code 1203 – Probation. (“(b)(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.”)
27 Penal Code 1203 PC – Probation, subdivision (a), endnote 3, above.
28 Penal Code 1203.2 PC – Rearrest of supervised person [after probation violation], endnote 1, above.
29 Achieving Better Outcomes for Adult Probation: Executive Summary , California Legislative Analyst's Office, May 29, 2009.
30 Penal Code 1203.2 PC – Rearrest of supervised person [after probation violation], endnote 1, above
31 See same.
32 People v. Vickers (1972) 8 Cal.3d 451, 461. (“We conclude accordingly that as a judicially declared rule of criminal procedure (see People v. Cahan (1955) 44 Cal.2d 434, 442 [282 P.2d 905, 50 A.L.R.2d 513]) a probationer is entitled to the representation of retained or appointed counsel at formal proceedings for the revocation of probation [probation violation hearings], or following such summary revocation in appropriate cases.”)
33 Gagnon v. Scarpelli (1973) 411 U.S. 778, 786. (“The final hearing [that is, a probation revocation hearing] is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the ‘minimum requirements of due process' include very similar elements: ‘(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking (probation or) parole.' Morrissey v. Brewer, supra, at 489, 92 S.Ct. at 2604.”)
34 Penal Code 1203.2 PC – Rearrest of supervised person [after probation violation], endnote 1, above.
35 People v. Rodriguez (1990) 51 Cal.3d 437, 441. (“Considerations of both law and policy dictate that the facts in a probation revocation hearing be provable by a preponderance of the evidence. First, constitutional principles permit the revocation of probation when the facts supporting it are proven by a preponderance of the evidence. While no constitutional provision declares a standard of proof for probation revocation hearings, the United States Supreme Court has indicated that due process requires no stricter standard of proof in probation revocation hearings than a preponderance of the evidence.”)
36 California Jury Instructions, Criminal (“CALJIC”) 2.50.2 – Definition of preponderance of the evidence [standard of proof for a probation revocation hearing]. (““Preponderance of the evidence” means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it.”)
37 People v. Maki (1985) 39 Cal.3d 707, 709. (“We granted hearing in this case to clarify the standards for admitting documentary evidence at probation and parole revocation hearings. We will conclude that documentary hearsay evidence which does not fall within an exception to the hearsay rule may be admitted if there are sufficient indicia of reliability regarding the proffered material, and will affirm the trial court judgment revoking probation.”)
38 Evidence Code 1200 EC – The hearsay rule [not strictly applied in parole violation hearings]. (“(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.”)
39 Valdivia v. Schwarzenegger (2008) 548 F.Supp.2d 852, 859. (“In the Ninth Circuit, the prevailing method of determining whether to admit hearsay without the ability to confront the adverse witness is to apply a balancing test laid out in United States v. Comito, 177 F.3d 1166 (9th Cir.1999). The test requires the decision maker to determine the degree of the parolee's interest in confrontation and weigh that against the government's good cause for not producing the adverse witness. Id. at 1170. This is a very individualized determination based on the facts and circumstances of each case. Id. at 1172; United States v. Martin, 984 F.2d 308, 310-11 (9th Cir.1993).”)
40 Palm Springs criminal defense attorney Michael Scafiddi, a former police officer and sergeant, represents clients in criminal cases ranging from DUI to child abuse to carjacking throughout the Inland Empire. He is an expert in California evidence law and he is well-known at the criminal courts in Palm Springs,Hemet, Riverside, Barstow and Victorville.
41 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications, endnote 2, above.
42 Penal Code 2900.5 PC – Credit for time in custody [including after a probation revocation hearing]. (“(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, juvenile detention facility, or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019, shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis, including, but not limited to, base fines and restitution fines, which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the term of imprisonment to be imposed, the entire term of imprisonment shall be deemed to have been served. In any case where the court has imposed both a prison or jail term of imprisonment and a fine, any days to be credited to the defendant shall first be applied to the term of imprisonment imposed, and thereafter the remaining days, if any, shall be applied to the fine on a proportional basis, including, but not limited to, base fines and restitution fines.”)
43 Penal Code 1203.4 PC -- California expungement law [may not apply after a probation violation]. ("(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.")
44 See same.