If you get convicted of a felony offense in California and get placed on felony probation, you must abide by specific rules (called “terms and conditions” of probation).
Ten of the most common conditions of felony probation in California are that you:
- pay victim restitution,
- perform community service,
- submit to random drug testing,
- complete drug or alcohol treatment,
- attend regular meetings with a probation officer,
- complete counseling,
- pay court costs,
- consent to police searches,
- avoid contact with certain people, and
- obey all laws and do not commit another criminal offense.
Violating any of these conditions can lead to a probation revocation.
How do courts determine the terms of probation?
Generally, the terms and conditions of formal probation will depend on the underlying offense. The conditions of probation are tailored to
- the crime that was committed, as well as
- your criminal history.
For example, the following offenses will almost always come with the following probation conditions:
- domestic violence offenses, like corporal injury on a spouse (Penal Code 273.5 PC), usually come with domestic violence counseling, anger management courses, restraining orders, and a batterer’s intervention program,
- felony cases of driving under the influence (DUI) will generally include an alcohol treatment course, DUI school, and signing an agreement to submit to a DUI breath test,
- theft offenses generally include paying victim restitution, and
- drug possession with intent to sell (Health and Safety Code 11352 HS) will usually include a drug treatment program and an order not to associate with certain people.
How much discretion do judges have?
Judges have the discretion to impose almost anything as a term of probation, so long as it is:
- logically related to the offense,
- reasonable to impose, and1
- not otherwise prohibited by law.
As a result, these typical terms of felony probation may be accompanied by other rules that are used less often. Additionally, it can mean that similar defendants who have committed similar felony offenses may find themselves subjected to very different terms of probation.
Seeking the help of a criminal defense lawyer from a reputable law firm can be the best way to protect your interests at this stage in the criminal justice process.
How long does felony probation last in California?
In California, felony probation for non-violent felonies usually lasts for 2 years.
The term of felony probation is 3 years for the following offenses, if they involved more than $25,000:
- grand theft (Penal Code 487(b)(3) PC),
- embezzlement (Penal Code 503 PC), and
- theft by false pretenses (Penal Code 532 PC).
If the felony specifies how long probation is to last, that term will control.
The law before 2020
The lengths for misdemeanors and non-violent felonies changed in 2020: That was when California Assembly Bill 1950 went into effect. This law shortened the probation terms for misdemeanors and non-violent felonies.
Before, the probation term could last as long as the maximum prison sentence, or for 5 years if the conviction carried less than 5 years in prison. However, AB 1950 did not change the rules for violent felonies.
According to California courts, this new law applies retroactively.2
What about misdemeanor probation?
The terms of felony probation are generally stricter than for misdemeanor probation, which is also known as summary probation or informal probation.
Additionally, misdemeanor probation is shorter, usually only lasting for 1 year.3
What is the difference between formal probation and summary probation?
The fundamental difference between these 2 types of probation is that formal probation is imposed for felony offenses. Summary probation is imposed for misdemeanor offenses.
- Felony offenses are those that carry a state prison term of over 1 year.
- Misdemeanor offenses are those that carry up to 1 year of jail time.
Summary probation generally lasts for 1 year. Probation after a felony conviction can last 2 years or longer. The terms and conditions of summary probation are relatively lenient, as well.
What happens after a California probation violation?
Suppose the court or the probation officer suspects that you violated a term of your release during the probation period. In that case, you will be brought before a judge for a probation violation hearing. In some cases, the judge can issue a bench warrant to arrest you and bring you to the hearing.
Until the hearing can be scheduled, you can be held in jail. It is at the discretion of the judge to set bail.
If the alleged probation violation is serious, such as if you are being accused of committing another crime while on community supervision, the judge may refuse to set bail. For minor violations, the judge may release you on the promise that you will return for the hearing.
The probation revocation hearing
At the hearing, the judge will hear evidence that you violated a term of your probation. Importantly, the prosecutor only has to prove that there was a violation by a “preponderance of the evidence” rather than “beyond a reasonable doubt”.4
The prosecutor can also present hearsay evidence to prove their case. This makes it far easier for law enforcement to win at the probation violation hearing than at the criminal trial in California.
Your criminal defense attorney can then present your side of the story. Your lawyer generally argues that either:
- you did not violate a term of your release, or
- the violation was not a serious one.
After hearing the evidence, the judge will decide whether there was a violation.
What happens next
If the judge finds you did not violate probation, the probation will continue as it did, before.
If there was a probation violation, the judge can:
- reinstate probation with the same terms and conditions as before,
- modify the terms of probation to make them stricter, or
- revoke probation and order you to serve your suspended sentence in prison, instead.5
Reinstatement of probation is more likely if the violation was minor and you have been otherwise compliant. Serious offenses are more likely to lead to probation revocation.
Legal References:
- People v. Carbajal, 10 Cal.4th 1114 (1995).
- People v. Sims, 59 Cal.App.5th 943 (2021).
- California Penal Code section 1203a PC.
- See People v. Belche, 53 Cal.App.5th 956 (2020).
- See California Penal Code 1203.1 PC.
