In California, a probation violation occurs when a defendant is convicted of a crime, placed on probation, and then violates a specific term or condition of that probation. Penal Code 1203.2 PC is the statute that provides the rules for probation and probation violations in criminal cases.
- misdemeanor – or summary – probation (informal probation),
- felony probation (formal probation), and
- probation in California DUI cases.
In particular, 1203.2 PC states that “…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 post-release community supervision pursuant to Section 3455 PC, or (5) subject to revocation of parole supervision pursuant to Section 3000.08…”
The rules allow for the following:
- the arrest of the probationer for the commission of an offense or violation of a probation condition,
- the termination of probation,
- the imposition of jail time, in lieu of probation, and/or
- tougher probation conditions.
All of the above are determined at a probation violation hearing. There are two important things to note about these hearings. These are:
- the probationer’s rights at the hearing (which include many of the same rights as defendants have in California criminal jury trials), and
- the differences between a probation violation hearing and a criminal trial (for example, judge v. jury and burden of proof).
Please note that the probation conditions that a probationer must follow will depend on the type of probation that he is subject to. For example:
- while misdemeanor or felony probation may require victim restitution,
- a California DUI probation may require a defendant to submit to a DUI breath test or a DUI blood test if arrested on suspicion of drunk driving.
Our California criminal defense attorneys will address the following in this article:
- 1. What are the main probationary rules under 1203.2 PC?
- 2. What happens at a probation hearing?
- 3. What are some common California probation conditions?
- 4. What happens if you get a felony probation violation in California?
1. What are the main probationary rules under 1203.2 PC?
The probationary rules set forth in PC 1203.2 are roughly divided into two categories. These are:
- rules involving the arrest of a probationer and the termination of probation, and
- rules regarding the imposition of jail time or tougher probation conditions.
1.1. Arrest and termination of probation
Penal Code 1203.2a PC authorizes the arrest of any probationer if there is probable cause to believe he
- committed an offense or
- violated any term or condition of his probation.1
Note that this arrest can take place with or without a warrant, depending on the specific circumstances of a case.2 Further, the arrest may be initiated by a:
- probation officer from the probation department,
- parole officer, or
- police officer.3
Once a probationer is arrested and brought before the court, the judge may do one of two things. These are either:
- release the probationer from custody, or
- revoke and terminate the party’s probation.4
1.2. Imposition of jail time or tougher probation conditions
Under Penal Code 1203.2(c), if probation is revoked and terminated, and a probationer’s sentence had been suspended, the court can order the probationer to serve out the suspended sentence (for example, place the probationer in jail or prison).5
Please note that in lieu of a sentence, the court may order the probationer to:
Please also note that instead of having a probationer serve out a suspended sentence post-revocation of probation, the court may again place the probationer on probation – but subject to tougher probation conditions.7
2. What happens at a probation hearing?
A probation violation hearing takes place when a probationer is brought before the court for either:
- committing a new offense, or
- violating a condition of his probation.
During the hearing, some of the following will be decided:
- whether the probationer is released from custody or remains in custody, and
- whether the probationer’s probation is terminated or revoked, and if so:
- whether the probationer will serve a jail sentence or prison sentence, or
- whether the probationer is placed back on probation with tougher conditions.8
There are two important things to note about these hearings. These are:
- the probationer’s rights at the hearing, and
- the difference between a probation violation hearing and a criminal trial.
2.1. Probationer’s rights
Defendants in a California probation violation hearing enjoy many of the same rights as defendants in California criminal jury trials. These rights include:
- the right to be represented by a criminal defense attorney,9
- the right to call witnesses, and to use the subpoena power of the court to force witnesses to come to court and testify on the defendant’s behalf,
- the right to present any mitigating or extenuating circumstances that may have contributed to the accused’s alleged probation violation,
- the right for the defendant to testify on his own behalf, and
- the right to disclosure of the evidence against the accused.10
2.2. Difference between a probation violation and a criminal trial
There are two main differences between a probation violation hearing and a criminal trial.
The first is that a judge presides over the hearing, while a jury presides over the trial.11
Second, 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 the probationer violated probation.12
This means that the prosecution only needs to prove that it is “more likely than not” that the defendant is guilty.13
3. What are some common California probation conditions?
The probation conditions that a probationer must follow will depend on the type of probation that he is subject to, or the court imposes. Three possible types of probation include:
- misdemeanor (or summary) probation,
- felony (or formal) probation, and
- DUI probation.
3.1. Common misdemeanor probation conditions
Misdemeanor probation conditions must always be:
- “fitting and proper to the end that justice may be done,”14 and
- reasonable and logically related to the offense.15
Some common conditions in misdemeanor probation include that the defendant:
- pay fines and/or victim restitution,
- participate in individual or group therapy,
- complete community service or Caltrans roadside work,
- seek gainful employment, and
- be subject to a restraining order (for offenses involving California domestic violence crimes).
Violation of any of these terms or conditions can result in the court finding a misdemeanor probation violation.
3.2. Common felony probation conditions
Felony probation often includes conditions like the following:
- meetings with your probation officer as often as required, generally once a month,
- payment of restitution,
- participation in individual or group therapy,
- completing a treatment program,
- submission to drug testing (such as urine drug tests), 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”), and
- 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.
3.3. Common DUI probation conditions
California law imposes certain conditions whenever a defendant is sentenced to DUI probation. Some of these depend on whether it is the defendant’s first-time DUI, second DUI, third, or subsequent “wet reckless” conviction.
Some conditions, though, common to most DUI probations include that a defendant:
- not commit any additional offenses while on probation,
- agree to submit to a DUI breath test or a DUI blood test if arrested on suspicion of drunk driving, and
- refrain from driving with any measurable BAC (this is California’s “zero tolerance” law for people on DUI probation).
4. What happens if you get a felony probation violation in California?
People on felony probation who are accused of violating their terms will have a probation violation hearing. If the probationer loses the hearing, the judge can impose one of three consequences for a felony probation violation. The court can either:
- give the probationer a warning and reinstate the same terms,
- modify the terms to include harsher conditions, or
- revoke probation completely and remand the person to prison.
For additional help…
If you or someone you know has been accused of violating probation and are now subject to Penal Code 1203.2 PC, we invite you to contact us for a free consultation. We create attorney-client relationships throughout the state of California, including Los Angeles, San Diego, Riverside, San Bernardino, Orange County, San Francisco, and more. Our criminal defense lawyers defend against all types of criminal charges.
Disclaimer: Past results are not a guarantee of future results.
- California Penal Code 1203.2 PC. This code section states: “(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 post release community supervision pursuant to Penal Code 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.”
- See same.
- See same.
- California Penal Code 1203.2b PC. See also People v. Walker (1963), 215 Cal. App. 2d 609, noting that probation is a matter of clemency, not of right, and may be withdrawn if the privilege is abused.
- California Penal Code 1203.2c PC. See also People v. Brasley (1974), 41 Cal. App. 3d 311.
- California Penal Code 1203.2d PC.
- California Penal Code 1203.2e PC.
- California Penal Code 1203.2 PC.
- People v. Vickers (1972) 8 Cal.3d 451.
- Gagnon v. Scarpelli (1973) 411 U.S. 778.
- California Penal Code 1203.2 PC.
- People v. Rodriguez (1990) 51 Cal.3d 437.
- California Jury Instructions, Criminal (“CALJIC”) 2.50.2 – Definition of the preponderance of the evidence.
- California Penal Code Section 1203.1(j).
- People v. Carbajal (1995) 10 Cal.4th 1114.