Penal Code 1203.2 PC – Rules for Probation Violations in California

Updated July 10, 2020

Penal Code 1203.2 PC is the statute that provides the rules for probations and probation violations in California criminal cases. This includes the following types of probation:

• misdemeanor (or summary) probation,
• felony (or 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:

1. the probationer’s rights at the hearing (which include many of the same rights as defendants have in California criminal jury trials), and
2. the differences between a probation violation hearing and a criminal trial (i.e., 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 highlight the following in this article:

• 1. What are the main probationary rules under 1203.2 PC?
  • 1.1 Arrest and termination of probation
  • 1.2 Imposition of jail time or tougher probation conditions
• 2. What happens at a probation hearing?
  • 2.1 Probationer’s rights
  • 2.2 Difference between a probation violation hearing and a criminal trial
• 3. What are some common California probation conditions?
  • 3.1 Misdemeanor probation
  • 3.2 Felony probation
  • 3.3 DUI probation

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:

1. rules involving the arrest of a probationer and the termination of probation, and
2. 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,
• 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:

1. release the probationer from custody, or
2. revoke and terminate the party’s probation.⁴

1.2. Imposition of jail time or tougher probation conditions

Under Penal Code 1203.2c, 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 (i.e., place the probationer in jail or prison).⁵

Please note that in lieu of a sentence, the court may order the probationer to:

• the Department of Corrections and Rehabilitation, or
• the Division of Juvenile Facilities.⁶

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:
  1. whether the probationer is placed in jail/prison, or
  2. whether the probationer is placed back on probation with tougher conditions.⁸

There are two important things to note about these hearings. These are:

1. the probationer’s rights at the hearing, and
2. 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

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.

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 probations include:

• misdemeanor (or summary) probation,
• felony (or formal) probation, and
• DUI probation.

3.1. Common misdemeanor probation conditions

Misdemeanor probation conditions must always be:

1. “fitting and proper to the end that justice may be done,”¹⁴ and
2. 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).

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,
• 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”), 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 imposes certain conditions whenever a defendant is sentenced to DUI probation. Some of these depend on whether it is the defendant’s first 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).

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.

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