“Felony Probation” – Your Top 9 Questions Answered

Felony probation (also called formal probation) is a sentencing alternative to prison that allows you to serve all or part of your sentence out of custody. You must

1. abide by certain terms and conditions of probation and
2. report to a probation officer.

Not everyone qualifies. A judge determines eligibility by considering a variety of factors, such as:

• your criminal history and
• the severity of the crime committed.

In this article, our California criminal defense attorneys will answer the following 9 key questions:

• 1. What is felony probation?
• 2. Who is eligible?
  • 2.1. Department reports
  • 2.2. Not eligible
  • 2.3. Probably not eligible
• 3. How long does formal probation last?
• 4. What are common rules of felony probation?
• 5. What happens if I violate felony probation?
• 6. What about an expungement after completion of probation?
• 7. Can I move or travel during it?
• 8. Can a judge terminate probation early?
• 9. How does felony probation work in California?

1. What is felony probation?

Felony probation is a criminal law alternative to a prison sentence in certain felony cases.

You do not serve time in state prison for your offense. Rather, you serve your sentence:

• out of custody,
• in the community, and
• under supervision.

1.1. Judicial discretion

Note that felony sentencing guidelines give a judge the option to impose either:

• a prison term, or
• probation.

If the latter is awarded, the judge either:

• suspends execution of the prison sentence (if the judge gives one), or
• places you on probation without handing out prison time.

2. Who is eligible?

Eligibility depends on many factors, such as:

• the seriousness of the felony offense committed (violent crimes vs. victimless offenses),
• whether you were armed,
• the victim’s character,
• the degree of monetary loss to the victim,
• whether your crime involved a complex plan,
• your prior record before the felony conviction,
• your attitude about probation, and
• the likely effect of imprisonment on you.¹

At the sentencing hearing, your defense attorney argues that these factors weigh in favor of granting probation rather than imposing state prison.

The prosecutor may:

• agree through a negotiated plea agreement, or
• argue the opposite and say that prison is more appropriate.

Ultimately, the judge makes the choice.

2.1. Department reports

The judge must order a probation report from the county probation department. The judge reviews and considers this report before imposing the sentence.

The department evaluates your eligibility and then recommends:

1. the appropriateness of probation, and
2. the length and conditions of probation.²

In preparing the report, the probation department interviews the alleged victim and the officer that investigated the case. Note, however, that in the end, the judge makes the final decision as to whether to grant probation.

2.2. Not eligible

You are ineligible for felony probation if:

1. you are convicted of a felony, and
2. you have a prior conviction for either:

• a violent felony under Penal Code 667.5 PC, or
• a serious felony under Penal Code 1192.7 PC.³

You are also not qualified for probation if:

1. you are convicted of a serious or violent felony, and
2. you commit the offense while on felony probation.⁴

Certain sex crimes may also render you ineligible. This is true if there are aggravating factors surrounding the crime.⁵

2.3. Probably not eligible

Some examples of offenses which are usually not probationable include when you:

• inflicted great bodily injury on the victim,
• used a deadly weapon,
• hurt or killed someone in a drive-by shooting, a crime per Penal Code 26100 PC, and
• furnished PCP.⁶

3. How long does formal probation last?

Felony probation generally lasts up to two (2) years for most non-violent felonies. Probation can last up to three (3) years for the following crimes involving more than $25,000:

• Grand theft (PC 487(b)(3))
• Embezzlement (PC 503)
• False personation and cheats (PC 532a)

These two- or three-year probation limits do not apply to violent felonies or to crimes for which their statute specifies a certain probation period.⁷

In some cases, probation can last up to five years (60 months).

4. What are common rules of felony probation?

Felony probation rules (referred to as “terms and conditions“) in California typically include

• regular meetings (usually monthly) with a probation officer,
• the payment of restitution (which can never be converted to community service),
• the payment of criminal fines and court fees (which can be converted to community service),
• submission to drug testing, in cases of certain drug crimes,
• performance of community service,
• abstaining from alcohol (especially in DUI cases),
• completion of a treatment program,
• community supervision,
• counseling (such as sex offender, anger management, or domestic violence counseling),
• group therapy,
• an agreement to submit to police searches,
• electronic monitoring,
• community labor days (such as beach trash collection, removing graffiti, or CalTrans cleanup work),
• county jail time (never state prison time),
• payment of court costs, and
• an agreement not to break any laws.⁸

5. What happens if I violate felony probation?

The court will hold a probation violation hearing. This is like a mini-trial where you can present evidence (such as witnesses, surveillance video, etc.) to contest the state’s claim that you violated probation.

There are several possible consequences for a felony probation violation. The court can:

1. warn you and reinstate the same terms (a “second chance”),
2. modify the terms and include harsher conditions, or
3. revoke it and order the maximum county jail time or state prison time for your underlying offense.

6. What about an expungement after completion of probation?

You can obtain an expungement of a criminal offense if you:

1. complete the term, and
2. do so without violating a condition.

Note, though, that a judge may (in their discretion):

• grant an expungement of the criminal record, and
• even do so if you violated a term.

Expungements can remove many of the hardships of a conviction.

7. Can I move or travel during it?

Felony probation often involves restrictions on moving and travel.

In general:

• if you want to move, you must first get court approval, and
• if you want to travel, you must first get your P.O.’s consent.

8. Can a judge terminate probation early?

Penal Code 1203.3 PC allows a judge to:

1. terminate your probation, and
2. do so ahead of schedule.⁹

A requirement of early termination is that you:

1. complete at least 18 months of the term, and
2. do so without violating a condition.¹⁰

In addition, you must also demonstrate to the court that:

1. you successfully completed the terms, and
2. there are factors that justify early termination.

9. How does felony probation work in California?

In California, felony (formal) probation allows you to serve some or all of a felony sentence

• out of custody but
• under the close supervision of a probation officer.

You are not always eligible for felony probation in California. Judges will look at the facts of each case and consider several factors (as set forth in Section 2 above) to determine if you qualify for probation.

Formal probation in California is typically imposed for up to five years. During this time, you will have to adhere to certain probationary terms and conditions (similar to those set forth in Section 4 above). You are required to have regular meetings with a probation officer to ensure you are complying with these conditions.

Early termination and violations

If you are progressing well on probation, a judge has the authority to grant an early termination of probation. A judge can also convert your formal probation into misdemeanor probation.¹¹

In cases where you violate a probationary term, a judge has the authority to:

• warn you and reinstate probation under the same conditions that existed prior to the violation,
• reinstate probation and modify the conditions so that they are stricter, or
• revoke probation and place you in jail or state prison.

California law generally places restrictions on moving and traveling while on probation. Moving requires court approval. Further, a P.O. has to provide consent for travel.

For additional help…

For information on Colorado, please see our article on “A Guide to Felony Probation in Colorado.”

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