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Misdemeanor probation is an alternative to jail in which low-risk offenders serve most, or all, of their sentence under court supervision instead of in custody. This form of probation is sometimes referred to as summary probation or informal probation. This contrasts it with formal (felony) probation for felony cases.
Summary probation typically lasts up to one year in California (though it can last longer if the specific crime statute calls for it). During that time, the defendant must comply with certain conditions – such as attending counseling, paying restitution, or performing community labor.1
If a defendant fails to comply with these conditions, the judge may find a misdemeanor probation violation. If so, the court could decide to (a) give the defendant a warning and reinstate probation, (b) modify the terms of probation with stricter conditions, or (c) revoke probation and order the person to jail for up to the maximum term.
To help you better understand informal probation, our California criminal defense lawyers discuss the following, below:
- 1. Who can be sentenced to misdemeanor probation?
- 2. How do I get probation instead of jail time?
- 3. Can I reject probation?
- 4. How is misdemeanor probation different than felony probation?
- 5. What are the terms and conditions?
- 6. Do I have to go back to court for progress reports?
- 7. Can a probation order be modified?
- 8. Is it possible to get an early termination of probation?
- 9. Can I travel while on misdemeanor probation?
- 10. How will my employment prospects be affected?
- 11. What happens if I violate probation in California?
- 12. Can I get my criminal record expunged?
1. Who can be sentenced to misdemeanor probation?
Almost anyone convicted of misdemeanor offenses can receive summary probation in California.2
The purpose of the program is to:
- protect the public,
- restore the victim, and
- rehabilitate the offender.3
Thus courts typically give summary probation to first-time and juvenile offenders. But even people with prior convictions may be eligible for it. It all depends on the judge’s assessment of what a defendant will do with a second (or subsequent) chance.
Having an experienced California criminal law attorney on your side can greatly increase your chances of receiving alternative sentencing instead of jail in the county courthouse.
2. How do I get probation instead of jail time?
In many cases, the prosecutor and the defendant’s California criminal attorney will agree to probation as part of a plea bargain. In other situations, the judge will grant probation during sentencing.
While informal probation often includes no jail time, this is not guaranteed. But if a sentence of probation includes jail time, it will be for a shorter period than the maximum.
Example: Michael pleads guilty to a misdemeanor charge of California Penal Code 245(a)(1) PC, assault with a deadly weapon (“ADW”).4 As a misdemeanor, ADW can be punished by up to a year in county jail.
But Michael has no criminal record and expresses remorse for the crime. The judge sentences him to 1 year of summary probation with just 30 days in jail.
Note that defendants with private attorneys are likely to get better deals than defendants who rely on public defenders. This is because private attorneys have the time and resources to pursue the best possible resolution for each client.
3. Can I reject probation?
In some cases, a defendant may prefer to serve a sentence and get it over with rather than have to comply with probation conditions for several months.
A judge will not force alternative sentencing on a defendant who does not want it.
Your California criminal lawyer can help you decide whether it makes sense to reject an offer of alternative sentencing.
4. How is misdemeanor probation different than felony probation?
The formal definition of misdemeanor probation is found in California Penal Code Section 1203(a):
“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.”5
Misdemeanor probation differs from felony probation in several key ways.
For instance, in most misdemeanor cases the judge does not request a “probation report” from the county probation department. An exception is misdemeanor cases involving sex crimes in California.6
Another difference is that there is no “misdemeanor probation officer.” Instead, probationers go to back to court every now and then to report to a judge on their progress.
5. What are the terms and conditions?
Judges have a great deal of discretion in crafting probation conditions in California. But misdemeanor probation conditions must always be:
- “Fitting and proper to the end that justice may be done,”7 and
- Reasonable and logically related to the offense.8
In some cases, specific probation conditions are required by law. For instance, people convicted of certain California crimes of domestic violence must complete a batterer’s program of treatment.
Other common conditions of summary probation can include that the defendant:
- Pay fines, court costs, and/or victim restitution,9
- Participate in individual or group therapy,
- Complete treatment programs, such as anger management,
- Complete community service or Caltrans roadside work,
- Seek gainful employment,
- Be subject to a restraining order (for offenses involving California domestic violence crimes),
- Abstain from alcohol and/or drugs and attend a substance abuse program (in cases involving California DUI or certain California drug crimes),
- Not drive with any measurable amount of alcohol or refuse a chemical DUI blood or breath test (if on California DUI probation),
- Show up at all court dates,
- Submit to random drug testing,
- Install an ignition interlock device or SCRAM ankle bracelet (generally imposed in connection with a multiple offense DUI conviction), and
- Not violate any laws and no further arrests by law enforcement
6. Do I have to go back to court for progress reports?
A defendant on misdemeanor probation may be required to return to court periodically to give the judge a “progress report.”
The judge will review the offender’s case, ask questions about his or her progress, and discuss any specific problems.
Failure to appear (“FTA”) as scheduled is a violation of probation. It will result in the judge issuing a bench warrant for the defendant’s arrest.
Favorable progress, on the other hand, moves the defendant one step closer to completing probation.
7. Can a probation order be modified?
The judge has the discretion to modify the terms of your probation. Such modification can be initiated by the judge, the defendant or the prosecutor.
A modification is not always in the probationer’s favor. For instance, in response to a probation violation the judge might:
- Extend the period of alternative sentencing, or
- Increase the period the probationer must spend in jail.
But often a probation modification can help a defendant.
Example: Ron is several months into his misdemeanor probation for DUI. He is complying with all conditions of probation – including completing alcohol education classes on schedule.
But Ron has lost his job. He fears he will be late paying one of the installments on his fine. Ron’s California criminal defense attorney explains Ron’s situation to the judge. The judge agrees to modify Ron’s probation to create a more manageable payment schedule.
8. Is it possible to get an early termination of probation?
California law allows judges to terminate misdemeanor probation early. The judge usually does this when someone completes the terms of probation ahead of schedule and without any violations.10
Not all judges are receptive to early termination of probation. In particular, some are reluctant to grant it in cases involving:
- Driving under the influence (DUI), or
- California crimes of domestic violence.
9. Can I travel while on misdemeanor probation?
People on misdemeanor probation generally face no restrictions on travel. This is one significant way in which misdemeanor and felony alternative sentences differ.
But defendants remain obligated to comply with all their conditions. Such conditions can include regular attendance at counseling or community service. As a practical matter, therefore, such conditions may make it difficult to leave the state.
If you are not certain whether you can travel, your California criminal lawyer can review the conditions.
You can also petition the court to modify your terms so as to let you travel or relocate.
10. How will my employment prospects be affected?
California law prohibits potential employers from asking about arrests for criminal offenses that do not result in a conviction.11
But if someone is on probation, it means he or she was convicted. Thus an employer may legally ask about – and an applicant must legally disclose – an adult court conviction that resulted in alternative sentencing.12
Disclosing a conviction does not mean you will be denied employment. Most employers allow applicants to explain the circumstances of a conviction. The fact that a court has granted alternative sentencing may convince a potential employer to give you a chance.
And once your alternative sentencing ends, you can file a petition to get your California misdemeanor conviction expunged. Once the court grants an expungement, you no longer need to disclose it to most potential employers.
11. What happens if I violate my probation in California?
If a defendant fails to comply with the conditions, the judge can:
- Overlook the violation,
- Modify the order, or
- Revoke alternative sentencing and send the defendant to jail.13
If the court orders the defendant to jail, it can be for up to the maximum punishment for the original crime. There may also be an additional sentence if the informal probation violation involved a new crime.
Example: Bill received 1 year of summary probation for Penal Code 25850 PC carrying a loaded firearm in public. As part of his terms, he was prohibited from possessing a gun.
Shortly after, Bill is arrested for Penal Code 25400 PC carrying a concealed weapon (“CCW”). The judge revokes Bill’s alternative sentencing and remands him to the maximum 1 year in jail for the ADW. Bill may also receive additional jail time if he is convicted on the CCW charge.
Before a judge revokes alternative sentencing, however, there will be a probation revocation hearing. At this probation violation hearing, the defendant will have the opportunity to deny or explain the violation.
If the defendant fails to attend the probation hearing – or if the defendant loses – the judge will immediately revoke the alternative sentencing and send the defendant to jail.
12. Can I get my criminal record expunged?
After successful completion of probation, a defendant may be able to clean up his or her rap sheet of criminal cases.
The defendant does this by petitioning the court for an expungement of a criminal record in California.
An expunged conviction will still show up on your official government rap sheet. But it should not be reported on a criminal records background check in California conducted by any private record search firm.
Just as importantly, you do not have to disclose an expunged conviction to most private employers.
For more information, please see our article on “Five Benefits of an Expungement in California.”
Call us for help…
In Colorado? See our article about Colorado alternative sentencing.
In Nevada? See our article about Nevada alternative sentencing violation hearings.
Legal references:
- California Assembly Bill 1950 (2020). 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.
- An exception is people with two prior felony convictions. See California Penal Code Section 1203 (4).
- California Penal Code Section 1202.7.
- Assault with a deadly weapon (ADW) is a California “wobbler” offense. This means it can be charged as either a felony or a misdemeanor, in the prosecutor’s discretion.
- California Penal Code Section 1203(a)
- California Penal Code Section 1203(b).
- California Penal Code Section 1203.1(j).
- People v. Carbajal (1995) 10 Cal.4th 1114, 1120.
- California Penal Code Section 1202.4.
- California Penal Code Section 1203.3(a).
- Labor Code Section 432.7.
- Juvenile convictions do not usually need to be disclosed. See Labor Code 432.7(2).
- California Penal Code Section 1203.3(a).