Misdemeanor (Summary & Informal) Probation

The term summary probation (also called informal or court probation) simply means serving out probation in a misdemeanor case. With misdemeanor probation, unlike felony probation, you get supervised directly by the court rather than reporting to a probation officer. The term of probation can last from one to five years.

You return to court periodically for progress reports to show compliance with the conditions of your probation, such as

• paying fines,
• paying restitution, and
• completing community service.

Informal probation applies in misdemeanor cases while formal (felony) probation applies in felony cases.

Summary probation sentences typically last up to one year in California (though it can last longer if the specific misdemeanor crime statute calls for it). During that time, you must comply with certain conditions – such as

• obeying all laws,
• going to counseling,
• paying fines and restitution, or
• performing community labor.¹

If you fail to comply with these conditions, the judge may find a misdemeanor probation violation. If so, the court could decide to

1. give you a warning and reinstate probation,
2. modify the terms of probation with stricter conditions, or
3. revoke probation and order you to jail for up to the maximum term.

To help you better understand California probation laws, our 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 get a misdemeanor probation violation?
• 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 you.³

Thus courts typically give summary probation to first-time and juvenile offenders. Though you may be eligible for it even if you have prior convictions. It all depends on the judge’s assessment of what you will do with a second (or subsequent) chance.⁴

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 your 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. Though 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”).⁵ 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.

If you have a private attorney, you will likely get a better deal than if you rely on a public defender. 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, you 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 you if you do not want it.⁶

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.”⁷

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.⁸

Another difference is that there is no “misdemeanor probation officer.” Instead, you go back to court every now and then to report to a judge on your 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,”⁹ and
• Reasonable and logically related to the offense.¹⁰

In some cases, specific probation conditions are required by law. For instance, if you are convicted of certain California crimes of domestic violence, you must complete a batterer’s program of treatment.

Other common conditions of summary probation can include that you:

• Pay fines, court costs, and/or victim restitution,¹¹
• 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

Violating any of these terms and conditions can lead to a misdemeanor probation violation warrant, an arrest, and a probation violation hearing.

6. Do I have to go back to court for progress reports?

If you are on misdemeanor probation, you may be required to return to court periodically to give the judge a “progress report.”

The judge will review your case, ask questions about your 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 your arrest.

Favorable progress, on the other hand, moves you one step closer to completing probation.¹²

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

1. the judge,
2. you, or
3. the prosecutor.

A modification is not always in your favor. For instance, in response to a probation violation the judge might:

• Extend the period of alternative sentencing, or
• Increase the period you must spend in jail.¹³

Though often a probation modification can help you.

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 you complete the terms of probation ahead of schedule and without any violations.¹⁴

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?

You generally face no restrictions on travel while on misdemeanor probation. This is one significant way in which misdemeanor and felony alternative sentences differ.

You still remain obligated to comply with all your conditions. Such conditions can include regular attendance at counseling or community service. As a practical matter, therefore, such conditions may make it difficult for you to leave the state while on summary probation.

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.¹⁵

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.¹⁶

If you are on probation, it means you were convicted. Thus an employer may legally ask about – and you must legally disclose – an adult court conviction that resulted in alternative sentencing.¹⁷

Disclosing a criminal conviction does not mean you will be denied employment. Most employers allow you 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.

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 get a misdemeanor probation violation?

If you fail to comply with the conditions of your misdemeanor probation, the court will hold a probation revocation hearing where you will have the opportunity to deny or explain the violation. If the judge finds that probation was violated, they can revoke and reinstate probation on the same terms, can modify the terms, or can revoke probation entirely and order you to jail. ¹⁸

If the court sends you to jail, the sentence 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 PC 25850 charge. Bill may also receive additional jail time if he is convicted on the CCW charge.

Note that if you fail to attend the probation hearing, the judge will immediately revoke the alternative sentencing and send you to jail.

12. Can I get my criminal record expunged?

After successful completion of probation, you may be able to clean up your rap sheet of criminal cases.

You do 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. Though it should not be reported on a criminal records background check in California conducted by any private record search firm.¹⁹

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’s alternative sentencing.

In Nevada? See our article about Nevada’s alternative sentencing violation hearings.

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