If you violate the conditions of your California misdemeanor probation or felony probation, you will have to attend a probation violation hearing—also known as a probation revocation hearing—before a judge.1
Depending on the circumstances of your case, the judge at your probation violation hearing may decide to:
- Reinstate your probation on the same terms and conditions,
- Change the terms of your probation to make them more stringent, or
- Revoke your probation – and send you to jail.2
California probation law and conditions
California law, Penal Code 1203 PC, defines probation as a type of supervisory sentence that a judge may impose either
- instead of, OR
- in addition to,
incarceration in county jail or state prison.3
Probation in California always comes with certain conditions attached.5 These may include:
- a mandatory restitution fine,6
- a requirement that you work on public works construction projects,7
- a requirement that you remain gainfully employed,8
- a requirement that you refrain from drug and/or alcohol use,9 and/or
- for certain California sex crimes, a requirement that you wear an electronic monitoring device.10
You will face a probation violation hearing if you violate any of the particular conditions that apply to your probation.
Example: Jacob is convicted of California petty theft, a misdemeanor, for shoplifting from a department store. Instead of a county jail sentence, the judge sentences him to probation, with a requirement that he pay restitution to the store from which he stole merchandise.
Jacob falls behind on his restitution payments. As a result, he is called before the court for a probation revocation hearing. He is represented at his hearing by a California criminal defense lawyer.
Thanks to arguments by Jacob's lawyer, Jacob's probation is not revoked, and he is not sent to jail. But the conditions of his probation are altered so that he is now also required to hold down paid employment that will allow him to afford the restitution payments.
In order to help you better understand probation violation hearings, our California criminal defense attorneys11 will address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Unlike California parole, which is granted after an individual is released from prison, probation is a part of the sentencing process. Probation allows you either to
(1) remain out of jail, or
(2) shorten the length of your jail sentence.12
According to California courts, the purpose of probation is to rehabilitate—rather than to punish—people convicted of a California crime.13 In reality, judges impose probation with both of these goals in mind.
Penal Code 1203 PC gives the judge in a California criminal case wide discretion to set the terms and conditions of probation. As long as the requirements logically relate to the offense for which you were convicted, the judge can impose any conditions s/he sees fit.14
Some of the most commonly imposed probation requirements include:
- a mandatory restitution fine,15
- a requirement that you not make contact with your victim (if your offense involved California domestic violence or another act of violence),
- a requirement that you abstain from alcohol and/or drug use and/or attend a drug or alcohol program such as Alcoholics Anonymous or Narcotics Anonymous (if your offense was drug or alcohol-related),
- a requirement that you not drive with any measurable amount of alcohol in your system and not refuse to submit to a chemical DUI blood or breath test (if you are placed on California DUI probation),
- installation of an ignition interlock device or a SCRAM device (generally imposed in connection with a multiple offense DUI conviction),16
- "search conditions" (a provision in which you agree to allow the police to search your person or property at any time with or without a California search warrant),
- individual or group therapy,
- community service or Cal-Trans roadside work,17
- a requirement that you be gainfully employed,18
- a requirement that you be electronically monitored (if you are convicted of certain sex crimes for which California sex offender registration is required),19 and/or
- an order not to violate any additional laws.
Example: Peter is convicted of a first-time California DUI. In lieu of jail time, he receives a driver's license suspension and 3 years of misdemeanor (summary) probation. His probation conditions include a requirement that he attend AA meetings and refrain from drinking alcohol during the term of his probation.
Example : Mercedes is convicted of Penal Code 211 PC robbery. At the time of her conviction, she is unmarried, has two children, and is pregnant with another child.
Her sentence includes a period of probation. One of the conditions of her probation is that she not get pregnant again unless she is married. She becomes pregnant on probation and is called in for a probation violation hearing.
But the court decides that she cannot be punished for violating this probation condition because it is invalid. Getting pregnant has nothing to do with her robbery conviction or the chances of her engaging in future criminal activity.20
When probation is imposed in connection with a conviction for a California misdemeanor, it is known as misdemeanor probation—or sometimes as “informal” probation or “summary” probation.
The period of misdemeanor probation may last up to five (5) years.21
The basic features of misdemeanor probation are:
Probation report not required
In most misdemeanor cases, the judge may choose between
- requesting a probation report before deciding whether to grant probation, and
- deciding on his/her own whether to grant probation, without the benefit of a report.22
California law only requires that the judge obtain a probation report before issuing a misdemeanor probation sentence if you were convicted of a California sex offense that requires registration as a sex offender.23
Progress reports instead of a probation officer
For misdemeanor probation, you do not generally need to report to a probation officer.24 Instead, you are typically expected to appear in court for periodic “progress reports.”
At these progress reports, the judge will review your case to make sure you are completing all the conditions required of you. If you are not, you may then be required to attend a probation revocation hearing.
If you get convicted of a felony crime and get placed on probation, it will be felony probation (also sometimes called "formal probation").
Felony probation is typically imposed for a term of three (3) to five (5) years.25
There are two key differences between felony probation and misdemeanor probation:
Probation report required
Unlike with misdemeanor probation, where the probation report is optional, in felony cases the judge is required to request a probation report before sentencing the defendant to probation.26
These reports are prepared by the county probation department, based on a review of the alleged crime and the defendant's personal and criminal history. Frequently, the investigating detective, any alleged victims, and the defendant him/herself will be interviewed.
Probation officer supervision
Also, on felony probation, you are assigned to a probation officer for supervision.27
Generally, you must report to the probation officer once a month, although the judge has the discretion to require a greater or lesser frequency. Failing to remain in contact with your probation officer can itself trigger a probation violation hearing.
The purpose of this supervision is to ensure that you remain in the state and that you are complying with all the terms and conditions imposed on you by the court—that is, not committing any probation violations. Your probation officer (otherwise known as a P.O.) may also
- verify your employment (assuming that one of your probation requirements is to seek and maintain employment), and
- administer drug tests.
On occasion, your probation officer may enter your home to verify that you don't possess any illegal drugs or weapons (an event known as a "probation search") in violation of your probation.
If you violate the conditions of your probation, you will face a probation violation hearing.28
The burdensome conditions often placed on probationers in California mean that a large number of defendants end up violating their probation. In 2007, about 40 percent of California probationers had their probation revoked or modified because of a violation.29
Some of the most common misdemeanor and felony probation violations include:
- willful failure to pay a fine or restitution (known as “FTP”) when you have the ability to pay,30
- failure to appear for a court date (“FTA”),
- failure to report to your probation officer,
- committing a new crime, and
- not submitting to, or failing, a drug test (if submitting to drug testing was a probation requirement).
If you are suspected of any one of the above, your probation officer or a law enforcement officer may arrest you and bring you before a judge. Alternatively, the judge may issue a California arrest warrant for your arrest (if, for example, you failed to report to your probation officer).31
Defendants in a California probation violation hearing enjoy many of the same rights as defendants in California criminal jury trials. These include:
- the right to be represented by a criminal defense attorney,32
- the right to call witnesses, and to use the subpoena power of the court to force witnesses to come to court and testify on your behalf,
- the right to present any mitigating or extenuating circumstances that may have contributed to your alleged probation violation,
- the right to testify on your own behalf, and
- the right to disclosure of the evidence against you.33
One major difference between a probation violation hearing and a criminal trial is that a judge presides over the hearing—there is no jury.34
Also, 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 you violated probation.35
This means that the prosecution only needs to prove that it is “more likely than not” that you are guilty.36
Hearsay evidence in probation revocation hearings
Finally, at a probation violation hearing, hearsay evidence is usually admissible—as long as it appears reliable.37
(Hearsay evidence is any statement, offered for its truth, that is not made by a witness testifying at the hearing. It is usually banned in California courts because it denies the defendant the right to cross-examine the person who made the statement.38
Even so, the court will still likely balance the defendant's right to confront and cross-examine witnesses against the government's reason for not producing that witness before admitting the hearsay evidence in a parole revocation hearing.39
Example : After a domestic violence conviction, Scott is placed on probation. One of the conditions of his probation is that he have no contact with his ex-wife Lorraine, who was the domestic violence victim. Lorraine contacts the police to tell them that Scott came to her house—which would be a probation violation.
Scott is called in for a probation revocation hearing. One piece of evidence against him is a letter from Lorraine saying he came to her house—but Lorraine does not testify at the hearing.
In a normal jury trail, the letter would be hearsay and would not be admissible evidence. But the judge at Scott's parole violation hearing may choose to allow the letter as evidence anyway.
But as Palm Springs criminal defense attorney Michael Scafiddi40 explains,
“It's almost irrelevant what evidence is admissible . . . because a good criminal defense lawyer will find a way to challenge any and all detrimental information the prosecution tries to introduce at your parole revocation hearing.”
At the conclusion of your probation violation hearing, the judge makes a finding as to whether or not you violated any terms of your probation.
If the judge finds that you did indeed violate probation, then s/he will consider factors such as
- your criminal history,
- how long into your probation you committed the violation,
- the seriousness of the violation, and
- any recommendations made by the probation department,
in order to determine what penalties to impose.
After considering all of these factors, the judge has several options. S/he may
- reinstate your probation on the same terms and conditions,
- modify your probation with new, stricter terms and conditions, or
- revoke your probation and sentence you to serve your jail or prison sentence.41
If the judge selects the last of these options, you are entitled to credit for any time that you previously spent in a jail, prison, or residential treatment facility.42
Even if the judge determines that you are in violation of your probation…and intends to revoke it…an experienced California criminal defense attorney can sometimes persuade the judge to simply modify your probation instead.
If you ultimately successfully complete probation, you may be entitled to relief under California expungement law. An expungement effectively removes your criminal conviction from your record.43
Expungement is not impossible even if you are found—at a California probation violation hearing—to have violated your probation. But it will be more difficult to achieve. A judge will have wide discretion over whether to grant your petition for expungement in spite of a probation violation.44
Call us for help . . .
If you or loved one has violated probation and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
To learn more about probation revocation hearings in Nevada, please visit our page on probation revocation hearings in Nevada.
2 Penal Code 1203.1
3 Penal Code 1203
4 See same.
5 See, e.g., Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications.
6 See same.
7 Penal Code 1203.1
8 See same.
9 See same, subdivision (j), endnote 2, above.
10 Penal Code 1202.8
11 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.
12 Penal Code 1203 PC – Probation, subdivision (a), endnote 3, above.
13 People v. Carbajal (1995) 10 Cal.4th 1114, 1120. (“In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to [California] Penal Code section 1203.1.”)
14 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications, subdivision (j), endnote 2, above.
See also People v. Lent (1975) 15 Cal.3d 481, 486.
15 See endnote 6, above.
16 Vehicle Code 23575
17 Penal Code 1203.1
18 See same, subdivision (d), endnote 8, above.
19 Penal Code 1202.8 PC – Probation; supervision by county officer; assessment and electronic monitoring of sex offenders; report on monitoring of offenders, endnote 10, above.
20 Based on People v. Dominguez (1967) 256 Cal.App.2d 623.
21 Penal Code 1203.1
22 California Penal Code 1203 – Probation.
23 See same.
24 Penal Code 1203
25 Penal Code 1203.1
26 Penal Code 1203
27 Penal Code 1203 PC – Probation, subdivision (a), endnote 3, above.
28 Penal Code 1203.2 PC – Rearrest of supervised person [after probation violation], endnote 1, above.
29 Achieving Better Outcomes for Adult Probation: Executive Summary , California Legislative Analyst's Office, May 29, 2009.
30 Penal Code 1203.2 PC – Rearrest of supervised person [after probation violation], endnote 1, above
31 See same.
32 People v. Vickers (1972) 8 Cal.3d 451, 461. (“We conclude accordingly that as a judicially declared rule of criminal procedure (see People v. Cahan (1955) 44 Cal.2d 434, 442 [282 P.2d 905, 50 A.L.R.2d 513]) a probationer is entitled to the representation of retained or appointed counsel at formal proceedings for the revocation of probation [probation violation hearings], or following such summary revocation in appropriate cases.”)
34 Penal Code 1203.2 PC – Rearrest of supervised person [after probation violation], endnote 1, above.
35 People v. Rodriguez (1990) 51 Cal.3d 437, 441.36 California Jury Instructions, Criminal (“CALJIC”) 2.50.2
37 People v. Maki (1985) 39 Cal.3d 707, 709.
38 Evidence Code 1200
39 Valdivia v. Schwarzenegger (2008) 548 F.Supp.2d 852, 859.
40 Palm Springs criminal defense attorney Michael Scafiddi, a former police officer and sergeant, represents clients in criminal cases ranging from DUI to child abuse to carjacking throughout the Inland Empire. He is an expert in California evidence law and he is well-known at the criminal courts in Palm Springs, Hemet, Riverside, Barstow and Victorville.
41 Penal Code 1203.1 PC – Probation; suspension of sentence; imprisonment; fines; conditions; modifications, endnote 2, above.
42 Penal Code 2900.5 43 Penal Code 1203.4 PC
44 See same.