Probation Violation – California PC 1203.3
Probation is considered a sentencing alternative to imprisonment. This allows individuals who have been convicted of a crime to serve all or a portion of their sentence out of custody but under a probation officer’s supervision. Felony probation in California is referred to as “formal probation” and lasts between three and five years. Misdemeanor probation is referred to as “summary probation” or “informal probation” and typically lasts between one year and three years.
If you were given probation but are now facing charges for a probation violation, here is what you need to know about the possible consequences.
When Can Probation Be Ordered?
Not all defendants are eligible for probation, including individuals who are convicted of a felony and have a previous conviction of a violent felony under Penal Code 667.5 PC1 or a serious felony under Penal Code 1192.7 P.C.2 Additionally, people convicted of certain sex crimes may not be eligible for probation.
When probation is available, the judge has the discretion of ordering probation or a term of imprisonment after evaluating a number of factors, including the severity of the underlying crime and your criminal history.
Summary probation is typically given to first-time or juvenile offenders. However, nearly anyone convicted of a misdemeanor can receive this alternative sentence, which is designed to protect the public, restore the victim, and rehabilitate the offender.3
What Are Conditions of Probation?
The conditions of probation are different for each case. The judge can impose any condition that is reasonable and logically related to the offense.4
Common conditions of probation include:
- Attend meetings with a probation officer
- Pay fines or restitution to the victim
- Submit to drug testing
- Perform community service
- Not violate any laws
- Participate in individual or group therapy
- Participate in a batterer’s program
- Seek gainful employment
- Abstain from drugs and alcohol
- Install an ignition interlock device
Before imposing conditions of probation, the judge orders a probation report from the county probation department and reviews it to determine the appropriate sentence. The county probation department interviews witnesses and the circumstances surrounding the crime. It provides an opinion on whether probation is appropriate in the case. If it is, the department recommends how long probation should last and what conditions should be imposed. However, the judge does not have to use these recommendations; the final determination is up to him or her.
Elements of Probation Violation
The prosecutor must establish that the defendant violated a term or condition of probation and that the defendant was on probation at the time of the violation. The burden of proof is lower in these types of cases than in typical criminal trials.
Possible Consequences of Probation Violation
If a defendant is accused of violating probation, a probation hearing may be scheduled where the allegations are made and the evidence is presented.
If the court determines the defendant violated probation, it may simply warn the defendant about the potential consequences of the violation and remind them of their probation conditions. In other cases, the judge may modify probation and impose harsher conditions.5 The harshest penalty the court can impose is to revoke probation and to impose the original sentence on the defendant.6
The court considers many factors when determining the appropriate punishment, including:
- The seriousness of the violation
- The defendant’s history of previous violations
- The defendant’s criminal history
- Recommendations the probation department makes
If the court modifies probation, it can make changes, such as:
- Increasing the amount of your probation term
- Requiring you to undergo drug and alcohol counseling, mental counseling or participate in an anger management program
- Order you to enroll in a substance abuse treatment program
- Order you to complete community service
If the court revokes probation, the defendant can face imprisonment. For example, if the judge suspended three years of jail and sentenced you to probation instead, you can now be required to serve the three years. In some cases, the judge may impose the maximum sentence allowed.
1 California Penal Code 667.5 PC – “Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: (a) Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
2 See California Penal Code 1192.7.
3 California Penal Code 1202.7 – “The Legislature finds and declares that the provision of probation services is an essential element in the administration of criminal justice. The safety of the public, which shall be a primary goal through the enforcement of court-ordered conditions of probation; the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant shall be the primary considerations in the granting of probation. It is the intent of the Legislature that efforts be made with respect to persons who are subject to Section 290.011 who are on probation to engage them in treatment.”
4 California Penal Code 1203.1 – “The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer, and that should the probationer violate any of the terms or conditions imposed by the court in the matter, it shall have authority to modify and change any and all the terms and conditions and to reimprison the probationer in the county jail within the limitations of the penalty of the public offense involved. Upon the defendant being released from the county jail under the terms of probation as originally granted or any modification subsequently made, and in all cases where confinement in a county jail has not been a condition of the grant of probation, the court shall place the defendant or probationer in and under the charge of the probation officer of the court, for the period or term fixed for probation. However, upon the payment of any fine imposed and the fulfillment of all conditions of probation, probation shall cease at the end of the term of probation, or sooner, in the event of modification.”
5 California Penal Code 1203.1(a) “(a) The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case.
However, where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years. The following shall apply to this subdivision:
(1) The court may fine the defendant in a sum not to exceed the maximum fine provided by law in the case.
(2) The court may, in connection with granting probation, impose either imprisonment in a county jail or a fine, both, or neither.
(3) The court shall provide for restitution in proper cases. The restitution order shall be fully enforceable as a civil judgment forthwith and in accordance with Section 1202.4 of the Penal Code.
(4) The court may require bonds for the faithful observance and performance of any or all of the conditions of probation.