Understanding The Probation Process

Probation is a supervisory period where a defendant must abide by certain rules and conditions in lieu of or in addition to spending time in jail or state prison¹.

The Probation Report

Whenever someone is convicted of a crime, whether it is a misdemeanor or a felony, the court may sentence the person to incarceration, stay or suspend the time, and then place the defendant on probation for a certain time. Another alternative is for the court to require that the defendant spend some time in jail and then be placed on probation for the remainder of the sentence.

Before a defendant is sentenced, a probation or even a pre-plea report may be prepared to assist the court in determining if the defendant is suitable for probation and what conditions are to be followed²

Probation reports are documents prepared by a probation officer though a social worker or psychologist may draft them as well. Courts are not required to have a report prepared in misdemeanor cases except if it is a sex offense that requires registration as a sex offender³. Probation reports are required in felony cases before a judge imposes sentence.

In many cases, the probation report is influential in whether the defendant should be placed on probation, what conditions should be followed and for how long. For sex crimes, the probation officer makes a recommendation as to whether the defendant should register as a sex offender These reports are prepared after a defendant has entered a guilty or nolo contendre (no contest) plea and prior to the sentencing hearing.

The individual preparing the report for the county probation department will examine the following factors:

• The circumstances of the offense
• The defendant’s criminal history
• Employment status and history
• Instances or history of drug or alcohol abuse
• Family situation
• Defendant’s efforts at rehabilitation including participation in a drug or alcohol program
• If restitution has been made or should be paid
• Victim’s status and possible victim impact statement in serious felony or domestic battery cases

A probation officer may talk to the investigating officer and victim. Also, the probation officer is permitted to consider and factor in their conclusions any hearsay statements or evidence unlawfully obtained that would otherwise not be admissible at trial. Also, evidence of sustained juvenile convictions may also be considered in the final recommendations even for adult defendants.

If You Plead To A Felony In The Past

As a defendant who has plead guilty to a felony, you will be interviewed by the probation officer or other official from the probation department and may or may not be allowed to have your attorney accompany you. If allowed, your attorney may speak for you and present favorable reports on your character or provide documentation of rehabilitation efforts or other factors or efforts in mitigation of your sentence.

For example, your attorney can have a private probation or pre-sentence report prepared by a social worker that can be included in the court’s probation report. Alternatives to jail can be researched and presented such as in-house treatment, particular community service suggestions, restitution or at-home monitoring.

At the probation interview, the officer may ask you questions pertaining to the following:

• Your version of the facts of the offense
• Whether you take responsibility for your conduct or are blaming others
• Motive for committing the offense
• Family situation
• Alcohol and drug use
• Employment or school situation
• Financial situation

Pre-Plea Report

Your statements during the interview can be used for or against you so careful preparation is essential.

A pre-plea report may be the same as the probation report that is drafted after the defendant has entered a guilty plea or it may be prepared as a tool to encourage an early resolution when a defendant is considering a guilty plea. Some California counties use this in felony matters or may ask to delay the preliminary hearing if a resolution is possible.

If so, the parties may ask for a pre-plea report whereby the probation officer determines if the defendant is a suitable candidate for probation. The probation officer will look at the facts of the case, the victim’s and witness statements, prior criminal history and if there are aggravating or mitigating factors present before making a recommendation.

Unless unusual circumstances are present, a judge will generally accept the recommendations of the probation report or pre-plea report.

Probation Eligibility

Whether you are eligible for probation depends largely on the factors enumerated above along with others found in California Rule of Court 4.414. These factors include:

• The seriousness of the crime and circumstances as compared to other crimes that are similar to it
• If a firearm was used
• The victim’s vulnerability
• Financial loss to the victim
• Sophistication of the crime
• Defendant’s criminal record including juvenile record
• The defendant’s amenability to following recommended conditions and terms
• Impact of incarceration on the defendant’s family and dependents

At the sentencing hearing, your attorney can present arguments in favor of probation if the report recommends incarceration. Of course, the prosecution can argue otherwise.

Not Eligible For Probation

There are persons, however, who are not eligible for probation under any circumstances:

1. If you have a prior conviction for any violent felony under PC 667.5⁴ or serious felony under PC 1192.7
2. If on felony probation and your current conviction is one under PC 667.5 or PC 1192.7
3. Certain sexual offenses committed under aggravated circumstances⁵

The violent and serious felonies indicated herein include murder, voluntary manslaughter, lewd acts with a child under the age of 14, oral copulation, rape, robbery, kidnapping, carjacking and arson, among others⁶

Presumptive Eligibility

There is also a category for crimes that the law deems presumptively ineligible for probation, meaning that the court can still find you eligible if it would serve the interests of justice. Such crimes include:

• Offenses committed with a deadly weapon
• If the victim suffered great bodily injury
• A public official who commits embezzlement or bribery
• Grand theft of over $100,000
• If you furnished PCP

If in the commission of such crimes your role was passive or you were very young or aged or other compelling mitigating circumstances, the court could grant probation in lieu of or in addition to time served in prison.

Condition Of Probation

Any time a defendant is granted probation, there are conditions attached that must be followed. These are dependent on the nature of the offense, the victim’s status and other circumstances. If the probation is formal, you must meet with your probation officer in accordance with whatever schedule is imposed.

Other common conditions include:

• Random drug testing
• No victim contact
• Participation in an appropriate treatment program
• Performance of community service
• No association with gang members, if applicable
• Payment of restitution⁷
• Submit to searches of your person or property by law enforcement without a warrant
• Make good faith efforts to find employment or remain employed
• Stay in school
• Inability to leave the state without permission
• No change of residence without advance notice or permission in some cases
• Serve a certain time in jail or prison

Other conditions may be ordered by the court that are commensurate with the offense⁸.

Difference Between Probation & Parole

Probation and parole are both alternatives to imprisonment. The major difference is that probation is part of the sentence imposed and may be in lieu of jail or prison, or is a reduction of the time a defendant spends incarcerated.

Probation may be from 6 months to 10 years depending on the offense and its severity. You can move the court to reduce your term of probation if you have been law abiding and have been meeting all the terms and conditions.

Parole is granted by a parole board after the defendant has spent a certain portion of the sentence in prison before becoming eligible and is considered amenable after a review process. If the defendant had a determinate sentence, or one where a specific amount of time was served, then the individual is automatically placed on parole when released.

Parole, like probation, is a supervised release from prison into the community where the defendant must regularly report to an assigned parole officer. The conditions of parole are similar to those for probation. The parole board, instead of the court, determines the conditions to be followed though the parole officer may set some conditions as well.. The main objective of parole is rehabilitation though both processes are concerned with protecting the community. Parole however, can be for the rest of your life if you were given a life sentence.

Differences Between Formal & Informal Probation

Informal probation, or summary probation (also referred to as court probation), does not require you to meet with an assigned probation officer on a regular basis or to report on progress in certain areas. The only condition imposed may that you obey the law. You will likely have to report to the court if you are arrested, change residences or were required to show proof of completion of any treatment programs. This type of probation is not available in felony cases.

Formal probation is one where you do have to report to an assigned probation officer and report on your progress or status in employment, attendance in school or in completing a treatment program or community service requirement. More conditions are imposed on you including the right of law enforcement officers to search you or your property without a warrant or to submit to random drug testing.

If you follow all the dictates and conditions, formal probation may be modified to a more informal status for the duration of your probation.

Responsibilities Under Probation

You have certain responsibilities when under probation. Of course, if you have informal or summary probation, then your responsibilities are to not commit any further offenses.

You will have to report to the court when changing residences if you are arrested or fail to complete a required program. If you fail to appear than a bench warrant will be issued.  Most programs will automatically report compliance.

If you are under formal probation, then your responsibilities are more involved. You do have to regularly report to your probation officer and follow all the terms connected with it such as allowing police to search you without objection if that is a condition.

If you are under a no victim contact order and the victim does contact you, then you should refrain from further contact and immediately contact your probation officer. Otherwise, you are to follow all other terms and conditions without complaint.

What Happens If Probation Is Revoked?

Probation is only revoked if you fail to adhere to any of the conditions imposed or your attorney successfully terminates probation early. If you are under informal probation, it can be revoked if you commit a subsequent crime or fail to complete a court-ordered treatment program.

The same applies to formal probation although you have many more opportunities to violate probation such as making contact with the victim or resisting a search by law enforcement.

Should you violate probation, you are subject to arrest and detention. You are entitled to a hearing if the probation was for a felony matter. At the hearing, the court has the following options:

Reinstate Probation

1. Reinstate your probation but reprimand you before reinstating the same conditions. This usually occurs if you have a valid excuse for the violation such as proof an illness in failing to report or that your contact with the victim was random and not intentional. In other cases, you may have only committed a minor crime so that the judge will give you another chance.

2. Reinstate probation but modify it to include stricter terms such as a fine, community service or increase the term of probation.

Revoke Probation

1. Revoke probation and have you returned to jail or prison to serve the remainder of your sentence.
2. Revoke probation but have you serve a lighter sentence in jail or prison.

If you committed a new offense, then you are subject to prosecution on that along with serving whatever sentence the judge imposes for violating probation. In some cases, the court will sentence you concurrently so that the time you do spend in jail or prison includes your revocation and new offense.

The standard of proof at your revocation hearing is less than that of “beyond a reasonable doubt,” which is the criminal standard. The prosecution merely has to show that it is “more likely than not” that you violated a condition of your probation. You are not entitled to a jury trial and not all the rules of evidence have to be followed. An unfavorable aspect is that you may be acquitted of the subsequent offense but still be subject to revocation of your probation.

1. California Penal Code Section 1203(a). [↩]
2. California Penal Code 1203(2)(a). [↩]
3. California Penal Code 1203(c). [↩]
4. California Penal Code 667.5 [↩]
5. California Penal Code Section 667.61 [↩]
6. California Penal Code 1203(e)(5). [↩]
7. California Penal Code Section 1202.4 [↩]
8. People v. Carbajal, (1995) 10 Cal.4th 1114, 1120. [↩]