The court usually has the option to send a guilty person to jail/prison or place him or her on probation. The judge's choice is based mostly on the nature of the crime committed by the defendant, their criminal background, and whether or not it's safe to allow the convicted person back into society. However, probation imposes specific restrictions that the offender must follow for him or her to resume serving their conviction outside of prison.
Sometimes a probation violation occurs, which necessitates a new conviction along with additional fines in some situations. Some people infringe their probation without even realizing it. If that's the case, it's a good idea to hire a lawyer to defend you throughout your probation violation hearing. We at the Riverside Criminal Defense Attorney Law Firm have a team of professional defense lawyers who can assist you in the proceedings to possibly make the courts not repeal your probation.
An Overview of California Probation
Probation is considered an alternative penalty to imprisonment or jail term in California. When this occurs, the offender is often released back into their society to serve a portion or all of their term. In exchange for their release, the courts impose a set of conditions that the defendant must accept to follow. These precise guidelines are known as probation conditions. It's important to note that such conditions are normally personalized to each offender based on the nature and type of the crime for which they've been charged.
California probation isn't the same as parole. The courts provide parole once the offender has been freed from incarceration, whereas probation is an element of California's sentencing process. After a conviction, an individual receives probation and is allowed to stay out of jail. Furthermore, their prison term could be reduced, allowing them to serve part of it outside of prison.
The primary purpose that California courts award probation is to help the perpetrators through rehabilitation rather than to punish those who face punishment for specific acts. In reality, judges consider both rehabilitation and punishment when granting probation. To better understand probation, let's look at the 2 basic forms of probation as well as the California defendants who could receive them:
California Misdemeanor Probation
This type of punishment, also known as informal or summary probation, is given by the court to defendants who are facing convictions for misdemeanor crimes. Such probation is normally limited to a maximum period of 5 years. The following are the primary characteristics of California summary probation:
- The courts will not request a probationary report on the perpetrator's behavior throughout the probationary period. After giving misdemeanor probation, the court may decide whether to get a probationary report before releasing the perpetrator or to discharge the offender regardless of the probation reports. If, for example, the perpetrator was convicted of a sex-related crime that demands him or her to file as a sex offender, the state regulations compel the judges to get a report on that defendant before granting probation.
- The courts will often demand progress reports from the defendant instead of assigning him or her to a probation officer. This implies that a defendant on misdemeanor probation doesn't necessarily have to appear before a probation officer at all times. However, the courts will order them to attend court proceedings regularly to provide their progress updates. During these meetings, the judge would assess their lawsuit to ensure that the defendants are complying with all the rules. If an infringement is detected, the perpetrator will be summoned for trial for the probation violation.
California Felony Probation
This kind of probation is imposed on a defendant who has been charged with a felony crime. Felony probation is sometimes referred to as formal probation. It normally lasts 3 to 5 years. In California, there are 2 major distinctions between felony and misdemeanor probation:
1. If a perpetrator is on felony probation, a probationary report would always be required. The probation report is still voluntary for misdemeanor probation, but the court will require one before placing a defendant on felony probation. For most situations, these reports are prepared at the state's probation division in which the offender is facing a sentence.
This report will be prepared by the probation department based on the findings of the alleged crime along with the perpetrator's personal and criminal background. To obtain a comprehensive report, the department would be required to question alleged victims as well as the offender himself or herself.
2. When someone is placed on felony probation, they should be supervised by a probation officer. Again, this isn't mandatory when a defendant is released on misdemeanor probation. An officer is delegated to the offender to monitor their actions and verify that he or she is not breaking their probation terms as well as any other laws.
As a result, the courts will anticipate regular updates on the probationer's progress from the assigned officer, no less than once a month. The defendant on probation is required to maintain contact with their probation officer without fail. Contrary to this could force the probationer to get a probation hearing. The purpose of this type of monitoring is to ensure that the defendant stays within the jurisdiction and follows all of the provisions and conditions of his or her probation.
Aside from monitoring the probation, California courts authorize probation officials to perform the following:
- Test perpetrators on probation for drugs and alcohol
- Verify the defendant's employment details in cases where securing employment was among the probation terms
- Entering and checking the offender's residence to ensure that there are no narcotics or weapons in his or her possession
California's Probation Conditions
As previously stated, California courts don't sentence defendants to probation without imposing certain terms. The severity of these restrictions is determined by the nature of the offense the perpetrator is charged with, along with their prior criminal background. California judges have complete discretion in determining these probation terms and restrictions, as given by California statute PC 1203. It implies that it's normally up to the court's judge to impose the terms that he or she feels fit based on the severity of your violation.
The following are the most common probation conditions in California:
- It's mandatory by law not to have any interaction with the complainant. This term is often used in incidents of violence, like domestic violence
- Mandatory payment of reparations to the plaintiff or his or her family
- Not driving a vehicle when under the influence of alcohol - This is a regular occurrence with alcohol-related charges like DUI. Furthermore, during your probationary period, the courts will oblige you to report to all the chemical tests, either blood or breath, administered to measure your BAC level
- For alcohol or drug-related offenses, the court would order you to desist from alcohol and/or drugs. This condition is often coupled with a court-ordered mandate to participate in a drug or alcohol treatment program
- It's a legal obligation to have a SCRAM device or an IID system installed in your car. This requirement is imposed on crimes like multiple DUI-related convictions
- Mandatory provision to sign up and take part in an individual or group therapy
- Obligation to secure and retain gainful employment. This will keep the probationer within the jurisdiction and the probation officer's reach
- Participation in community work is mandatory
- Surrendering to impromptu inspections - The terms authorize law enforcement authorities to conduct checks and inspections on your premises or on you at any time, with or without a warrant to search.
- A requirement for the courts to electronically monitor you. It could be appropriate if you have been convicted of sex crimes that compels you to file as a sex offender
- A court order requiring probationers not to violate any other laws
California's Most Common Probation Violations
There is never an assurance that a defendant will follow all of the probationary requirements. Some probationers break these rules on purpose, while others do so by accident. In either case, the courts would summon the offender for a probation violation proceeding immediately they receive a notification of any condition violated, no matter how small it may appear. Below are some of the most popular probation condition violations in California:
Failing to Finish Community Service
This, excessively, is a serious violation if you've been sentenced to do community service for a specific amount of hours within a predefined time frame.
Failure to Settle Court Penalties and/or Reparations
If a judge stipulated that the defendant should pay restitution and fines as part of his or her sentence, failure to comply will be regarded as a serious infringement of his or her probation. You could be given a payment plan by the court, which you should follow. Failure to adhere to that plan is itself a violation, as it is a breach of a probation condition.
Violation of Another Provision
The basic principle of any type of probation is that the defendant not perpetrate another offense while still on probation. This implies that even a slight transgression, like a traffic violation, could land you in trouble and result in the judge revoking your probation.
Skipping Your Probation Officer's Appointment
This infringement is only applicable if the courts granted you supervised probation. For such probation, you should stay in contact with your assigned probation official through meetings with them regularly. The officer normally determines the timing and length of such sessions. If the probationer fails to show up for any of these sessions, the court requires the probation supervisor to report the issue as a probation violation to the courts.
Failure To Appear In Court For Hearings
After an individual is released on probation, the court would mandate them to show up in court sessions for a set amount of time. The purpose of these court sessions is to assess the probationer's progress. If the defendant on probation misses either of these sessions, it's regarded as a serious and egregious breach of their conviction.
Visiting Certain Locations or Meeting Specific People
If a judge convicts a defendant to probation on provisions that he or she would not explore certain locations or interact with certain individuals, doing so could be regarded as an infringement of their probation. If you were a member of a gang, for example, the judge would compel you to stop communicating with your peers as a term of your probation. Contacting any person from the gang, or even visiting places where you could meet them, would be deemed a breach of your sentence.
Not Getting a Job
The necessity to find and retain a job position would hold you within the state. Such a provision is normally imposed on defendants who could flee the jurisdiction if they're given probation. In this situation, your probation would be revoked if you don't find a job.
Consequences of Probation Violations in California
Any infringement of the probation terms is treated seriously, and the California courts will never ignore it. Violations of this nature inevitably have a repercussion. They are determined by the nature of the probation violation as well as the underlying crime. The following are the most prevalent implications of probation violation:
Extension of the Probation Period
Alternatively, the courts could opt to prolong your probation period. When the judge makes a ruling, he or she will cancel the previous probation provisions and impose new conditions with a prolonged probation period.
After being found guilty, the worst punishment a person could receive is incarceration. Nobody wants to serve jail time, no matter how brief the sentence is. That is why, for the vast majority of defendants in California, probation is a great option. However, all these could cease with just a single infringement of a probation term. When your probation is revoked by the court, the judge could impose the initial sentence. It indicates that the courts will sentence you to prison for the full penalties you got from your prior conviction.
In addition, the judge has the authority to repeal your probation as well as convict you to serve the maximum jail term provided by the statutes for your crime. If you were convicted of a felony charge and received a prison term of sixteen months, 2 years, or 3 years, the court could invalidate your probation as well as convict you to 3 years in prison.
Additional Conditions of Probation
Some probation violations will necessitate additional terms in addition to the main probation conditions. The judge would select the conditions that, in his or her opinion, will best serve the interests of justice.
The judge can mandate counseling for the probationer depending on the type of offense. In this circumstance, the kind of counseling recommended would be, for example, advice on anger management and substance use.
Enrolling In a Treatment Plan
If the transgression is due to a behavior that the accused person is not able to stop despite receiving a probation term, the court can order the probationer to enroll in a treatment plan. It might be a drug/alcohol rehabilitation facility or an anger control program.
Participation in Community Service
A defendant serving probation could also be obliged to undertake community service for a government agency, like the CalTrans, or a nonprofit organization.
California Probation Hearings
There are several reasons why probationers break their probation terms. Probation hearings are held in California courts to determine why a probationer infringed his or her probation as well as what measures can be taken to penalize the violation. Once the judge discovers that the defendant has violated his or her probation restrictions, the court will order the defendant for a probation hearing. Several of these terms are hard to follow, and as a result, the majority of probationers end up breaching their probation.
Based on the nature of the violation, a probation officer or police can arrest and charge the probationer in court. If he or she doesn't comply, the judge could issue an arrest warrant, which would allow the defendant on probation to be apprehended wherever they are. After being arraigned in the courtroom, the judge will allow the probationer to explain why he or she broke their probation term.
A defendant who appears before a judge for his or her probation hearing has rights similar to those of an offender who appears in a criminal court. These rights comprise the following:
- The right to be legally represented by a qualified defense attorney
- The right to invite a witness or issue a subpoena. If your witness refuses to appear before a judge, your lawyer could use a court's subpoena authority to compel him or her to take the stand on the defendant's behalf
- The right to present any mitigating or justifying factors that would have led them to infringe their probation
- A right to testify and provide proof in the court on his or her behalf
- The right to be informed of any proof presented against them
Although both occur in criminal courts, a probation hearing is distinct from a criminal lawsuit proceeding. A probation hearing, unlike a criminal proceeding, will be presided over by a judge rather than a jury. Again, there's no provision for the prosecution to justify the matter beyond any reasonable doubt in such a hearing, unlike with a criminal proceeding. In this case, the prosecutor will simply be required to demonstrate the proof of your probation violation. The important thing the courts need to establish is that the defendant has a high probability of being responsible for the charges brought up in the courtroom.
In addition, unlike criminal proceedings, a probation hearing allows hearsay evidence. However, the evidence should appear reliable for the courts to consider it and apply it in making the ultimate decision. In this context, the hearsay proof is any comment presented for its reliability and that's not stated by a witness giving testimony at a probation hearing.
What Happens After a Probation Hearing?
Towards the conclusion of a probation hearing, a judge would have resolved whether or not to consider the defendant breached the probation terms and conditions. If the judge has grounds to think that the offender has violated his or her probation, he or she would consider other circumstances before deciding what actions can be taken against the defendant. These elements include:
- The perpetrator's criminal background
- How long the defendant had been on his or her probation when the violation occurred
- The gravity of the offense
- Whether the state's probation agency has issued any recommendations or not
After taking into account all of these elements, the court will select either of the above-mentioned punishments for your acts.
Is it Possible to Have Your Probation Violation Expunged?
Yes. Anyone who completes his or her probation could benefit from California's expungement laws. It implies that your conviction can still be expunged from your file. However, while this isn't impossible following a probation breach, it could be challenging to acquire it if you've been convicted of the violation. That is why, if you're facing a probation violation hearing, you'll require the best legal representation possible.
While it is possible to self-represent, it's not recommended. Your lawyer will save you lots of time and frustration. Your time is far too valuable to devote hours to litigation matters. By yourself, you'll take weeks verifying your eligibility, trying to learn how to prepare your case, and gathering court documentation. This time would be much better invested in something useful. In most cases, attorney fees are reasonable and relieve you of unnecessary stress.
Find a Criminal Defense Attorney Near Me
If you have been charged with a probation violation, you'll require the assistance of a qualified and experienced lawyer. A probation violation offense can be heartbreaking, especially if it results in incarceration. At the Riverside Criminal Defense Attorney Law Firm, we're committed to providing the best counsel for your legal issues and even defending you in the courtroom if you've violated your probation. We will build a solid defense strategy based on the details of your case that can persuade the courts to drop the charges or reduce the penalties. Before your case goes to trial, we can potentially negotiate with the prosecutor to pursue reduced charges in court. Call us today at 951-946-6366.