Criminal Defense Attorneys Representing People Accused of Violating the Terms of Probation
In the state of California, there are two types of probation. Informal (summary) probation, and formal (felony) probation. Under California Penal Code Section 1203, a judge can grant probation instead of time in a Los Angeles County jail or a California state prison, after you have been convicted. In simple terms, being placed on probation is typically a way to avoid jail time. Its purpose is to allow you to become rehabilitated without being incarcerated.
Judges and prosecutors consider it a privilege, not a right. However, granting probation will require you to comply with specific terms of the probation. If the court places you on informal probation, the judge will order you to obey all laws as well as any other conditions the court deems appropriate, such as AA classes and domestic violence classes.
If the court places you on formal probation, you will not only be required to obey all laws and imposed other conditions, but you will have to check in regularly with your probation officer. If the court has reason to believe you are in violation of probation, either because you broke the law, failed to follow a condition of probation, or failed to check in with your probation officer, the court will hold a probation violation hearing.
This is commonly known as a probation revocation hearing. The hearing is similar to a trial, such as having witnesses and evidence presented in court. You will also have the legal right to an attorney. However, there is no jury to decide guilt or innocence. Instead, the judge will make the final decision on whether you violated probation. The Los Angeles county prosecutor does not even have to prove its case against you beyond a reasonable doubt.
They only have to show you are in violation by a preponderance of the evidence. This means if their evidence shows that it is 51% likely you violated probation, the judge will typically rule you are in violation. Since the standard of proof is much lower, it's critical that you are well prepared for the probation violation hearing and have an experienced Los Angeles criminal defense lawyer on your side.
If the judge rules that you violated probation, you can be sent to a Los Angeles County jail on misdemeanor cases, or sent to a California state prison on felony cases. The court also has the option of placing you back on probation, possibly with additional conditions to follow. Arrested in another state with an active Los Angeles County probation violation warrant? See related information: California Extradition Laws.
If you have been accused of violating your probation, you need to immediately consult with a Los Angeles criminal defense lawyer at Eisner Gorin LLP. Having an experienced lawyer who has handled cases in the judge's courtroom where the hearing will take place can make a huge difference in the outcome of your hearing.
It's important to remember the judge, not a jury, makes the final decision. Our criminal defense attorneys will need to review all the details of your alleged probation violation in order to determine an effective strategy to keep you out of jail. Now that we have covered a basic overview of a probation violation above, let's take a closer look at the different types of probation, terms of probation, and legal penalties below.
California Penal Code Section 1203(a) - Misdemeanor Probation
Under California Penal Code Section 1203(a), misdemeanor probation is legally defined as:
(a) Probation means the suspension of a sentence. As used in this code, “conditional sentence” means the suspension of the execution of a sentence and the order of release in the community subject to conditions established by the court without the supervision of a probation officer. It's the intent of the Legislature that both conditional sentence and probation are authorized in any code as a sentencing option for infractions or misdemeanors.
Misdemeanor probation is commonly called “summary” or “informal” probation. It's an alternative to spending time in jail. Los Angeles criminal courts will normally grant summary probation to first time offenders and juveniles, but defendants with prior convictions could potentially receive misdemeanor probation.
This allows convicted defendant's to serve their sentence under the supervision of the court instead of a jail cell. Misdemeanor probation will typically last for 1 to 3 years, but will also have specific condition you must follow. These probation conditions can include paying fines or restitution, community service, attending counseling, among others.
If you fail to comply with any of the ordered condition of probation, the judge can revoke your probation and send you to jail. Criminal court judges in Los Angeles County have wide discretion on what specific terms of probation they may order, but in some cases, there are probation conditions that are legally required. For example, if you are convicted of a domestic violence related case, you will be required to complete a batterer's program. Some common conditions of misdemeanor probation include:
- Mandatory fines or restitution to the victim
- Community service hours or Caltrans work
- Requirement that you seek gainful employment
- Requirement that you abstain from alcohol or drug use
- Requirement you participate in individual or group counseling
- No new criminal charges or violations of the law
If you are placed on misdemeanor probation, you will be required to return to court at some point in order to give the judge a progress report. If you fail to appear, known as an “FTA,” the judge will issue a bench warrant for your arrest. During your progress report, the judge has the discretion to modify the terms of your probation. If the judge determines you violated probation, they can extend your probation period, or increase the time you have to spend in jail.
Under California Law, the judge could allow you to an early termination of probation if you have completed all your conditions early without any violations of the terms. Once your probation period is over, you have the option to file a petition to get your misdemeanor conviction expunged. If you fail to successfully complete the terms of your probation, the judge has the option to:
- Overlook your violation and reinstate probation on the same terms
- Modify your probation with stricter terms
- Revoke your probation and sentence you to county jail or state prison
It's important to keep in mind that before a judge revoke's your probation, there will be a probation violation hearing where you will be given an opportunity to explain the alleged violation or deny a violation occurred. If you lose or fail to attend the probation violation hearing, the judge will revoke your probation and sentence you to jail. Contact a Los Angles criminal defense lawyer at our law firm for more information.
California Felony Probation
Felony probation is commonly known as “formal probation,” and it's simply an alternative to spending time in prison. If you are convicted of a felony crime in Los Angeles County, it will allow you to serve all or some of your sentence under the supervision of a probation officer. Felony probation will normally last for a period of 3 to 5 years.
You will be required to report on a monthly basis to your assigned probation officer and they will submit a periodic report to the judge, known as a probation report. You will also be required to pay the expense of formal probation and the probation officer will typically come to your residence to inspect living conditions and confirm you are living where you claim.
Under California Penal Code Section 1203.7(b), when you are released on formal probation and committed to the supervision of a probation officer, they:
Shall keep a complete record of the history of the case and the probationer, including their age, sex, residence, education, habits of temperance, marital status, and the conduct, employment, occupation, and the condition of the person committed to their care during the term of probation. This record will be open to the inspection of the court or all magistrates and the chief of police or other head of the police.
If you violate the terms of your probation, the judge has the option to revoke probation and send you to a Los Angeles County jail or California state prison for the maximum term of your original sentence. Another way to describe felony probation is that it will allow you to serve your sentence “out of custody” as long as you successfully comply with the probation conditions ordered by the judge and probation officer.
Under felony sentencing laws in California, after you are convicted of a felony crime, the judge has the option to give you a prison sentence or probation. If the judge grants probation, it's known as “suspending execution” of the sentence for as long as you comply with the conditions of probation. The judge also has the option of placing you on probation without ordering a prison sentence at that time.
Difference Between Misdemeanor and Felony Probation
In California, misdemeanor probation is different from felony probation in a few ways. If you are placed on misdemeanor probation, you will NOT have a probation officer whom you will have to visit in their office. Instead, you will have to go back to court at certain points to provide the judge with a progress report.
If you are being sentenced to felony probation, the judge will first obtain a probation report from the Los Angeles County Probation Office. After sentencing, you will under mandatory supervision by an assigned probation officer where you will typically be required to make monthly visits.
Eligibility for California Felony Probation
If you were convicted on a felony offense, the judge and the Los Angeles County Probation Department will typically coordinate to decide if you can be rehabilitated. The probation department will evaluate your eligibility for probation and will make a recommendation to the judge.
This will include if they believe probation is appropriate, how long, and the conditions of probation. The judge will be looking for different various factors to determine if you should be placed on probation instead of sentencing you to a California state prison. These factors include:
- Your prior criminal record, including juvenile
- The nature of your felony conviction. In order to be eligible, your crime must not be violent or sexual related. Also, whether you were armed
- The amount of monetary loss to the victim
- Your willingness to comply with the ordered terms of felony probation
- The potential impact of a prison sentence on your family
At the sentencing hearing, you will have an opportunity to argue why you should be placed on probation instead of sent to prison, in the end, the judge will make the final decision. Contact a Los Angeles criminal defense lawyer at Eisner Gorin LLP for additional information.
Common California Felony Probation Conditions
If you are granted felony probation, it will typically last for 3-5 years and you will be required to meet regularly with a probation officer. Additionally, there will be specific conditions you must follow. These probation conditions include:
- You can't violate any laws, but does not include traffic infractions
- Submit to drug or alcohol testing
- Complete any community services hours ordered by the court
- You can't associate with known drug users or gang members
- You have to pay any restitution ordered by the court
- You must complete any programs ordered by the court (drugs, alcohol, etc)
- You can't leave the county where you live without permission from probation officer
- You are required to submit to all searches of your person or property by law enforcement, even if they don't have a warrant
There could be other conditions, based on the nature of your conviction. For example, if you were convicted of a sex crime, you might have to register as a sex offender under California Penal Code section 290.
Felony Probation Violations in California
As stated above, if your Los Angeles County probation officer believes you violated the terms of your probation, you can expect to face harsh legal consequences. Your probation officer could have you arrested and placed in jail on a “no bail” hold pending a court date. This means you will remain in custody until there is a felony probation violation hearing.
At the hearing, you will be told the alleged violations and given an opportunity to deny or admit the violations. You have a legal right to have a criminal defense lawyer to represent you. The court will decide if you are guilty of violating any of the terms of your probation. If the judge rules you violated felony probation, they have several options.
These options include (1) revoke your probation and send you to a California state prison for the maximum time for the original felony charge, (2) revoke and reinstate your probation, but with new terms, including some county jail time and extend the length of probation, (3) order you to serve time in a sober living home or drug rehabilitation facility. It's important to note that you will most likely have to spend some time in custody if you were found guilty of violating your felony probation.
Contact a Los Angeles Criminal Defense Lawyer
If you have been accused of violating the terms of your probation, you need to consult with a Los Angeles criminal defense attorney at Eisner Gorin LLP. Our lawyers can represent you throughout the entire probation violation process.
With an experienced attorney on your side, we might be able to obtain a favorable outcome in your case, including getting your probation reinstated. Our lawyers will need to review the details of the alleged probation violation in order to prepare a defense. We offer a free immediate response. Call our law office at 877-781-1570.