Penal Code 1203.2 addresses modifying or terminating probation. This statute delineates the circumstances and procedures in which a court can alter an individual's probationary period. According to the law, the presiding judge holds the authority to revoke, modify, or amend the order on the suspension or execution of the sentence upon finding the probationer guilty of violating the terms of their probation. Before any prospective modifications or terminations of probation, it is incumbent upon the court to conduct a hearing. During this hearing, the judge conscientiously evaluates various factors, including the probationer's conduct throughout the probationary period, any infractions committed in contravention of the probationary terms, and the overarching interests of justice. Notably, the defendant is entitled to receive notice regarding the hearing and can present evidence, summon witnesses, and make arguments that outline why the courts should not revoke or modify their probation.
A probation violation is consequential. Given the gravity of the situation, you should seek legal counsel from one of our proficient Long Beach attorneys. Our team is experienced in navigating probation violation cases. The Michele Ferroni Pasadena Criminal Attorney Law Firm will work towards safeguarding your rights throughout the hearing process to secure a favorable outcome.
Differentiating Probation and Parole
Probation and parole are distinct forms of community supervision provided to individuals involved in the criminal justice system.
For probation, the court grants this supervision as an alternative to imprisonment or as part of a sentence, typically before or instead of jail or prison time. Probation can be applicable for various offenses, including misdemeanors and some felonies. The judge determines eligibility based on factors like the offense's nature, the individual's criminal history, and other pertinent considerations.
The primary objective of probation is to rehabilitate the individual and facilitate their reintegration into society while prioritizing public safety. Probation supervision involves monitoring compliance with court-imposed conditions and offering support and guidance to foster law-abiding behavior.
Conversely, parole is a form of supervision for individuals released from prison before completing their entire sentence. It comes into effect after a portion of the prison term has been served, granting conditional release into the community.
Parole is granted to individuals convicted of felonies who have demonstrated acceptable behavior during incarceration and have served a specific portion of their sentence. Eligibility for parole is contingent on the parole system's laws and regulations, considering factors including the offense type and the individual's conduct while in prison.
Parole concentrates on facilitating the transition from prison to the community, aiming to support successful reintegration, rehabilitation, and a reduction in the risk of recidivism through supervision, support services, and reentry programs.
Rules Related to Probation
Probationary rules generally fall into two categories:
Arrest and Termination of Probation Rules
When you are on probation and find yourself arrested for a new offense, the arrest has potential consequences for your existing probation. In these situations, the court holds the power, as granted by PC 1203.2, to make adjustments or end your probationary period. The court's response varies based on the circumstances of the case. It could decide to revoke your probation, subject you to stricter penalties, extend your probation duration, or modify the existing probation conditions.
Per Penal Code 1203.2a, authorization for your arrest can occur when there is probable cause to believe that you committed an offense or violated any term or condition stipulated within your probationary arrangement. This arrest can occur, with or without a warrant, contingent upon the unique circumstances related to your case. Furthermore, various authorities can initiate this arrest, including a probation officer, a parole officer, or a police officer.
Following your arrest and subsequent presentation before the court, the presiding judge will have two potential avenues to pursue. They could elect to:
- Grant your release from custody, thereby affording you freedom from confinement, or
- Exercise their authority by revoking and terminating your probationary status.
The ultimate determination the judge renders hinges on the intricacies and specifics of your case.
Imposition of Imprisonment Terms or Tougher Probation Terms
Under Penal Code 1203.2(c), if your probation is revoked and terminated while your sentence was initially suspended, the court retains the discretion to order you to fulfill the suspended sentence. This means you could be required to serve time in jail or prison. As an alternative to a traditional sentence, the court can direct you either to the Department of Corrections and Rehabilitation or the Division of Juvenile Facilities, depending on your age and circumstances.
Furthermore, instead of executing a suspended sentence after the revocation of probation, the court retains the discretion to reinstate probation, albeit imposing more rigorous and stringent conditions upon your probationary arrangement. These heightened conditions include:
- Increased supervision.
- Compulsory participation in counseling or treatment programs.
- Fulfilling community service obligations, or
- The imposition of other suitable penalties commensurate with the circumstances.
The increased sentences cultivate heightened compliance and accountability.
You will likely face a probation hearing if you:
- Commit a new offense while on probation, or
- Violate the terms of your probation.
At the hearing, several determinations are made, including:
- Custody status — The court decides whether you will be released or held in custody pending the hearing outcome.
- Probation termination or revocation — The court determines whether your probation will be terminated or revoked due to the violation.
- Sentencing options — If probation is revoked, the court considers sentencing options, including imposing a jail or prison sentence.
- Resumption of probation with tougher conditions — Alternatively, the court can reinstate probation but subject you to more stringent requirements to ensure compliance.
The specific outcomes of a probation violation hearing depend on the facts of your case, the severity of the violation, your compliance history, and other relevant factors.
Additionally, two important issues stand out in a probation hearing, namely:
- Your rights as a defendant, and
- The difference between a probation hearing and a trial for a crime.
Rights of a Probationer
In a California probation violation hearing, you enjoy rights akin to those provided to defendants in criminal jury trials. These rights include:
- The right to legal representation — You have the right to be represented by a criminal defense attorney who can advocate for your interests and provide guidance throughout the probation violation hearing process.
- The right to call witnesses — Similar to a criminal trial, you have the right to summon witnesses to testify on your behalf. Additionally, you can utilize the court's subpoena power to compel witnesses to appear and provide testimony.
- The right to present mitigating circumstances — You can submit any mitigating or extenuating circumstances that could have influenced or contributed to the alleged probation violation. This enables you to provide context and explanations relevant to the decision-making process.
- The right to testify — You possess the right to testify on your behalf during the probation violation hearing. This allows you to provide firsthand accounts or explanations regarding the alleged violation and present your perspective to the court.
- The right to disclosure of evidence — You have the right to be informed of and have access to the evidence against you. This ensures transparency and allows you and your defense attorney to review and challenge the evidence presented by the prosecution.
While these rights are available in a probation violation hearing, specific procedural and evidentiary rules govern their application.
Probation Hearings and Criminal Trial
A probation violation and a criminal trial are two distinct legal processes with crucial differences. Here are some notable differences between the two:
Nature of the Proceedings
A probation violation hearing is an administrative or quasi-criminal process that focuses on whether a probationer violated the terms and conditions of their probation. It is generally conducted before a judge rather than a jury.
On the other hand, a criminal trial is an adversarial proceeding conducted in a court of law. During the proceeding, the prosecution presents evidence and seeks to prove beyond a reasonable doubt that the defendant is guilty of a specific criminal offense.
Criminal cases involve a judge, a jury (in most cases), and adherence to formal rules of evidence and procedure.
The Burden of Proof
In a probation violation hearing, the burden of proof is typically lower than in a criminal trial. The prosecution must demonstrate the violation by a preponderance of the evidence, meaning it is more likely than not that a violation occurred.
In a criminal trial, the prosecution carries the burden of proving the defendant's guilt beyond a reasonable doubt. This higher standard requires the jury's conviction that there is no reasonable doubt about the defendant's guilt.
Consequences and Remedies
If a probation violation is proven, the court can impose various consequences, including modifying probation conditions, extending the probation term, revoking probation, and imposing a sentence, including jail or prison time.
In a criminal trial, if the defendant is found guilty, the court determines the appropriate punishment, including fines, probation, community service, or incarceration.
Common Probation Conditions
The specific probation conditions you must follow vary depending on the type of probation imposed by the court. Courts can impose:
- Felony, or
- DUI probation terms.
Let us look at each category.
Misdemeanor Probation Terms
Misdemeanor probation conditions must adhere to certain principles to ensure fairness and effectiveness. They should be:
- Fitting and proper — This means they should be appropriate and suitable to achieve the goal of justice in the given case.
- Reasonable and logically related — The conditions imposed must be reasonable and logically connected to the offense committed. They should be designed to address the specific issues and risks associated with the probationer's conduct, ensuring their rehabilitation and minimizing the likelihood of future offenses.
Misdemeanor probation conditions are either general or specific. General probation terms typically involve standard conditions that probationers must adhere to. They are similar in cases involving misdemeanor violations. However, specific conditions are particular to the case and tailored to the offense's nature or the probationer's circumstances.
General conditions include
- Obeying all laws.
- Reporting to a probation officer, and
- Attending required court hearings.
- Not leaving Long Beach or Los Angeles County without permission.
Specific conditions include:
- Attending counseling or treatment programs.
- Completing specified community service hours.
- Paying restitution fees to the victims.
- Maintaining employment or education, and
- Refraining from contact with specific individuals or places, especially if restraining orders are in place.
Felony Probation Conditions
When serving formal probation, the following are the likely terms you should adhere to. Like misdemeanor or summary probation, the terms are either general or specific.
Standard conditions include:
- Obeying all laws.
- Reporting to a probation officer when required, generally once a month.
- Attending required court hearings, and
- Not leaving Long Beach or Los Angeles County without permission.
Specific conditions include:
- Mandatory drug testing.
- Participation in rehabilitation or counseling programs, including group therapy sessions.
- Payment of restitution to victims.
- Submitting to random drug testing.
- Completing the community service hours.
- Submission to searches and seizures, and
- Honoring firearm possession restrictions.
DUI Probation Terms
Specific conditions are imposed when a person is sentenced to DUI probation. The exact terms depend on factors, including whether it is a first-time DUI conviction, a second DUI offense, a third DUI violation, or a subsequent "wet reckless" conviction. Here are some common conditions associated with DUI probation:
- Depending on the offense, the court could require the probationer to complete a DUI education or treatment program. The duration and level of the program vary depending on the number of DUI offenses.
- For certain DUI offenses, the court could mandate the installation of an IID in the probationer's vehicle. This device measures the driver's breath alcohol concentration and prevents the car from starting if alcohol is detected.
- DUI probation often involves a driver's license suspension. However, the court could allow the probationer to obtain a restricted driver's license for necessary travel, for example, commuting to work or attending court-ordered programs.
- The courts could require the probationer to report to a probation officer regularly during the probationary period. The officer monitors the probationer's compliance with the conditions and provides guidance or assistance as needed.
- The probationer must refrain from engaging in criminal activity and comply with all federal, state, and local laws.
- As a condition of DUI probation, the courts prohibit the probationer from consuming alcohol or drugs during the probationary period.
- The courts also impose fines and fees for the DUI offense and restitution to any victims involved. Per California’s zero tolerance law, you commit a crime when you drive with any detectable alcohol in your system.
- Submitting to random drug testing, which includes a DUI blood test or DUI breath test.
Not all probation violations result in arrest and further escalation of the probation terms. For minor or technical probation violations, for example, missing an appointment or failing to complete a minor requirement, the probation officer or court could opt to issue a warning rather than imposing immediate and severe consequences.
The issuance of a warning serves to remind the probationer of their obligations and foster compliance with the terms of probation. This approach grants the probation officer or court the discretion to allow the probationer to rectify the violation without subjecting them to more severe repercussions.
Note: The determination to issue a warning or pursue alternative action in response to a probation violation hinges upon the specific circumstances and the discernment exercised by the probation officer or court.
Traveling While on Probation
One of the probation conditions is to remain stateside while on probation. Traveling without the authority to do so is a probation violation.
When you are on felony probation, seeking permission from the probation department is generally mandatory before traveling out of state. However, if you are on misdemeanor probation, the necessity for permission relies on specific factors:
- Length of supervision — Typically, permission is required if your sentence encompasses at least one year of probationary supervision.
- Nature of the crime — Additionally, permission is necessary if the misdemeanor offense involves any of the following circumstances:
- A second or subsequent DUI (Driving Under the Influence) offense
- Actual or threatened physical or psychological harm
- Use or possession of a firearm
- A registrable sex crime
Obtaining travel permission can be time-consuming. It involves coordination between your probation officer and the state you intend to visit. Consequently, you must contact your probation officer well before your intended trip. It allows sufficient time for the request to be processed.
By initiating communication early on, you provide ample opportunity for your probation officer and the relevant authorities to evaluate and grant the required permissions. This will ensure compliance with the terms of your probation.
Early Probation Termination
In certain circumstances, obtaining an early termination of probation is possible. However, the decision rests on various factors and the court's discretion.
Early termination is not an automatic process and typically necessitates a formal request followed by a hearing before the judge. Here are several factors that the court considers when assessing a request for early termination:
- Demonstrating consistent compliance with all probationary terms and conditions, including completing required programs, community service, or counseling, can strengthen the case for early termination. The judge also evaluates the time you have served on probation.
- Maintaining a clean record throughout the probationary period and exhibiting positive behavior can significantly impact the decision in favor of early termination. Showing remorse for your actions helps persuade the judge to grant early probation termination.
- Serving a substantial portion of the probationary period without violations can bolster the argument for early termination.
- Genuine efforts toward rehabilitation, like actively seeking educational or employment opportunities, actively participating in counseling, or making positive lifestyle changes, can support the request for early termination.
- Fulfilling any financial obligations or restitution to victims as ordered by the court demonstrates a commitment to accountability and can be viewed favorably in the decision-making process.
- Securing the agreement and support of the prosecutor assigned to the case can enhance the likelihood of the court granting early termination. The courts assess your previous criminal record and the likelihood of reoffending.
- The judge also considers any hardships or adverse consequences experienced as a result of being on probation, such as limited job opportunities.
The Role a Probation Officer Plays
Probation officers assume a crucial role by furnishing the court with pertinent information and offering recommendations. The following are key responsibilities and functions carried out by a probation officer in a probation hearing:
The probation officer diligently collects and presents relevant details to the court concerning the probationer's adherence to the terms and conditions of probation. This includes insights into the probationer's conduct, progress, and any potential violations that could have transpired.
The probation officer diligently compiles pre-sentence investigation reports (PSIs) or probation violation reports (PVRs) for submission to the court. These comprehensive reports furnish the court with crucial information regarding the following:
- Your background.
- The nature of the offense committed, and
- The extent of your progress, or lack thereof, during the probationary period.
Assessing Risk and Needs
The probation officer thoroughly assesses your risk level and requirements. This evaluation entails considerations including the likelihood of recidivism, the necessity for rehabilitation or treatment programs, and the identification of specific interventions necessary to facilitate the probationer's successful reintegration into the community.
The probation officer proposes informed recommendations to the court regarding the most suitable course of action, drawing from their assessment and observations. These recommendations could include proposals for modifying the terms of probation, imposing stricter conditions, or petitioning for probation revocation in cases of violations.
Testifying in Court
The probation officer could be summoned to appear as a witness during the probation hearing, providing sworn testimony and responding to inquiries about your progress, behavior, and adherence to probationary requirements.
Collaborating With Other Stakeholders
The probation officer actively collaborates with other key individuals involved in the probation process. These include liaising with defense attorneys, prosecutors, and treatment providers to gather comprehensive information, ensuring a well-rounded understanding of the probationer's circumstances.
Contact a Criminal Defense Attorney Near Me
Enlisting the services of a criminal defense attorney is highly advisable when facing probation violations. A defense attorney brings specialized knowledge and expertise in criminal law, allowing them to navigate the complexities of probation violation cases. They can assess the strength of the case against you, identify potential defenses, and develop legal strategies specific to your circumstances.
At the Michele Ferroni Pasadena Criminal Attorney Law Firm, we protect your rights. We ensure that due process is followed and any evidence against you is obtained lawfully. We negotiate with the prosecutor on your behalf, seeking the most favorable outcome.
Furthermore, our Long Beach team provides invaluable support and guidance during what can be a stressful and overwhelming time. We alleviate your concerns, answer your questions, and provide reassurance throughout the probation violation process. Contact us today at 626-628-0564 for further assistance.