Misdemeanor Probation Violation in California

There are five possible outcomes if a person in California violates the terms of misdemeanor probation. The judge can:

revoke probation and imposing the defendant’s original sentence,
revoke probation and imposing the maximum sentence authorized under California law,
modify the probation terms and conditions,
excuse the violation, and/or
order community service or a substance abuse treatment program.

Prior to revoking probation, a judge must order a probation revocation hearing. This is a court proceeding that gives the defendant the chance to explain his/her probation violation.

Almost anyone convicted of a misdemeanor offense can request summary probation. Typically, though, it is awarded to:

first-time offenders, and
juvenile offenders.

Note that judges have wide discretion in drafting the specific terms and conditions of an offender’s probation. These terms and conditions will also depend on the specific offense committed.

Sometimes, though, some conditions are required by law. For example, defendants convicted of a domestic violence crime must complete a batterer’s program of treatment.

Note also that there are two types of probation under California law. These are:

misdemeanor probation, and
felony (or formal) probation.

While a judge may award the former in cases involving misdemeanor criminal charges, a judge may award the latter in felony cases.

Our California criminal defense attorneys will highlight the following in this article:

Probationer in orange jumpsuit behind bars

In some cases, judges punish defendants who violate their probation with jail.

1. What happens if a probationer violates his/her misdemeanor probation?

There are five possible outcomes if a probationer violates the terms and conditions of his/her misdemeanor probation. These include a judge:

revoking probation and imposing the defendant’s original sentence,
revoking probation and imposing the maximum sentence authorized under the law,
modifying probation (meaning changing the terms and conditions of the probation),
excusing the violation (meaning the probationer continues on his/her probation as if nothing happened),
ordering community service or a substance abuse treatment program (the latter is often imposed if the probationer committed a violation that involved drugs or alcohol).¹

As to the first outcome, note that there are times when, upon sentencing a defendant, a judge orders a sentence term, but then suspends it and orders probation in lieu of jail time. If a probation violation occurs in this scenario, the judge can then sentence the probationer to the original jail term that was suspended.

As to the second outcome, note there are times during sentencing that a judge simply awards probation (without suspending any jail time). If a probation violation then occurs, the judge has the option of revoking probation and sentencing the probationer to the maximum sentence allowed under the law.

2. What is a probation revocation hearing?

A probation revocation hearing is a court proceeding that must take place prior to a judge revoking probation. The hearing is held so that the defendant can explain why he/she violated his/her probation.²

This hearing is sometimes referred to as a “probation violation hearing.”

At the end of the hearing, the judge will decide whether to:

revoke probation, and
impose a jail or prison sentence.

3. Who can be sentenced to misdemeanor probation?

Almost anyone that receives a misdemeanor conviction can request summary probation in California.³

The purpose of probation is to:

protect the public,
restore the victim, and
rehabilitate the offender.⁴

Courts typically give summary probation to first-time and juvenile offenders. But even people with prior convictions may be eligible to receive it.

A common condition of probation is random drug testing.

4. What are the terms and conditions of probation?

Judges have a great deal of discretion in crafting probation terms and conditions. This is provided that they are:

fitting and proper in the eyes of justice,⁵ and
reasonable and logically related to the offense.⁶

Some common conditions of summary probation can include that the defendant:

pay fines, court costs, and/or victim restitution,⁷
participate in individual or group therapy,
complete treatment programs, such as anger management,
submit to random drug tests,
show up at all court dates in a criminal case, and
abstain from alcohol and/or drugs and attend a substance abuse program (in cases involving a DUI conviction or certain drug crimes).

Note that in some cases specific probation conditions are required by the laws of the State of California. For example, people convicted of certain crimes of domestic violence must complete a batterer’s program of treatment.

5. How is misdemeanor probation different than felony probation?

There are two types of probation under California law. These are:

misdemeanor probation, and
felony probation (also known as “formal probation”).

Misdemeanor probation is awarded in cases involving a misdemeanor conviction. Felony probation is awarded in cases of felony convictions.

There are other differences between these two forms of probation. For example, in most misdemeanor cases the judge does not request a “probation report” from the county probation department. An exception is misdemeanor cases involving sex crimes.⁸

Further, with misdemeanor probation, there is no “misdemeanor probation officer.” Instead, probationers go back to court every now and then to report to a judge on their progress.

Legal References:

California Penal Code 1203.3a PC. See also People v. Leiva (2013) 56 Cal.4th 498.
California Penal Code 1203.3b1 PC.
An exception is people with two prior felony convictions. See California Penal Code Section 1203 (4) PC.
California Penal Code 1202.7 PC.
California Penal Code 1203.1j PC.
People v. Carbajal (1995) 10 Cal.4th 1114.
California Penal Code 1202.4 PC.
California Penal Code 1203(b) PC.

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