If you are convicted of a misdemeanor, or of certain felonies, you may be eligible for probation as an alternative to serving a jail term. Note that while most felony convictions are eligible for probation, some are not, unless exceptional circumstances are shown. Some defendants may not be eligible for probation. For example, defendants who have two or more prior felony convictions are not eligible for probation. Defendants with a prior strike, and who are currently on probation are also not eligible for probation. Section 1203 provides as follows:
(a) As used in this code, “probation” means the suspension of
the imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer. As used in this code,
“conditional sentence” means the suspension of the imposition or
execution of a sentence and the order of revocable release in the
community subject to conditions established by the court without the
supervision of a probation officer. It is the intent of the
Legislature that both conditional sentence and probation are
authorized whenever probation is authorized in any code as a
sentencing option for infractions or misdemeanors.
(b) (1) Except as provided in subdivision (j), if a person is
convicted of a felony and is eligible for probation, before judgment
is pronounced, the court shall immediately refer the matter to a
probation officer to investigate and report to the court, at a
specified time, upon the circumstances surrounding the crime and the
prior history and record of the person, which may be considered
either in aggravation or mitigation of the punishment.
(2) (A) The probation officer shall immediately investigate and
make a written report to the court of his or her findings and
recommendations, including his or her recommendations as to the
granting or denying of probation and the conditions of probation, if
(B) Pursuant to Section 828 of the Welfare and Institutions Code,
the probation officer shall include in his or her report any
information gathered by a law enforcement agency relating to the
taking of the defendant into custody as a minor, which shall be
considered for purposes of determining whether adjudications of
commissions of crimes as a juvenile warrant a finding that there are
circumstances in aggravation pursuant to Section 1170 or to deny
(C) If the person was convicted of an offense that requires him or
her to register as a sex offender pursuant to Sections 290 to
290.023, inclusive, or if the probation report recommends that
registration be ordered at sentencing pursuant to Section 290.006,
the probation officer’s report shall include the results of the
State-Authorized Risk Assessment Tool for Sex Offenders (SARATSO)
administered pursuant to Sections 290.04 to 290.06, inclusive, if
(D) The probation officer shall also include in the report his or
her recommendation of both of the following:
(i) The amount the defendant should be required to pay as a
restitution fine pursuant to subdivision (b) of Section 1202.4.
(ii) Whether the court shall require, as a condition of probation,
restitution to the victim or to the Restitution Fund and the amount
(E) The report shall be made available to the court and the
prosecuting and defense attorneys at least five days, or upon request
of the defendant or prosecuting attorney nine days, prior to the
time fixed by the court for the hearing and determination of the
report, and shall be filed with the clerk of the court as a record in
the case at the time of the hearing. The time within which the
report shall be made available and filed may be waived by written
stipulation of the prosecuting and defense attorneys that is filed
with the court or an oral stipulation in open court that is made and
entered upon the minutes of the court.
(3) At a time fixed by the court, the court shall hear and
determine the application, if one has been made, or, in any case, the
suitability of probation in the particular case. At the hearing, the
court shall consider any report of the probation officer, including
the results of the SARATSO, if applicable, and shall make a statement
that it has considered the report, which shall be filed with the
clerk of the court as a record in the case. If the court determines
that there are circumstances in mitigation of the punishment
prescribed by law or that the ends of justice would be served by
granting probation to the person, it may place the person on
probation. If probation is denied, the clerk of the court shall
immediately send a copy of the report to the Department of
Corrections and Rehabilitation at the prison or other institution to
which the person is delivered.
(4) The preparation of the report or the consideration of the
report by the court may be waived only by a written stipulation of
the prosecuting and defense attorneys that is filed with the court or
an oral stipulation in open court that is made and entered upon the
minutes of the court, except that there shall be no waiver unless the
court consents thereto. However, if the defendant is ultimately
sentenced and committed to the state prison, a probation report shall
be completed pursuant to Section 1203c.
(c) If a defendant is not represented by an attorney, the court
shall order the probation officer who makes the probation report to
discuss its contents with the defendant.
(d) If a person is convicted of a misdemeanor, the court may
either refer the matter to the probation officer for an investigation
and a report or summarily pronounce a conditional sentence. If the
person was convicted of an offense that requires him or her to
register as a sex offender pursuant to Sections 290 to 290.023,
inclusive, or if the probation officer recommends that the court, at
sentencing, order the offender to register as a sex offender pursuant
to Section 290.006, the court shall refer the matter to the
probation officer for the purpose of obtaining a report on the
results of the State-Authorized Risk Assessment Tool for Sex
Offenders administered pursuant to Sections 290.04 to 290.06,
inclusive, if applicable, which the court shall consider. If the case
is not referred to the probation officer, in sentencing the person,
the court may consider any information concerning the person that
could have been included in a probation report. The court shall
inform the person of the information to be considered and permit him
or her to answer or controvert the information. For this purpose,
upon the request of the person, the court shall grant a continuance
before the judgment is pronounced.
(e) Except in unusual cases where the interests of justice would
best be served if the person is granted probation, probation shall
not be granted to any of the following persons:
(1) Unless the person had a lawful right to carry a deadly weapon,
other than a firearm, at the time of the perpetration of the crime
or his or her arrest, any person who has been convicted of arson,
robbery, carjacking, burglary, burglary with explosives, rape with
force or violence, torture, aggravated mayhem, murder, attempt to
commit murder, trainwrecking, kidnapping, escape from the state
prison, or a conspiracy to commit one or more of those crimes and who
was armed with the weapon at either of those times.
(2) Any person who used, or attempted to use, a deadly weapon upon
a human being in connection with the perpetration of the crime of
which he or she has been convicted.
(3) Any person who willfully inflicted great bodily injury or
torture in the perpetration of the crime of which he or she has been
(4) Any person who has been previously convicted twice in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony.
(5) Unless the person has never been previously convicted once in
this state of a felony or in any other place of a public offense
which, if committed in this state, would have been punishable as a
felony, any person who has been convicted of burglary with
explosives, rape with force or violence, torture, aggravated mayhem,
murder, attempt to commit murder, trainwrecking, extortion,
kidnapping, escape from the state prison, a violation of Section 286,
288, 288a, or 288.5, or a conspiracy to commit one or more of those
(6) Any person who has been previously convicted once in this
state of a felony or in any other place of a public offense which, if
committed in this state, would have been punishable as a felony, if
he or she committed any of the following acts:
(A) Unless the person had a lawful right to carry a deadly weapon
at the time of the perpetration of the previous crime or his or her
arrest for the previous crime, he or she was armed with a weapon at
either of those times.
(B) The person used, or attempted to use, a deadly weapon upon a
human being in connection with the perpetration of the previous
(C) The person willfully inflicted great bodily injury or torture
in the perpetration of the previous crime.
(7) Any public official or peace officer of this state or any
city, county, or other political subdivision who, in the discharge of
the duties of his or her public office or employment, accepted or
gave or offered to accept or give any bribe, embezzled public money,
or was guilty of extortion.
(8) Any person who knowingly furnishes or gives away
(9) Any person who intentionally inflicted great bodily injury in
the commission of arson under subdivision (a) of Section 451 or who
intentionally set fire to, burned, or caused the burning of, an
inhabited structure or inhabited property in violation of subdivision
(b) of Section 451.
(10) Any person who, in the commission of a felony, inflicts great
bodily injury or causes the death of a human being by the discharge
of a firearm from or at an occupied motor vehicle proceeding on a
public street or highway.
(11) Any person who possesses a short-barreled rifle or a
short-barreled shotgun under Section 33215, a machinegun under
Section 32625, or a silencer under Section 33410.
(12) Any person who is convicted of violating Section 8101 of the
Welfare and Institutions Code.
(13) Any person who is described in subdivision (b) or (c) of
(f) When probation is granted in a case which comes within
subdivision (e), the court shall specify on the record and shall
enter on the minutes the circumstances indicating that the interests
of justice would best be served by that disposition.
(g) If a person is not eligible for probation, the judge shall
refer the matter to the probation officer for an investigation of the
facts relevant to determination of the amount of a restitution fine
pursuant to subdivision (b) of Section 1202.4 in all cases where the
determination is applicable. The judge, in his or her discretion, may
direct the probation officer to investigate all facts relevant to
the sentencing of the person. Upon that referral, the probation
officer shall immediately investigate the circumstances surrounding
the crime and the prior record and history of the person and make a
written report to the court of his or her findings. The findings
shall include a recommendation of the amount of the restitution fine
as provided in subdivision (b) of Section 1202.4.
(h) If a defendant is convicted of a felony and a probation report
is prepared pursuant to subdivision (b) or (g), the probation
officer may obtain and include in the report a statement of the
comments of the victim concerning the offense. The court may direct
the probation officer not to obtain a statement if the victim has in
fact testified at any of the court proceedings concerning the
(i) No probationer shall be released to enter another state unless
his or her case has been referred to the Administrator of the
Interstate Probation and Parole Compacts, pursuant to the Uniform Act
for Out-of-State Probationer or Parolee Supervision (Article 3
(commencing with Section 11175) of Chapter 2 of Title 1 of Part 4)
and the probationer has reimbursed the county that has jurisdiction
over his or her probation case the reasonable costs of processing his
or her request for interstate compact supervision. The amount and
method of reimbursement shall be in accordance with Section 1203.1b.
(j) In any court where a county financial evaluation officer is
available, in addition to referring the matter to the probation
officer, the court may order the defendant to appear before the
county financial evaluation officer for a financial evaluation of the
defendant’s ability to pay restitution, in which case the county
financial evaluation officer shall report his or her findings
regarding restitution and other court-related costs to the probation
officer on the question of the defendant’s ability to pay those
Any order made pursuant to this subdivision may be enforced as a
violation of the terms and conditions of probation upon willful
failure to pay and at the discretion of the court, may be enforced in
the same manner as a judgment in a civil action, if any balance
remains unpaid at the end of the defendant’s probationary period.
(k) Probation shall not be granted to, nor shall the execution of,
or imposition of sentence be suspended for, any person who is
convicted of a violent felony, as defined in subdivision (c) of
Section 667.5, or a serious felony, as defined in subdivision (c) of
Section 1192.7, and who was on probation for a felony offense at the
time of the commission of the new felony offense.
Conditions of Probation and Violation of Probation
There are two forms of probation: Summary probation, which is granted in misdemeanor cases and sometimes (very rarely) in felony cases; and Formal probation, which is granted in felony cases. The difference between the two is in who you report to.
In summary probation, you report directly to the court, or to the judge. In its simplest form, summary probation means that you just have to stay out of trouble and not get arrested for anything else while you are on probation. If you do get a new arrest on summary probation, then you can be brought back into court and given jail time for violating probation. This jail time is separate from what you would get on the new case from the new arrest.
If there are conditions on your summary probation (such as community service) you may be ordered to report back to the judge to show that you have completed your requirements of probation.
If you are on formal probation, instead of reporting to the judge, you report to a probation officer who works for the county probation department. Typically you will first be ordered to report to probation within 48 hours of being sentenced, or within 48 hours of being released from jail, whichever is earlier. The judge will tell you where to report. Some of the larger courthouses in California have their own probation offices where you will report initially. From there you will be assigned a probation office near where you live.
If you are on formal probation, you typically forfeit your search and seizure rights under the Fourth Amendment. This means that police officers can search your home, your car and your person at any time for any reason.
If you have conditions on formal probation (such as CALTRANS labor, or registration as a drug user, sex offender or gang member), your probation officer will monitor your performance of these conditions.
If you violate probation, either by failing to perform conditions of probation, or by picking up a new arrest, you have a right to a formal hearing before a judge. You do not have a right to a jury trial because you already pleaded guilty in order to be put on probation.
In a probation violation hearing, you have a right to be represented by a lawyer, and your lawyer has a right to call witnesses in your behalf, and to cross examine witnesses from the prosecution (or probation department). The judge will decide whether you are in violation or not, and will decide how to sentence you if you are found in violation. The standard for a probation violation hearing is not proof beyond a reasonable doubt – it is preponderance of the evidence, which just means that the prosecution must prove a substantial likelihood that you are in violation.
Probation violations are covered by Section 1203.2 of the California Penal Code, which provides as follows:
(a) At any time during the probationary period of a person
released on probation under the care of a probation officer pursuant
to this chapter, or of a person released on conditional sentence or
summary probation not under the care of a probation officer, if any
probation officer or peace officer has probable cause to believe that
the probationer is violating any term or condition of his or her
probation or conditional sentence, the officer may, without warrant
or other process and at any time until the final disposition of the
case, rearrest the person and bring him or her before the court or
the court may, in its discretion, issue a warrant for his or her
rearrest. Upon such rearrest, or upon the issuance of a warrant for
rearrest the court may revoke and terminate such probation if the
interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation officer or
otherwise that the person has violated any of the conditions of his
or her probation, has become abandoned to improper associates or a
vicious life, or has subsequently committed other offenses,
regardless whether he or she has been prosecuted for such offenses.
However, probation shall not be revoked for failure of a person to
make restitution pursuant to Section 1203.04 as a condition of
probation unless the court determines that the defendant has
willfully failed to pay and has the ability to pay. Restitution shall
be consistent with a person’s ability to pay. The revocation,
summary or otherwise, shall serve to toll the running of the
(b) Upon its own motion or upon the petition of the probationer,
probation officer or the district attorney of the county in which the
probationer is supervised, the court may modify, revoke, or
terminate the probation of the probationer pursuant to this
subdivision. The court shall give notice of its motion, and the
probation officer or the district attorney shall give notice of his
or her petition to the probationer, his or her attorney of record,
and the district attorney or the probation officer, as the case may
be. The probationer shall give notice of his or her petition to the
probation officer and notice of any motion or petition shall be given
to the district attorney in all cases. The court shall refer its
motion or the petition to the probation officer. After the receipt of
a written report from the probation officer, the court shall read
and consider the report and either its motion or the petition and may
modify, revoke, or terminate the probation of the probationer upon
the grounds set forth in subdivision (a) if the interests of justice
The notice required by this subdivision may be given to the
probationer upon his or her first court appearance in the proceeding.
Upon the agreement by the probationer in writing to the specific
terms of a modification or termination of a specific term of
probation, any requirement that the probationer make a personal
appearance in court for the purpose of a modification or termination
shall be waived. Prior to the modification or termination and waiver
of appearance, the probationer shall be informed of his or her right
to consult with counsel, and if indigent the right to secure court
appointed counsel. If the probationer waives his or her right to
counsel a written waiver shall be required. If probationer consults
with counsel and thereafter agrees to a modification or termination
of the term of probation and waiver of personal appearance, the
agreement shall be signed by counsel showing approval for the
modification or termination and waiver.
(c) Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for any
time within the longest period for which the person might have been
sentenced. However, if the judgment has been pronounced and the
execution thereof has been suspended, the court may revoke the
suspension and order that the judgment shall be in full force and
effect. In either case, the person shall be delivered over to the
proper officer to serve his or her sentence, less any credits herein
(d) In any case of revocation and termination of probation,
including, but not limited to, cases in which the judgment has been
pronounced and the execution thereof has been suspended, upon the
revocation and termination, the court may, in lieu of any other
sentence, commit the person to the Department of the Youth Authority
if he or she is otherwise eligible for such commitment.
(e) If probation has been revoked before the judgment has been
pronounced, the order revoking probation may be set aside for good
cause upon motion made before pronouncement of judgment. If probation
has been revoked after the judgment has been pronounced, the
judgment and the order which revoked the probation may be set aside
for good cause within 30 days after the court has notice that the
execution of the sentence has commenced. If an order setting aside
the judgment, the revocation of probation, or both is made after the
expiration of the probationary period, the court may again place the
person on probation for that period and with those terms and
conditions as it could have done immediately following conviction.
If you are summoned into court for a possible probation violation, you could be taken into custody the minute you walk into the courtroom. Your freedom is at stake, and you should consult and hire an attorney before you go in.