California criminal charges are categorized into two primary groups: felonies and misdemeanors. The primary difference between these two is that felony offenses are more severe and expose defendants to time in state prison if convicted, while misdemeanor offenses are less severe. Even though misdemeanors can subject you to incarceration if convicted, the confinement is restricted to county jail instead of state prison.
Being sentenced to misdemeanor probation is part of the state's criminal justice process. For non-violent felony cases or felony cases for first-time offenders, the judge could grant formal probation.
Apart from considerations like visitation, living conditions, and overall quality of life, the primary benefit of being in jail instead of prison is that custody credits are frequently accrued faster, meaning an inmate has a higher potential for a shorter sentence. Other than that, jail inmates are generally released substantially faster than their sentence on paper would indicate due to overcrowding.
However, for most people facing misdemeanor charges, particularly first-time non-violent offenders, a conviction doesn't lead to incarceration. Instead, the accused is sentenced to misdemeanor probation. This article defines misdemeanor probation features and how they're different from felony probation. A skilled attorney can substantially increase your odds of receiving misdemeanor probation instead of jail.
An Alternative to Jail Time
When convicted of a misdemeanor charge for a relatively minor criminal offense such as disorderly conduct, graffiti, or prostitution, you can face a wide range of punishments. These punishments include jail time, fines, community service, misdemeanor probation, or a combination of any. Misdemeanor probation, also called informal probation or summary probation, is an alternative to a jail term in misdemeanor convictions where defendants are under the direct supervision of the court instead of reporting to an assigned probation officer. Thus, you can serve your sentence while living with your family and under supervision rather than face a jail term.
Misdemeanor probation has terms and conditions you’ll be required to comply with, slightly different from those of felony probation, also known as formal probation. These conditions may include doing community service, paying fines or restitution, attending counseling sessions, or participating in specific classes or treatment. You’ll periodically go back to court to deliver progress reports that show your compliance with the imposed terms and conditions.
Misdemeanor probation usually lasts between one and three years, although it could last up to five years depending on what the laws of a specific crime require. For instance, 1st, 2nd, and 3rd DUI offenses carry misdemeanor probation of up to five years. During this period, you must adhere to all the court-imposed conditions. Failure to follow probation conditions may lead to the judge taking the following steps:
- Give you a warning, then reinstate probation.
- Revoke your probation sentence, then reinstate your original jail term.
- Modify the probation conditions with stricter ones.
Almost Everyone Can be Subject to Summary Probation
Virtually anyone found guilty of a misdemeanor offense can face an informal probation sentence. The probation aims to protect the public, rehabilitate the culprit, deter future criminal conduct, and restore the victim. Ordering probation instead of a jail sentence does not endanger the public but imposes consequences on the victim's behalf and punishes the individual found guilty of the offense while not completely destroying their life. Put otherwise; a convicted person can be rehabilitated while also being punished. In essence, it is giving you a second chance.
Thus, courts usually impose informal probation to juvenile and first-time adult offenders, although people with priors may also be eligible. It’s all based on the court’s evaluation of what you’ll do with the subsequent/second chance and the specific facts surrounding the current and prior conviction/convictions.
Another idea behind summary probation is that California jails are overcrowded, and jailing a person for a relatively minor offense is not in the best interests of the individual or society.
Trusting your case with a skilled criminal defense lawyer will ensure you’re treated fairly and your legal rights are well-protected at each phase of the criminal process. It will also significantly increase your odds of receiving misdemeanor probation rather than a county jail sentence.
In most misdemeanor proceedings in California, summary probation is a plea bargain between the prosecution and defense attorney. If facing misdemeanor charges, you shouldn’t try fighting the charges alone. You shouldn’t also accept any of the prosecution’s plea deals unless your defense lawyer recommends that it’s ideal. If need be, respectfully insist you have the right to be silent and to have a lawyer present during any plea negotiating or questioning.
In other instances, misdemeanor probation won’t be part of a plea agreement or deal, but the court will simply impose it as part of a sentence during sentencing.
Summary probation does usually — but not always — mean no jail term. However, if you must serve any jail term as part of an informal probation sentence, the time will be substantially shorter than the jail sentence without probation.
Note that offenders being represented by private lawyers are highly likely to receive better deals compared to those who retain public defendants because private lawyers have the resources and time to pursue the best resolution possible for every client.
In particular cases, an accused may prefer serving time in county jail once and for all instead of adhering to probation terms and conditions for months. No judge will force probation on you if you don’t want to have it. Your attorney will help you determine whether it's sensible to refuse a probation sentence.
Informal Probation Differs from Formal Probation
Both California summary and formal probation require that you comply strictly with the probation conditions. However, there are many critical differences between the two.
In misdemeanor proceedings, unless your case is of a sex offense, a judge won't ask the probation department to provide your probation report before ordering a sentence. You won't report to a probation officer either. Instead, you report directly and periodically to the court.
Judges in California have a high discretion in determining the precise probation terms and conditions in any given case. The state's law provides that the terms and conditions of summary probation be fitting and proper to the end that justice may be done. They must also be logically and reasonably related to the criminal offense.
While the law gives judges authority, it also establishes various specific probation conditions. For instance, those convicted of particular domestic violence-related misdemeanors have to complete a batterer's treatment and counseling program. Other misdemeanor probation conditions that judges frequently impose include:
- Comply with all laws. You shouldn't be rearrested or recharged while serving informal probation.
- Avoid contact with criminals.
- Abstain from drugs or alcohol in case of a drug-related or DUI criminal
- Seek and obtain steady employment.
- Community service.
- Participating in individual/group treatment and counseling.
- Paying victim restitution, court costs, and fines.
- Complete various treatment programs like anger management.
- A restraining/protective order is being issued against you (if your crime was domestic violence-related).
- Attend an alcohol/drug abuse program (if it was a DUI/drug crime).
- Make all court appearances as required.
- Don't operate a vehicle with any detectable alcohol amount or decline to submit to chemical DUI breath or blood testing (if on DUI probation).
- Install an IID (ignition interlock device) or Secure Continuous Remote Alcohol Monitor (SCRAM). These are generally ordered if you have multiple DUI convictions.
- Agree to random drug tests.
The law gives the judge the power to modify your probation terms. You, the prosecution, and the judge can initiate the modification, and it isn't always in your favor. For example, the judge may choose to increase the period you must serve your probation sentence or increase the time you must be in jail if you violated probation. However, in most cases, modifying probation servers to the defendant's advantage.
When a judge imposes a summary probation sentence on you, you must report back to them periodically. They will review your case, progress, and status then discuss any particular concerns, issues, or questions. If you fail to appear in court as scheduled, you will be considered to have violated probation. This will lead to the judge issuing a bench warrant for your arrest. On the contrary, good progress moves you a step closer to completing your probation.
Travel Restrictions and Summary Probation
Persons on informal probation will generally not face any travel restrictions. This is also another difference between summary and formal probation. However, you remain obliged to adhere to all other conditions. Therefore, practically, the terms and conditions imposed might make it challenging for you to travel out of the state or country. If you aren't sure whether or not you can leave the state/country, your attorney can evaluate the terms. You could also file a petition with the court requesting a modification of your probation terms so it can be possible for you to relocate or travel.
Violating Probation Has Consequences
When you fail to adhere to any terms and conditions of your misdemeanor probation, the judge might overlook that violation and give you a warning, impose harsher conditions, or cancel the probation sentence entirely and impose a jail term. But before all this, the judge will schedule a probation violation hearing to determine whether you indeed are guilty. In this hearing, you'll have the chance to confirm or deny the accusations against you. You also enjoy most of the same rights as you would in a criminal trial, including the right to:
- Attorney representation.
- Present any extenuating or mitigating circumstances that might have contributed to your supposed probation violation.
- Call witnesses and use the court's subpoena power to force witnesses to show up in court and testify on your behalf.
- Disclosure of the proof against you.
- To testify on your behalf.
Unlike a criminal trial, a probation violation hearing occurs only before a judge. You’re not entitled to be heard before a jury. In this hearing, the hearsay proof is admissible. That is not true for a trial. Put otherwise; you do not have the legal right to ask questions of those who've given statements against you.
The primary difference is the standard the prosecution must meet to show you violated your probation terms and conditions. Rather than having to demonstrate beyond any reasonable doubt that you violated your probation terms and conditions, the prosecution has to simply show by a preponderance of the evidence that you're guilty. That is a much lower bar.
Once the hearing is over and the court determines that you violated probation, that is when it’ll take any of the above actions. If the judge revokes probation and sends you to jail, your sentence will be up to the maximum penalty for the original offense. You could also be subject to an additional incarceration period if your violation involved new criminal charges. Additionally, you won’t receive any credit towards the length of the sentence based on the time you previously spent in jail, prison, or a residential counseling/treatment program.
The judge considers several factors before pronouncing a sentence for misdemeanor probation violation. Firstly, they'll consider how severe the violation is. The violation could be the failure to submit to drug testing or failing the drug test if drug testing was one of the probation conditions. It could also be committing another offense, failing to pay restitution or a fine, or failing to adhere to any other court order (like enrolling in classes, not frequenting a given location such as a person's business or residence, or completing community service).
The judge also considers how you present yourself to the court. It isn’t good if you're arrested for committing another offense and presented to the judge when out on probation. It's better if you voluntarily bring yourself to court and resolve the issue, suggesting an attitude of responsibility, respect for the judicial process, or a sense of urgency.
Should the judge issue a bench or arrest warrant against you for failing to adhere to the probation conditions, you want to take yourself to court as fast as possible- voluntarily. It's also worth noting that you should wear clean, neat clothes, comb your hair, and respect the judge. It's wise never to interrupt the judge.
Finally, the judge will consider your criminal history, how long you were on probation before the violation occurred, and the probation department's recommendations. They'll also pay specific attention to whether you violated probation previously or were reinstated on probation in the pending case. Often, the court comments that probation isn't a right but a privilege. Therefore, if you violated whatever trust the judge placed in you by disobeying probation terms, they're unlikely to reinstate you on probation. Rather, you may be subject to time in jail.
Note that there's a statute of limitations for probation violation. The law permits the judge to terminate, modify, or revoke your probation, but only when it's active. This means the statute of limitations for probation violation expires when your probation period ends. Put otherwise; the DA can't prosecute you for violating probation if the supposed violation is discovered after your probation period is not active anymore. All charges for probation violation must be brought during your probation period.
Early Probation Termination
If you satisfy all the terms and conditions of your probation ahead of schedule and without any violations, the judge has the power to terminate the misdemeanor probation term early. However, most judges won't grant early termination in cases that involve driving while intoxicated or domestic abuse.
And when you complete serving your summary probation, you can have your conviction record expunged. Only the police can access your expunged conviction record —not employers.
Will Probation Affect Your Employment Chances?
Most employers won't ask you about your misdemeanor convictions. If you're serving informal probation and your prospective employer or current employer wants to know about the conviction, you want to be truthful. Disclosing your misdemeanor conviction doesn't automatically mean you won't be considered for the job. A probation sentence instead of jail will at times convince an employer to consider hiring you.
If facing misdemeanor or even felony charges, the most critical priority is to obtain expert legal representation right away. Until you contact a criminal defense lawyer, do not record any statement with the police. It's worth repeating that you should respectfully insist on the legal right to a lawyer’s presence at the time of questioning.
If you're innocent, your attorney will fight for you aggressively for a charge dismissal or acquittal. But if the proof of your guilt is compelling and you can't avoid a conviction, your lawyer may be capable of negotiating a plea bargain, which may include probation. Should the lawyer negotiate and recommend a plea bargain, you should take it since the alternative most likely means serving a jail sentence.
Find a Los Angeles Criminal Defense Attorney Near Me
If you or your loved one needs counsel concerning the imposition of informal probation in misdemeanor cases in Los Angeles, CA, courts, reach out to our expert team of criminal defense lawyers. At The Los Angeles Criminal Defense Attorney, our lawyers have a deep understanding of criminal law. We will help you establish whether or not you qualify for misdemeanor probation instead of jail. We will also fight to ensure you receive a favorable ruling, including a charge dismissal or reduction, acquittal, or negotiating for a probation plea deal. Contact us at 310-564-2605 today to discuss your case.