Probation

Probation is the suspension of the imposition or execution of a sentence and the release of the defendant into society under the direction of the court ("informal" or "court" probation) or under the supervision of a probation officer ("formal" or "supervised" probation). Cal. Pen. Code s. 1203(a) Opens in New Window Informal probation is more common in misdemeanor cases and formal probation is more common in felony cases.

Probation can include a period of time in the county jail before the defendant is released back into society on probation. ( Cal. Pen. Code s. 1203.1 Opens in New Window ) The court can also impose other conditions of probation that are reasonably related to the conviction. For example, the court could order that someone who has repeatedly been found drunk in public ( PC 647 (f) Opens in New Window ) is not to be in or near any bar for the duration of the probationary period. The courts have wide discretion to impose conditions on probation that are designed to protect the public and increase the likelihood of rehabilitation for the defendant.

The length of probation can vary widely. Although sometimes probation can be longer, generally, probation can only be imposed for the same amount of time that incarceration could have been given. In other words, if someone could have been sentenced to nine years in prison, the court could impose a nine year probation term instead. More commonly, probation is imposed up to five years in felonies and up to three years in misdemeanor cases. ( Cal. Pen. Code s. 1203.1 Opens in New Window ) Some special cases in misdemeanors exist, though, including: five years probation for driving under the influence (DUI) ( VC 23600(b)(1) Opens in New Window ), being under the influence of a controlled substance ( H&S 11550(a) Opens in New Window ) , and contributing to the delinquency of a minor ( PC 272 Opens in New Window ) .

Upon conviction of a felony by a jury or upon entering a guilty or no contest plea to a felony, the court will direct the defendant to meet with probation. The probation department will interview the defendant to decide whether he is a suitable candidate for probation and whether probation feels jail time before probation begins would benefit the defendant. The probation officer then writes a report and submits it to the court. The court usually follows the recommendations of the probation department, so it is important for the defendant to be open and honest with the probation department so an accurate assessment and recommendation can be made.

The court can refer defendants to probation before a plea agreement is reached or in misdemeanor cases, but due to budget and probation time restraints, this practice is rare.