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Felony v. Misdemeanor Probation

Updated: Nov 13

In the criminal law, the term probation is defined as the release of an offender from detention, subject to a period of good behavior under supervision" - Oxford Dictionary.


Essentially, a probation sentence is period of supervision in lieu of jail or prison after the defendant’s criminal conviction.


Note: The term parole is another type of post-conviction supervision in lieu of detention (prison). This article deals with felony and misdemeanor probation as it relates to criminal sentencing before an order for incarceration (jail or prison). Information related to post-conviction parole supervision may be found by contacting a criminal defense attorney.


Felony v. Misdemeanor Probation


There are two types of criminal probation in California: Felony probation and misdemeanor probation. The type of probation granted, if any, depends whether or not the defendant is convicted of a felony or a misdemeanor crime. A felony and a misdemeanor are two different classifications of crime. Felonies are classified as serious crimes, such as murder, residential burglary, torture, stalking, etc. Misdemeanors are classified as less serious than felonies, but more serious than infractions. Misdemeanor crimes include common crimes such as first offense DUI without injury, trespass without injury, petty theft, public intoxication, revenge porn, domestic battery, and more.


For the most part, felony crimes carry longer sentences and greater punishments than their misdemeanor counterparts. For this reason, a felony probation sentence, if granted, is usually much longer and more invasive in the defendant’s life than a misdemeanor probation sentence. For more information, see Felony v. Misdemeanor.


Note: The length of a probation sentence usually ranges from one to four years in misdemeanor cases and from three to five years in felony case; however, some felony probation sentences can last much longer, especially in sex crimes type cases. Also, sometimes, a probation sentence is intended to last for a particular length of time, but the probation sentence is extended for some reasons. For example, if the defendant is placed on misdemeanor probation for two years after a conviction for keeping a house of ill repute, that probation sentence may be extended beyond two years and until such time as the defendant pays all her criminal fines related to the offense, even if this takes ten years!


Formal v. Informal Probation


Felony Probation: Formal probation is usually associated with a felony conviction. A formal probation sentence is supervised by a probation officer, as opposed to being supervised by the court. A probation officer monitors the defendant’s progress during a formal probation sentence. The probationer must usually check in periodically with the probation officer and the probation officer might make random visits to the probationer’s home to search for any contraband or evidence of violations of probation. Usually, the probationer must comply with any search of her person or home as a condition of felony probation.


Misdemeanor Probation: Informal probation is associated with a misdemeanor conviction. However, it is possible for a defendant to be placed on formal probation after a conviction for a misdemeanor crime. Informal probation is monitored by the court, which means that the defendant does not have a probation officer that supervises her. Informal probation is known by several names, including misdemeanor probation, summary probation, and court probation. All these informal probation terms are synonymous.


Terms of Probation


Probation sentences come with terms of probation. A term of probation is a court order that the defendant must obey in order to remain free from detention (jail or prison). In other words, a term of probation is a condition of probation and if the defendant does not obey a condition of probation she may be in violation of her probation. A violation of probation could result in the court terminating the defendant’s probation and either remand the probationer into custody, or involuntarily terminate the defendant’s probation without further action. For more information, see Probation Violations.


Common Felony Probation Terms: Probation terms in felony cases tend to include the following: Follow all directives of the probation officer, serve county jail or an alternative to county jail (see work release below for more information), serve community service, serve work release or house arrest, commit to a sober-living facility (common in DUI and drug cases) submit to random chemical tests upon probation officer’s request, do not leave the state of California without first obtaining written permission, submit to a search of the defendant’s person and belongings, commit no crime, pay all fines and restitution, keep away from victims (criminal protective orders), do not associate with other known felons, submit to polygraph examination (more common in sex cases), undergo AA or NA counseling (more common in drug and DUI cases), submit to an HIV test (common in sex cases), report for booking and release (if the defendant was not already booked), report any change of address to the probation department immediately, and more.


Note: When the defendant makes a request to leave the state during a felony probation sentence, the defendant must usually give the probation department her itinerary, including proof of travel tickets, return tickets, hotel receipts, etc. Whether or not the probationer is allowed to leave the state of California depends on the terms of her probation and/or any permission that is granted by the probation officer. A criminal defense attorney can be very helpful in this regard. A criminal defense attorney will know what the probation department wants and needs in order to obtain the best chances for the probationer to have the probation department honor her request.


Common Misdemeanor Probation Terms: Common probation terms in misdemeanor cases include: pay all fines and restitution (if any), commit no crime, serve jail or a jail alternative (see work release below for more information), serve work release or house arrest, serve community service, attend and complete classes (common in DUI, domestic violence, and prostitution cases), stay away from victim (criminal protective order), stay away from location of offense (common in prostitution, trespass, battery, and criminal threats cases), and more.


Note: As stated, the defendant in a misdemeanor probation case does not usually have a probation officer; therefore, the only way the court finds out about any probation violation is usually through the court’s electronic payment system, the defendant’s DUI class contact with the court, the defendant's new criminal violation, or the defendant’s probation violation is reported to the court from a victim.


Work Release & House Arrest


Sometimes, a probation sentence will include a probation term such as “serve county jail.” This is a confusing term when it relates to a probation sentence because a probation sentence is a “release from detention, subject to a period of supervision.” (See above at definition of probation sentence). For example, the defendant may be placed on misdemeanor probation after a conviction for the crime of loitering with the intent to commit prostitution, and as a condition of his probation, the defendant could be ordered to “serve ten days in the county jail.” This probation condition seems to be inconsistent with idea of probation in the first place…but it is not. When the defendant is ordered to serve a county jail sentence as a condition of probation that county jail sentence may usually be served alternatively on out-of-custody work release or house arrest. When the court does not approve of an alternative-to- jail sentence, then the county jail sentence is usually fairly short as compared to what the defendant could have been ordered to serve if she had not been grated probation. For example, if the defendant is ordered to serve ninety days in jail as part of a probation sentence after a conviction for unauthorized use of a vehicle (VC 10851(a)), that ninety day jail sentence may usually be served alternatively on work release; however, even if the court does not approve of the defendant serving the jail time alternatively on work release, the jail sentence is still much shorter than what the defendant could have been ordered to serve if she had not been granted probation (maximum four year for violation of VC 10851(a)).


Probation Sentencing Availability


Probation sentencing is available in most felony and misdemeanor cases, but probation sentencing is never guaranteed. Whether or not a probation sentence is available to the defendant after a criminal conviction depends on many factors, including whether or not probation is available under the law, the egregiousness of the criminal offense, the defendant’s criminal history, the presence of any mitigating or aggravating factors, the terms of any negotiated plea agreement between the district attorney and the defendant, if any, and more.


Probation Unavailable: In some cases, a probation sentence is unavailable to the defendant no matter the circumstances. For example, a probation sentence is not allowed after a criminal conviction for any of the following crimes: aggravated sexual assault of a child (PC 269(a)), rape in concert of a minor (PC 264.1(a)), sodomy by force or fear (PC 286(C)(2)(A)), sexual penetration by force with object (PC 289(a)(1)(A)), aggravated arson (PC 451.5), and more.


Note: Interestingly, the most serious crimes in the criminal law usually do not allow a probation sentence upon conviction. However, the California legislature has decided that a probation sentence should be available in the crimes of murder (PC 187(a)), torture (PC 206), and aggravated mayhem (PC 205), even though these crimes are classified as serious (PC 1192.7), violent (PC 667.5), and strike offenses under California’s Three Strikes Sentencing. In fact, the crimes the crimes of Torture (PC 206), and Aggravated Mayhem (PC 205) are considered super strikes in California.


Unusual Cases: In some criminal cases, a probation sentence is allowed only if the court finds unusual circumstances in the case that justify a probation sentence. The unusual circumstances that justify a probation sentence is determined by the judge; however, the court is more likely to find that unusual circumstances justify a probation sentence where there are either mitigating factors present in the facts of the case, or where a third person would be unjustly and unusually harmed if a probation sentence was not granted. For example, a defendant who commits the crime of assault with a deadly weapon other than a firearm (PC 245(a)(1)) is not ordinarily allowed to serve a probation sentence; however, if the judge finds that there are unusual circumstances in the facts of the case, such as the alleged victim does not want prosecution against the defendant, then the court might allow the defendant to serve an out-of-custody probation sentence.


Common cases, where a probation sentence is available only if the court finds unusual circumstances in the case include: failure to register as a sex offender (PC 290.01 – 290.024(a)), first degree burglary (PC 459(a) & 460(a)), probation violations (PC 1203 Crimes), assault with a deadly weapon other than a firearm (PC 245(a)(1)), and more.


Special Cases: The California legislature has carved out certain types of criminal cases that might allow a probation sentence after a criminal conviction, but only if those criminal cases have special circumstance related to the facts of the case. The special circumstances exception is similar, but different than, the unusual circumstances cases listed above at Unusual Cases. The main difference between a case with unusual circumstances and a case with special circumstances is that in an unusual circumstances case the court will find that the mitigating factor(s) are not usually present, and in a special circumstances case, the court may find that the circumstance that justifies a probation sentence are not unusual, but nevertheless, justifies a probation sentence.


Criminal cases where a probation sentence is allowed only if the court finds special circumstances that justify such a sentence include: lewd and lascivious acts upon a minor under fourteen (PC 288(a)), rape of mentally disabled person (PC 261(a)(1)), spousal rape (PC 262(a)(1)), sodomy of a minor under eighteen (PC 286(b)(1)), and more.


Enhancements Precluding Probation Sentence


Sometimes, the defendant is charged with a criminal violation that otherwise allows a probation sentence upon conviction, but a penalty enhancement is added to the criminal charges that preclude that probation sentence. For example, the crime of lewd and lascivious acts on a minor (PC 288(a)) allows for a probation sentence in some cases; however, if the district attorney has added the criminal enhancement of substantial sexual conduct (PC 1203.066(c)) to the PC 288(a) charges, and the defendant is convicted of that penalty enhancement along with the PC 288(a) charges, then the defendant is precluded from a probation sentence because the penalty enhancement of PC 1203.066(c) does not allow for a probation sentence. Some penalty enhancement preclude probation sentencing and some do not. For more information, see Penalty Enhancements in Criminal Cases.


Reducing Felony Probation to Misdemeanor Probation


Sometimes, a defendant is placed on felony probation after an offense that is considered a wobbler crime. A wobbler crime is a crime that could be charged either as a felony, or as a misdemeanor. Whether or not the defendant is charged with a felony or a misdemeanor in any particular wobbler case depends largely on the facts of the case, the defendant’s criminal history, if any, and the terms of a plea agreement between the district attorney and the defendant, if any. In any event, when a defendant is placed on felony probation, she might have that probation reduced to misdemeanor probation by request to the court. The probationer’s request is for the court to reduce the underlying felony charges to misdemeanor charges, which results in the reclassification of her type of probation (either felony or misdemeanor) [PC 17(b)]. This is only available in wobbler crimes. For more information, see Wobbler Crimes.


Note: Usually, the court will not reduce a felony probation sentence to a misdemeanor probation sentence unless there is good cause for taking such action. For example, a court might reduce a probationer’s underlying felony conviction to a misdemeanor conviction where the defendant has substantially completed all the terms of her felony probation and she needs to regularly travel out of California for work. Also, reduction from felony probation to misdemeanor probation is more common in certain types of cases than other types of cases. For example, in welfare fraud cases (WI 10980), it is common for the defendant to request a lowering of the welfare fraud charges (from felony to misdemeanor charges) after the defendant has substantially repaid the amount that she obtained from her fraud. For more information, see Wobbler Crimes.


Early Termination of Probation


Sometimes, a defendant who is placed on either felony or misdemeanor probation after a criminal conviction, may request to have that probation period reduced. For example, a defendant who is placed on probation for three years for the crime of soliciting a prostitute (PC 647(b)(2)), may request that his probation be reduced to two years. Early termination of a probation sentence is a common request; however, the court is not likely to reduce the defendant’s probation, in terms of time, unless the defendant has otherwise fulfilled all the terms of his probation and the only term left is time. Also, the court is not likely to terminate a probation sentence early where the defendant has not served at least fifty percent of the time that was ordered, even if the defendant has otherwise completed all of his other probation terms. In fact, in some cases, the length of defendant’s probation sentence may not be reduced. For example, a defendant who is placed on probation after a conviction for domestic battery (PC 243(e)(1)) or inflict corporal injury to spouse (PC 273.5(a)) may not have her probation sentence reduced even if she has completed all the terms of her probation except the time requirement. For more information, see Early Termination of Probation.


Violation of Probation


As stated, a violation of probation occurs where the defendant fails to complete some term of her probation. In felony cases, failure to comply with a formal probation term will usually lead to the defendant’s arrest unless the violation is of a technical nature (see below) and the defendant addresses the issue with the court at her earliest opportunity. In misdemeanor cases, a violation of probation is usually, but not always, handled after the court sends a notice to the defendant for him to appear in court to address his violation. In either type of probation, felony or misdemeanor, if the defendant fails to comply with the terms of her probation, then the district attorney may file formal violation of probation charges, which could lead to the defendant having her probation revoked. A revocation of probation could result in the defendant being incarcerated. For more information, see Probation Violations.


Technical v. Substantive Probation Violation


A technical violation of probation occurs when the defendant disobeys a court’s term of probation, but that violation is not the committing of a new criminal offense. For example, it is a technical violation of probation occurs when the defendant does not pay her fines according to her probation terms, or where she does not attend her DUI classes as ordered after a DUI conviction. On the other hand, if the defendant commit a criminal offense while she is on probation, then that violation of probation is considered a substantive violation of probation. For example, it is a substantive violation of probation when the defendant, who is on misdemeanor probation after a conviction for looting, commits any misdemeanor or felony offense. Technical violations of probation, in both felony and misdemeanor cases, are considered less severe violations of probation. As such, the defendant is more likely to be allowed to reinstate her conditions of probation and remain free from detention, despite the technical violation. Be aware however, that every case (and every judge) is different, and whether or not the defendant will be allowed to reinstate her probation terms without the court terminating her probation sentence and issuing further punishment to the probationer, is decided on a case-by-case basis.


Court Options & Vickers Hearings


After the violation of probation (VOP) is charged against the defendant she is entitled to a judicial hearing where she may present a defense to the allegations. This hearing is called a Vickers hearing. Essentially, a defendant is entitled to defend herself against an allegation that she violated her probation. During the Vickers hearing, the defendant has right to a criminal defense attorney, even if she cannot afford an attorney, the right to remain silent, and other rights. However, the defendant does not have a right to a jury trial during a Vickers hearing and the district attorney’s burden required to prove the defendant is guilty of the alleged probation violation is lowered to a preponderance of evidence, as opposed to the guilt beyond a reasonable doubt burden found in non-VOP criminal cases.


Sometimes, if the violation of probation is minor, and technical in nature, the court may simply reinstate the defendant into her probation sentence without further punishment. Other times, the court may reinstate the defendant into her probation sentence with some changes, but not necessarily a change that requires the defendant to serve an actual jail sentence. Of course, the court is not required to reinstate the defendant on the same terms and condition of her probation sentence after a finding that she violated her probation. The court has the power, and the ability, to remand any defendant who is found to have violated her terms of probation.


Substantive VOP: When the defendant has committed a new crime, which also serves as the basis for a probation violation, then the defendant has committed a substantive violation of probation. In felony cases, where the defendant has committed a substantive violation of probation, the defendant will be charged with both the new crime, whether it is a felony or a misdemeanor, and the violation of probation. In these cases, the defendant is entitled to a Vickers hearing on the probation violation, but she is not likely to want the court to decide her fate based on the lower burden of proof required in Vickers hearings; therefore, the defendant will not likely defend a substantive violation of probation at a Vickers hearing. A defendant who is on probation after a felony or misdemeanor conviction, who subsequently commits a substantive or technical violation of probation, should contact a criminal defense lawyer without delay.


For more information on felony and misdemeanor probation, including the differences and similarities between the two, contact our criminal defense lawyers today. Our criminal defense lawyers have successfully defended against probation violation charges in all San Bernardino County courts. We offer free consultations and we are available every day of the week to discuss your case. Our defense team will patiently review your case, explain to you your rights, and most importantly, discuss the defenses related to your violation of probation charges. Call today!


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