Probation in Adult System
California’s Probation Departments play various roles throughout the adult criminal justice system. Probation is often referred to as an “arm of the court”. They are expected to serve as a neutral party in providing judges in adult criminal court with the information necessary to make sentencing decisions. If adults are sentenced to community supervision, the Probation Department is responsible for their supervision and ensuring that they are offered the appropriate rehabilitative services to reduce recidivism. Probation Departments also manage and operate pretrial assessment and monitoring programs throughout the State.
Entry into the Adult Criminal Justice System
Arrest
An individual enters the adult criminal justice system when they are suspected by a law enforcement officer of committing a criminal act. The law enforcement officer has the discretion to determine if the individual should be arrested.
Citation
If the individual is not arrested, they might be given a citation to appear in court. They will be asked to sign the citation as an indication of their agreement to appear at the time of the court hearing. With a citation, the individual is not booked into jail and instead remains in the community.
Booked into Jail
An individual is booked into jail by law enforcement when the offense is serious or violent and the law enforcement officer believes the person poses a risk to community safety. The law enforcement officer will take the person to the city or county jail for the jail booking process. Jail staff will complete the process and make a determination if the individual will stay in custody. Certain charges will require a court hearing before release. Generally, individuals booked on outstanding warrants remain in custody until they appear before the court.
When an individual is booked into jail, there are several options that may occur. These are based on the county’s policies and procedures in addition to the seriousness of the charges for which the person has been arrested. For less serious offenses, jail staff may release the person from jail with a notice to appear in court.
Individuals in custody have the right to bail, a monetary amount set by a judge that a person must pay; or post a bond, which is a promise, usually in the form of money paid by a bail bonds person who the individual has hired and may require collateral to secure. Both bail and bond are often used interchangeably and allow the individual to be released pending court proceedings. Bail is based on a bail schedule approved by the court in each county.
Pretrial Assessment Process
Many Probation Departments in California operate a pretrial program. When an individual is booked into the county jail, the Probation Department conducts a pretrial assessment on eligible offenses in order to provide the judge with a recommendation as to whether the individual is recommended to be detained or released pending court proceedings. Although these programs vary, pretrial programs are used by courts so that detention is reserved for those individuals that pose a greater risk to the community or are at risk for failure to appear in court. Utilizing a validated pretrial assessment tool will assist in determining whether individuals are recommended for release or to remain detained pending their court proceedings. Pretrial programs are used to assess the likelihood of pretrial failure, provide information to the court for release decisions, sometimes refer individuals to needed services and monitor individuals in the community to mitigate the risk of pretrial failure (failure to appear in court and/or commits a new offense).
Probation Departments use a variety of pretrial assessment instruments, such as the Virginia Pretrial Risk Assessment Instrument (VPRAI), Ohio Risk Assessment Pretrial Assessment Tool (ORAS-PAT), Public Safety Assessment (PSA), and Correctional Offender Management Profiling for Alternative Sanctions (COMPAS).
Some pretrial assessment tools require staff to conduct an interview with the individual and includes dynamic factors in addition to static factors. Other pretrial assessment instruments do not require an interview with the individual and are scored based on static factors that can be obtained from the individual’s current offense and/or prior criminal history.
Read more about the pretrial assessment process
Court Process
In adult criminal court, every individual has the right to a speedy trial once charges have been filed against them. Timelines are determined based on custody status.
DA Files Charges
The court process begins at the District Attorney’s Office. This is the office that makes the determination to file criminal charges on an individual after reading the arrest reports. Based on the information available, the District Attorney’s Office will determine the appropriate charges to be filed and will meet the adult court timelines that begins the process.
District Attorney Diversion
Some District Attorney’s Offices have District Attorney diversion programs the individual may complete in order to avoid criminal charges being filed. These diversion programs may consist of community service, counseling, classes, etc. When the individual completes the diversion program, the case will be dismissed and no further action taken. This allows the individual to avoid a criminal record for the charge.
Arraignment
An arraignment is a criminal proceeding where the individual is called before the court, informed of the charges they are facing, advised of their rights, appointed legal counsel (if requested), advised about the consequences of a plea, and asked to enter a plea. This is the first court hearing and must occur within 48 hours for those individuals who were booked into custody and remain detained.
Humphrey Decision
A recent California Supreme court decision, In re Kenneth Humphrey Decision (Humphrey) set forth the considerations for the superior court when determining if there is cause to detain individuals prior to trial and if not, how bail may be applied. Specifically, the court decision held a court must first consider whether non-financial release options will reasonably protect the safety of the public or the victim, and ensure future court appearances. If the answer is no, then the court shall consider bail but must conduct an individualized assessment and consider ability to pay when setting the amount. Probation Departments may be asked to assist the judge in setting bail by completing a Bail Report.
Detained
At the arraignment hearing, the judge has options for continuing the person in jail or releasing them into the community. The judge can order the individual to remain detained pending court proceedings depending on the type of offense. This most often happens in serious and/or violent offenses. Once a judge orders detention, the individual is no longer eligible for release on pretrial program.
Straight Release
The judge can alternately release the person from custody with no conditions (straight release or release on their own recognizance). The charges are generally less serious, or the individual may have a history of returning for court appearances.
Read More on Court Process
Community Supervision
Types of Community Supervision
The Probation Department is responsible for providing supervision for those individuals ordered to remain in the community under supervision terms. The Probation Department supervises those placed on formal probation as well as those placed on mandatory supervision as described below. The third population supervised by the Probation Department are those who are released from prison with Post Release Community Supervision (PRCS).
Probation Supervision
Probation Departments are responsible for providing community supervision services to individuals convicted of felonies or misdemeanors who are ordered to a formal grant of probation by the judge. These include both felony and misdemeanor cases; however, in most counties, only specified misdemeanor cases (such as domestic violence, child abuse, sex offenses, DUI with a prior, etc.) receive formal probation. Formal probation is the suspension of the imposition of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. Beginning in January 2021, as a result of AB 1950, a formal grant of probation for an adult convicted of a misdemeanor can be no longer than one year and a formal grant of probation for a felony conviction can be no longer than two years. Exceptions are for financial crimes involving more than $25,000; crimes that “includes specific probation lengths within its provisions”; and, violent felonies as defined by Section 667.5 of the Penal Code.
Mandatory Supervision
Probation Departments are also responsible for providing community supervision services to individuals convicted of felonies under Penal Code 1170(h)(5) and ordered to a split sentence by the judge. The judge may order the individual to a straight sentence (time to be served solely in custody) or a split sentence (time split between custody and community supervision). The sentence shall indicate the length of the period of incarceration and the length of the period of community supervision.
Post Release Community Supervision (PRCS)
Upon an individual’s release from prison for a non-violent, non-serious, or non-sex offense (with a few exceptions that are supervised by state parole), the Probation Department is required to provide community supervision for a period not to exceed three years.
Probation Intake/Assessment
Once ordered to formal probation or mandatory supervision by a judge, individuals are ordered to report to the Probation Department within a specified time period (24-48 business hours) after court or upon their release from custody. At the initial appointment, a probation officer will conduct an intake/assessment interview. Depending on the size and resources of the department, some Probation Departments have units designated to complete this function, while other Probation Departments have the intake/assessment function completed by a supervising probation officers.
Upon arriving at the Probation Department, all individuals complete the intake/assessment process. Probation officers begin their assessment process by reviewing all law enforcement crime reports as well the individual’s prior referral history. An interview with the individual is also conducted. During this interview, the officer uses motivational interviewing techniques to solicit information. This assists the officer in gathering the most accurate information. Probation officers use the information obtained during the assessment/intake process and begin assessing the individual using a validated assessment instrument.
The officer uses all the information obtained during the assessment/intake process to make the determination on the most appropriate level of supervision and/or specialized programming for the individual. Supervision and treatment resources should be prioritized for those individuals who are at higher risk to re-offend.
The officer does not solely use the results from the validated risk assessment to make the determination of the most appropriate course of action. Other factors may be given greater weight, such as the seriousness of the crime. The risk assessment tool is a guide for probation officers; in some circumstances, probation officers may override and not follow the recommendation. All overrides should be reviewed and approved by a supervisor.
During the intake/assessment, the probation officer also reviews the terms and conditions of community supervision with the individual, makes the initial referral to court-ordered programs, makes referrals to other county agencies or community-based organizations, and attempts to set and determine victim restitution. The goal is to provide the individual with any necessary supportive or transitional services to assist with the individual’s successful re-entry into society.
For individuals who are serving a sentence in the county jail, there are some counties that conduct the intake/assessment jail in person while the individual is in custody. For individuals on Post Release Community Supervision, the intake/assessment is conducted via videoconference or in-person while the individual is still in prison.
For those individuals who are in custody, as part of the intake/assessment process, the probation department will determine if the individual has a place to reside upon their release from County Jail or State Prison. Probation Departments assist individuals in having a successful transition from custody to the community, and housing is the most important first step. If the individual does not have somewhere to reside, the intake/assessment officer may have access to a sober living environment or transitional housing where they can refer the individual.
Supervision Services
Probation Departments provide community supervision services to monitor an individual to ensure they are abiding by the terms and conditions of their supervision and to provide evidence-based, supportive, and transitional services to assist individuals to help lower the likelihood of re-offense. For individuals ordered to formal probation or mandatory supervision by a judge, the Probation Department determines the type and level of community supervision. For those being released from prison on post release community supervision, the terms are set prior to their release from prison. The Probation Department will supervise to those terms. They may return to court to modify the terms if it is determined other services are needed. These three groups will all receive supervision services based on their assessment and risk and need factors.
Probation Departments work to prevent continued involvement in the criminal justice system by reducing recidivism. Probation departments provide a full range of supervision services to assist in accomplishing this goal. These supervision services may include intensive supervision, community service, home detention with electronic monitoring or global positioning satellite (GPS), day reporting, specialized court programs, transitional housing, residential substance abuse treatment, outpatient substance abuse treatment, outpatient behavioral health treatment, urinalysis testing, cognitive behavioral interventions, restorative justice programs, bus passes, pre-release services (assessments and supervision case planning pending release from jail), referrals to educational, vocational, and employment training and services, and flash incarceration.
In keeping with the current evidence-based practices, probation departments assess individuals to determine the level of risk they pose to the community and what treatment modalities and dosage would best achieve measurable outcomes. Probation departments use validated risk and needs assessment instruments to inform an individual’s risk to reoffend and their criminogenic needs. Supervision levels are assigned based on the individual’s risk level and criminogenic needs.
Probation officers are responsible for reassessing individuals, referring the individual to targeted interventions, making corresponding changes to the case plan, and implementing the goals and objectives of the case plan, which address each individuals’ criminogenic needs. Officers monitor compliance with the case plan and the court-ordered terms and conditions of probation, and file violations of probation when necessary. They meet with the individual on a regular basis (ranges from weekly, bi-weekly or monthly depending on risk level and/or offense). The probation officer ensures the individual is attending all court, counseling, or program appointments and may assist with transportation when necessary.
The supervision of individuals is directly linked to the implementation of the nationally recognized evidence-based supervision model and its core principles. The Principles of Effective Intervention, the use of validated assessment tools, the application of Motivational Interviewing Techniques, the facilitation of Cognitive Behavioral Therapy (CBT) interventions, and the use of appropriate incentives has been proven to show positive effects to reduce recidivism.
Case management may include the following components:
- Validated risk and needs assessment
- Caseload placement and assignment
- Financial evaluation assessment
- Development of a probation supervision case plan
- Regular home and field visits
- Motivational Interviewing practices
- Referral to evidence-based programming (cognitive behavioral interventions)
- Regular drug and alcohol testing
- Referrals to other services and monitoring of participation based on needs (behavioral health services, social services, substance abuse, educational services, employment services)
- Graduated sanctions as needed to promote rehabilitation (i.e., community service, electronic monitoring, global positioning satellite, flash incarceration, day reporting center, specialized court programs, revocation)
- Appropriate positive incentives
- Aftercare planning and linkages to the community
Terms and Conditions of Probation
Terms and conditions of probation are ordered by the court and vary from case to case. However, many counties have standard conditions that apply to most adults on community supervision. There may also be additional conditions that are imposed by the court based on the specifics of the offense and/or the individual’s risk and needs assessment.
Individuals may also be ordered to not leave the county or state without prior permission from the supervising probation officer.
Specialized Caseloads
Many Probation Departments assign cases based on risk level. For instance, lower risk to reoffend individuals may be assigned to an unsupervised or administrative caseload. Some counties use web-based supervision systems rather than in person contact with the individual. The probation officer has minimal contact with the individual and some cases are open primarily for restitution purposes and to ensure there are no further arrests. The probation officer is available to assist the individual if problems arise and provides assistance in resolving the problem or making a necessary referral to assist.
Supervision caseloads for moderate risk individuals may be supervised through a combination of office reporting, kiosk reporting, or telephone reporting. The officer will refer the individuals to programs or services as needed.
High-risk individuals will be placed on a general supervision or intensive supervision caseload. The primary difference between general supervision and intensive supervision is the size of the caseload and the frequency of contact with the individual. Oftentimes, cases are assigned to an officer by a geographical area.
Some Probation Departments have specialized caseloads and units with specific criteria, such as sex offenders, domestic violence, post release community supervision, mandatory supervision (PC 1170(h)), driving under the influence, transitional age youth, and gang members.
Specialty Courts
Some Probation Departments participate in specialty courts, which are collaborative courts based on a drug court model. These courts include all the collaborative partners that serve the youth, such as representatives from Superior Court, the District Attorney’s Office, the Public Defender’s Office, the Probation Department, Behavioral Health Services, Substance Abuse Services, and community-based organizations. The entrance requirements to a specialty court may vary between counties and may require approval by the entire specialty court team. In other cases, the decision is solely that of a judge.
In these specialty court programs the individual will report to court anywhere from weekly to monthly. During these proactive court appearances, it gives the judge the opportunity to hear how the individual is doing from all the parties that provide services to them. It allows the judge to acknowledge the individual for doing well or to address issues if the individual is not doing well or not participating in counseling or evidence-based programming. If necessary, the judge may sanction the individual. This may be accomplished through increased court appearances, referring the individual to an evidence-based program, or ordering the individual to custody, possibly by serving a weekend in the County Jail. The goal is that by having regular contact with the individual and all the involved parties, more serious behavior is prevented and a more serious sanction is avoided.
Examples of specialty courts are:
- Drug Courts:
- Mental Health Courts
- Transitional Age Youth Courts
- Driving Under the Influence Courts
- Domestic Violence Courts
- Veterans Courts
- Homeless Courts
Compliance with Terms and Conditions:
Rewards and Sanctions
Probation Departments employ a system of rewards and sanctions as behavioral management tools when supervising individuals.
Probation Departments use Reward Matrices as part of evidence-based practices to guide probation officers with the behavior change process with individuals. It is important to include rewards (incentives) for positive behavior and when an individual achieves a certain benchmark in supervision to recognize and encourage ongoing success. A Rewards Matrix provides a variety of incentives where the reward increases with the difficulty of the accomplishment. Rewards are usually grouped into various levels, so it allows the probation officer a range of options so they can match the reward to both their style as well as the style of the individual. For example, some individuals may be motivated by public displays of recognition, while other individuals are more private and are uncomfortable in those situations. Rewards may include a certificate, a gift card, less frequent appointments with the probation officer, or early termination. The value of the reward increases with the level of accomplishment. Rewards may be given for gaining employment, completing an evidence-based program, or other positive behavior. Some Probation Departments recognize individuals for appearing at their office visit by providing them a small incentive that they can choose, such as food or needed personal items.
Conversely, the use of a Sanctions Matrix, also part of evidence-based practices, (with hover) will provide guidance to probation officers with the behavior change process when dealing with individuals. Sanctions matrices provide guidance regarding the type of intermediate sanction to impose when responding to violations of probation. This strategy requires probation officers to consider the individual’s level of risk, the severity of the violation, and the individual’s behavior before determining the most appropriate graduated response. Many sanctions matrices increase in severity of the sanction when there are continued incidents of low-level violations. Additionally, there is also usually a level of supervisory approval for violations that result in recommendations for jail time. Low level violations may result in increased programming, reporting, or drug testing. More serious sanctions may include global positioning satellite, flash incarceration, or having probation revoked and the individual serving a period of incarceration.
Low level sanctions can be handled between the probation officer and the individual and do not require court intervention. However, any sanction that includes a commitment to global positioning satellite, or a period of incarceration (excluding flash incarceration) will require a formal violation of probation to be filed with the court. The violation of probation only includes a recommendation from the probation officer. The court will make the final determination about the violation of probation.
Modification of Probation
The probation officer may file a Modification of Probation to modify (i.e., add, change, delete) any terms and conditions of supervision previously ordered by a judge. The Modification of Probation may request to add an additional term when it appears necessary for the rehabilitation of the individual, such as participation in a program of counseling. A Modification of Probation may also be requested to delete a term if it is no longer needed or was deemed as inappropriate, such as a substance abuse program, when a risk and needs assessments shows it is not necessary. Any modification of probation must be approved by the court.
Violation of Probation
The probation officer has a variety of options to address incidents where an individual has violated one of the terms and conditions ordered by a judge. The most severe option is to file a Violation of Probation with the court.
After being placed on community supervision, the probation officer will review the terms and conditions with the individual so the individual has a clear understanding of the expectations. While providing supervision services, the probation officer has latitude on how to address incidents where an individual has violated one of the terms and conditions of their probation.
Either the district attorney or the probation officer has the authority to file a violation of probation petition. Law enforcement has the authority to arrest an individual who is on formal probation for a violation of probation. If the individual is in custody, they have the right to have their case heard in front of a judge in a timely manner. If the individual is out of custody, the case can be scheduled at a later date.
The individual has the similar rights as individuals in a jury trial. They have the right to present evidence, call witnesses, testify, and see the evidence by law enforcement. However, these cases are not heard in front of a jury; a judge makes the final ruling. The probation case can be terminated and reinstated, sometimes with new conditions. The case can also be terminated from supervision or the individual may be ordered to serve time in jail or sentenced to state prison.
Flash Incarceration
Flash incarceration is a tool used by a Probation Department to manage an individual’s behavior by providing the individual a period of detention in a city or county jail for a violation of an individual’s conditions of supervision. The length of the detention period can range between one and ten consecutive days. Initially developed for those on post release community supervision, flash incarceration is now available for those on mandatory supervision and formal probation, who agree to it as a sanction.
As authorized by PC 3454, Probation Departments were given the authority for flash incarceration in Penal Code 3454 and Penal Code 1203.35. The goal of flash incarceration is to sanction the individual for their negative behavior while allowing the individual to quickly resume with the pro-social parts of their lives.
When an individual fails to meet their conditions, a flash incarceration is considered to be less disruptive to the person’s family and job than a traditional violation of probation and revocation of supervision court hearings. Each Probation Department has created rewards and sanctions matrices. These matrices help determine the appropriate length of incarceration.
Individuals on post release community supervision do not need to agree to flash incarceration; it is authorized per the penal code. However, the individuals on formal probation or mandatory supervision have the right to agree to a flash incarceration. If they do not agree, the probation officer may file a violation of probation petition. A waiver is signed by the individual prior to the imposition of a flash for those on probation or mandatory supervision. When a flash incarceration is imposed, the probation officer shall inform the court, the district attorney and the individual’s attorney.
Revocation
If the probation officer determines the individual has violated their terms of supervision, they may file a petition and the court will hold a revocation hearing. The court may terminate the supervision or reinstate supervision with modifications and order jail time or the maximum sentence allowed by the law.
A revocation hearing may occur after a petition for violation of probation or mandatory supervision is filed with the court. The petition may be filed by the district attorney or probation officer. The judge will hear evidence to determine if there has been a violation. If the court determines a violation has occurred, the judge has several options.
Penal Code 1203.2(c) gives the judge the authority to revoke and reinstate probation. It is likely new conditions will be added to the current terms of probation or mandatory supervision with this option. The judge also has the option to terminate probation or order the individual to serve the remainder of their sentence in jail.
An individual who has been released from prison under post release community supervision (PRCS) may also have their supervision revoked for a violation. Penal Code 3455 outlines how revocations are handled. The judge has the ability to terminate the supervision and sentence the individual to up to 180 days in custody in local jail. The judge may also modify the terms of supervision and continue the person on post release community supervision.
A probation officer does not need to file a revocation with the court with every violation of probation, mandatory supervision, or post release community supervision. Counties have other options they can use prior to a revocation hearing. Probation departments use a sanctions matrix to assist in using the most effective tool for violations. However, if there is a very serious violation or a pattern or non-compliance, it is more likely a revocation hearing will be held.
Probation Departments employ a system of rewards and sanctions as behavioral management tools when supervising individuals.
Probation Departments use Reward Matrices as part of evidence-based practices (also hover definition) to guide probation officers with the behavior change process with individuals. It is important to include rewards (incentives) for positive behavior and when an individual achieves a certain benchmark in supervision to recognize and encourage ongoing success. A Rewards Matrix provides a variety of incentives where the reward increases with the difficulty of the accomplishment. Rewards are usually grouped into various levels, so it allows the probation officer a range of options so they can match the reward to both their style as well as the style of the individual. For example, some individuals may be motivated by public displays of recognition, while other individuals are more private and are uncomfortable in those situations. Rewards may include a certificate, a gift card, less frequent appointments with the probation officer, or early termination. The value of the reward increases with the level of accomplishment. Rewards may be given for gaining employment, completing an evidence-based program, or other positive behavior. Some Probation Departments recognize individuals for appearing at their office visit by providing them a small incentive that they can choose, such as food or needed personal items.
Conversely, the use of a Sanctions Matrix, also part of evidence-based practices, will provide guidance to probation officers with the behavior change process when dealing with individuals. Sanctions matrices provide guidance regarding the type of intermediate sanction to impose when responding to violations of probation. This strategy requires probation officers to consider the individual’s level of risk, the severity of the violation, and the individual’s behavior before determining the most appropriate graduated response. Many sanctions matrices increase in severity of the sanction when there are continued incidents of low-level violations. Additionally, there is also usually a level of supervisory approval for violations that result in recommendations for jail time. Low level violations may result in increased programming, reporting, or drug testing. More serious sanctions may include global positioning satellite, flash incarceration, or having probation revoked and the individual serving a period of incarceration.
Low level sanctions can be handled between the probation officer and the individual and do not require court intervention. However, any sanction that includes a commitment to global positioning satellite, or a period of incarceration (excluding flash incarceration) will require a formal violation of probation to be filed with the court. The violation of probation only includes a recommendation from the probation officer. The court will make the final determination about the violation of probation.
Modification of Probation
The probation officer may file a Modification of Probation to modify (i.e., add, change, delete) any terms and conditions of supervision previously ordered by a judge. The Modification of Probation may request to add an additional term when it appears necessary for the rehabilitation of the individual, such as participation in a program of counseling. A Modification of Probation may also be requested to delete a term if it is no longer needed or was deemed as inappropriate, such as a substance abuse program, when a risk and needs assessments shows it is not necessary. Any modification of probation must be approved by the court.
Violation of Probation
The probation officer has a variety of options to address incidents where an individual has violated one of the terms and conditions ordered by a judge. The most severe option is to file a Violation of Probation with the court.
After being placed on community supervision, the probation officer will review the terms and conditions with the individual so the individual has a clear understanding of the expectations. While providing supervision services, the probation officer has latitude on how to address incidents where an individual has violated one of the terms and conditions of their probation.
Either the district attorney or the probation officer has the authority to file a violation of probation petition. Law enforcement has the authority to arrest an individual who is on formal probation for a violation of probation. If the individual is in custody, they have the right to have their case heard in front of a judge in a timely manner. If the individual is out of custody, the case can be scheduled at a later date.
The individual has the similar rights as individuals in a jury trial. They have the right to present evidence, call witnesses, testify, and see the evidence by law enforcement. However, these cases are not heard in front of a jury; a judge makes the final ruling. The probation case can be terminated and reinstated, sometimes with new conditions. The case can also be terminated from supervision or the individual may be ordered to serve time in jail or sentenced to state prison.
Flash Incarceration
Flash incarceration is a tool used by a Probation Department to manage an individual’s behavior by providing the individual a period of detention in a city or county jail for a violation of an individual’s conditions of supervision. The length of the detention period can range between one and ten consecutive days. Initially developed for those on post release community supervision, flash incarceration is now available for those on mandatory supervision and formal probation, who agree to it as a sanction.
As authorized by PC 3454, Probation Departments were given the authority for flash incarceration in Penal Code 3454 and Penal Code 1203.35. The goal of flash incarceration is to sanction the individual for their negative behavior while allowing the individual to quickly resume with the pro-social parts of their lives.
When an individual fails to meet their conditions, a flash incarceration is considered to be less disruptive to the person’s family and job than a traditional violation of probation and revocation of supervision court hearings. Each Probation Department has created rewards and sanctions matrices. These matrices help determine the appropriate length of incarceration.
Individuals on post release community supervision do not need to agree to flash incarceration; it is authorized per the penal code. However, the individuals on formal probation or mandatory supervision have the right to agree to a flash incarceration. If they do not agree, the probation officer may file a violation of probation petition. A waiver is signed by the individual prior to the imposition of a flash for those on probation or mandatory supervision. When a flash incarceration is imposed, the probation officer shall inform the court, the district attorney and the individual’s attorney.
Revocation
If the probation officer determines the individual has violated their terms of supervision, they may file a petition and the court will hold a revocation hearing. The court may terminate the supervision or reinstate supervision with modifications and order jail time or the maximum sentence allowed by the law.
A revocation hearing may occur after a petition for violation of probation or mandatory supervision is filed with the court. The petition may be filed by the district attorney or probation officer. The judge will hear evidence to determine if there has been a violation. If the court determines a violation has occurred, the judge has several options.
Penal Code 1203.2(c) gives the judge the authority to revoke and reinstate probation. It is likely new conditions will be added to the current terms of probation or mandatory supervision with this option. The judge also has the option to terminate probation or order the individual to serve the remainder of their sentence in jail.
An individual who has been released from prison under post release community supervision (PRCS) may also have their supervision revoked for a violation. Penal Code 3455 outlines how revocations are handled. The judge has the ability to terminate the supervision and sentence the individual to up to 180 days in custody in local jail. The judge may also modify the terms of supervision and continue the person on post release community supervision.
A probation officer does not need to file a revocation with the court with every violation of probation, mandatory supervision, or post release community supervision. Counties have other options they can use prior to a revocation hearing. Probation departments use a sanctions matrix to assist in using the most effective tool for violations. However, if there is a very serious violation or a pattern or non-compliance, it is more likely a revocation hearing will be held.
Termination of Community Supervision
Termination of Probation/Mandatory Supervision
Individuals on formal probation and mandatory supervision, are aware of the length of supervision from the time of sentencing. With some exceptions, formal probation may be one year for a misdemeanor grant of probation and two years for a felony grant of probation. For formal grants of probation, there are certain circumstances where a probation officer can request the court to extend the length of time of the grant of probation.
Cases sentenced to a split sentence under PC 1170(h) have different supervision timeframes. Each case has to be viewed individually. When the judge orders a split sentence, the individual is sentenced to a period of time in custody and, upon release, a period of time on community supervision. For instance, the court may split a 3-year sentence by ordering 12 months in custody and 24-months on community supervision. Therefore, the maximum amount of community supervision is known to the individual at the time of sentencing. Similar to cases of formal probation, those on a split sentence will have their supervision terminated on the date set at sentencing.
Upon termination of probation or mandatory supervision, the individual is released from all of the requirements of the Probation Department.
Early Termination of Probation/Mandatory Supervision
A probation officer may request early termination of an individual’s probation supervision or mandatory supervision by filing a motion with the court. A judge makes the decision for early termination. Typically, this request is made in circumstances where the individual has been performing satisfactorily for a period of time (as determined by the probation department), and has completed all required programming (mandated by the Penal Code and evidence-based programs directed by the probation department) and paid restitution in full. These requests go before the judge for approval. In some counties, the District Attorney’s Office will receive notice of these requests, so the office can object to the early termination. The individual’s attorney may also file a request for early termination.
Instead of requesting early termination, some Probation Departments will instead transfer the individual to a lower level of supervision after they have been performing satisfactorily for a period of time. The benefits of a lower level of supervision are reduced reporting requirements, as well as the possibility of kiosk or telephone reporting. Typically, these cases will remain under this lower level of supervision for the remainder of the supervision term to monitor that the individual does not reoffend.
Termination of Post Release Community Supervision: Individuals are given three years of supervision after release from prison. This is the longest period of supervision allowed. If an individual has not been revoked to jail after one year of supervision, the probation officer shall discharge their case at that time. Once released they are free of any of the requirements of probation.
Early Termination of Post Release Community Supervision
A probation officer may, after 6-months, request to terminate an individual early from community supervision if there have been no returns to custody for any violation of community supervision. Typically, this request is made in circumstances where the individual has been performing satisfactorily for a period of time (as determined by the probation department), and has completed all required programming (mandated by the Penal Code and evidence-based programs directed by the probation department). These requests go before the judge for approval. In some counties, the District Attorney’s Office will receive notice of these requests, so the office can object to the early termination.
If the individual did return to custody on a violation during the first twelve months, they must complete another twelve months without a return to custody in order to be released from supervision. It is possible they could be released prior to the three-year timeframe even with a return to custody on a violation of probation.
Expungement
A judge may issue an Expungement Order, which directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from an individual’s criminal record. Once an individual has successfully completed a term of probation, they may be eligible for an expungement. Penal Code 1203.4 allows an individual to withdraw a plea of guilty or no contest, reenter a plea of not guilty, and have the case dismissed.
Before someone is granted an expungement, there are certain conditions that must be met. The individual may not be on probation for another criminal offense and they may not be serving a sentence on another criminal case. Both felony and misdemeanor charges may be expunged. The individual must meet the criteria for having a case expunged.
There are positive reasons to have a record expunged when eligible. Having a case expunged provides the individual the release from all penalties arising from the conviction. The individual will not have to disclose the offense to a potential employer. There are some exceptions for certain careers such as law enforcement or other government employment. It can also be easier for the individual to get a state professional license making more employment opportunities available to the person. The conviction cannot be used to impeach the individual if they are testifying in court unless it is in a subsequent criminal matter.
Expungements do not mean the case is sealed. The conviction does not come off a RAP (Record of Arrests and Prosecutions) sheet (California or FBI criminal history). On a RAP sheet, it will state after the conviction that relief under expungement was granted. It does not give relief for those who are required by law to register as a sex offender. It will not limit United States Immigration and Customs Enforcement (ICE) from using the conviction in a deportation process. It does not reinstate the right to own a firearm if it was taken away pursuant to a relevant statute.
Per PC 1203.4, an individual is not eligible for expungement under these conditions:
- Current charges for a criminal offense
- Actively on probation for another criminal offense
- Serving a sentence for a criminal offense
- Certain sex crimes involving children
Once an individual makes a request of the court for expungement, it is the judge who makes the decision on whether to grant the expungement.