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Because of the Individual Nature of a Sentence It Is Always Best to Consult with an Experienced California Criminal Defense Attorney

If You Have Specific Questions About Your Sentence; However, a General Overview of Common Probation Sentencing Terms and

Conditions May Also Be Useful to You

UNDERSTANDING YOUR

PROBATION SENTENCE IN CALIFORNIA

DOMENIC J. LOMBARDO

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If you have been found guilty of a criminal offense in the State of California you were then

sentenced by the judge presiding over your case. Ideally, your sentenced was explained to you

in detail by the judge and/or by your criminal defense attorney. Unfortunately, that does not

always occur. Defendants frequently walk away from their sentencing hearing without an

adequate understanding of the terms of their sentence. Probation is particularly confusing to

many people as the terms of a probationary sentence are often mentioned rapidly and without

going into detail in court. This frequently causes confusion and even unintended violations.

Because of the individual nature of a sentence is it always best to consult with an experienced

California criminal defense attorney if you have specific questions about your sentence;

however, a general overview of common probation sentencing terms and conditions may also

be useful to you.

HOW YOUR SENTENCE IS DETERMINED

When someone is charged with a criminal

offense the charge may be resolved in one of

three ways – dismissal, plea agreement, or

trial. Dismissal means that the prosecuting

attorney dismissed, or “dropped”, the

charge against you. A plea agreement is an

agreement you enter into with the State of

California wherein you agree to plead guilty

to the charge in exchange for a set, or pre-

determined, sentence (in most cases). You

might also decide to enter into a plea agreement in exchange for dismissing additional charges

against you and/or reducing a charge to a less serious offense. “Wobblers”, for example, can be

charged as either a felony or a misdemeanor in California. A plea agreement might include the

condition that you be sentenced to the misdemeanor instead of the felony if you are charged

with a wobbler. If your case is resolved at trial you have the option to have a judge or a jury

decide your fate. If you are found guilty at trial your sentence will be handed down after the

trial, meaning you do not know what the terms of your sentence will be until after the trial.

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FACTOR THAT ARE TYPICALLY CONSIDERED

DURING SENTENCING

Whether you are sentenced pursuant to a plea agreement or after a trial there are several

common factors that are typically considered when deciding a defendant’s sentence including:

Severity of the offense –felonies carry a harsher potential sentence than

misdemeanors. In addition, violent crimes are often viewed as more serious than a non-

violent crime within the same severity level.

Victim statement –if the crime included a victim, the victim’s opinion will usually

carry a considerable amount of weight with the sentencing judge.

Defendant’s criminal history –if you are a repeat offender you may face mandatory

sentencing. At the very least the judge will likely consider a harsher sentence because of

your criminal history.

Acceptance of responsibility –a judge will often, but not always, be more lenient if

you accept responsibility by entering into a plea agreement.

Personal circumstances –things such as a history of drug addiction, abuse, or

mental illness will often be relevant at sentencing.

PROBATION IN CALIFORNIA

If you are convicted of a misdemeanor or a less serious felony there is a good chance that you

will be sentenced to a probation only sentence or that you will only be required to spend a short

period of time in jail followed by a lengthy term of probation. Either way, it is important that

you understand what probation means in California. Specifically, you should understand the

following terms and concepts:

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Suspended sentence –typically, a judge will actually sentence you to a term of

incarceration but then suspend the sentence. Defendants often fail to understand this

important portion of their sentence, focusing instead on the fact that they are not

required to go to jail right then and there. If you violate your probation, however,

you can be ordered to serve your suspended sentence.

Formal probation –formal probation is usually used when a defendant is convicted of

a felony offense. Not all felonies, however, are eligible for probation. More serious,

violent felonies and some sex crimes are ineligible. A thorough report is done by the

probation department prior to sentencing and recommendations given to the sentencing

judge. While on formal probation you must report to a probation officer on a regular

basis. Formal probation generally lasts for three years or more.

Informal (Summary) probation –informal probation is ordered when a defendant

is convicted of a misdemeanor and the defendant is not considered to be a high risk

offender. When convicted of a misdemeanor, the judge will not usually order a

probation report prior to sentencing. In addition, informal probation does not require a

probationer to report to a probation officer as does formal probation. Instead, you will

simply be required to report to the court several times during your probationary term to

let the court know how you are doing. Informal probation generally last for anywhere

from six months to three years.

Conditions of probation –all probationers must abide by standard conditions such

as not committing a new crime and maintaining employment/enrollment in school. In

addition, you may be ordered to complete special conditions such as payment of

restitution or completion of a substance abuse rehabilitation program. You could also be

required to serve some of your probationary period on “house arrest” , be required to

install an ignition interlock device on your vehicle, or be ordered to wear an electronic

monitor attached to you. Failing to understand and complete your special conditions

will likely result in a probation violation being filed.

Sex offender registration – if you are convicted of certain sex offenses you will be

required to register as a sex offender. Failing to comply with this requirement is taken

very seriously in California and will likely lead to a violation of your probation.

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VIOLATING YOUR PROBATION

Whether you are on formal or informal

probation you can be violated at any time

up to the point at which your probation is

officially closed out with the court. An

allegation that you have violated your

probation should be taken seriously

because of the potential consequences

should you be found in violation.

Violations fall into two broad categories:

Technical –this includes things

such as failing to pay restitution, failing to maintain employment, or failing to appear for

a scheduled hearing.

New Offense–probationers are often unaware that they can be violated for being

charged with a new offense.

If your probation officer and/or the court is made aware of a condition that may qualify as a

probation violation you will either be arrested or be served with an order to appear at a

probation violation hearing. You have the right to defend yourself against the allegations and to

have an attorney represent you at the hearing. If the judge does, however, find the allegations

to be accurate, the judge may do one of three things:

Continue probation unchanged –if the violation was a relatively minor one and you

provided the court with a reasonable explanation for the violation the judge may simply

continue you on probation without any change. This is unlikely if you have a history of

violations, you have a significant criminal history in general, or the violation was

something serious.

Continue probation with changes –for more serious violations a judge may allow

you to remain on probation but may modify the terms of your probation. For example, if

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you tested positive for drugs the judge might decide you have a substance abuse

problem and order an evaluation and counseling as needed.

Revoke probation –the judge can revoke your probation entirely. Serious and/or

repeat violations are most likely to end in revocation. If the judge revokes your

probation you will likely be ordered to serve some, or even all, your suspended sentence,

or “back-up” time.

Because of the complex nature of the probation system in California it is always in your best

interest to go over your probationary sentence with your California criminal defense attorney

to ensure that you have a thorough understanding of all the terms and conditions of the

sentence. If you have been charged with a violation of your probation in California it is also

best to consult with an attorney immediately.

San Bernardino County, Adult Probation Frequently Asked Questions

San Diego Superior Court, Standard Sentencing Guidelines

Criminal Defense Lawyer.Com, California Felony Crimes by Class and Sentence

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About the Author

Domenic J. Lombardo

Domenic J. Lombardo, (Attorney at Law)

graduated from University of California, Los

Angeles (U.C.L.A.), earning a B.A. in

Economics-Business, before graduating with

his J.D. from University of California,

Hastings School of Law. He passed the

California Bar Examination on the first try,

and immediately began practicing as a

criminal defense attorney in San Diego,

California.

Mr. Lombardo worked as a defense lawyer at the San Diego Office of the Public

Defender from 1991 to early 1996.

Mr. Lombardo opened the Law office of Domenic Lombardo in 1996 as a sole

practitioner dedicated entirely to the defense of individuals accused of crimes.

And while Mr. Lombardo works as the primary attorney for all his cases, he does

have a team of investigators, forensic consultants, and paralegals to call on to

help achieve the best possible result in every case.

When he is not working, Mr. Lombardo is an avid family man, triathlete, and

world traveler.

The Law Office of Domenic J Lombardo

The Executive Complex 1010 Second Ave., Ste. 1820

San Diego, CA 92101

www.AttorneyLombardo.com