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    How Can I Get Probation Instead of Incarceration in California?

    Posted on: August 25th, 2022 by Dod Law

    How Can I Get Probation

    Misdemeanor and felony crimes in California are generally punishable by terms of incarceration. However, that doesn’t mean that everyone convicted of a crime in California will spend time in jail or prison. Many can receive favorable probation terms that allow them to serve their sentences without being incarcerated.

    To get probation instead of incarceration in California, you must be eligible and your criminal defense attorney must convince a judge that you deserve to receive it in place of jail or prison time. Here’s a look at the legal and factual considerations that go into whether the judge agrees to your lawyer’s request. 

    California’s Definition

    The California Penal Code defines probation as “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” Put simply, probation is when you get the chance to serve all or part of your sentence out of jail or prison, so long as you don’t break court-imposed rules (or “conditions”) and are supervised by a probation officer. 

    The Penal Code also authorizes the second type of suspended sentence that closely resembles probation called a “conditional sentence,” which is when you get released into the community subject to conditions but without being supervised by a probation officer.  Conditional sentences are only available if you have been convicted of a misdemeanor or an infraction. 

    A court can revoke your probation or conditional sentence and incarcerate you if you violate the conditions of your release. In most cases, the standard terms for a felony in California is two years. The standard term of probation or conditional sentence for a misdemeanor in California is usually one year.

    Factors Affecting Your Case

    First, note that this applies to California state criminal cases, not federal criminal cases. In California, whether you get probation instead of incarceration depends on two core factors: (1) your eligibility for probation, and (2) a judge’s evaluation of whether you should receive probation, assuming you are eligible. 

    The Penal Code establishes three general categories of eligibility for probation. Depending largely on the crime you were convicted of committing and your prior criminal history, the law may deem you presumptively eligible, presumptively ineligible, or not eligible, for probation instead of incarceration.

    Presumptively Eligible

    You are presumptively eligible for probation unless the Penal Code specifically limits your eligibility as discussed below. To be presumptively eligible means that a court will always consider your request to be sentenced to probation instead of incarceration. It does not, however, mean that you will automatically get probation. 

    Virtually all convictions for a misdemeanor (defined as any crime punishable by no more than 364 days in jail) are presumptively eligible for probation, and probation is most common and easiest to achieve in these cases.

    Some felonies are also presumptively eligible, but probation is generally less common and more challenging to achieve for felony convictions. 

    Presumptively Ineligible

    The Penal Code makes certain categories of felony conviction presumptively ineligible. This means that a court generally will not grant probation instead of incarceration, except in “unusual cases in which the interests of justice would best be served if the person is granted probation.”  It is generally uncommon in these cases and difficult—though not impossible—to achieve. 

    For example, the Penal Code makes the following convictions presumptively ineligible for probation in California:

    • A violent crime in which the defendant carried or used a deadly weapon other than a firearm
    • A defendant’s third or subsequent felony conviction
    • Public corruption crimes like accepting a bribe or embezzling public funds
    • Theft of or damage to property valued at more than $100,000

    This is not a complete list, so be sure to consult with an experienced criminal defense lawyer about whether your offense of conviction makes you presumptively ineligible for probation instead of incarceration.

    Not Eligible for Probation

    The Penal Code classifies certain crimes of conviction as not eligible. Conviction for one of these crimes means you cannot get probation instead of incarceration in California under any circumstances. Crimes included in the “not eligible” category include: 

    • Violent crimes in which the defendant used a firearm or inflicted great bodily harm on a victim
    • Rape and certain other sex-related crimes
    • Most crimes involving sexual exploitation of a minor
    • Certain violent crimes committed against an elderly or disabled person
    • A third or subsequent conviction within a ten year period of certain violent felonies

    As above, this is not a complete list. A knowledgeable criminal defense lawyer can tell you if your crime of conviction makes you ineligible in California. 

    Judge’s Evaluation

    If California law does not bar you, a sentencing judge will decide whether it’s appropriate in your case. This decision involves a two step process. 

    Step One: Are You Presumptively Eligible or Ineligible?

    If you are presumptively eligible, the judge jumps to considering the factors in step two below.

    If you are presumptively ineligible, the judge must first decide whether yours is the sort of “unusual” case in which probation should still be a sentencing option. In making this initial determination, the California Rules of Court require the judge to evaluate factors like: 

    • Unique characteristics of  your crime that make it less serious than the typical one 
    • Mitigating aspects of your conduct, such as that you were provoked or acted under duress
    • Your mental health, age, or any special needs you may have 

    If the judge concludes your case is sufficiently unusual, you are deemed eligible and the judge turns to step two. 

    Step Two: Does Your Case Meet the Criteria?

    Once a judge deems you eligible, they turn next to considering criteria affecting probation. In felony cases, a judge gets help with this step by referring your case to an officer who writes a report about the criteria as they apply to you. In misdemeanor cases, a judge will often forego the report and simply decide probation without it—a process known as informal or summary probation.  

    The criteria affecting whether you should get probation include: 

    • Facts relating to the crime like its seriousness, use of a weapon, your degree of participation, harm done to the victim, and likelihood of you committing the crime again 
    • Facts personal to you, like your criminal history, your willingness and likelihood to comply with probation conditions, your personal circumstances, whether you show remorse, and your danger to the community 
    • Any other facts that might reasonably affect the suitability in your case

    Your criminal attorney‘s goal in this process is to present facts favorable to your case, to convince the judge to opt for probation instead of incarceration.

    Contact an Experienced Criminal Defense Lawyer at Dod Law, APC Today 

    If you face criminal charges in the greater San Diego area and want to know more about the possibility of getting probation instead of incarceration, Dod Law, APC, can help. We are a team of skilled, dedicated criminal defense attorneys that get results for our clients. Attorney Dod has over 18 years of experience and has been included in the Top 100 Trial Lawyers by the National Trial Lawyers, so you can trust that you’ll have an excellent defense when you put your case in our care.

    To schedule a free consultation, call us at (619) 814-5110 or fill out our contact form

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