Probation

Pleading guilty or no contest to criminal charges can often result in a plea deal with a term of probation.  This allows the person charged to avoid the strict sentences provided for under the Penal Code and serve a probation term instead.  If you feel you are eligible for probation on your case, please contact The Law Office of Adam T. Spicer at (530) 539-4130

Case Resolution

• Plea bargains
  • Formal Probation
    • Formal probation is often what people think of when they think of probation.  When on formal probation, you are assigned to a probation officer (‘P.O.’) and you must check in with this probation officer.  The P.O. will often make visits, including surprise visits, to check on you.  And in addition drug and/or alcohol tests may be required.
  • Informal Probation
    • Informal probation is a much more lenient version of probation.  Though a violation of the law could be charged as a probation violation, there is no requirement to check in with a P.O.
  • Common Probation Terms
    • In forming the probation terms, the Judge is free to consider the facts and circumstances of the case and add to the terms as he sees fit.  Some of the following are common terms, but are not exclusive:
      • Obey all laws.
      • Obey all orders of the Court, Probation Officer, and Law Enforcement.
      • Do not leave the State without written permission of Probation Officer.
      • Seek and maintain employment.
      • Do not possess firearms or deadly or dangerous weapons.
      • Submit to chemical testing.
      • Abstain from use and possession of any narcotics.
      • Submit to search by a peace officer without probable cause.
      • Pay any restitution.
      • Jail – the Judge may order county jail time as a term of probation.
• Proposition 36
  • California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, permanently changed state law to allow qualifying defendantsconvicted of non-violent drug possession offenses to receive a probationary sentence in lieu of incarceration. As a condition of probation defendants are required to participate in and complete a licensed and/or certified community drug treatment program. If the defendant fails to complete this program or violates any other term or condition of their probation, then probation can be revoked and the defendant may be required to serve an additional sentence which may include incarceration.
  • Prop. 36 generally applies to three classes of people:
    • those with new convictions for drug possession or being under the influence,
    • persons on probation for drug possession or under-the-influence offenses, and
    • persons on parole with no prior convictions for a serious or violent felony.
  • Not all defendants convicted of a non-violent drug possession offense are eligible for probation and treatment under Prop 36.  Subdivision (b) of section 1210.1 of the California Penal Code deems the following defendants ineligible for the program:
    • Any defendant who has been incarcerated within the last five years for a serious or violent felony offense.
    • Any defendant convicted in the same proceeding of a non-drug related misdemeanor or felony.
    • Any defendant who, during the commission of the offense, was in possession of a firearm and, at the same time, was either in possession of or under the influence of cocaine, heroin, methamphetamine or phencyclidine (PCP).
    • Any defendant who refuses treatment.
    • Any defendant who has two separate drug related convictions, has participated in Prop 36 twice before, and who is found by the court by clear and convincing evidence to be unamenable to any and all forms of available drug treatment. In such cases the defendant shall be sentenced to 30 days in jail.
  • The judge may set any range of conditions of probation to monitor the offender’s progress. These may include regular check-ins with a probation officer or court appearances, a requirement to pay a share of treatment costs, drug testing and other restrictions on the person’s place of residence, associations, or lifestyle. ??If the offender violates any of the court’s conditions, he or she faces the risk of having probation violated or revoked. Otherwise, the treatment provider selected by the court will provide regular progress reports through the required course of treatment.
  • At the end of the required treatment regimen, the offender may petition the court to dismiss the drug charges. If the court finds that the person complied with the probation conditions and that treatment was “successful,” charges may be dismissed, and the defendant will be obliged to disclose the fact that he or she was arrested only in certain specified circumstances.
• PC 1000 Classes
  • California Penal Code Section 1000 (PC 1000) permits first time drug offenders with no prior record to take a 4 month, weekly class instead of going to jail; once the person successfully completes the class, goes a total of 18 months without a criminal arrest or conviction and pays the fee (about $150.00) the case against the person can be dismissed by the court. Persons charged with possession for sales of a controlled substance or other sales related offenses are generally not eligible for PC 1000.
  • Since PC 1000 is only available to first time offenders, people facing subsequent charges cannot use this program and must instead consider Prop 36 or other options.
• Drug Courts
  • Drug Courts are specially designed court calendars that provide an alternative to traditional criminal justice prosecution for non violent drug-related offenses. These courts combine close judicial oversight and monitoring with probation supervision and substance abuse treatment services.
  • The goals of these programs are:
    • reduce recidivism and substance abuse among substance abusing offenders and
    • increase the offender’s likelihood of successful rehabilitation.
  • Adult drug courts provide access to treatment for substance-abusing offenders in criminal, dependency, and family courts while minimizing the use of incarceration. They provide a structure for linking supervision and treatment with ongoing judicial oversight and team management. The majority of drug courts include initial intensive treatment services with ongoing monitoring and continuing care for a year or more. Dependency drug courts address substance abuse issues that contribute to removal of children from the care of their parents. Drug courts in family court address the impact of substance abuse on child custody and visitation.
  • The Judicial Council adopted section 36 of the California Standards of Judicial Administration, Guidelines for Diversion Drug Court Programs, effective January 1, 1998, which provides clarification specifically for pre-plea diversion drug courts under Penal Code section 1000.5. (A pre-plea diversion program allows criminal proceedings to be suspended while the defendant participates in a program involving counseling, drug testing, education, or other requirements. If the defendant successfully completes the program, the criminal charges may be dismissed.)

Violations

• People facing probation violations are often facing two separate charges.  The first is the offense itself.  The second is a charge for violating probation.
• The new offense for which a person is arrested will lead them to be arraigned on this offense and have a bail associated with it.
• The probation violation is often the more serious problem.  The defendant is not afforded all the protections under the law they are when facing criminal charges.  In a probation violation case, the District Attorney only needs to prove its case by a preponderance of the evidence, rather than proof beyond a reasonable doubt that is required to convict a person of criminal charges.
• Further, if the alleged violation is proved, the offender can have their probation revoked and be subject to sentence on the original offense.

Expungement

• California Penal Code § 1203.4 allows for expungement of criminal records in certain circumstances.
• Although, this does not make the conviction completely undiscoverable, it is a good option for people seeking to clean up their criminal records for employment or other reasons.
• An expungement under § 1203.4 operates to withdraw the original plea of guilty or no contest and will replace it with a plea of not guilty and often a dismissal of the case.  So the conviction on the criminal record is replaced with a dismissal of the case pursuant to § 1203.4.
• To be eligible for expungement a person must:
  • Been convicted of any crime and sentenced to probation or been convicted of a misdemeanor or infraction whether or not probation was served.
  • Finish serving probation and comply with all probation terms.
  • Allow one year to elapsed, during which time the sentence of the court was performed and complied with.
  • Not be under a sentence for any offense.
  • Since the pronouncement of judgment, live an honest and upright life.