Guide to a California Adult Probation Violation -- by Robert Sanger, Sanger & Swysen
What to Do -- Obtain a LawyerIf you are on adult Probation in California, it means that you have been convicted of an offense and that you have agreed to abide by certain conditions instead of being sent to jail or prison for a longer time. If you are arrested for a new offense or it is alleged that you are in violation of the conditions of probation, you should immediately contact your lawyer.
If you had a lawyer on the original case, you can contact her or him. If you want to hire a lawyer, find the best criminal defense lawyer you can in your area. If you cannot afford to hire a lawyer, then apply to the court for the appointment of the Public Defender.
However, if you are on Probation, remember that you risk being sent to jail or prison. So, it is critical that you have the best representation that you can obtain. It is generally not a good idea to show up in court and let the judge talk you into a quick resolution of the case without a lawyer even if it is a relatively minor offense.
What Will Happen in Court -- the First VickersIn California, the first court appearance on an alleged violation of probation is a "First Vickers." This is the time that the court has to advise you of the basis of your alleged violation. It is also the time that your lawyer can make the first attack on the allegations.
Often, the basis for the alleged violation is clear and there is no need to do anything at this First Vickers hearing. For instance, if the basis of the violation of probation is a new offense and the evidence of that new offense is substantial or if the basis is the failure to report to probation and that is pretty much what happened, then your lawyer might not want to have any type of substantive hearing at this point.
However, if the alleged violation is untrue or the judge may not revoke based on whatever is alleged, then your lawyer can insist on a hearing with witnesses before the intial determination is made to set the case for further proceedings. This can result in your being released from jail.
The Second VickersIf the judge decides at the First Vickers that there is sufficient evidence to go on, you can be held in custody or you can be released on bail or on conditions of release. Eventually, your case, if not resolved otherwise, will be set for a Second Vickers hearing. At this hearing, you have due process rights that allow you to confront and cross-examine witnesses and call witnesses on your behalf.
Your lawyer will want to prepare for this hearing with you just like she or he would for any other trial. The standard of proof is by a preponderance which means that the government has to prove to the judge that it is more likely than not that you did or failed to do the act that is the basis for a violation of a valid order on probation.
There are technical, constitutional and merits based defenses. Your lawyer will talk to you about all of that before the hearing.
Second Vickers and the New CaseIf the basis for the alleged violation of your conditions of probation is a new criminal charge in the same court, as a practical matter, your probation violation case will probably be trailled along with the new case. Most cases are resolved prior to trial and most probation violations are resolved with the new case. As long as you have a vigorous criminal defense lawyer, she or he will advise you of what to fight and when.
An issue that arises if the new case is a felony in the same court, the Second Vickers might be set "concurrently" with the prelimiinary hearing in the new case. This can be a curse or a blessing. The government thinks it is easier for them because it may force a plea and that the violation is more easily proved than the new case would be at a jury trial.
However, two things: 1) the Supreme Court in Coleman stated a preference for handing the new case first; and 2) you have confrontation rights at a Second Vickers that you do not have at prelim
What Can Happen if there is a ViolationIf a violation of probation is proven, then whatever punishment was suspended can be imposed. However, the judge does not have to impose all of what was suspended even if it is a specified term.
Many probation orders are conditioned on imposition of sentence suspended. This means that whatever has not been used up of the possible sentence can be imposed if you violate. For instance on a misdemeanor carrying a maximum one year in the county jail, a person is given probation of the condition that she or he serve 10 days. If the 10 days was served and then there is a violation, the maximum sentence that can be imposed is 354 days. If it is a felony and the maximum sentence is, say,4 years, then a person could be sentenced to the four years less the time spent in custody on this offense.
However, the judge can impose less time than the maximum suspended and can even reinstate probation on new conditions. This is a tricky area and your lawyer can guide you through.
A Few Issues Commonly MisunderstoodYour lawyer can advise you on these things if they apply but here are some random but important concepts:
1) Even if you have a term suspended (instaed of impostion suspended) the judge can still revoke and reinstate you on probation. However, if actual prion time is suspended, it usually means that the judge intends to impose it and, if probation is not reinstated, the term selected must be imposed.
2) If imposition is suspended, the term of jail or imprisonment imposed for the violation has to be based on the severity of the underlying offense and not on the probation violation. In other words, if the original offense was only worth the low term, the judge cannot aggravate it to the middle or upper term based on the violation.
3) You are entitled to a full sentencing hearing after you have been found in violation.
4) In the proper case, you can waive your county jail credits under Johnson so that the judge still has a basis to reinstate probation and impose local time.
ConclusionThis Guide is designed to give you basic information but is not legal advice. You should retain an attorney or have one appointed. Talk to the attorney and follow her or his advice. This may give you some information to make the discussions more meaningful but, ultimately, only the lawyer who is actually representing you and knows your case can give you legal advice.