What exactly is probation, anyway?
AB 1950 changes the length of probation in California. But what exactly is probation, anyway? Probation is the suspension of the imposition or execution of a sentence and the conditional release of a defendant into the community. Probation is either under the direction of a probation officer (called “formal” or “supervised” probation) or the court (called “court probation”). Probation for felonies is generally formal; court probations is generally for misdemeanors.
What are probation “conditions”?
Probation comes with conditions. These can include any condition reasonably related to the offense. For example, the defendant in a driving under the influence case may have a probation condition requiring him to refrain from driving with any measurable amount of alcohol in his system. All probations come with the condition that the defendant “obey all laws.” So if you are arrested for any new offense while on probation (even if you are not charged with a new crime), the district attorney may file papers charging that you have violated your probation.
Sometimes a probation condition requires a defendant to serve time in county jail. For example, if the maximum sentence for the defendant’s conviction is three years state prison, the court can impose probation (rather than a state prison sentence), with one of the probation conditions being that the defendant serve one year in county jail, before being released on probation. Upon release, if the defendant violates his probation, the Court can impose the balance of the maximum state prison sentence (two years).
How long does probation last?
Probation can be a heavy burden, described by one of my colleagues as a “Sword of Damocles” hanging over the heads of our clients. Any small slip up – even failing to report to the probation officer on time – can result in a petition to revoke probation, which ultimately can lead to the probationer having to serve the balance of their sentence which had been suspended.
It used to be that in felony cases, courts had discretion to grant probation for up to five years. If the potential prison term for the crime exceeded five years, probation could be granted for a period up to the length of the potential prison term. For misdemeanors, the maximum probation time was generally three years.
The great news is that we have a new law, Assembly Bill No. 1950, which significantly lowers the amount of time that a Court can impose probation in most cases. Assembly Bill No. 1950 was passed by the legislature and became effective on January 1, 2021. This new law sets the maximum term of probation for most misdemeanor crimes at one year and most felonies at two years. There are exclusions for violent felonies, crimes involving theft and embezzlement in amounts over $25,000, and any offense that includes a specific probation length in its provisions, including domestic violence related offenses.
Overall, this is a terrific change in the law which allows people who have already been punished for their offenses to move on with their lives.
Even better, the law has been interpreted to be retroactive. This means that it applies to cases where defendants were placed on probation even before AB 1950 became effective. If you have been on misdemeanor probation for more than a year, or felony probation for more than two years, call your lawyer (or any local criminal defense lawyer) and ask them if AB1950 applies to you. You may be able to get your probation terminated early!
