Probation Cases In Los Angeles/Probation Violations In Criminal Cases
When it comes to a probation violation a lot of people ask me what the best strategy is on how to deal with their particular case. Obviously, this spins on the facts and circumstances of their case and what the violation is for.
Sometimes there is what I would characterize as an internal violation where somebody violates one of the terms of their probation – either the Judge tells them to do something and they don't do it, or the judge tells them not to do something and they ignore the judge and violate that term and condition of the probation.
Other times there is what's characterized as external violations where somebody commits a new crime. For example, that would violate any probation in Los Angeles, because every single probation in LA, has as one of its terms and conditions to obey all laws. So, if you break a law, then you're going to get charged with a probation violation. They aren't usually talking about a traffic offense. They're talking about actually committing some sort of a crime for purposes of a violation as it relates to probation violation cases.
Are You Entitled To Bail If You Have A Probation Violation?
The answer is it's up to the judge whether or not you get bail on a probation violation case and it is a subjective thing. It's going to depend on your prior criminal record. It's going to depend on what's the underlying crime that you're on probation for and what the violation is.
But, a lot of times if the underlying crime is serious enough and the violation is serious enough, the judge wants to see you and deal with you, they're just going to put a no bail on it and then when the police catch you, you can't get out and then the judge will be able to deal with you and talk to you about why you violated your probation and what's going to happen with it.
A lot of times the judge will set a bail or just keep it at no bail. They will typically order a supplemental probation report to have probation see what you've been doing on probation and weigh-in on the new violations and then they will set a court date. That court date can be for probation violation setting, where they're basically just trying to resolve the case, or they can set it for the probation violation hearing.
In a probation violation hearing situation, you're not entitled to a jury. The judge who was your sentencing judge, or another judge standing in that judge's place, will listen to the evidence that's put on and decide whether or not you actually violated your probation.
Usually, the first witness the prosecutors are going to call is your probation officer to explain what you've been doing on probation and how you violated it, and then of course, your defense attorney gets an opportunity to cross-examine that person, and then in the end, the judge decides whether you violated your probation.
If you did, then they can punish you for up to the maximum for whatever it was you were charged with or they can give you another chance on probation or they can find that you didn't violate your probation.
What Am I Facing For Violating Probation?
The maximum of what you're facing would be the max for whatever the most serious charge was that you pled to. So, if you pled to something that has a three-year max, then you're facing three years. Basically, first the judge is going to decide whether you violated your probation, then the next thing they are going to decide what the punishment should be for that violation.
So, sometimes you could be facing being put back on probation again and given some jail time or community service or Caltrans for example or you could be facing going to prison. Again, depending on the circumstances of the case, and since you're not entitled to a jury trial for a probation violation, the judge ultimately will decide.
This is interesting because I see a lot of times where the prosecutors file what's called an “in lieu of filing' where instead of filing new criminal charges against you, the just file it as a probation violation if you're on probation for some sort of a crime.
The reason they do this is because it's easier and faster to prove a probation violation than it is an open criminal charge that you're entitled to a jury to, because they can just go right to the judge, put on the evidence and try to prove the violation and get you punished for that.
Also, the standard is different in a probation violation situation versus a regular open case. In an open case, they have to prove their case beyond a reasonable doubt, whereas in a probation violation, it's just 51% that you violated your probation.
What Are Some Defenses to Probation Violations?
Well, the most obvious defense is, I didn't violate my probation, I did everything I was supposed to that the judge ordered me to and I didn't pick up any new cases, so why are you bothering me and claiming that I violated my probation.
Again, the probation officer is usually the one that is going to claim that you violated your probation, send a report to the judge listing why you violated your probation and then it will be up to your defense attorney to try to argue against that and again, you're entitled to a probation violation hearing and the judge will determine whether or not, in fact, you did violate your probation.