Long Beach Criminal Defense Attorney Explains Misdemeanor Probation

California law gives a judge two options when sentencing a defendant on a misdemeanor criminal offense, send the person to jail or give the person probation.  Probation is the suspension of the imposition or the execution of sentence and the order of conditional and revocable release into the community under the supervision of the court or a probation officer. The law governing criminal offense probation is found in Penal Code section 1203. Probation is not a right of an accused but an act of clemency by the court, the granting or denial of which is within the court’s discretion according to one Long Beach Criminal Defense Attorney.

The primary considerations in granting probation are the safety of the public; the nature of the offense; the loss to the victim; the needs of the defendant; and the interests of justice, including punishment, reintegration of the defendant into the community, and enforcement of conditions of probation. For example, a decision to grant or deny probation must be based on whether confine-ment is necessary to protect public, whether defendant can best be rehabilitated through a term of jail or normal community conduct, and whether probation would unduly undermine seriousness of offense.

Any probation report ordered by the court must be made available to the court, the district attorney, and defense counsel at least two days before the time fixed for consideration of the report and pronouncement of judgment. On the defendant’s request, the report must be provided five days beforehand. Some Courts have ruled that a failure to provide report within this five-day period denies defendant due process and requires remand for resentencing. The time within which the report must be made available may be waived by a written stipulation of the district attorney and defense counsel or by an oral stipulation in open court.  If the defendant is not represented by counsel, the court must order the pro-baion officer to discuss the contents of the report with the defendant,  At the sentencing hearing, the court must state for the record that it has read and considered the probation report. The failure to make this on-the-record statement may result in the reversal of sentence.

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