New Addition to Penal Code Requires Release, Bail, or Judicial Explanation to Detain for Those Accused of Probation Violations

       A Shift Away from No-Bail for those Accused of Violating Felony Probation

When someone is placed on Probation, they avoid going to prison or a commitment to County Jail by agreeing to participate in a Court-ordered program that includes terms and expectations that is a part of their grant of Probation. If you violate those terms, by either being arrested for a new charge or not obeying the terms of Probation, the Probation officer or District Attorney can file a request to revoke and “violate” the terms of your grant of probation, which, if sustained by the Court, has the potential for the maximum prison or jail sentence for which the individual was originally exposed to be imposed by the Court. See Cal. Penal Code § 1203.2. The standard practice was that if you were alleged to have been in violation of probation, you would be remanded into jail custody and held No Bail, despite no evidence yet being presented at a hearing. Although the defense could request the Court for release on bail or on Own Recognizance release, any review of custodial status in Probation Violation allegation cases was wholly discretionary. This had the unfortunate effect of unnecessary incarceration for sometimes minimal alleged violations with little ability to contest the probation violation allegations from outside a jail setting.

Luckily, beginning January 1, 2022, Penal Code section 1203.25 was added to the Penal Code to address the issue of prehearing detention regarding allegations that a defendant had violated the terms of their probation. See Cal. Penal Code § 1203.25. Specifically, Penal Code section 1203.25 requires that the Court to release a probationer on their own recognizance unless the Court makes a case specific determination by clear and convincing evidence that setting conditions upon release, bail, or denying release are required to protect the public and ensure the probationer’s appearance, and are the least restrictive means available to accomplish these two goals, stating:

1203.25.

(a) All persons released by a court at or after the initial hearing and prior to a formal probation violation hearing pursuant to subdivision (a) of Section 1203.2 shall be released on their own recognizance unless the court finds, by clear and convincing evidence, that the particular circumstances of the case require the imposition of an order to provide reasonable protection to the public and reasonable assurance of the person’s future appearance in court.

(1) The court shall make an individualized determination of the factors that do or do not indicate that the person would be a danger to the public if released pending a formal revocation hearing. Any finding of danger to the public must be based on clear and convincing evidence.

(2) The court shall not require the use of any algorithm-based risk assessment tool in setting conditions of release.

(3) The court shall impose the least restrictive conditions of release necessary to provide reasonable protection of the public and reasonable assurance of the person’s future appearance in court.

(b) Reasonable conditions of release may include, but are not limited to, reporting telephonically to a probation officer, protective orders, a global positioning system (GPS) monitoring device or other electronic monitoring, or an alcohol use detection device. The person shall not be required to bear the expense of any conditions of release ordered by the court.

(c) (1) Bail shall not be imposed unless the court finds by clear and convincing evidence that other reasonable conditions of release are not adequate to provide reasonable protection of the public and reasonable assurance of the person’s future appearance in court.

(2) “Bail” as used in this section is defined as cash bail. A bail bond or property bond is not bail. In determining the amount of bail, the court shall make an individualized determination based on the particular circumstances of the case, and it shall consider the person’s ability to pay cash bail, not a bail bond or property bond. Bail shall be set at a level the person can reasonably afford.

(d) The court shall not deny release for a person on probation for misdemeanor conduct before the court holds a formal probation revocation hearing, unless the person fails to comply with an order of the court, including an order to appear in court in the underlying case, in which case subdivision (a) shall apply.

(e) The court shall not deny release for a person on probation for felony conduct before the court holds a formal probation revocation hearing unless the court finds by clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public and reasonable assurance of the person’s future appearance in court.

(f) All findings required to be made by clear and convincing evidence under this section shall, based on all evidence presented, including, but not limited to, any probation report, be made orally on the record by the court. The court also shall set forth the reason in an order entered upon the minutes if requested by either party in any case in which the proceedings are not being reported by a court reporter.

(g) If a new charge is the basis for a probation violation, nothing in this section shall be construed to limit the court’s authority to hold, release, limit release, or impose conditions of release for that charge as permitted by applicable law.

Cal. Penal Code § 1203.25.

Penal Code section 1203.25 thus requires a Court to consider facts related to the probationer, the facts of the case and alleged grounds of probation violation, as well as the adequacy alternative means available to enhance public safety and ensure the probationer’s appearance in Court, in making the determination regarding the issue of a probationer’s release, conditional release, or denial of release  pending the outcome of their probation violation hearing.

 

An experienced, competent, and creative attorney can devise a plan in an effort to demonstrate to the Court that public safety and flight risk can be minimized, such as by releasing the probationer on electronic monitoring, regular probation searches or appointments with probation, regular drug testing, or limitless other proposals that account for the specific situation of the needs of the probationer. Because the Court must only impose conditions of release that are the “least restrictive available” to enhance public safety and ensure the probationer’s attendance at Court, No Bail incarceration is now much less common than it was in years past. But, the key is that an experienced attorney is needed to advocate for the probationer’s release.

The Lawyers at Honeychurch & Boyd Will Fight for Your Release

If you or a loved one believe that you may be facing allegations that you violated your Probation in Solano County, Napa County, or Yolo County, you need a strong advocate to make the best arguments possible under the new law to secure your release from custody, or protect you from being placed in custody in the first instance. And, when such release is granted, to litigate the facts and law surrounding the allegation regarding the purported probation violation to avoid prison or further incarceration thereafter.

Call our office today for a free consultation to learn about how we can best represent you and achieve the best results available for your particular case, at 707-429-3111.