Probation is a form of alternative sentencing. In California, felony sentencing guidelines provide judges with the option to impose either a prison term or probation. If the defendant receives probation, the judge either suspends the execution of any given prison sentence or places the accused on probation without sentencing him or her to jail or prison. Is a defendant required to accept alternative sentencing in California?

Those convicted of crimes in California may be sentenced to formal probation, which is much more restrictive than informal probation as the name implies. Informal probation only requires that a defendant remains under court supervision for the duration of the probationary period, while formal probation requires the defendant to report to a probation officer and adhere to specific conditions.  If a person is convicted of a misdemeanor, the court may either refer the matter to the probation officer for an investigation and a report or summarily pronounce a conditional sentence

There is no requirement that a defendant must accept probation. However, many judges become somewhat suspicious when a defendant refuses probation. Yet, some defendants do, in fact, request that the court allow them to serve their criminal sentences because they have little or no faith in their abilities to successfully adhere to the conditions of probation – it is simply easier for them to serve their sentences.

Those convicted of crimes in California have an absolute right to refuse probation. Typically, this arises in misdemeanor cases where someone pleads to a battery and rather than spend 2 months in jail subject to 3 years of searchable probation, chooses to spend 3 months in jail and have no probation at all after the sentence ends.

California’s probation form asks whether an individual accepts the terms and conditions of probation, to which a defendant may reply “no.” However, nowhere, in any California statute, is a defendant provided with a right to refuse a particular sentence. Of course, in the case of a plea agreement, a person, by definition, consents to the conditions of probation. Absent a plea agreement, a person does not have to consent to his or her sentence.

The attorneys at the Dolan Law Offices are experienced criminal defense lawyers who specialize in helping Californians expunge their criminal records and move forward with their lives positively and productively. Under California Penal Code § 1203.4, the expungement of a criminal record in California involves petitioning a California court to re-open the case, set aside a guilty or no-contest (nolo contendere) plea, or factual finding of guilt, and then requesting that the conviction be set aside and the case dismissed. The following is a brief, overview of the expungement process. John Dolan has helped residents of the Coachella Valley expunge their criminal records for several decades.

Does A Defendant Have To Accept Alternative Sentencing?