California Criminal Trial Manual

Probation Violations, Early Release, & Post-Conviction Protective Orders

Probation Violations, Revocations & Tolling

  • If a PO has probable cause to believe that a probationer is violating any term or condition of the probationer’s supervision, the court has authority to issue a warrant for the person’s arrest. (PC 1203.2(a).)
  • Probation Revocation. Upon issuance of the warrant, “the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in is judgment, has reason to believe from the report of the probation … officer or otherwise that the person has violated any of the conditions of their supervision …” (PC 1203.2(a).)
  • Tolling. Revoking probation serves to toll the running of the period of supervision.
    • This preserves jurisdiction and gives a trial court “authority to adjudicate a claim that the defendant violated a condition of probation during the probationary period” even if a formal violation hearing cannot be held before probation expires. (People v. Leiva (2013) 56 Cal.4th 498, 515.)
    • PVH after original probationary term expired: PC 1203.2(a) preserves jurisdiction so that “a trial court can find a violation of probation and then reinstate and extend the terms of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation.” (People v. Leiva (2013) 45 Cal.4th 498, 516.)
  • PVH before original probationary term expired: where violation is found, “the period of tolling can be tacked onto the probationary period if probation is reinstated.” (People v. Orenlas (2023) 87 Cal.App.5th 1305.)

Early Release/Parole

  • Non-Violent Offenders sentenced to CDCR. Eligible for parole consideration after completing the full term for his primary offense, excluding enhancements, alternative sentencing provisions, and consecutive sentences. (Cal Const. Art. I, sec. 32, subd. (a)(1).)
  • Does not include any sentencing credits. (In re Canady (2020) 57 Cal.App.5th 1022.)
  • Primary offense: longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.
  • Excluded:

Post-Conviction Criminal Protective Orders

  • PC 136.2(i)(1) Post-Conviction Protective Orders
    • A postconviction protective order under PC 136.2(i)(1) is authorized if:
    • Statutorily enumerated crimes
      • Crime involving domestic violence (per Penal Code 13700 or Family Code 6211)
      • PC 236.1(a), (b), or (c)
      • PC 261, 261.5, former PC 262, PC 266h(a), or PC 266i(a)
      • PC 186.22
      • Crime requiring 290 Reg
    • A victim is statutorily defined as “any natural person with respect to whom there is reason to believe that any crime as defined under the laws of this state … is being or has been perpetrated or attempted to be perpetrated.” (PC 136(3); see People v. Delarosarauda (2014) 227 Cal.App.4th 205, 211.)
    • “A protective order is available for one or more persons [under PC 136.2(i)(1)] as long as each person is a ‘victim’ of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted.” (People v. Walts (June 23, 2025) F087907.)
      • “[S]o long as there is reason to believe that an enumerated section 136.2(i)(1) offense for which the defendant was convicted ‘is being or has been perpetrated or attempted to be perpetrated’ against a particular person, that person is a ‘victim’ who may be protected by a section 136.2(i)(1) protective order.” (People v. Walts (June 23, 2025) F087907.)
      • In Walts, D was convicted of a single count of PC 288.5(a). T.W., the named victim, was a ‘victim’ for purposes of a postconviction protective order under PC 136.2(i)(1). T.W.’s mother, Tina, was not a named victim. Therefore, Tina was not a ‘victim’ for purposes of a postconviction protective order under PC 136.2(i)(1) and could not be listed as a protected party under the order.
  • PC 646.9(k)(1) Post-Conviction Protective Orders
    • A member of the immediate family of a stalking victim (PC 646.9(a)) who suffers emotional harm is a “victim” for purposes of a postconviction restraining order. (People v. Clayburg (2012) 211 Cal.App.4th 86, 88.)
    • Immediate family means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household. (PC 646.9(l).)
    • Length of protective order: up to 10 years. (PC 646.9(k)(1).)