Close

When is Someone Ineligible for Probation? Why?

As the reader of the article would certainly agree, probation is not granted to someone who commits murder. Prison is the only sentence or death. Likewise, someone with no prior criminal history who commits petty theft of a carton of milk does not usually go to jail.
What about all the crimes between these two extremes? What crimes are ineligible for probation and what defendants must serve time in prison?
Brief Synopsis: Homeless Court in Redondo Beach is an outdoor “court” that takes place in the afternoon once per month on Wednesdays. It is limited to handling nonviolent misdemeanors with particular emphasis on rehabilitation of the defendants, rather than punishment.
Penal Code § 1203 sets forth the general provisions concerning eligibility for probation. Penal Code § 1203(k) states that probation may not be granted to those convicted of certain crimes and that execution or imposition of the sentence may not be suspended for any individual who is convicted of a violent felony as defined at Penal Code § 667.5(c) or a serious felony as defined at Penal Code § 1192.7(c) and the person was on probation for a felony offense at the time of commission of the new felony offense.
Prison Photo
Violent felonies, as defined at Penal Code § 667.5(c), include:
  1. Murder (Penal Code § 187) or voluntary manslaughter (Penal Code § 192);
  2. Mayhem (Penal Code § 203);
  3. Rape (Penal Code § 261(a)(2) or (a)(6) or § 262 (a)(1) or (a)(4));
  4. Sodomy (Penal Code § 286(c) or (d));
  5. Oral copulation (Penal Code § 287(c) or (d) or the old § 288a);
  6. Lewd or lascivious act (Penal Code § 288(a) or (b));
  7. Any felony punishable by death or imprisonment in the state prison for life;
  8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved under Penal Code §§ 2022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Penal Code §§ 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Penal Code §§ 12022.3(a), 12022.5 or 2022.55;
  9. Any robbery (Penal Code § 211);
  10. Arson (Penal Code § 451(a) or (b));
  11. Sexual penetration (Penal Code § 289(a) or (j));
  12. Attempted murder (Penal Code §§ 664/187);
  13. Possession of an exploding or destructive device with intent to commit murder (Penal Code § 18745), willfully and maliciously exploding such a device, causing great bodily injury or death (Penal Code §§ 18750 or 18755);
  14. Kidnapping (Penal Code § 207);
  15. Assault with the intent to commit a specified felony (Penal Code § 220);
  16. Continuous sexual abuse of a child (Penal Code § 288.5);
  17. Carjacking (Penal Code § 215);
  18. Rape, spousal rape, or sexual penetration, in concert (Penal Code § 264.1);
  19. Extortion (Penal Code § 518), if done to aid a criminal street gang (Penal Code § 186.22);
  20. Threats to victims or witnesses (Penal Code § 136.1) if to aid a criminal street gang (Penal Code § 186.22);
  21. Any burglary of the first degree (Penal Code § 460(a)), wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
  22. Any crime committed with the personal use of a firearm (Penal Code § 12022.53); or
  23. Any crime involving weapons of mass destruction (Penal Code § 11418(b) or (c)).
A serious felony is defined at Penal Code § 1192.7(c). It may also be a violent felony. Serious felonies include:
  1. Murder (Penal Code § 187) or voluntary manslaughter (Penal Code § 192);
  2. Mayhem (Penal Code § 203);
  3. Rape (Penal Code § 261(a)(2) or (a)(6) or § 262 (a)(1) or (a)(4));
  4. Sodomy (Penal Code § 286(c) or (d)) by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
  5. Oral copulation (Penal Code § 287(c) or (d) or the old § 288a) by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
  6. Lewd or lascivious act on a child under 14 years of age (Penal Code § 288(a));
  7. Any felony punishable by death or imprisonment in the state prison for life;
  8. Any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm (Penal Code § 12022.53);
  9. Attempted murder (Penal Code §§ 664, 187);
  10. Assault with intent to commit rape or robbery (Penal Code § 220);
  11. Assault with a deadly weapon or instrument on a peace officer;
  12. Assault by a life prisoner on a non-inmate;
  13. Assault with a deadly weapon by an inmate;
  14. Arson (Penal Code § 451);
  15. Exploding a destructive device or any explosive with intent to injure (Penal Code §§ 18750 or 18755);
  16. Willfully and maliciously exploding such a destructive device, causing great bodily injury or death (Penal Code §§ 18750 or 18755);
  17. Exploding a destructive device or any explosive with intent to murder (Penal Code §§ 18750 or 18755);
  18. Any burglary of the first degree (Penal Code § 460(a));
  19. Robbery or bank robbery (Penal Code § 211);
  20. Kidnapping (Penal Code § 207);
  21. Holding of a hostage by a person confined in a state prison;
  22. Attempt to commit a felony punishable by death or imprisonment in the state prison for life;
  23. Any felony in which the defendant personally used a dangerous or deadly weapon;
  24. Selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in Health & Safety Code § 11055(d)(2) or any of the precursors of methamphetamines, as described Health & Safety Code § 11100(a) or 11055(f)(1)(A);
  25. Forcible sexual penetration with a foreign object (Penal Code § 289(a) where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
  26. Grand theft involving a firearm;
  27. Carjacking (Penal Code § 215);
  28. Any felony offense, which was done to further, assist or aid or assist a criminal street gang (Penal Code § 186.22);
  29. Assault with the intent to commit mayhem, rape, sodomy, or oral copulation (Penal Code § 220);
  30. Throwing acid or flammable substances (Penal Code § 244);
  31. Assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter (Penal Code § 245);
  32. Assault with a deadly weapon against a public transit employee, custodial officer, or school employee (Penal Code §§ 245.2, 245.3, or 245.5);
  33. Discharge of a firearm at an inhabited dwelling, vehicle, or aircraft (Penal Code § 246);
  34. Commission of rape or sexual penetration in concert with another person (Penal Code § 264.1);
  35. Continuous sexual abuse of a child (Penal Code § 288.5);
  36. Shooting from a vehicle (Penal Code § 12034(c) or (d));
  37. Intimidation of victims or witnesses (Penal Code § 136.1);
  38. Criminal threats (Penal Code § 422);
  39. Any attempt to commit a crime listed in this subdivision other than an assault;
  40. Any crime committed with the personal use of a firearm (Penal Code § 12022.53);
  41. Any crime involving weapons of mass destruction (Penal Code § 11418(b) or (c)); and
  42. Any conspiracy to commit an offense described in this subdivision.
Other offenses may qualify as serious felonies or strike priors with additional proof, such as:
  1. Assault with a deadly weapon, Penal Code § 245(a)(1). To qualify as a serious felony, defendant must have used a weapon to inflict great bodily injury;
  2. Penal Code § 243(d) – the prosecutor must show great bodily injury was inflicted; and
  3. Vehicle Code § 23153, drunk driving with injury – the prosecutor must show great bodily injury and that defendant personally inflicted this under 1192.8.
A conviction suffered outside of California may also count as a serious or violent felony if the elements of the out-of-state crime match or are more narrow in scope than the California requirements.
For more information about probation, please click on the following articles:
  1. What Is Formal Probation?
  2. Does a Violation of Probation with a “Joint Suspended” Sentence Always Mean Prison?
  3. What Punishment Do I Face for a Probation Violation?
Contact us.
Client Reviews
★★★★★
"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
★★★★★
"Greg Hill did an outstanding job on every level. He was efficient, thorough, knowledgeable, courteous, responsive & brilliant. He welcomed my input and my concerns. . . from the first conversation to the last - I always felt 'it mattered' to him." S.C., Rolling Hills Estates
★★★★★
"Thanks again for your hard work. We want you to know that we are very appreciative of all that you have done [on our son's] behalf. With warmest regards." L.H., Torrance
★★★★★
"Dear Greg, Thank you again for all your help. Your professionalism and thoroughness is greatly admired. I will definitely recommend you to my friends if they ever need legal help." V.L., Carson
★★★★★
"Thanks for investing in my case. I talked to other attorneys out there and they had an arms-length of attitude, but not you. Your intensity and interest helped a lot." C.R., Pomona
Contact Us