When is a defendant
Ineligible for probation?
Probation Ineligible / Probation Ineligible Except
In Unusual Circumstances
PC § 1203.06 – Violent Crimes. No probation for a person who uses a firearm during the commission of any of the following Penal Code sections:
ð Murder.
ð Robbery
ð Kidnapping [PC 207, 209, or 209.5]
ð Lewd or lascivious acts [PC 288]
ð First degree burglary [PC 460]
ð Rape [PC 261, 262, or 264.1]
ð Assault with intent to commit a specified sexual offense [PC 220]
ð Escape [PC 4530 or 4532]
ð Carjacking [PC 215]
ð Aggravated mayhem [PC 205]
ð Torture [PC 206]
ð Continuous sexual abuse of a child [PC 288.5]
ð Felony violation of PC 136.1 or 137.
ð Sodomy [PC 286]
ð Oral copulation [PC 288a]
ð Sexual penetration [PC 289 or 264.1]
ð Aggravated sexual assault of a child [PC 269]
No probation for any person who is personally armed with firearm during the commission of the current offense and has a prior conviction for one of the crimes listed above [or assault with intent to commit murder under former Section 217]
No probation for any person convicted of aggravated arson [PC 451.5.]
PC § 1203.075 – Great Bodily Injury [12022.7]. A person who inflicts GBI during the course of one of the crimes listed above [except aggravated arson] is ineligible for probation.
PC § 1203.065: Sex Crimes: No probation for a person convicted of violating the following Penal Code sections:
261(a)(2) or (6)
264.1
266h
266i,
266j,
269
289(a)
286(c)(2) or (3) and (d) [forcible]
288a(c)(2) or (3) and (d) [forcible]
288.7
289(a)
311.4(b).
PC § 1203.066: Lewd acts with child. No probation for a person convicted of violating the PC § 288 or 288.5 when:
The act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
The act caused bodily injury to the child;
Defendant was a stranger or befriended the child for the purpose of committing the crime [unless the defendant honestly and reasonably believed the victim was 14 years of age or older.]
The defendant used a weapon in the commission of the offense;
The defendant has been previously convicted of 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a, or 289, or of assaulting another person with intent to commit a crime specified in this paragraph in violation of Section 220, or who has been previously convicted in another state of an offense which, if committed or attempted in this state, would constitute an offense enumerated in this paragraph;
Defendant kidnapped the child in violation of sections 207, 209, or 209.5;
There was more than one victim;
The defendant had substantial sexual conduct with a victim who is under 14 years of age;
The defendant used obscene matter [PC § 311, 311.3.]
PC § 1203.07 – Drug Cases. No probation for:
11351 with 14.25 grams or more of heroin;
11352 with 14.25 grams or more of heroin;
11351 or 11352 of heroin with prior 11351 or 11352
11378.5 with 14.25 grams or more of PCP;
11379.5 with 14.25 grams or more of PCP;
11379.5 of PCP;
11379.6 – manufacturing PCP;
11380 – inducing or encouraging a minor to manufacture or sell hallucinogens, methamphetamines, depressants and PCP;
11380.5 – inducing or encouraging a minor to sell or manufacture PCP
11383(b) – possession of the precursors to manufacture PCP;
11351, 11351.5, or 11378 [cocaine or methamphetamine] with at least one prior for 11351, 11351.5, 11352, 11378, 11378.5, 11379, or 11379.5;
11352 or 11379 [cocaine or methamphetamine] with at least on prior for 11351, 11351.5, 11352, 11378, 11378.5, 11379, or 11379.5 [does not include transportation].
PC § 1203.08 -- Prior convictions. No probation for a person convicted of one of the following “designated felonies” who has two prior convictions for any “designated felony” which has been brought and tried separately and which occurred within a 10-year period [the 10-year period does not include time in prison]:
187
192
207
209
209.5
211
215
217
245
288
261(a)(2), (6), or (7)
262(a)(1), (4), or (5)
4591st
220 [great bodily injury during assault to commit robbery, mayhem, or rape].
PC § 1203.085 -- Parolees. No probation for a parolee who is:
Convicted of any felony while on parole for a “serious” or “violent” felony offense; or,
Convicted of a “serious” or “violent” felony while on parole for any felony offense.
PC § 1203.09 – Crimes involving the aged or handicapped. No probation for anyone convicted of one of the following crimes and inflicts GBI against a person who is 60 years of age or older, blind, a paraplegic or quadriplegic, or otherwise confined to a wheelchair:
Murder.
Robbery
Kidnapping [PC 207, 209, 209.5]
4591st
Rape by force or violence [PC 261(a)(2) or (6), 262(a)(1) or (4)]
220 [assault with intent to commit rape or sodomy]
Carjacking / PC § 1203(e) – General Bar. Except in unusual cases, probation shall not be granted to any person:
Who is unlawfully carrying a weapon at the time of the commission or arrest for the following crimes:
ð Arson
ð Robbery
ð Carjacking
ð Burglary
ð Burglary with explosives
ð Rape with force or violence
ð Torture
ð Aggravated mayhem
ð Murder
ð Attempted murder
ð Trainwrecking
ð Kidnapping
ð Escape from the state prison, or
ð Conspiracy to commit any of these crimes.
Any person who used, or attempted to use, a deadly weapon upon a human being during the commission of the crime for which they were convicted.
Any person who willfully inflicted great bodily injury or torture during the commission of the crime.
Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.
Any person who has a felony prior and is convicted of the following crimes:
ð Burglary with explosives
ð Rape with force or violence
ð Torture
ð Aggravated mayhem
ð Murder
ð Attempted murder
ð Trainwrecking
ð Extortion
ð Kidnapping
ð Escape from the state prison
ð 286 [sodomy]
ð 288 [child molest]
ð 288a [oral copulation]
ð 288.5 [continuous sexual abuse of a child]
ð Conspiracy to commit any of these crimes.
Any public official or peace officer who accepted or gave or offered to accept or give any bribe, embezzled public money, or was guilty of extortion.
Any person who knowingly furnishes or gives away phencyclidine.
Any person who intentionally inflicted great bodily injury in the commission of arson [PC § 451(a)] or who intentionally set fire to, burned, or caused the burning of, an inhabited structure [PC § 451(b)]
Any person who, during the commission of a felony, inflicts death or great bodily injury by discharging a firearm from or at an occupied motor vehicle proceeding on a public street or highway.
Any person who possesses a short-barreled rifle or shotgun [PC § 33215], a machinegun [PC § 32625], or a silencer [PC § 33410.]
Any person gives a deadly weapon to a mental patient [W&I § 8101].
Any person convicted of illegal firearm sales who falls within PC § 27590(b) or (c).
Any person convicted of a violent or serious felony who was on felony probation at the time of the new offense.
PC § 1203.095 -- Minimum Jail Sentence. Except in unusual cases, a defendant convicted of the following crimes must serve a minimum jail sentence:
245(a)(2) = 180 days;
245(d)(1) = 180 days;
246 = 180 days;
417(c) = 180 days;
417(a) = 90 days.
PC § 1203.065: Sex Crimes: No probation except in unusual cases for a person convicted violating the following Penal Code sections:
261(a)(7)
286(k)
288a(k)
289(g), or
220 for assault with intent to commit a specified sexual offense.
PC § 1203.073 – Drug Cases. No probation except in unusual cases for a person convicted violating the following Health & Safety Code sections:
11351 or 11352 with 28.5 grams or more of cocaine;
11378 with 28.5 grams or more of methamphetamine;
11379.6(a) [with specified exceptions];
11353 or 11380 – inducing or encouraging a minor to manufacture or sell cocaine or heroin;
11351.5 with more than 14.25 grams of cocaine;
11352 [transporting cocaine base]
11352 [sale of cocaine base]
11379.6, 11382, or 11383 [methamphetamine] with at least one prior conviction for 11378, 11379, 11379.6, 11380, 11382, or 11383 [methamphetamine].
11366.6 – using a building designed to suppress law enforcement entry in order to sell, manufacture, or possess for sale cocaine, heroin, methamphetamine, PCP and LSD.
PC § 1203.076 – Minimum Jail Sentence. Except in unusual cases, there is a 180 day minimum jail sentence for persons convicted of the following Health & Safety Code offenses:
11352 [cocaine or heroin]
11379.5
PC § 1203.045 – Excessive Taking.
No probation – except in unusual cases – for defendants convicted of theft exceeding $100,000.
PC § 1203.046 -- Solicitation Of Minor.
No probation – except in unusual cases – for a person convicted of PC § 653j by using, soliciting, inducing, encouraging, or intimidating a minor to commit a felony.
PC § 1203.047 -- Computer crimes.
No probation – except in unusual cases – for anyone convicted of felony violation of:
ð 502(c)(1), (2), (4), or (5)
ð 502(c)(3), (6), (7), or (8)
ð 502.7(b)
If probation granted, it must be for at least three years with specified conditions.
PC § 1203.09 – Crimes involving the aged or handicapped. No probation except in unusual cases for a person convicted of one of the following crimes against violating against a person who is 60 years of age or older:
Assault with a deadly weapon
Battery which results in physical injury which requires professional medical treatment
Carjacking
Robbery, or
Mayhem.
PC § 1203.048 – Computer crimes with excessive taking.
No probation – except in unusual cases – for anyone convicted of felony violation of:
ð 502
ð 502.7(b)
And the crime involved the theft of more than $100,000.
PC § 1203.049 – Welfare Fraud by Electronic transfer of CalFresh benefits.
No probation – except in unusual cases – for anyone convicted of violation of welfare fraud [W&I § 10980(f) or (g) by means of the electronic transfer of CalFresh benefits, and the amount of the transfer exceeds $100,000.
When Is a Defendant Ineligible for Probation?
