EARLY TERMINATION OF PROBATION

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Petition.

To obtain early termination of probation, a California expungement attorney will first collect information about the prior conviction. It is important to assure that all relevant information is placed before the judge by a petition to terminate probation. This petition may include information about the offense, the probationer, letters of recommendation, proof of compliance with the terms of probation, and any other material that may assist the court in making a decision.

Hearing.

The probationer seeking early termination of probation must give two days notice to the prosecuting attorney on the underlying case.[2] This is usually the local district attorney or in rare cases the California Department of Justice.

In the event the underlying case relates to domestic violence, the probationer, through his probation termination attorney, must give five days notice.[3] Domestic violence is defined in California Family Code 6211.

The hearing must occur in open court and “on the record,” meaning a transcript is made of the proceedings by a court reporter. In the event the judge terminates or modifies probation, he or she must make findings on the record as to the reasons for the decision.

The prosecutor must be given the opportunity to be heard on the case.[4] It is best if the California expungement lawyer representing the petitioner negotiates with the prosecutor before the hearing in order to get an idea what the prosecutor’s position is. On occasion, the district attorney agrees with the petitioner that his or her probation be terminated early. In other cases, the district attorney, after negotiations, agrees not to oppose the petition.

Reducing a Felony to a Misdemeanor.

Under California law, many crimes can be prosecuted or sentenced as either a felony or a misdemeanor.[5] California attorneys call these crimes “wobblers.” Even if someone is convicted or pleads guilty to a felony, if that crime is a wobbler the crime can later be reduced to a misdemeanor. California expungement lawyers will often seek to reduce the crime to a misdemeanor at the same time as a petition for early termination of probation. Ideally, someone serving felony probation on a wobbler will seek early termination of probation, reduction to a misdemeanor, and expungement. This can be accomplished in a single hearing or several over time.

Denial of Early Termination.

In the event the court refuses to terminate probation early, probation term will still terminate at the time previously set at sentencing on the underlying case.[6] A denial of early termination is “without prejudice,” meaning the probationer can reapply for early termination of probation or modification later. However, you cannot terminate or modify probation after the conclusion of the probationary term. If probation has already concluded without a probation violation being filed, the former probationer should seek reduction to a misdemeanor (if the crime was convincted as a felony and is a wobbler) and expungement under California Penal Code 1203.4.

Order Terminating or Modifying Probation.

The court after terminating or modifying probation must send an order to that effect to the probation office.[7]

Modifying or Terminating Payment of Court Fines.

A termination of probation ends the probationary obligation to pay court fines and fees. This is rare as normally the court will not terminate probation until all court fines are paid. However, the court may modify payment terms or even the total amount owed.[8]

Modifying or Terminating Payment of Restitution.

Although fines may easily be modified, it is very difficult to terminate restitution. Restitution is the amount someone is required to pay to the victim of a crime. Under California law, all persons who suffer loss as a result of criminal activity have a right to restitution from those convicted of the crime.[9]

The schedule of payments for restitution may by modified in time or manner where a defendant’s conduct has been good while on probation.[10] However, the court may not interfere with the usual process of unpaid restitution becoming a civil judgment upon the termination of probation.[11] However, it is very difficult to reduce the total amount of restitution owed.[12] In fact, restitution may be increased where, for example, a victim’s expenses are on-going and not capable of calculation at sentencing.[13]

Termination of Probation That Includes a Protective Order.

In domestic violence[14] cases, probation will often involve a “protective order.” A protective order is an order from the court that the probationer have either no contact or no “negative contact” with the victim. Often times, the victim and the domestic violence defendant have reconciled while the criminal justice process has dealt with the case. In this event, a probation termination attorney can ask the court to terminate or modify the protective order. This can be done as part of an attempt to terminate probation or separately.

In evaluating whether to terminate or modify a protective order, the court will consider any material change in circumstances. In particular the court will consider the following:

1. Whether the probationer has accepted responsibility for the abusive behavior perpetrated against the victim;
2. Whether the probationer is currently attending and actively participating in counseling sessions;
3. Whether the probationer has completed parenting counseling, or attended alcoholics or narcotics counseling;
4. Whether the probationer has moved from the state, or is incarcerated;
5. Whether the probationer is still cohabiting, or intends to cohabit, with any subject of the order;
6. Whether the defendant has performed well on probation, including consideration of any progress reports;
7. Whether the victim desires the change, and if so, the victim's reasons, whether the victim has consulted a victim advocate, and whether the victim has prepared a safety plan and has access to local resources;
8. Whether the change will impact any children involved, including consideration of any child protective services information;
9. Whether the ends of justice would be served by limiting or terminating the order.

Distinguishing Probation from Parole.

This article relates to early termination of probation and modifying the terms of probation. Parole is a separate concept. Parole follows a state prison term. The California Department of Corrections and Rehabilitation (CDCR) may seek to declare the terms of a parole regime violated, in which case the parolee is returned to state prison.

[1] California Penal Code 1203.3.

[2] California Penal Code 1203.3(b)(1).

[3] California Penal Code 1203.3(b)(1).

[4] California Penal Code 1203.3(b)(1).

[5] California Penal Code 17(b).

[6] California Penal Code 1203.3(b)(3).

[7] California Penal Code 1203.3(b)(2).

[8] California Penal Code 1203.3(b)(4).

[9] California Constitution, Article I, Section 28(b); California Penal Code Section 1202.4(a)(1); People v. Carbajal, (1995) 10 Cal. 4th 1114, 1122.

[10] California Penal Code 1203.3(b)(4).

[11] California Penal Code 1203.3(b)(4).

[12] California Penal Code 1203.3(b)(4).

[13] California Penal Code 1203.3(b)(5); see also California Penal Code 1202.4(f).

[14] California Family Code 6211 defines which offenses constitute domestic violence offenses.