What is Probation?
Probation is an agreement by the defendant in a criminal case after either being convicted after trial, or entering a No Contest/Guilty Plea, to abide by certain terms imposed by the Court, to avoid a sentence of County Jail (misdemeanors and certain felonies), or Prison (all other felonies). Terms of probation can include orders for drug testing, being subject to search and seizure without cause, requirements to take Court-ordered classes (e.g., Domestic Violence, Parenting, DUI Prevention), AA or NA meetings, outpatient or inpatient drug treatment, and an infinite amount of other possible terms based on the facts of the case and needs of the defendant. Another “term” of probation can be custodial time in the County Jail or equivalent (e.g., house arrest), but this should not be confused with a sentence to County Jail where probation is denied – the distinction is important and will be discussed below.
A term of probation for felony convictions cannot be longer than two years (Cal. Penal Code § 1203.1), and only one year for most misdemeanors (Cal. Penal Code § 1203a), unless the crime of conviction specifically requires a longer term of probation.
A violation of probation, if sustained at a hearing or admitted by the defendant, can result in reinstatement of probation with additional terms, or the defendant can be sentenced to the maximum punishment permitted by the crime for which they were convicted.(Cal. Penal Code § 1203.2(c)). For example, a person who has been convicted of felony domestic violence is facing a maximum “exposure” of 2 years, 3 years, or 4 years State Prison. If such a person violates their probation, the Judge can impose the maximum sentence provided by law of 4 years.
At the end of probation, a person convicted of a felony that has a misdemeanor version, termed a “wobbler” offense in criminal defense circles, can request the Court to reduce the felony to a misdemeanor. (Cal. Penal Code § 17(b)(3)). Whether the offense is a misdemeanor or a felony, at the end of probation, the defendant can petition the Court for a dismissal and “expungement” under Penal Code section 1203.4(a), to which he is entitled if there have not been any violations of probation, subject to a few offenses for which this relief is excluded. (Cal. Penal Code § 1203.4(a)). These types of relief are not available to a defendant sentenced to State Prison, and are more difficult to obtain for defendants sentenced to County Jail without probation.
Requesting Early Termination of Probation
While a Court may order a certain period of Probation supervision at sentencing, the attorney for the defendant may request that supervision be terminated, or ended, early after all terms of probation have been completed and upon showing good cause:
(a) The court has the authority at any time during the term of probation to . . . modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person held. The court also has the authority at any time during the term of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke, modify, or change the conditions of the court’s order suspending the execution of the concluding portion of the supervised person’s term.
(b) The exercise of the court’s authority in subdivision (a) to revoke, modify, or change probation or mandatory supervision, or to terminate probation, is subject to the following:
(1) Before any sentence or term or condition of probation or condition of mandatory supervision is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, except that, as to modifying or terminating a protective order in a case involving domestic violence, as defined in Section 6211 of the Family Code, the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard.
(A) If the sentence or term or condition of probation or the term or any condition of mandatory supervision is modified pursuant to this section, the judge shall state the reasons for that modification on the record.
(B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor.
(2) (A) An order shall not be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order.
(B) Before an order terminating probation early may be made, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter. The prosecuting attorney shall provide notice to the victim if the victim has requested to be notified about the progress of the case. If the victim advises the prosecuting attorney that there is an outstanding rest
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Cal. Penal Code § 1203.3, emphasis added.
Thus, upon a motion by the defendant of at least two days, the attorney for the defendant may request that probation be terminated early “when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it”. Id.
If a person is granted early termination of probation, they are automatically entitled to relief under Penal Code section 1203.4(a), unless the crime of conviction is excluded from the relief. (See Cal. Penal Code § 1203.4(a)(1)).
Thus, the law incentivizes probationers to complete the terms of probation promptly and not to violate the law further, opening up an opportunity to put the hardship caused by the criminal prosecution, conviction, and probation behind the defendant sooner than originally ordered.
Call Honeychurch & Giambona Today to Determine if You Are Eligible for Early Termination of Probation
At Honeychurch & Giambona, our skilled attorneys we have assisted dozens of clients petition and obtain early termination from probation and expungement relief in Solano County, Napa County, and Yolo County to help them get their lives back sooner than expected. Call us today for a free consultation to determine how we can help you terminate probation early and to clean up your record to finally put the nightmare that you have been through behind you.