Early Termination of Probation
California Penal Code 1203.3 permits anyone on probation in California to ask the judge to terminate or otherwise modify their probation. That section provides, (a) The court shall have authority at any time during the term of probation to revoke, 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 so held.[1]
The Early Probation Termination Process
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
To seek early termination of probation, the probationer must provide advance notice to the prosecutor—typically two days in most cases and five days if the case involves domestic violence (as defined by California Family Code 6211). The request is then heard in open court and on the record, meaning a transcript is created, and the judge must state the reasons for any decision to terminate or modify probation. The prosecutor must also be given an opportunity to speak, and it’s often beneficial for the petitioner’s attorney to communicate with the prosecutor beforehand, since the district attorney may agree to support the request or choose not to oppose it after negotiations.
After the Hearing: What Happens Next
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 convicted as a felony and is a wobbler) and expungement under California Penal Code 1203.4.
The court after terminating or modifying probation must send an order to that effect to the probation office.[7]
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]
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:
- Whether the probationer has accepted responsibility for the abusive behavior perpetrated against the victim;
- Whether the probationer is currently attending and actively participating in counseling sessions;
- Whether the probationer has completed parenting counseling, or attended alcoholics or narcotics counseling;
- Whether the probationer has moved from the state, or is incarcerated;
- Whether the probationer is still cohabiting, or intends to cohabit, with any subject of the order;
- Whether the defendant has performed well on probation, including consideration of any progress reports;
- 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;
- Whether the change will impact any children involved, including consideration of any child protective services information;
- 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.
- California Penal Code 1203.3
- California Penal Code 1203.3(b)(1)
- California Penal Code 1203.3(b)(1)
- California Penal Code 1203.3(b)(1)
- California Penal Code 17(b)
- California Penal Code 1203.3(b)(3)
- California Penal Code 1203.3(b)(2)
- California Penal Code 1203.3(b)(4)
- California Constitution, Article I, Section 28(b); California Penal Code Section 1202.4(a)(1); People v. Carbajal, (1995) 10 Cal. 4th 1114, 1122.
- California Penal Code 1203.3(b)(4)
- California Penal Code 1203.3(b)(4)
- California Penal Code 1203.3(b)(4)
- California Penal Code 1203.3(b)(5); see also California Penal Code 1202.4(f)
- California Family Code 6211 defines which offenses constitute domestic violence offenses
