California Law Allows the Court to Modify or End Probation
California Law (§1203.3 of the Penal Code) allows a Motion to be filed to request a person released be from Probation early, and apply for expungement (§1203.4 PC) at the same time. Usually about half of the Probation Term should have been completed.
This is a decision that is discretionary with the Judge, and may be opposed by the Prosecutor's office. It requires a formal written Motion and Court Hearing.
All conditions of Probation must be complete before the Motion to Terminate can be filed; that is, all fines, fees, restitution, classes, programs or community service need to be done before the Court will consider the case.
Both misdemeanor and felony probationers can be granted an early termination. At the time probation is terminated, an expungement will be requested immediately and is usually granted during the same Court proceeding.
This procedure requires a seasoned Attorney; it is not a simple form, and requires creativity and court experience.
What exactly is probation? Probation generally comes in two types; formal probation, and informal probation.
California Penal Code section 1203.3 talks about probation and the inherent power that the court has to regulate a probationers conduct, or to modify or even end or terminate probation if it makes a finding that such an act is in the interest of justice.
Formal probation is generally given on felony cases. It is a more structured type of probation, and often requires the probationer to report either in person or through an electronic kiosk or post card type reporting on a monthly basis. The probationer is also subject to periodic drug testing as well as search and seizure terms at their home. Some misdemeanor cases result in formal probation although this is pretty unusual, usually limited to serious sex-related misdemeanors, or when the case is reduced to a misdemeanor as part of a plea bargain with the agreement that formal probation will attach as part of the plea.
Informal probation is also called "summary" or "court" probation. This type of probation is a much lower level of supervision, and the probationer does not even need to report to the probation department. They are given a set of terms and conditions of probation, such as paying a fine, attending an alcohol or anger management school, and a general term to "violate the law". This probation is regulated by the court, and generally speaking the only time an issue occurs is when there is a violation of that probation by failure to pay a fine, or perhaps a subsequent arrest during the term of the probation.
The court maintains ongoing power to modify probation during the term of Probation. We address that ongoing power of the court in a motion for early termination of probation. Certain types of cases such as DUIs, or domestic violence cases are more difficult to obtain early termination of probation on.
We have had about 75% of our motions granted; If your motion is denied, we re-file for expungement FOR NO ADDITIONAL LEGAL FEES at the end of probation.
We only do Expungement Law; Record Clearing is our only practice, not a "sideline" to a general law practice. Our fees are competitive and include all Court fees, legal work and service of the petition for expungement on all parties, as well as court appearances. You will not need to appear in Court in most cases. We may not be the 'cheapest' price, but we do things right. Be cautious of non-attorney expungement sites.
We have been successful in our motions to end probation early in Courts all over California. This procedure can take about 5 to 6 weeks, depending upon the Court and the complexity of the case. Please call us to discuss the facts of your case.
Fees are reasonable: $1250.00 (may be paid in two or three installments), and include the Motion for Early Termination, Petition for Expungement, Reduction to Misdemeanor (if applicable), all Court appearances, filing fees, Court costs, and research.
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(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.
(b)The exercise of the court's authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following:
(1) Before any sentence or term or condition of probation 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 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) No order shall 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.
(3) In all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections.
(4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions.
(5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation.
(6) The court may limit or terminate a protective order that is a condition of probation in a case involving domestic violence, as defined in Section 6211 of the Family Code. In determining whether to limit or terminate the protective order, the court shall consider if there has been any material change in circumstances since the crime for which the order was issued, and any issue that relates to whether there exists good cause for the change, including, but not limited to, consideration of all of the following:
(A)Whether the probationer has accepted responsibility for the abusive behavior perpetrated against the victim.
(B)Whether the probationer is currently attending and actively participating in counseling sessions.
(C)Whether the probationer has completed parenting counseling, or attended alcoholics or narcotics counseling.
(D)Whether the probationer has moved from the state, or is incarcerated.
(E)Whether the probationer is still cohabiting, or intends to cohabit, with any subject of the order.
(F)Whether the defendant has performed well on probation, including consideration of any progress reports.
(G)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.
(H)Whether the change will impact any children involved, including consideration of any child protective services information.
(I)Whether the ends of justice would be served by limiting or terminating the order.
(c)If a probationer is ordered to serve time in jail, and the probationer escapes while serving that time, the probation is revoked as a matter of law on the day of the escape.
(d)If probation is revoked pursuant to subdivision (c), upon taking the probationer into custody, the probationer shall be accorded a hearing or hearings consistent with the holding in the case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that hearing or hearings is not to revoke probation, as the revocation has occurred as a matter of law in accordance with subdivision (c), but rather to afford the defendant an opportunity to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation.