Terminating Probation Early in California Criminal Cases (Penal Code 1203.3)

(Another post in our continuing series on Cleaning up your Criminal Record)  www.martell-law.com

Petition to Terminate Probation Early

In most criminal cases, when a person is convicted of either a felony or a misdemeanor in California, the Court will release the defendant on probation after completion of their jail sentence, and/or in lieu of jail time.  The term of probation generally ranges between 1 to 5 years, depending on the nature of the conviction.  In California, someone who has been placed on probation may Petition the Court to terminate their probation early, if that person can convince the Court that they have shown good conduct and have reformed since the crime was committed.  In this post, we will be discussing the different types of probation, who is generally eligible to have their probation terminated early, and the general process for petitioning the Court to terminate probation.

The different types of Probation

There are essentially two general types of probation:  1)  Formal (sometimes referred to as Felony probation), and 2) Informal (sometimes referred to as misdemeanor, unsupervised, or summary probation).  The two different types of probation can be granted in either a misdemeanor or a felony case, depending on the negotiated settlement or the sentence imposed by the Judge, thus, we will refer to them as Formal and Informal probation in this post.

Formal probation, which is typically reserved for Felony cases, typically lasts between 3 and 5 years.  When a defendant is on Formal probation, they must report to a probation officer, pay restitution to any victims involved, pay the courts fines, and comply with any other terms, such as attending classes, that the Court may impose.  If a defendant violates probation, the Judge may send the violator to prison.  If a person is unsuccessful in terminating their Formal probation early, the Court may order that the probation terms be modified to informal probation, for the remainder of the probationary period.

Informal (Summary) Probation, which is typically used in misdemeanor cases, usually lasts between 1 to 3 years.  With informal probation, the defendant is not required to check in with a probation officer, and may only be required to appear in court periodically for progress checks.  This form of probation is less severe, and is typically less difficult to terminate early than formal probation.

Who Qualifies for an Early Termination of Probation?

California Penal Code Section 1203.3 states in pertinent part:  “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.”

This essentially means that if you were placed on probation, you are likely eligible to at least petition the court to terminate probation early, or modify your probation terms.  Judges have wide discretion in modifying and terminating probation, so you will need to have a compelling reason for the judge to even consider doing so.  As a general rule however, the judge will at the very least want to see the following:

1)  That there are no outstanding terms of your probation.  This means that you have paid all of your fines and restitution, and completed any classes that you may have been required to complete.; and

2) That the circumstances surrounding your situation justify an early termination, as mentioned above, that you have a compelling reason.

Under Penal Code 1203.3, you may petition the court at any time during your probation.  However, although every case is different, typically the courts will want to see that you have been released on probation for at least 12 to 18 months before they will consider terminating probation early, however, as a general rule, I usually advise that defendants wait until at least half of their term of probation has been completed.

Why would you want to have your probation terminated early?

There are 2 basic reasons why someone would want to file a petition to terminate their probation early.  The first reason would be so that you can petition the court to dismiss your conviction under penal code 1203.4 sooner.  As indicated in our 1203.4 motion blog, you must successfully complete probation before you can petition the court for an expungement.

The second reason to terminate your probation early, is to reduce the risk that you may violate your probation.  If you are arrested for another misdemeanor or felony during your probation period, you will be in violation of your probation, and the penalties could be considerably more serious than if you are not on probation.

What do you have to do to obtain an Early Termination of Probation?

The process for obtaining an Early Termination of Probation is similar to that of the expungement.  You must file a motion to terminate your probation early with the clerk’s office in the court where your conviction occurred.  If you are on formal probation, you will likely need to discuss this with your probation officer, so that your probation officer can place a hearing on the court’s calendar for you.  Once you have filed your motion, the court will likely set a hearing, where you will need to convince the judge that the interests of justice warrant a termination of probation, which can be a very difficult task.  As with an expungement, the court does not require that you have an attorney in order to make this request, however, hiring an attorney to assist you can make the process more simple for you, as the attorney will be doing the majority of the work.  An experienced attorney will know what language to use in the motion to increase the chances that the judge will terminate your probation early.

What are compelling reasons for convincing a judge to terminate probation early?

There are many compelling arguments for terminating probation early.  The following are just a few examples of reasons that are typically used for terminating probation early:

1)  Your probation is making it very difficult for your to secure employment;

2)  You may already have a job, and your probationary status is making it more difficult for you to advance in that job; and

3)  As terms of your probation, you may not be able to travel outside of the  State of California, and you have a compelling reason to need to travel in a restricted area.

These are just a few compelling reasons that will assist a judge to consider terminating your probation early.

Once your probation is terminated

Once your probation is terminated, you may be able to file for an expungement.  See our blog post on expungements for more information.  As always, if you would like assistance in petitioning the court to terminate your probation early, feel free to contact our office to discuss your case.  We are currently filing motions for early termination of probation in all courthouses in San Bernardino County.  For more information on our firm and information regarding criminal defense, please visit our website at http://www.martell-law.com.

In the near future, look out for our posts on Reducing a Felony to a Misdemeanor after conviction, Certificates of Rehabilitation, and Sealing/Destroying your arrest records.

Disclaimer: The legal information presented on this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney client relationship. Any results set forth herein are based upon the facts of that particular case and do not represent a promise or guarantee.




Cleaning up Your Criminal Record (Expungements)

(This post is the first in our Cleaning up your Criminal Record in California series, look for more information on cleaning up your criminal record in the near future) http://www.martell-law.com

Petition for Dismissal under California Penal Code 1203.4

If you have been convicted of a crime, it can be very difficult to obtain employment when you have to disclose that you have been convicted of either a misdemeanor or a felony.  In the information age, it can also be very easy for potential employers to search for and find your criminal record by simply entering your name and date of birth into a database.

But all hope is not lost for someone who has been convicted of a crime, as this blog will point out, those who are eligible to expunge their criminal record, and do so, will no longer have to disclose their criminal conviction to private employers, and the employer is even prevented from asking questions about the conviction.  In this post, we will discuss who is eligible for an expungement, as well as a brief overview of how the expungement process works.

Who can Petition the Court for an Expungement?

California Penal Code 1203.4 reads in pertinent part:  ” In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation…the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty.”

This language can be difficult to sort through, so we will now break it down for you.  Generally speaking, this penal code means that you can apply for an expungement if you have met the following conditions:

1.  You have successfully completed your probation, whether it terminated naturally, or you applied for an early termination of probation; and

2.  You are not currently being charged with a criminal offense, or on probation for another criminal offense.

As you can see, whether your conviction was for a misdemeanor or a felony, most people do qualify for an expugement of their criminal records, pursuant to Penal Code 1203.4.  However, there are some exceptions to this, discussed below.

When would a person not qualify for an expungement?

The first instance in which a person would not qualify for an expungement of their criminal conviction, is if they were sentenced for and did time in state prison.

There are also several criminal convictions that are not currently eligible to be dismissed pursuant to Penal Code 1203.4.  These in include:

Penal Code 286(c), Penal Code 288, Penal Code 288a (c), Penal Code 288.5, Penal Code 289(j), Penal Codes 311.1, 311.2, 311.3, or 311.11, A felony conviction of Penal Code 261.5(d), and Vehicle Code 42002.1.

Generally speaking people who fall into the above categories are not eligible for an expungement of their criminal record, however, a consultation with an attorney will shed more light on eligibility.  There is a common misconception among the public that if a person has a probation violation on their record, they will not be eligible for an expungement, however, this is not the case.  It will likely just be more difficult for you to obtain an expungement with a probation violation on your criminal record.

How Can I obtain a Dismissal pursuant to Penal Code 1203.4

Perhaps one of the most important questions that people always ask, is if they have to hire an attorney to expunge their criminal record.  The simple answer is no, the court does not require you to have an attorney to file your Petition for Dismissal.  However, an experienced expungement attorney will be able to analyze your case to determine your eligibility; will be able to make sure that the proper service and filing deadlines are met; will be able to make legal arguments on your behalf at an expungement hearing; in most misdemeanor cases will be able to appear on your behalf without your presence; and will know all of the intricacies of expungement law, to increase your likelihood of having your Petition for Dismissal granted.

In petitioning the court, you must first make sure that your probation has been successfully terminated, and make sure that you are not on probation for any other offense, or serving a sentence for any other offense.  After this, you must file your expungement motion with the clerk’s office in the court where your conviction occurred.  Generally, after 4 to 6 weeks, you will receive a letter in the mail, indicating whether the expungement was granted, or if a hearing is necessary.  If a hearing is necessary, you will need to appear and indicate to the judge why you feel your conviction should be dismissed.  If you are able to expunge your criminal record, there may still be restrictions and limitations on what you can do, which are discussed below.

What does a dismissal of your conviction do for you?

1.  Perhaps most importantly, it may help you to secure  future employment.  After your conviction has been dismissed, an employer may no longer a) discriminate against you based upon the fact that you have an expunged criminal record, b) inquire about an arrest that did not result in a conviction, and c) discriminate against you for said arrest.  Further,  on job applications for private employers, you will no longer have to disclose that you have been convicted of that crime.  Unfortunately, however, if you are applying for a job with a government entity, you must still disclose the conviction, but you still have the benefit of indicating that the conviction has been dismissed pursuant to Penal Code 1203.4.

2.  It may make it easier for you to obtain a professional license, such as a State Bar License to be a lawyer, or a license through a certificate program, such as becoming a Dental Hygienist.

3.  May make you eligible to apply for a Certificate of Rehabilitation and/or a Governor’s Pardon, depending on the offense. and

4.  Possibly avoid this prior conviction being used against you in immigration cases.

What does a dismissal pursuant to Penal Code 1203.4 NOT do?

1.  If you have been convicted of a felony, it will not restore your right to possess or own a firearm pursuant to Penal Code 29800;

2.  If you are required to register as a sex offender under Penal Code 290, you will not be relieved of this duty; and

3.  It will not overturn a driver’s license revocation or suspension.

This is just a basic overview of  how the expugement process works.  If you would like more information on cleaning up your criminal record, you can find more information at http://www.martell-law.com.  If you would like assistance in cleaning up your criminal record, we would be happy to evaluate your case and see how we can assist you.  We are currently serving all courthouses  in San Bernardino County, including Barstow, Victorville, San Bernardino, Rancho Cucamonga, and Joshua Tree.