In the game of Monopoly, an unfortunate player may draw the “Go Directly to Jail” card and remain confined, trying to gain freedom through doubles on the dice. In the real-life gamble of the courts, it is possible to avoid going directly to jail and gain your freedom faster through probation 1—and early termination of probation.
Probation is a cost-efficient alternative to jail or prison 2. The terms of probation will vary based on the type of crime involved, e.g., misdemeanor or felony, and other facts of the case. A judge has wide-ranging authority in determining the terms of probation; however, the terms “‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness” 3; the terms must also relate to the convicted offense.
Once the probationer has demonstrated success in complying with the terms of the sentence, eligible individuals may be able to reduce their felony conviction to a misdemeanor, and or expunge their criminal record.
If you have been convicted of a misdemeanor crime (punishable by a jail term not longer than 6 months, or by a maximum fine of $1,000), 4, you will likely get probation, also called summary probation or information probation. Misdemeanor probation typically lasts 1 to 3 years but may continue for up to 5 years. 5 Unlike felony probation, individuals sentenced to misdemeanor probation typically do not need to check in with a county probation officer (“P.O”) but will likely appear in court before a judge for “progress reports.”
If you have been convicted of a felony crime (punishable in jail or prison for more than one year or even death), 6, you may be eligible for felony probation, also known as formal probation. Felony probation typically lasts from 3 to 5 years. Probation reports are required by the judge before sentencing. These reports provide an account of the crime, background on the defendant, and oftentimes include statements from the victim, 7. Individuals who receive felony probation are supervised by a probation officer, 8, and must typically check in with their P.O. monthly to ensure compliance with the probation terms.
Once sentenced to probation, additional forms of relief may be available to help reduce the stigma of a conviction, encourage gainful employment, and overall help with reintegrating back into society. These forms of relief include:
Reducing a felony conviction to a misdemeanor
Individuals given felony probation for a crime known as a “wobbler” can petition the court to reduce the felony to a misdemeanor under California Penal Code § 17(b). A wobbler is an offense which, in the discretion of the judge at the preliminary hearing, can be punishable as a felony or misdemeanor. 9. The offense can go either way, but ultimately “the reduction of a wobbler to a misdemeanor is not based on the notion that a wobbler offense is conceptually a misdemeanor; rather, it is intended to extend misdemeanant treatment to a potential felony and extend more lenient treatment to an offender.” 10
To qualify for this relief, the felony conviction, as mentioned:
- Must be a wobbler;
- You also must have been sentenced to probation and not have spent any time in state prison; and
- If there were other felonies in the same case, all of the felonies must qualify for the reduction, or none of the felonies can be reduced to misdemeanors.
In considering a Penal Code 17(b) Petition, a judge will examine:
- The nature and seriousness of the offense of conviction;
- Compliance with the terms and conditions of probation;
- Criminal history; and
- Personal history.
This Petition may be filed at the same time as a motion to terminate probation early and expungement. These additional forms of relief are discussed below.
Termination of Probation
California Penal Code § 1203.3(a) details the authority of the court to revoke, modify, or change, among other terms, the granted probation. “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.”
If you are interested in this form of relief, you will need to file a Motion with the court and request a hearing. The prosecutor in the case must be notified in writing 2-days in advance of the hearing, except in cases of domestic violence when a 5-day written notice is required. 11 It is advisable that defense counsel speak with the prosecutor to encourage support of early termination, as the judge will take into consideration the prosecutor’s opinion in weighing whether to grant termination. You will need to demonstrate successful compliance with the terms of probation and or hardships imposed by probation.
Though the law provides that the court can terminate probation “at any time,” usually this means that the court will consider this relief after 12 months of the sentencing for misdemeanor probation and 18 months for felony probation.
In the Motion and before the judge, you will need to demonstrate that your “good conduct and reform” justify terminating probation early, meaning that you do not pose a threat to public safety, you are working to make positive gains post-conviction, and, most importantly, you have successfully fulfilled the terms of probation, including:
- Paying victim restitution;
- Paying all fines;
- Completing court-ordered classes, such as anger management or for drunk driving; and
- Completing community service,
- Among other terms determined with the probation sentence.
The judge may also take into account a probationer’s criminal history, the severity of the conduct which led to the conviction coupled with the prosecutor’s opinion, and whether the probation is causing a hardship.
Hardships can include:
- Blocking gainful employment, professional licensure, or workplace promotion;
- Preventing necessary travel for work or personal family reasons; or
- The ability to obtain a loan or other financial advancement,
- Among other benefits.
In arguing for hardship, you will need to demonstrate before the court how probation has led to these or other substantial hardships to support termination.
Once termination of probation is granted, you can petition the court to expunge your criminal record.
California Penal Code § 1203.4 allows individuals who have successfully completed their probation, have had their probation terminated, or the court finds that the interests of justice better served, these individuals may be allowed to expunge their criminal records.
This process allows you to petition the court to withdraw your plea of guilty or nolo contendere and enter a not guilty plea, or, if convicted after a guilty plea or plea of nolo contendere, the court can set aside the guilty verdict against you. The information (or complaint) or accusations will be dismissed, and you will “be released from all penalties and disabilities resulting from the offense.” 12
The primary aim of expungement is to help post-conviction individuals who have successfully completed probation to find gainful employment.
· The benefits of expungement include:
· Employers and potential employers will not be able to see your criminal record
· You may be able to secure or keep your vocational or professional license
· People you do business with will not be able to see your criminal record
If the judge grants expungement, you do not need to disclose the conviction which was expunged, nor will it be available to view. However, the “expunged” record can be used in any new prosecution against you. You must also disclose your conviction if you are running for public office, applying for a state or local agency license, or contracting with the California State Lottery Commission.
If you are interested in expungement, you cannot be currently charged with a crime, serving probation, or serving a sentence for a crime to qualify. Also, you cannot have served time in a state prison for violating the terms of your probation or for the initial sentence.
Additionally, certain offenses, particularly serious sex crimes against children, cannot be expunged. These offenses include:
- California Penal Code § 261.5(d): statutory rape law;
- California Penal Code § 286(c): sodomy of a child;
- California Penal Code § 288: lewd and lascivious acts with a child;
- California Penal Code § 288a(c) oral copulation with a child;
- California Penal Code § 289: sexual penetration of a child under age 14
Consult with the expert criminal defense attorneys at Coimbra Law to see whether you qualify for the benefit of expunging your criminal record.
Ready to roll the dice?
The criminal defense attorneys at Coimbra Law firm are available to expertly guide your case through this process and advise on other legal issues. The material presented here is for informational purposes only and is not intended to be construed as providing legal advice or other legal services.
1. California Penal Code §1203 (a) As used in this code, “probation” means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. As used in this code, “conditional sentence” means the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer. It is the intent of the Legislature that both conditional sentence and probation are authorized whenever probation is authorized in any code as a sentencing option for infractions or misdemeanors.
2. Ryken Grattet and Brandon Martin, Just the Facts: Probation in California (Public Policy Institute of California, Working Paper Dec. 2015), available at www.ppic.org)
3. In re Sheena K (2007) 40 Cal. 4th 875, 890
4. California Penal Code § 19; certain “aggravated misdemeanors; however, may result in longer jail terms and higher fines. Consult with the legal experts at Coimbra Law Firm for more information.
5. California Penal Code § 1203.1
6. California Penal Code § 17
7. California Penal Code § 1203(h)
8. California Penal Code § 1203
9. California Penal Code § 17(b)
10. Beckway v. DeShong, 717 F. Supp.2d 908 (2010)
11. People v. Tran, 242 Cal.App.4th 877 (2015) California Penal Code §1203.3(b)(1)
12. California Penal Code §1203.4(a)(1))