EARLY PROBATION TERMINATION
If the judge does grant an early termination of probation, you can immediately apply for an dismissal since probation is terminated. In most cases, a person would apply for an early termination of probation and dismissal at the same time so that both will get granted at the same time.
EARLY TERMINATION OF PROBATION
A court can terminate probation and discharge the probationer “when the ends of justice will be served,” and the probationer’s good conduct and reform warrant it (Penal Code 1203.3). A defendant who has satisfactorily completed the probationary period or has been discharged before its termination is entitled to have their guilty plea expunged and the accusation dismissed.
TERMINATION OF PROBATION HEARING
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 the prosecuting attorney shall be given a five-day written notice and an opportunity to be heard. Most prosecutors will object to early termination of probation. The person requesting an early termination of probation should have a good reason for the request including job related issues or other important personal considerations that the court can consider.
DISMISSAL AFTER TERMINATION OF PROBATION
If the judge does grant an early termination of probation, you can immediately apply for an expungement since probation is terminated. In most cases, a person would apply for an early termination of probation and expungement at the same time so that both will get granted at the same time.
REDUCING FELONY TO MISDEMEANOR
At any time during the term of felony probation, a person can request that their felony, if eligible, be reduced to a misdemeanor. PC1203.3 states that a modification of sentence shall include reducing a felony to a misdemeanor. The felony must be a “wobbler” offense that makes it eligible for a reduction to a misdemeanor. In cases where a judge doesn’t terminate probation early they may still reduce the felony offense to a misdemeanor so that the motion to terminate probation still resulted in some benefit.
REDUCTION OF FELONY TO MISDEMEANOR
If you are convicted of a felony with probation on a “wobbler” offense that can be charged as either a misdemeanor or a felony, the court upon application may declare the offense to be a misdemeanor (Penal Code 17(b)(3)). In deciding to reduce a felony to a misdemeanor the court must give “individualized consideration of the offense, the offender, and the public interest.” (People v Superior Court (Alvarez) (1997) 14 C4th 968,978).
BENEFIT OF REDUCTION OF FELONY TO MISDEMEANOR
Once the felony is reduced to a misdemeanor the crime is considered a misdemeanor “for all purposes.” There are exceptions to this rule. Some convictions may still be considered a strike under the Three Strikes Law (Penal Code 667(d)(1), 1170.12(b)(1)). The federal government may still consider the conviction a felony for purposes of its gun laws (US v Tallmadge (9th Cir 1987) 829 F2d 767, 770). However, 18 USC 921(a)(20) recognizes some state expungements and set asides as it applies to gun laws.
CONVERTING FORMAL PROBATION TO INFORMAL PROBATION
At any time during the term of formal probation, a person can request that their formal probation be reduced to informal probation. If formal probation is reduced to information probation, many of the probation reporting requirements go away. In cases where a judge doesn’t terminate probation early they may still convert formal probation to informal probation so that the motion to terminate probation still resulted in some benefit.
CALIFORNIA PENAL CODE SECTION 1203.3
(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 served 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.
(e) This section does not apply to cases covered by Section 1203.2.