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Cleaning Up Your Client's Record - Part 1: Early Termination of Probation

Ideally, we all want that squeaky-clean client to put up on the stand before a jury. The reality is no one has lived the perfect life. Some of your civil clients will have past criminal records. But that conduct should not preclude them from receiving a just civil resolution when it is merited. The good news is there are some things that can be done to help "clean" up their record. One step to cleaning up a record is terminating probation early. (The next step is to "expunge" the conviction with a separate PC §1203.4 motion.)

When an individual is sentenced after a jury trial or as a result of a guilty plea, the court will either deny probation and sentence the individual to the maximum (one year in jail for misdemeanors, more for felonies), or more commonly sentence them to probation for a specified period of time (usually three to five years). The probation sentence will include a number of conditions of probation that must be obeyed while on probation. These conditions may include but are not limited to: fines, restitution, classes, community service, drug tests, no new violations of law, etc.

In some cases, if the Judge will terminate probation prior to the probationary period.

Penal Code § 1203.3(a) states as follows:

"The court shall have the 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."

While the text of the code is straightforward, there are a number of factors that Judges will consider that are not mentioned in the statute itself.

Completed terms of probation (Good Conduct):

First and foremost, the Judge will look to see if the defendant has complied with all terms of probation. For example, did they pay all their fines, complete their classes, etc.? If not, it will be much harder—if not impossible—to get the motion granted. Having any probation violations will also make it harder to get the motion granted. The nature of the violation will determine how much of a hurdle this will be. If the violation is for not registering for a class on time once, but they have since registered and completed the class, you can probably overcome this obstacle. On the other hand, it's a much bigger problem if they were charged with another crime or violated a no contact order while on probation.

Time on Probation:

The court will consider the time the individual has already been on probation, as this helps illustrate their good conduct and reform. Most people can stay out of trouble for a few months when the pressure is on. Having a track record of compliance over time goes a lot further toward showing the Judge real change. As a general rule, don't apply for an early termination until you have completed at least half of the probation term—18 months for a three-year probation term, and 30 months for a five-year term. However, some Judges prefer to see two years completed on a three-year probation term and three years completed on a five-year term. If there is a compelling reason for the early termination you may be able to get it granted before the general timeline. Recall that the statute allows for termination "at any time when the ends of justice shall be subserved thereby."

Public Safety/Nature of the Crime:

Some cases involve a certain term of probation to protect society or an individual, such as no driving with any alcohol in your system for a DUI or a no contact order or restraining order for the victim. Judges are sometimes reluctant to terminate probation on cases that have terms such as these, so it is important to show that society or the victim is still protected if possible, or that the court protections are no longer necessary. For example, show that a DUI defendant regularly attends AA meetings and has been sober since the conviction. In domestic restraining order cases, you should show that the defendant and victim have completed their divorce and the tension is no longer an issue, or if a civil restraining order is in place, show that the victim no longer wishes to have the order.

Required time of probation by law:

Certain crimes have a very specific probation term. The Penal Code has language like "shall be sentenced to four years' probation." I have had cases where the District or City attorney objects to the motion for early termination based on this language. You must point out to the court that the individual was sentenced to the legally required term and that there is nothing in the Penal Code language that states he must serve a four-year term or that negates or overrides the language in §1203.3. The law was obeyed and it is still in the courts authority to terminate probation early.

Other Factors:

Prior criminal history, age, family situation, rehabilitation, treatment, remorse, and a countless list of other factors can affect a Judge's decision. Be sure you are prepared for every argument against the motion and have collected evidence of every positive factor supporting the motion.

Reason for the request:

This is one of the key factors a Judge will consider when granting the motion. The court looks at the reason very seriously. Being tired of being on probation, or wanting to put this behind them is often not enough. The more compelling the reason, the more weight a judge will give in considering granting the motion. Immigration consequences, loss of employment, denied new employment, denied application for school, denial of application for military service, and applying to a professional licensing board (i.e. nursing, the bar, medical, real estate, etc.) are viewed as good grounds for the motion. Proof of denials and proof they will be accepted if probation is terminated carry more weight than just proof of application. But if you supplement the proof of application with proof they will not be granted unless they are off probation it increases the likelihood of the motion being granted.

Reform:

Be sure to address reform, also known as rehabilitation. This is difficult to do in a lot of cases because the crime was a lapse in judgment by the individual and not habitual behavior. But be sure they have addressed the problem in specific ways such as: additional AA meetings or staying sober for DUI convictions, additional therapy for domestic violence or assault issues, treatment for drug issues, etc. The more personal reform you can show outside the court ordered programs the more weight they will carry. Judges like to see when your client has gone above and beyond the mandatory requirements of the sentence.

The People's objection to your motion

In the best-case scenario, your motion is so complete and justified the prosecutor will not object or submit to the court's discretion. When they do object, it's often based on People v. Segura (2008) 44 Cal 4TH 921. Prosecutors will claim that this case prevents the court from modifying probation because it the court lacks the authority to change plea agreement bargained for by the people. This however misstates the holding in Segura. Segura was discussing a specific jail term, negotiated and bargained for by the Defense and People. You must show the court that the probation in this case was the standard term for this charge and was not specifically negotiated or a benefit of the bargain. Some Judges will dismiss the prosecution's objection outright if this is the only argument, others will deny it based solely on this argument. It's very important to become familiar with this case and be prepared to argue why it does not apply to your case.

The other common objection is the one mentioned above under "Required time of probation under law," so be sure to review that argument if that is their grounds for the objection.

Attorney Tip: This motion requires at least two (2) days written notice to the prosecuting attorney and an opportunity to be heard on the matter, except on domestic violence issues which require five (5) days of written notice. Attach exhibits, declarations and a Proof of Service to your motion. Make sure all fines, assessments and restitution have been paid, including any court filing fees. If the court grants your motion, consider a PC §1203.4 "expungement" motion. Often both motions are simultaneously filed. This allows the court the opportunity to also rule on the PC §1203.4 motion in one sitting.

©Richard L. Duquette, Esq. and Michael Norton, Esq. All rights reserved April 21, 2017