Tooby's California Post-Conviction Relief for Immigrants

In cases involving convictions for driving under the influence, it may be more difficult to shorten probation to less than three years.  That is because Vehicle Code § 23206(b) requires a sentencing judge (initially) to impose no less than three years’ probation.  Section 23206(b) states that the terms and conditions of probation for one convicted of driving under the influence, notwithstanding § x1203a of the Penal Code, shall include a period of probation not less than three years.

            One can argue, however, that the statute does not prevent the court, after initially imposing no less than three years’ probation, from terminating probation early under Penal Code § 1203.3(a), after the initial grant of probation, for the following reasons:

            (1) No part of Vehicle Code § 23206 expressly prevents the court from terminating probation early.

            (2) The Legislature knew how to state clearly when it wished to preclude a court from later modifying a term of probation.  In Vehicle Code § x23206(c), the Legislature stated, “The court shall not absolve a person who is convicted of a violation of Section 23152 or 23153 from the obligation of spending the minimum time in confinement, if any, or of paying the minimum fine provided in this article."  The Legislature did not, however, preclude the court from “absolving” the defendant of the minimum three-year probationary term.

            The rule of statutory construction, expressio unius est exclusio alterius, indicates that when the Legislature expressly specifies certain items, other similar items are not to be implied or presumed.[156]  Here, if the Legislature had meant to preclude the court from reducing the original three‑year probationary term in a case in which the reform of the probationer and the interests of justice required it, it could have said so as clearly as it prohibited reducing the jail time or fine.

            (3) Penal Code § 1203.3(a) expressly grants the court the power to reduce the original probation period and terminate probation early where the interests of justice require it.  The Legislature knew how to override a statute where it wished to.  For example, Vehicle Code § 23206(b)(1) states that the three‑year minimum, five‑year maximum probationary period applies “[n]otwithstanding Section 1203a of the Penal Code . . . .”  There is no similar express overruling of the general statute[157] that grants the court the power to reduce a probationary period in appropriate cases.

            (4) The clear language of Penal Code § 1203.3(a) permits early termination of probation, and Vehicle Code § 23206(b) does not expressly remove this power of the court.  Even if, however, the language of both sections, read together, is reasonably susceptible to two constructions, federal and state due process require the court to adopt the construction more favorable to the defendant.[158] 

[156] In re Hubbard (1964) 62 Cal.2d 119, 124‑127, 41 Cal.Rptr. 393; Santa Ana v. Garden Grove (1979) 100 Cal.App. 3d 521, 528, 160 Cal.Rptr. 907; see People v. Williams (1975) 53 Cal.App.3d 720, 722, 125 Cal.Rptr. 901.

[157] Penal Code § 1203.3(a)

[158] Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481; People v. Lampasona (1977) 71 Cal. App.3d 884, 887, 139 Cal.Rptr. 682.