A common barrier to receiving an expungement is that the client is still on probation.  If the court grants a motion to shorten probation, and terminates it successfully, the client will immediately become eligible to receive a mandatory expungement under Penal Code § 1203.4.[222]

 

            The defendant may request that the court modify the terms of probation at any time on the ground that the good conduct and reform of the probationer warrant it.  Penal Code § 1203.3(a) provides:

 

(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 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.  (Emphasis supplied.)[223] 

 

            The court also has the inherent power to change probation conditions to favor the probationer at any time.[224]  If another case is pending, plea‑bargaining with the prosecutor or judge may assist the client to obtain an expungement as a part of the plea.

 

            In People v. Hawley,[225] the court held that termination of probation, prior to completion of probation, entitled the defendant to mandatory expungement even though the defendant had previously violated probation by committing offenses leading to two new arrests.  Thus, even if the client has violated probation, if early “termination” of probation can be obtained, even by one day, it should be possible under Hawley to force an expungement of the conviction.

 

            The order denying a motion to shorten probation is an appealable order.[226]

 

            Note:  In cases involving driving under the influence it may not be possible to shorten probation to less than three years.  Vehicle Code § 23206(b) requires a sentencing judge to impose no less than three years’ probation.  However, one can argue, if the prosecutor or court rely on this section, that it is satisfied by the initial grant of three years’ probation, and does not preclude later shortening in a proper case.[227]

[222] Even if the client is on probation, it is possible to argue that a discretionary expungement is available “in the interests of justice,” but some courts may not interpret the section to allow an expungement while the client remains on probation, and it is safer to attempt to qualify for a mandatory expungement in any event.

[223] Penal Code § 1203.1 [para. 6, second to last sentence] provides: “[U]pon the payment of any fine imposed and the fulfillment of all conditions of probation, probation shall cease at the end of the term of probation, or sooner, in the event of modification.”  This section has now been amended to require that before any sentence or term of probation is shortened, a court hearing must be held after at least two days’ notice to the prosecution, and the court must state the reasons for granting the motion on the record.  See also Penal Code § 1203.1.

[224] People v. Allen (1975) 46 Cal.App.3d 583, 120 Cal.Rptr. 127.

[225] People v. Hawley (1991) 228 Cal.App.3d 247, 278 Cal.Rptr. 389.

[226] People v. Romero (1991) 235 Cal.App.3d 1423, 1 Cal.Rptr.2d 468.

[227] Vehicle Code § 23206(b) arguably does not prevent the court from shortening probation to less than three years.  Section 23206(b) states that the terms and conditions of probation for one convicted of driving under the influence, notwithstanding § 1203a of the Penal Code, shall include a period of probation not less than three years.  This provision arguably does not prevent the court, after initially imposing no less than three years’ probation, from terminating probation early under Penal Code § 1203.3(a) for the following reasons:

 

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

 

(b) The Legislature knew how to say so clearly when it wished to preclude a court from later modifying a term of probation: in § 23206(c), the Legislature provided: “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 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.  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.  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.

 

(c) 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.  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 (Penal Code § 1203.3(a)) that grants the court the power to reduce a probationary period in appropriate cases.

 

(d) The clear language of Penal Code § 1203.3(a) permits early termination, and Vehicle Code § 23206(b) does not contradict 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.  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.

Other

CALIFORNIA " DOMESTIC VIOLENCE " PROBATION CONDITIONS APPLY TO NON-DV CONVICTIONS IF UNDERLYING FACTS INVOLVE DV CRIMINAL LAW & PROCEDURE, SENTENCING
People v. Cates, No. A121037 Following plea of no contest to a felony assault, judgment modifying probation and ordering defendant to complete 52-week batterer's counseling program is affirmed where: 1) Penal Code section 1203.097 applies to any person placed on probation for a crime if the underlying facts of the case involve domestic violence, even if the statute defining the crime does not specifically refer to domestic violence; and 2) the trial court was obligated to correct its sentence even in the absence of a subsequent probation violation.

CALIFORNIA " DOMESTIC VIOLENCE " PROBATION CONDITIONS APPLY TO NON-DV CONVICTIONS IF UNDERLYING FACTS INVOLVE DV
CRIMINAL LAW & PROCEDURE, SENTENCING People v. Cates, No. A121037 Following plea of no contest to a felony assault, judgment modifying probation and ordering defendant to complete 52-week batterer's counseling program is affirmed where: 1) Penal Code section 1203.097 applies to any person placed on probation for a crime if the underlying facts of the case involve domestic violence, even if the statute defining the crime does not specifically refer to domestic violence; and 2) the trial court was obligated to correct its sentence even in the absence of a subsequent probation violation.