On January 1, 2021, California's new law, AB 1950, will reduce the length of probation given to individuals convicted of most criminal charges. This is welcoming news since probation has been a way for prosecutors and the courts to hold jail and prison sentences over individual’s heads. As a result of the lengthy probation term, many probationers were subjected to unjust and lengthy prison sentences after violating probation, causing Californians to spend billions of dollars supervising and housing prisoners.
If you were convicted of a crime, chances are you were placed on probation. You must agree to probation, but by doing so, you will not be given a maximum jail or prison sentence. Instead, a judge will suspend your sentence and give you a term of probation, where you must abide by those conditions in order to avoid being sentenced to a term of custody.
There are two types of probation, informal probation and formal probation. Informal probation means you are not supervised, whereas formal probation requires supervision by a probation officer. In Fresno, most misdemeanors convictions result in informal probation, except domestic violence cases that require mandatory supervision. Persons convicted of felony offenses in Fresno are almost always placed on formal probation.
The period of probation will depend on the criminal charges and whether you are convicted of a felony or a misdemeanor. In many cases, you are placed on probation for a specified number of years. Unfortunately, the longer you remain on probation, the chances of violating the terms of your probation increase.
The judge determines the terms of probation at sentencing, which are usually numerous conditions. As a result, there are several ways to violate those terms and conditions. Some ways you may violate probation is by failing to pay your fines, failing to appear in court, failing to complete a program, failing to complete work program or community service, failure to report to your probation officer, failure to keep a job, failure to install an ignition interlock device, and failure to obey all laws (in some cases, even minor traffic offenses).
Violating probation is serious, even if the violation is not (failing to maintain employment). When you are found to be in a violation of probation, the judge can revoke your probation and sentence you to jail or prison. Even if the judge allows you to remain on probation, he or she can reinstate probation and extend your probation, giving you an even longer probation term.
As you can see, reducing the probationary term will not eliminate the inherent problems with probation, but by reducing the length of probation, it severely curtails the actions by the prosecutor and the judge that normally occurs well after the person was punished for the crime.
California’s AB 1950 was sponsored by Assemblywoman Sydney Kamlager-Dove. Before the change in the law, misdemeanor probation was typically three years and felony probation was three to five years. Under the new law, misdemeanors will have a one year term and felonies will have a two year term.
As the legislature and Governor Gavin Newsom recently stated, the purpose of the enactment of AB 1950 is to reduce recidivism rates. Many people may argue that this does not help reduce crime rates, but instead it allows criminals to go free. This could not be further from the truth. In fact, when someone is on probation, it is extremely difficult to obtain employment, housing, schooling, and even student loans. By allowing the stigma of probation to be placed on a person for multiple years reduces the chance of the individual to become a productive citizen. Without a job, a home, or the ability to become educated, a lengthy probation term not only hurts the person on probation, but the families that depend on the probationer.
AB 1950 will amend the Penal Code 1203a to reduce probation for most misdemeanors to one year. PC 1203a will now read (emphasis added):
(a) In all counties and cities and counties, the courts therein, having jurisdiction to impose punishment in misdemeanor cases, may refer cases, demand reports, and to do and require anything necessary to carry out the purposes of Section 1203, insofar as that section applies to misdemeanors. The court may suspend the imposition or execution of the sentence and make and enforce the terms of probation for a period not to exceed one year.
(b) The one-year probation limit in subdivision (a) shall not apply to any offense that includes specific probation lengths within its provisions.
As it pertains to felony charges, AB 1950 will reduce probation on most felony charges to two years. PC 1203.1(a) is amended (in part):
The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years, and upon those terms and conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case.
As with all good things, there are some exceptions to the new laws.
In felony cases, the law does not apply when someone is convicted of a violent felony (commonly referred to as strike offenses). If you pled to residential burglary, robbery, or even threats charges, you do not qualify under the new law. Further, if you have a theft charge, depending on the charge and where the value stolen was over $25,00.00, you do not qualify.
For misdemeanors, 1203a(b) states, “the one-year probation limit in subdivision (a) shall not apply to any offense that includes specific probation lengths within its provisions”.
For felonies, 1203.1(m) states that the two-year probation term shall not apply to:
(1) An offense listed in subdivision (c) of Section 667.5 and an offense that includes specific probation lengths within its provisions. For these offenses, the court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence and under conditions as it shall determine. All other provisions of subdivision (a) shall apply.
(2) A felony conviction for paragraph (3) of subdivision (b) of Section 487, Section 503, and Section 532a, if the total value of the property taken exceeds $25,000. For these offenses, the court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding three years, and upon those terms and conditions as it shall determine. All other provisions of subdivision (a) shall apply.
As you can see, in both misdemeanor and felony cases, there is an additional exception that exists. In each statute, it clearly states the reduced probation lengths do not apply when the crime “includes specific probation lengths within its provisions”. In other words, when a statute states a probation period, then that provision will override the new law.
Two such examples are drunk driving and domestic violence (both can be misdemeanor or felony charges). Each crime clearly holds a mandatory probation period (three to five years). It is unclear why AB 1950 did not see fit to reduce the terms of probation on these charges as well. The same problems arise in these types of cases as they do in other misdemeanor or felony charges. However, the legislature clearly did not want to be seen as too soft on crime when it came to these types of cases, considering the advocates against drunk driving and domestic violence.
But with every exception, there becomes questions. If a person is originally charged with a crime and then it is reduced to a lesser offense that does not contain a mandatory probationary term, what provision applies? I would argue that the new law applies in cases where someone plead to a lesser offense, such as a wet reckless (DUI cases) or simple battery (domestic violence). If the legislature went out of its way to make exceptions, it could have just as easily stated that it applies to lesser included offenses. A second question also arises when negotiating with DUI and domestic violence cases. Will the district attorney only allow a charge reduction if the defendant agrees to a longer period of probation? Again, the language is a bit unclear and only time will tell if the courts will be guided by the plain language of the statute or by the interests of the prosecutor. Unfortunately, until the length of probation is set to a shorter period for all crimes, the same problems will undoubtedly continue to cause unnecessary probation violations in our courts, as well as overcrowding in our prison system.
If you are already on probation and you were given a longer probation term, you will need to file paperwork in order to have your probationary period reduced. If you have already been on probation longer than the new law allows, you may be eligible to terminate probation. To determine the best course for you, there are some questions that need to be examined before going to court.
1) Does your case qualify for a reduction in the term of probation? In order to determine if you qualify, consult a criminal or DUI attorney because as you can see, there are numerous exceptions to the law and you do not want to waste your time and resources if you do not qualify.
2) What was the length of probation you were sentenced to?
3) How long ago were you placed on probation?
4) Are you still on probation?
5) Are you still in the new laws probation period or has it expired?
6) If you are past the probation period under the new law, do you want to just terminate probation or would you like to terminate and expunge your record?
7) If you would also like an expungement, do you qualify for one?
The process of terminating probation and expunging your record can be complicated, but it does lead to a beneficial result. By contacting an experienced criminal lawyer, you will ensure your probation is terminated and expunged properly.
Terminating probation occurs when you ask a judge to stop requiring you to remain under the supervision of the court. By terminating your probation, the court is unable to dictate your behavior and you no longer face a violation of probation. In most cases, probation will expire on its own because the probation period has passed. In other cases, you may petition the court to terminate probation early. Before the new law, you had to wait at least a year and then the court would consider your motion. In many instances, judges rarely granted these motions and when it was granted, it was usually a result of exceptional circumstances.
Retroactive Application of AB 1950
Although the law is unsettled, many Fresno judges are already issuing guidance that the law is retroactive and many judges have even started to hand reduced probation sentences. It is common for judges to take their time before applying the law, many agree that the law is retroactive and are showing an interest in granting motions to reduce the term of probation.
The good news is if judges continue to rule that the law is retroactive (which makes sense since the purpose of the law is to stop recidivism), then if you are currently on probation for a qualifying offense, then a motion can be filed to have the length of probation reduced to 1 year (misdemeanor) or 2 years (felony). If you have been on probation longer then the new term, you may be eligible to terminate probation and to have your charges expunged from your record.
Once probation is terminated, either by its own terms or because you filed the necessary paperwork and obtained a court order terminating probation, you are still required to obtain an expungement.
An expungement is a court order that dismisses the charges against you. Under our law, a conviction will remain on your record until you do something about it. That means that you must file documents with the court and in most cases, have a judge hear your case to determine if you are eligible to have your record expunged. Generally, terminating probation and expunging your record can occur at the same time. Once the charges are dismissed, it means you can legally say that you have not been convicted of a crime. This is extremely important when you are trying to clear the stigma the conviction when looking for a job, housing, schooling and student loans. However, there are many factors to consider before petitioning for an expungement and it is important to discuss your case with an attorney to make sure you qualify for an expungement.
By contacting an experienced attorney that understands the court process and stays current of the law, you can be assured that if you qualify to have your probation term decreased or terminated, we will do our best to see that it is accomplished. Further, after the reduction or termination of probation, you can immediately apply for an expungement as long as you qualify for the post-conviction relief. Contact our office to today to discuss how the new law will affect your case for free.
