Criminal defense attorney, Alison Bermant, explains the new law for 2021 that may substantially shorten the length of criminal probation.  Will these changes affect someone you know?

California has passed a sweeping new law dramatically shortening the period of probation for most crimes in California. Assembly Bill (AB) 1950 amends the Penal Code to reduce the maximum term of probation for most misdemeanor crimes from three years or greater to one year, and for most felonies from five years or greater to two years. The bill, signed by the Governor in September, went into effect January 1, 2021.

Please continue reading for an overview of who may benefit from the new law and address what steps a person on probation should take to obtain the benefits of the new law by seeking early termination from probation as well as seeking a dismissal of charges under Penal Code § 1203.4 and reducing felony convictions to misdemeanors under Penal Code §17(b).

Who could benefit?

Most people convicted of crimes in California, whether misdemeanors or felonies, are granted probation. Those convicted of a felony and not sent to prison are placed on formal probation under the supervision of the probation department, and almost everyone convicted of a misdemeanor is placed on informal or court probation. There are situations where someone convicted of a misdemeanor is placed on formal probation where the misdemeanor is more serious, the person has an extensive criminal history, or the Court desires the defendant be supervised by probation. Well over 100,000 people are placed on adult formal probation in California each year, with an active probation caseload of close to 200,000 people. As most of these people have probation terms exceeding the new two (2) year limit, the change in the law could mean getting off probation immediately for many and shortening probation for most.

With this in mind, anyone currently on probation for any offense, whether informal or formal, should evaluate with an attorney if the change in the law could apply to them. I offer a free consultation to assist in determining if the change in the law applies enabling termination of probation, withdrawal of plea and dismissal of charges, and where applicable, reduction of a felony to a misdemeanor.

What is the new probation law and are there exceptions?

AB 1950 amends Penal Code Section 1203a by reducing the maximum term of probation for most misdemeanor crimes to one year. It also amends Penal Code Section 1203.1 to reduce the maximum term of probation for most felonies to two years. Prior to AB 1950, Penal Code Section 1203a specified the maximum term of probation for a misdemeanor was the greater of three years or the maximum term of imprisonment. And Penal Code Section 1203.1(a) specified the maximum term of probation for a felony offense could be up to the maximum term of imprisonment, which was typically three years or more. AB 1950 eliminates the court’s ability to set the term of probation based on the maximum possible sentence of the crime.

There are exceptions to this new rule. The two (2) year limit for felony grants of probation do not apply to:

• violent felonies listed in Penal Code § 667.5, subd. (c) (for which probation can be for as long as the maximum prison term that could be imposed);
• embezzlement and false financial statements in an amount greater than $25,000 under Penal Code §§487(b)(3), 503, or 532a), (for which probation can be for up to three years).; and
• any offense “that includes specific probation lengths within its provisions.”

The challenge is determining whether an offense is excluded as having a specific probation length within its provisions.  While some crimes include a probation length in the code section for the crime, other offenses have enumerated probation lengths based on the victim of the offense. The latter is common in domestic violence cases. If someone is convicted of any offense in which the victim is covered by Penal Code §1203.097 (a current or former spouse, cohabitants, dating partner, child, etc.) or any other person related by “consanguinity or affinity within the second degree,” then the minimum probation period must be three (3) years. Therefore, when bringing a motion to terminate probation under the new limits, I anticipate the District Attorney’s office will review their files on crimes with victims to determine if the status of the victim will provide a basis to object to the termination or reduction.

When does the law go into effect, and does it apply to people already on probation?

The law went into effect January 1, 2021, and unquestionably applies to crimes committed on or after that date. The Appellate Division of the Los Angeles County Superior Court, consistent with my overview of the new law, has ruled that the law also applies to people already on probation and to cases that are pending.

Why bring a motion to terminate probation under the new statute?

To obtain official recognition by the court that probation has terminated, I can file a motion to terminate probation under Penal Code § 1203.3. If the judge grants the termination of probation, then the Department of Justice will be notified, and the client’s RAP sheet (Record of Arrests and Prosecutions) will show that probation has been terminated. Once probation is terminated, the probation conditions will also be terminated, including search and seizure waivers (the ability for law enforcement to conduct searches without a warrant), requirements to submit to testing, abstaining from consuming alcohol or lawful cannabis, stay away orders, and other terms of probation. Bringing a motion to terminate probation under the new statute is the best way to ensure the benefits of early termination are obtained.

Are there other benefits to bringing a motion?

In addition to seeking termination of probation under the new law, I can bring concurrent motions to dismiss the conviction under Penal Code § 1203.4 and to reduce felony offenses that are eligible to misdemeanors under Penal Code § 17(b).

Penal Code 1203.4 releases an individual from nearly all penalties and disabilities arising out of the conviction. When this occurs the Department of Justice RAP Sheet will reflect that the conviction has been dismissed pursuant to this law. It does not however restore gun rights. A significant benefit is that a dismissed conviction does not need to be disclosed to potential employers on job applications with a few exceptions. For those who are eligible for relief under Penal Code 1203.4 the court orders that your plea be withdrawn, and the case be dismissed.  This is reflected by another entry on a criminal record showing a dismissal under this provision.

Many crimes in California are punishable as both felonies and misdemeanors. These offenses are known as “wobblers”. When a person is convicted of a wobbler as a Felony and granted probation, Penal Code § 17(b) permits a court to reduce the offense to a misdemeanor on motion of the defendant. Being a convicted felon can create hurdles with obtaining employment, housing, loans, and professional licensing. A felony conviction also imposes a lifetime firearm restriction. The reduction of a felony charge to a misdemeanor under PC 17(b) clearly offers multiple important benefits.

For a free consultation on whether someone’s probation may be terminated early and any other additional relief warranted, give me a call.