(A)

In General. An order modifying a condition of probation that imposes a sentence of one year or more in custody, and replacing it with a new order imposing no more than 364 days in custody, is effective to eliminate the immigration effects of the original sentence.  This is often possible as a discretionary decision of the sentencing judge, and will be effective even if it is explicitly motivated by a desire to avoid the adverse immigration consequences of the original sentence.[143]

 

            The court has the inherent power to change probation conditions to favor the probationer at any time.[144] During the probationary period, the trial court has authority to reduce the sentence imposed as a condition of probation in order to avoid immigration consequences pursuant to Penal Code § 1203.3.  The defendant may request that the court modify the terms of probation 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 added.)

 

See also Penal Code § 1203.1.[145]

 

            The trial court can modify a custody term imposed as a condition of probation, for any reason including immigration concerns, so long as the defendant is still on probation and has not yet completed serving the sentence.  This situation can be contrasted with People v Borja,[146] in which the court of appeals held the trial court has no authority to modify the conditions of probation after probation has ended. 

 

            The court has no authority, without consent of the prosecution, to modify a sentence if the sentence was dictated by a plea bargain, unless the plea bargain expressly states that the sentence can be modified.[147] It is often still worth making this motion to modify the custodial sentence, to avoid immigration consequences, since the prosecutor will not necessarily oppose it if indeed the one-day difference was not "material" to the prosecution either in the first place, or at the time of the motion to modify.  Counsel negotiating plea agreements should insert an exception, allowing a motion to modify if changed circumstances appear, so as to make a later motion to modify consistent with the original plea bargain.  Finally, counsel can argue that the Supreme Court's statement, in footnote 10 of Segura, that "the one-year term in the present case clearly was a material term" was not a holding that it is always a material term, but merely that it was a material term under the facts of the present case.

[143]    Matter of Cota-Vargas, 23 I. & N. Dec. 849 (BIA 2005)(most recent sentence governs regardless of reason sentence was changed).

[144] People v. Allen (1975) 46 Cal.App.3d 583, 120 Cal.Rptr. 127; C.E.B., California Criminal Law -- Procedure and Practice § 44.32 (2008).

[145] 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.  Ibid.

[146]  People v Borja (2002) 95 Cal.App.4th 481.

[147] People v. Segura (2008) 44 Cal.4th 921, overruling People v. Allen (1975) 46 Cal App.3d 583, 588-589.

Ninth Circuit

CAL CRIM DEF " PROBATION VIOLATION
People v. Leiva, 56 Cal. 4th 498, 502 (2013) (summary revocation of probation allowed trial court to retain authority to adjudicate only probation violations during the probation term: summary revocation operated in conjunction with the tolling provision of Pen. Code, 1203.2, subd. (a), to preserve the trial court's authority to adjudicate a claim of a probation violation during the original probationary period and to extend or otherwise modify probation under Pen. Code, 1203.3, subd. (a)); disapproving People v. DePaul, 137 Cal.App.3d 409, 187 Cal.Rptr. 82.

POST CON RELIEF " FULL FAITH AND CREDIT " FEDERAL COURT MUST CREDIT STATE COURT ORDER TERMINATING PROBATION
United States v. Yepez, ___ F.3d ___, 2011 WL 2988774 (9th Cir. Jul. 25, 2011) (in sentencing defendants for federal offenses, the district court must credit state orders terminating probationary sentences in calculating criminal history points for purposes of safety valve eligibility, because of the wide latitude in modifying probationary terms given to state courts).

POST CON RELIEF " SENTENCE " PROBATION " NUNC PRO TUN ORDER
United States v. Yepez, 652 F.3d 1182 (9th Cir. July 25, 2011) (California courts nunc pro tunc reduction of probation term, under Penal Code 1203.3, to end one day prior to the commission of a federal drug offense, effectively qualified the defendant for application of the Safety Valve allowing a shorter sentence under 18 U.S.C. 3553(f)); citing 18 U.S.C. 3553(f) (statute allows a district court to impose a sentence below the mandatory minimum if five factors are met, including a requirement that the defendant have no more than one criminal history point as defined by the United States Sentencing Guidelines); distinguishing United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. 2009)(California motion to terminate probation under Penal Code 1203.3, which was granted as a motion to expunge the conviction under Penal Code 1203.4, did not remove the prior conviction from scoring under U.S.S.G. 4A1.2(c)(1), and that even if it could be removed from scoring by dismissing the state case, it did not change that at the time Alba-Flores committed the federal offense he was serving a probationary sentence); but see United States v. Martinez-Cortez, 354 F.3d 830 (8 th Cir. 2004) (where defendant attempted to modify a California sentence after probation had expired, the modification was ineffective for federal sentence purposes because the California court did not have jurisdiction); United States v. Pech-Aboytes, 562 F.3d 1234 (10 th Cir. 2009) (defendant's actual status at the time of the commission of the later federal offense, rather than whether California considered him on probation for that offense as a result of later motion to modify probation, controls the application of the safety valve). See generally the excellent article by John Lanahan, Another Escape Hatch in the Safety Valve: United States v. Yepez, The Federal Tatler, No. 162 (September 29, 2011).

Lower Courts of Ninth Circuit

CAL POST CON " SENTENCE " COURT HAS NO JURISDICTION TO MODIFY PROBATION AFTER PROBATION HAS EXPIRED
Hilton v. Superior Court, 224 Cal.App.4th 47, 168 Cal.Rptr.3d 309 (2d Dist. Feb. 25, 2014) (trial court does not have jurisdiction to modify a defendant's probation to impose restitution after the defendant's probationary term has expired).

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.

CAL POST CON - CRIMINAL LAW & PROCEDURE
People v. Mendoza, No. H032314 Trial court's grant of defendant's motion to modify retroactively his jail term is reversed where the superior court does not have authority to reduce a county jail term imposed as a condition of probation when the defendant has already served the term and is still on probation.