Tooby's California Post-Conviction Relief for Immigrants

(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.