Frankly, I wasn't well prepared for this morning's hearing for a 1203.4 motion. My excuse is that I was covering for my coworker while she was out on vacation and that it was supposed to be a mandatory petition--because it was believed that the client had fulfilled all terms and conditions of his probation. You can already tell where this story is going.
When the court called the matter, the judge remarked that he was going to deny the petition because there were still fines and fees owing. That was news to me. I acknowledged that I was not aware of this and asked how much they were so I could advise my client to pay. It turned out to be a little over $600--something that this particular client wasn't likely going to be able to pay in the near future. So I asked whether any restitution was owed--to which the court replied that the client had paid off more than $500 in victim restitution.
Just assume here with me that there aren't likely any other fines and fees that would've been included in his probation terms and conditions for this particular conviction. See, for example, People v. Pacheco (6th Dist. 2010) 187 Cal. App. 4th 1392, 1402, where that distinction is set out: "The imposition of the court security fee as a condition of probation was unauthorized because like probation costs, this fee is collateral to Pacheco's crimes and punishment and as such, its payment may not be made a condition of probation." To complete this line of reasoning, People v. Bradus (4th Dist. 2007) 149 Cal.App.4th 636 holds that failure to pay fines and fees that are not part of probation terms and conditions does not make what is otherwise a mandatory 1203.4 petition into a discretionary one. When I brought up this "Pacheco-Bradus" argument, the court stopped and really started looking into the case. Of course, I wouldn't have written this post, if the story ended there with the granting of this petition.
The court found that he had been arrested (and later convicted) of drug possession in 2008, during the term of probation for the present case. That would be a violation of the ubiquitous probation term that "probationer shall obey all laws of the land" during his term of probation. Given that his conviction was in 2003 and resulted in a 3-year probation, I gave it one more shot and challenged the court, arguing that his probation must have terminated by that time. Nope, the court replied. His probation had been revoked and reinstated (without an official finding of probation violation), so the drug possession occurred before the termination of newly-reinstated probation. Ouch. All I could do at that point was to ask the court to vacate its denial and to allow my client to withdraw the petition. The court granted that request, and now we'll have to refile. Of course, now that his petition is a discretionary one, his unpaid fines and fees will come into play.
When the court called the matter, the judge remarked that he was going to deny the petition because there were still fines and fees owing. That was news to me. I acknowledged that I was not aware of this and asked how much they were so I could advise my client to pay. It turned out to be a little over $600--something that this particular client wasn't likely going to be able to pay in the near future. So I asked whether any restitution was owed--to which the court replied that the client had paid off more than $500 in victim restitution.
Just assume here with me that there aren't likely any other fines and fees that would've been included in his probation terms and conditions for this particular conviction. See, for example, People v. Pacheco (6th Dist. 2010) 187 Cal. App. 4th 1392, 1402, where that distinction is set out: "The imposition of the court security fee as a condition of probation was unauthorized because like probation costs, this fee is collateral to Pacheco's crimes and punishment and as such, its payment may not be made a condition of probation." To complete this line of reasoning, People v. Bradus (4th Dist. 2007) 149 Cal.App.4th 636 holds that failure to pay fines and fees that are not part of probation terms and conditions does not make what is otherwise a mandatory 1203.4 petition into a discretionary one. When I brought up this "Pacheco-Bradus" argument, the court stopped and really started looking into the case. Of course, I wouldn't have written this post, if the story ended there with the granting of this petition.
The court found that he had been arrested (and later convicted) of drug possession in 2008, during the term of probation for the present case. That would be a violation of the ubiquitous probation term that "probationer shall obey all laws of the land" during his term of probation. Given that his conviction was in 2003 and resulted in a 3-year probation, I gave it one more shot and challenged the court, arguing that his probation must have terminated by that time. Nope, the court replied. His probation had been revoked and reinstated (without an official finding of probation violation), so the drug possession occurred before the termination of newly-reinstated probation. Ouch. All I could do at that point was to ask the court to vacate its denial and to allow my client to withdraw the petition. The court granted that request, and now we'll have to refile. Of course, now that his petition is a discretionary one, his unpaid fines and fees will come into play.
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