Criminal Records 101
Penal code 1203.2 – motion to modify probation
1203.2. (a) At any time during the probationary period of a person
released on probation under the care of a probation officer pursuant
to this chapter, or of a person released on conditional sentence or
summary probation not under the care of a probation officer, if any
probation officer or peace officer has probable cause to believe that
the probationer is violating any term or condition of his or her
probation or conditional sentence, the officer may, without warrant
or other process and at any time until the final disposition of the
case, rearrest the person and bring him or her before the court or
the court may, in its discretion, issue a warrant for his or her
rearrest. Upon such rearrest, or upon the issuance of a warrant for
rearrest the court may revoke and terminate such probation if the
interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation officer or
otherwise that the person has violated any of the conditions of his
or her probation, has become abandoned to improper associates or a
vicious life, or has subsequently committed other offenses,
regardless whether he or she has been prosecuted for such offenses.
However, probation shall not be revoked for failure of a person to
make restitution pursuant to Section 1203.04 as a condition of
probation unless the court determines that the defendant has
willfully failed to pay and has the ability to pay. Restitution
shall be consistent with a person's ability to pay. The revocation,
summary or otherwise, shall serve to toll the running of the
probationary period.
(b) Upon its own motion or upon the petition of the probationer,
probation officer or the district attorney of the county in which the
probationer is supervised, the court may modify, revoke, or
terminate the probation of the probationer pursuant to this
subdivision. The court shall give notice of its motion, and the
probation officer or the district attorney shall give notice of his
or her petition to the probationer, his or her attorney of record,
and the district attorney or the probation officer, as the case may
be. The probationer shall give notice of his or her petition to the
probation officer and notice of any motion or petition shall be given
to the district attorney in all cases. The court shall refer its
motion or the petition to the probation officer. After the receipt
of a written report from the probation officer, the court shall read
and consider the report and either its motion or the petition and
may modify, revoke, or terminate the probation of the probationer
upon the grounds set forth in subdivision
(a) if the interests of
justice so require.
The notice required by this subdivision may be given to the
probationer upon his or her first court appearance in the proceeding.
Upon the agreement by the probationer in writing to the specific
terms of a modification or termination of a specific term of
probation, any requirement that the probationer make a personal
appearance in court for the purpose of a modification or termination
shall be waived. Prior to the modification or termination and waiver
of appearance, the probationer shall be informed of his or her right
to consult with counsel, and if indigent the right to secure court
appointed counsel. If the probationer waives his or her right to
counsel a written waiver shall be required. If probationer consults
with counsel and thereafter agrees to a modification or termination
of the term of probation and waiver of personal appearance, the
agreement shall be signed by counsel showing approval for the
modification or termination and waiver.
(c) Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for any
time within the longest period for which the person might have been
sentenced. However, if the judgment has been pronounced and the
execution thereof has been suspended, the court may revoke the
suspension and order that the judgment shall be in full force and
effect. In either case, the person shall be delivered over to the
proper officer to serve his or her sentence, less any credits herein
provided for.
(d) In any case of revocation and termination of probation,
including, but not limited to, cases in which the judgment has been
pronounced and the execution thereof has been suspended, upon the
revocation and termination, the court may, in lieu of any other
sentence, commit the person to the Department of the Youth Authority
if he or she is otherwise eligible for such commitment.
(e) If probation has been revoked before the judgment has been
pronounced, the order revoking probation may be set aside for good
cause upon motion made before pronouncement of judgment. If
probation has been revoked after the judgment has been pronounced,
the judgment and the order which revoked the probation may be set
aside for good cause within 30 days after the court has notice that
the execution of the sentence has commenced. If an order setting
aside the judgment, the revocation of probation, or both is made
after the expiration of the probationary period, the court may again
place the person on probation for that period and with those terms
and conditions as it could have done immediately following
conviction.
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