PC 1203.097 – Domestic Violence and Probation

Domestic Violence and Probation under CA Penal Code 1203.097

Being convicted of a crime is scary, whether you are found guilty in a court of law or agree to a plea bargain. Certainly, an experienced criminal defense attorney will work zealously to ensure you avoid incarceration if possible. Depending on the charges, your attorney can start negotiating with the prosecutor immediately after your arrest to not only keep you out of jail pending resolution of the case but to convince the judge to order probation in lieu of incarceration if there is a conviction. Generally, a judge has broad discretion to order probation instead of incarceration depending on the seriousness of the crime and potential risk to public safety.

In an effort to address domestic violence and provide harsher penalties for crimes involving victims of domestic abuse, the California legislature enacted penal code section 1203.097 which outlines mandatory terms and conditions for any person convicted of domestic violence. Specifically, the Act applies when the victim is protected under section 6211 of the California Family Code and includes:

• a spouse or former spouse
• a cohabitant or former cohabitant
• a person with whom the defendant is dating or was dating
• a person with whom the respondent has a child
• a child or close blood relative of the defendant.

As a result, any probation for domestic violence against a victim in these categories will fall under penal code section 1203.097, and the judge will be required to order certain terms and conditions.

Notably, domestic violence crimes do not always involve physical violence or abuse.

For example, crimes such as vandalism under CA Penal Code 594, and disturbing the peace under CA Penal Code 415 can result in charges of domestic violence if the victim is protected under Family Code 6211 FC discussed above.

Domestic Violence Charges are Wobblers

Most domestic violence crimes in California can result in either a misdemeanor or felony charge. Known as a “wobbler,” the prosecution has discretion to file a misdemeanor or felony based on various factors including:

• the severity of harm
• prior criminal history
• use of a weapon
• other aggravating factors.

An experienced criminal defense attorney will explain the charges to you and can review the evidence to evaluate the strengths and weaknesses of the case. This will allow you to make an informed decision regarding any possible plea agreement, and most importantly, may persuade the prosecutor to drop the charges if the case is weak. Your attorney can also make sure that your constitutional rights are protected and not violated by law enforcement or the prosecutor inadvertently or purposely.

Mandatory Probation

Mandatory Probation Terms and Conditions under CA Penal Code 1203.097

Under section 1203.097, the terms and conditions for probation for a conviction of domestic violence must include the following:

• a minimum period of probation of 36 months
• a criminal protective order protecting the victim from further acts of violence, threats, stalking, sexual abuse, and harassment
• a minimum $500 fee, and other costs and penalties
• completion of a 52-week batterer’s program
• community service.

Additionally, the judge will order a “book and release” within one week of sentencing pursuant to PC 1203.097(4). This means the defendant must formally appear at a designated jail or Sheriff’s office to be processed so that an arrest record is created. Section 1203.087(3) also requires notice of disposition be given to the victim.

The statute is very comprehensive, and there are other requirements that align with general probation terms and conditions. Like most statutes, the penal code is complicated, so an experienced criminal defense attorney can explain the laws and ensure you do not violate any conditions of probation unintentionally. For example, if you share a child with the victim, your attorney can request a “level one” protective order which would allow peaceful contact with the victim to facilitate visits with the child. That way, if you comply with the terms of the level one protective order, you would not be in violation of the court’s broader protective order protecting the victim.

Satisfying Terms and Conditions of Probation

Certainly, an order granting probation is preferable to incarceration. However, violations of probation or failure to comply with terms and conditions, particularly under PC 1203.097 can result in serious consequences. Furthermore, section 1203.097 is written to ensure that you are cooperative and compliant with the terms and conditions of probation. For example, the statute requires periodic progress reports (every three months or less) to the court regarding participation in the 52-week batterer’s program. Also, the statute requires the program to consist of weekly sessions of a minimum of two hours each class. Violations of any terms and conditions could lead to incarceration and/or additional penalties.

Notably, even though CA Penal Code 1203.097 PC requires the court to order at least 36 months of probation for a domestic violence conviction, an experienced criminal defense attorney can file a motion for early termination of probation pursuant to CA Penal Code 1203.3 PC, Termination of Probation. Of course, the motion would only be appropriate upon completion of required services and consistent cooperation and progress. A motion for early termination of probation is not significantly different than any other order of probation despite the mandatory duration of 36 months or more. In other words, the court will consider the same factors including the cooperation, progress and completion of ordered requirements of probation, as well as the showing of remorse and acceptance of responsibility.

Initially, when section 1203.097 was first enacted, there was a question as to whether or not the court could terminate probation before the initial term of 36 months (or longer) was ordered. However, the courts have held that CA Penal Code 1203.097 PC applies only to the initial order of probation.

For example, in the case, People v. Killion, 24 Cal. App. 5th 337 (2018), the court held that section 1203.097 “deals only with the initial imposition of probation at sentencing for domestic violence offenders” and notes that the “rather lengthy statute” does not address any subsequent remedial provisions including a motion to terminate probation. Id. at 341. In other words, the court is required to order a probation term of at least 36 months, but the court retains the discretion to grant a motion for early termination of probation when appropriate as outlined under CA Penal Code 1203.3 PC.

Certainly, an experienced criminal defense attorney will file a timely and persuasive motion detailing your compliance and successful efforts and compliance with the terms of probation. The process for early termination of probation under PC 1203.3 is very technical, but an experienced criminal defense attorney will be able to draft a persuasive motion and file and serve the parties as required under the law. Moreover, your attorney will be able to advocate for you at the hearing and persuade the judge to grant the motion for early termination of probation.

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