Metropolitan News-Enterprise


Friday, September 15, 2017


Page 3


C.A. Orders Immediate Release of ‘Illegally’ Incarcerated Man


By a MetNews Staff Writer


The Court of Appeal for this district yesterday ordered the release “forthwith” of a man it says has been “illegally held” by the Los Angeles County Sheriff’s Department since May 22.

Div. Three, in an opinion it made immediately final, granted a petition for a writ of habeas corpus filed by the Office of Public Defender on behalf of Jesse Barber.

The action harks to 2007 when Barber pled “no contest” to second degree commercial burglary, and received a suspended sentence and was placed on three years’ formal probation, with a condition that he serve 365 days in jail. Three years later, at a probation violation hearing, probation was revoked. reinstated and extended to 2012, and the condition was imposed that he serve another 365 days in jail (with no credit for time served).

The defendant was jailed, but the Sheriff’s Department freed him, pursuant to statutory authority, on a work release program. He did not complete the program—which, under Penal Code §4024.2 constitutes a misdemeanor—and a “want” was issued for his arrest so he could serve out what remained of the 365 days.

Barber was apprehended last May and has been incarcerated at the county jail ever since. Los Angeles Superior Court Judge Hayden Zacky denied a petition for a writ of habeas corpus, and a petition was then filed in the Court of Appeal on July 28.

Bachner’s Opinion

Acting Justice Monica Bachner, on assignment from the Los Angeles Superior Court, wrote the opinion granting relief.

“Barber contends there is no legal basis to detain him in custody because his probation expired and because section 4024.2 does not provide authority to detain him,” Bachner wrote. “He is correct.”

She continued:

“We begin with a well-established principle: once probation expires, a court loses jurisdiction to make an order revoking or modifying an order suspending the imposition of sentence or execution thereof and admitting the defendant to probation….Here, Barber’s probation expired in September 2012. At that time, the trial court lost jurisdiction to take any action against Barber as a result of any violation of his probation resulting from his failure to complete the work release program. Stated otherwise, Barber could not be returned to custody in 2017 as a consequence of violating probation.”

The Office of Attorney General and private counsel for the Superior Court opposed the petition. It was argued that although the court has lost jurisdiction, the Sheriff’s Department is still authorized to return Barber to jail based on a provision of §4024.2 that a person in Barber’s circumstances may be taken into custody “to complete the remainder of the original sentence.”

Bachner said that “sentence,” as applied to Barber, cannot refer to the three-year prison term that was suspended, so it must refer to the 365 days in jail as a condition of probation.

No ‘Remainder’

 “But, by operation of law, once Barber’s probation expired, that condition of probation ceased to exist,” Bachner reasoned. “There was, therefore, no ‘remainder of the original sentence’ for Barber to serve.”

In gaining a work-release, Barber signed an agreement, required by §4024.2, saying “I will be required to serve the balance of my sentence in straight-time confinement.” The Sheriff’s Department argued that Barber was contractually bound to serve the remainder of the probationary sentence.

Bachner accused it of engaging in “wordplay.” She said:

“True, a court may not impose a work release program as a condition of probation; rather eligibility for the program and its administration are within the sheriff’s purview….However, the ‘sentence’ the sheriff seeks to impose is the 365 days in county jail that was a condition of Barber’s probation. As we have said, that condition of probation no longer exists. Moreover, to the extent the sheriff also suggests that Barber may be held in custody as a matter of contract law based on the work release documents Barber signed, the sheriff cites no authority for the notion that one can contractually agree to be incarcerated.”

The case is In re Barber, B284060.


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