Wednesday, January 17, 2018
Court of Appeal:
Probation Condition Not Breached Where No Time Limit Set
Justice Moore: Two-Year-Plus Delay in Entering 52-Week Batterers’ Class Was Not Basis For Revocation Where Enough Time Remained Before End of Probation Term
By a MetNews Staff Writer
Probation was improperly revoked in the case of a man who committed elder abuse and was ordered, as a condition of retaining his freedom, to attend a 52-week batterers’ treatment program and, after more than 26 months, had failed to enroll, the Fourth District Court of Appeal has decided, explaining that the judge had not set a deadline for signing up.
Justice Eileen Moore of Div. Three wrote the opinion, filed Friday and not certified for publication. It reverses an order revoking the probation of Douglas Samuel Jessop and sentencing him to five years in prison.
His convictions stem from an episode in 2014 when he punched his 68-year-old father, falsely imprisoned both parents, threatening them and brandishing knives.
“There is no question that defendant was required to complete the program before his probation expired, but the relevant question here is whether he was required to start or complete it by a certain date before his probation ended. There was no evidence from the prosecution at all on this point. Neither the probation officer’s report, defendant’s initial probation conditions, or anything else in the record indicated defendant was ever given a mandatory date to start or complete the program. The program duration was 52 weeks, and defendant’s probation was due to terminate on December 10, 2017. On the date the court revoked his probation, February 25, 2016, he had more than one year and nine months remaining—ample time to complete a 52 week program.”
“Perhaps if the probation officer had appeared and testified at the revocation hearing, or if the prosecutor had cross-examined defendant, facts sufficient to support a finding of substantial evidence would have been elicited. But given the very limited evidence offered by the prosecution in support of the petition, the evidence was uncontroverted that defendant’s violation of this probation condition (to the extent any violation existed at all) was not willful. The only evidence was defendant’s testimony that he was not told that he was required to complete the program by a certain date. Accordingly, the court’s ruling must be reversed for a lack of substantial evidence that defendant willfully violated probation.”
The case is People v. Jessop, G053519.
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