In re Jesse Barber

Filed 9/14/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B284060
In re JESSE BARBER
(Los Angeles County
on Habeas Corpus. Super. Ct. No. PA060193)
Petition for writ of habeas corpus. Petition granted.
Kelly Emling, Acting Public Defender, Kenneth I. Clayman,
Public Defender, Albert J. Menaster, Kathy Quant and Lara
Kislinger, Deputy Public Defenders, for Petitioner Jesse Barber.
Fuentes & McNally, Raymond J. Fuentes and Kim E.
McNally for Respondent Los Angeles County Sheriff’s
Department.
Jackie Lacey, District Attorney, Matthew Brown and
Scott D. Collins, Deputy District Attorneys, for the People, an
interested party.
_________________________
At a probation violation hearing, petitioner Jesse Barber
was sentenced to three years in prison, execution suspended, and
continued on formal probation on the condition that he serve 365
days in jail. After his remand to the custody of the Los Angeles
Sheriff’s Department (the sheriff or sheriff’s department), the
sheriff allowed Barber to complete his jail sentence through a
work release program (Pen. Code, § 4024.2).1 When he failed to
complete the program, the sheriff issued an “IRC Want” for
Barber’s arrest in 2010. Not until May 2017 was Barber arrested
on that IRC Want. In the interim, Barber’s probation expired in
2012. Notwithstanding the expiration of probation, the sheriff
claimed authority to confine Barber under section 4024.2, which
provides that if a person violates the terms of a work release
program the sheriff may take the person into custody to serve the
“remainder” of his or her “sentence.” Barber therefore filed a
petition for writ of habeas corpus challenging the legality of his
confinement. We agree he is being illegally held and grant the
petition.
BACKGROUND
In 2007, Barber pled no contest to second degree
commercial burglary (§ 459). On November 6, 2007, the trial
court suspended imposition of sentence and placed Barber on
three years’ formal probation on the condition he serve 365 days
in jail. On July 22, 2010, the court revoked and reinstated
probation and Barber was sentenced to three years in prison,
execution suspended, and ordered to serve 365 days in jail. He
received zero days of credit, having waived back-time.
1 All further undesignated statutory references are to the
Penal Code.
2
In August 2010, Barber began a work release program. In
connection with that program, he signed two documents. First,
he signed the CBAC WRP Rules and Regulations,2 in which he
acknowledged that if he failed to report for work, violated the
rules of the program or failed to complete the program, “I will be
required to serve the balance of my sentence in straight-time
confinement. Further, failure to complete the program will be
viewed by the Court as a violation of Section 4024.2 P.C., a
misdemeanor, and a complaint will be filed against me.” Second,
Barber signed a work in lieu of confinement agreement
acknowledging that “if I fail to appear or complete the Work
Release Program for any reason, I am guilty of violating section
4024.2 . . . , a misdemeanor, and additional charges will be filed
against me. Further, if my failure to comply with the provisions
above, [sic] requires any peace officer to respond to my residence
to complete my sentence in custody, any attempt to flee from any
peace officer will result in additional charges of ‘ESCAPE’, 4532
PC, filed against me.” (Bold omitted.)
Although Barber worked 57 days in the work release
program, his worksite supervisor noted, on November 5, 2010,
that Barber had “excessive no shows,” and Barber therefore had
failed to complete the work assignment. Coincidentally, that
same day, Barber appeared in court for a probation violation
hearing.3 Probation was modified to extend probation to
2 CBAC stands for Community Based Alternatives to
Custody and WRP stands for Work Release Program.
3 The reporter’s transcript from the hearing does not show
the basis of the violation, but based on the timing of the hearing,
it was not due to the excessive no shows.
3
February 25, 2012.4 On November 16, 2010, an IRC Want was
entered into the countywide warrant system for Barber’s “failed”
“work release program.”5 Over the next approximately four
months, the sheriff’s department unsuccessfully attempted to
locate Barber.6 Barber also appeared in court on multiple
occasions, but it appears no one was aware of the IRC Want. On
June 28, 2011, the court summarily found Barber in violation of
probation based on the probation officer’s report and revoked
probation. Barber appeared in court on December 19, 2011 on
the bench warrant issued in connection with that alleged
probation violation. Barber was detained in the sheriff’s custody
and thereafter appeared in court for a hearing on that probation
violation on January 4, 2012. At that time, the court revoked and
reinstated probation on the same terms and conditions, except
that the court ordered Barber to serve 44 days in jail with credit
for 44 days served. Also, the court extended probation to
September 1, 2012. Barber was back in court for another
probation violation hearing on June 5, 2012. The court read and
considered the probation release report, found Barber was not in
violation of probation, and ordered probation to remain in effect.
Probation expired on September 1, 2012.
Almost five years after probation expired in 2012 and six
and one-half years after the 2010 IRC Want for absconding from
4 The November 5, 2010 minute order mistakenly states that
probation was revoked and reinstated.
5 The IRC Want had a “purge date” of May 15, 2011, and the
IRC Want noted that Barber owed 165 days in jail.
6 There was an additional unsuccessful attempt in July 2016.
4
the work release program had issued, Barber was arrested based
on the IRC Want on May 22, 2017. He has been in custody since
that day. The public defender’s office filed a writ of habeas
corpus on Barber’s behalf in the trial court alleging that Barber
was being held “without a current case.” The trial court denied
the petition. Barber then filed the at-issue petition for writ of
habeas corpus, repeating that jurisdiction over his case was lost
when probation expired and that detaining him without a
hearing violated due process. We issued an order to show cause
and now grant the petition.7
DISCUSSION
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. He is correct.
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.
(§ 1203.3; People v. Leiva (2013) 56 Cal. 4th 498, 505, 516-518;
In re Griffin (1967) 67 Cal. 2d 343, 346; Hilton v. Superior Court
(2014) 239 Cal. App. 4th 766, 772 [once probationary term expires,
trial court no longer has jurisdiction to modify the defendant’s
probation and the defendant must be discharged from probation];
People v. Lewis (1992) 7 Cal. App. 4th 1949, 1955-1956 [“When a
probationer is discharged, he or she has completed the term of
7 In addition to briefing from the sheriff, we received briefing
from the District Attorney for Los Angeles County on behalf of
the People of the State of California. We refer to the People and
the sheriff’s department collectively as respondents.
5
probation, and the court no longer has jurisdiction.”].) 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.8
Although respondents agree the trial court lost jurisdiction
in 2012 when probation expired, they assert that Barber must
serve the previously imposed July 22, 2010 jail “sentence” under
section 4024.2. Section 4024.2 allows the board of supervisors to
authorize the sheriff to offer a voluntary work release program in
which one day of participation will be in lieu of one day of
“confinement.” (Id., subd. (a).) “As a condition of participating in
a work release program, a person shall give his or her promise to
appear for work or assigned activity by signing a notice to appear
before the sheriff . . . at a time and place specified in the notice
and shall sign an agreement that the sheriff may immediately
retake the person into custody to serve the balance of his or her
sentence if the person fails to appear for the program at the time
8 We recognize that section 1203.3, subdivision (c), provides
that if a probationer is ordered to serve time in jail and escapes
while serving that time, then probation is revoked as a matter of
law on the day of the escape. Although absconding from a work
release program may constitute an “escape” for the purposes of
that subdivision (see, e.g., People v. Bojorquez (2010) 183
Cal. App. 4th 407), section 1203.3, subdivision (c) is irrelevant here
because, even assuming that Barber’s probation was revoked as a
matter of law on or about November 5, 2010 when he failed to
appear at the work release program, probation was thereafter
reinstated in January 2012.
6
and place agreed to, does not perform the work or activity
assigned, or for any other reason is no longer a fit subject for
release under this section. . . . Any person who willfully violates
his or her written promise to appear at the time and place
specified in the notice is guilty of a misdemeanor.” (Id., subd. (c),
italics added.) The section further provides two ways in which a
person who violates the terms of a work release program may be
taken into custody: “Whenever a peace officer has reasonable
cause to believe the person has failed to appear at the time and
place specified in the notice or fails to appear or work at the time
and place agreed to or has failed to perform the work assigned,
the peace officer may, without a warrant, retake the person into
custody, or the court may issue an arrest warrant for the
retaking of the person into custody, to complete the remainder of
the original sentence. A peace officer may not retake a person
into custody under this subdivision, without a warrant for arrest,
unless the officer has a written order to do so, signed by the
sheriff or other person in charge of the program, that describes
with particularity the person to be retaken.”9 (Ibid., italics
9 The People claim that the IRC Want satisfied the
requirement in section 4024.2, subdivision (c) that a peace officer
“may not retake a person into custody under this subdivision,
without a warrant for arrest, unless the officer has a written
order to do so, signed by the sheriff or other person in charge of
the program, that describes with particularity the person to be
retaken.” Respondents have not provided either a warrant or any
document that is a “written order” “signed by the sheriff or other
person in charge of the program, that describes” Barber with
“particularity.” It therefore does not appear, on this record, that
the sheriff complied with section 4024.2’s procedural
requirements.
7
added.) According to respondents, section 4024.2 thus allows the
sheriff to return Barber to custody to serve the remainder of the
judicially-imposed sentence, here, 365 days in county jail.10
Here, the word “sentence” in section 4024.2 controls the
outcome. In interpreting a statute, we give words their usual and
ordinary meaning and construe them in their statutory context,
because this is usually the most reliable indicator of legislative
intent. (Lee v. Hanley (2015) 61 Cal. 4th 1225, 1232-1233; Catlin
v. Superior Court (2011) 51 Cal. 4th 300, 304; Los Angeles Unified
School Dist. v. Superior Court (2007) 151 Cal. App. 4th 759, 767.)
“ ‘ “If the plain, commonsense meaning of a statute’s words is
unambiguous, the plain meaning controls.” [Citation.]’ ” (Catlin,
at p. 304.) The word “sentence” in section 4024.2 cannot refer to
Barber’s three-year sentence because its execution was
suspended. “Sentence” can only refer to the 365 days in county
jail imposed as a condition of probation on July 22, 2010. But, by
operation of law, once Barber’s probation expired, that condition
of probation ceased to exist. There was, therefore, no “remainder
of the original sentence” for Barber to serve.11
10 The sheriff submitted a sentence computation worksheet
showing that the remainder of Barber’s sentence is less than 365
days based on days already served and worked and on an “80%
Release Criteria.”
11 The People posit a situation in which our logic supposedly
fails: where “a court revokes the probation of an individual,
sentences that individual to time in custody in lieu of probation,
and then terminates probation as a result of the custodial
sentence,” and the defendant escapes custody. The defendant,
the People suggest, would be “immune” from serving the
remainder of his or her sentence because probation had
terminated. The suggestion is meritless. In the People’s
8
The sheriff, however, suggests he may place Barber in
custody because the work release program is not a “condition
of . . . probation but rather a contractually agreed upon
alternative to custody through” the sheriff’s department. This is
wordplay. 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. (Ryan v.
Commission on Judicial Performance (1988) 45 Cal. 3d 518, 539.)
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.
Finally, we are unpersuaded that our holding in this
factually unique case will encourage defendants in work release
programs to abscond and hide out until their probation expires.
There is good reason for them not to engage in such behavior.
The sheriff can notify the court or the probation department, and
the court can revoke probation. Or, if the sheriff chooses not to
notify the court, defendants still risk discovery within the
probationary time. At any probation violation hearing, the court
can impose additional time in custody or impose any suspended
sentence. The prosecutor can also charge defendant with a
misdemeanor (§ 4024.2). Moreover, in this case, that probation
expired before law enforcement caught up with Barber cannot be
scenario, sentence was imposed and probation was not
reinstated.
9
wholly attributed to his evasion of law enforcement. Barber was
not in hiding. He was in the sheriff’s own custody at the Los
Angeles County jail from at least December 19, 2011 through
January 4, 2012, after the IRC Want had issued in 2010 for his
failure to complete the work assignment. He appeared in court at
probation violation hearings on January 4, 2012 and June 5,
2012, again after the IRC Want had issued. Law enforcement
therefore had ample opportunity to apprehend Barber within the
period of probation, but did not.12
12 We need not address Barber’s claim that due process
demands a hearing before a person who has violated the terms of
a work release program may be returned to custody. The
situation before us is limited to one involving expiration of
probation, and we order Barber released on that ground. We
have no occasion to address what process is due to a person who
absconds from a work release program and whose probation has
not expired.
10
DISPOSITION
The petition for writ of habeas corpus is granted. The
Los Angeles County Sheriff’s Department is hereby directed to
release petitioner forthwith from the custody imposed in
connection with this matter.
In the interests of justice, this opinion shall be deemed final
immediately upon filing and, pursuant to the parties’ stipulation,
the remittitur shall issue forthwith. (Cal. Rules of Court, rules
8.272(c)(1), 8.387(b)(3)(A).)
CERTIFIED FOR PUBLICATION
BACHNER, J.
We concur:
EDMON, P. J.
LAVIN, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
11