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Probation Restrictions

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Tim B

Junior Member
What is the name of your state (only U.S. law)? California

A friend of mine's 31 year old mentally handicapped son was arrested for violating California Penal Code 288 (c) (1). Basically what happened was, he met this girl that lied about her name and told him that she is 18, but actually is 15. They exchanged cell phone numbers, she sent him a nude photo of herself, and he sent her one of himself in return. Her Mother found out about this exchange and had him arrested. He has never been arrested before, and as such has no criminal record of any kind.

He was assigned an Attorney from the Public Defender's Office and he asked her to talk to his Mother about the case as he doesn't understand a lot of what's happening. He is basically like a 12 year old. I went with her to see the Attorney. She basically said that even though he did not know the girl was only 15 years old, he didn't really have much chance of beating this, as California requires you to know whether anyone you associate with is a minor. And she said that the DA's office says he supposedly admitted to Police that he knows she is 15, but he was likely tricked into saying that. It's likely that since he thinks like a 12 year old, and his IQ is 72, he doesn't understand the problem of him associating with a 15 year old girl.

The DA's office made an offer for a plea bargain that if he pleads guilty to committing an unlawful sex act with a minor he would get three years Felony Probation, and would not be sent to state prison. If he were to violate the probation he could serve up to three years in the county jail where he is now. (With the usual time reductions for good behavior, etc.) He would also have to register as a sex offender, but possibly not for life. The fact that his is IQ is 72 and he has no criminal record and has never been in any kind of trouble was considered, and his Attorney's boss (The Public Defender of the county) says the plea bargain is a "gift from the DA", since it is a much lesser charge than the original one. There is also a restraining order which stipulates that he must not go within 100 yards of the girl's home, school, the park they met in, etc.

While that does sound like a much better thing than going to prison, there are things about it that bring up several questions that his Mother needs to know the answers to. She is disabled and in a wheelchair, and her son is her In Home Support Services (IHSS) service provider. Since it was listed as part of his sentence and restraining order that he can not go anywhere that children would be, like schools, parks, the teen center, etc., she wants to know if she is driving her car and he is with her in the car, do the restrictions about not going to those places prevent her from driving past one of those places if she does not stop the car? In other words, if he is not in control of the car, can the driver of a car in which he is a passenger go past these places without violating his probation?

Thank you in advance for any advice.
 


Tim B

Junior Member
I forgot to ask... I read somewhere that California has a law that says you must be released within 48 hours (instead of 72 hours) if no charges have been filed. If that is true, how does it work? He was originally arrested on a Thursday but released 6 days later on Wednesday without being charged, then a month or so later he was arrested again, also on a Thursday and then arraigned 5 days later on a Monday. Both times were over both 48 and 72 hours.
 

Tim B

Junior Member
That seems to be easier said than done. The Public Defender acted like they were done with his case after the sentence hearing, and the lady attorney he originally had is working a murder trial now. So should we call them anyway? His Mother would also like to know if it is possible to ask to have the restraining order amended?
 
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Eekamouse

Senior Member
That seems to be easier said than done. The Public Defender acted like they were done with his case after the sentence hearing, and the lady attorney he originally had is working a murder trial now. So should we call them anyway? His Mother would also like to know if it is possible to ask to have the restraining order amended?

Amended to WHAT? That he be allowed to go places where that girl may be? :eek:
 

Zigner

Senior Member, Non-Attorney
That seems to be easier said than done. The Public Defender acted like they were done with his case after the sentence hearing, and the lady attorney he originally had is working a murder trial now. So should we call them anyway? His Mother would also like to know if it is possible to ask to have the restraining order amended?
Then help him hire an attorney to represent him. You really have no standing to do anything in this matter.
 

not2cleverRed

Obvious Observer
Frankly, Mom needs to take some responsibility here, rather than try and find ways of getting out of probation restrictions.

Since the guy has a mental age of 12, he is in need of supervision - just like a real live 12 year old - and Mom didn't provide it. So if she is inconvenienced - well, so be it.

If Mom is incapable of providing adequate supervision, then she needs to obtain services for her son that will provide such supervision and life skills training. In fact, that is long overdue.
 

Zigner

Senior Member, Non-Attorney
Frankly, Mom needs to take some responsibility here, rather than try and find ways of getting out of probation restrictions.

Since the guy has a mental age of 12, he is in need of supervision - just like a real live 12 year old - and Mom didn't provide it. So if she is inconvenienced - well, so be it.

If Mom is incapable of providing adequate supervision, then she needs to obtain services for her son that will provide such supervision and life skills training. In fact, that is long overdue.
Interestingly enough - the SON, with the mental capacity of a 12 year old, is the IHSS provider for the mom. Methinks there were some shenanigans going on there, too.

The fact that the man felt the need to confirm that she was 18 means that he knew that these things would be inappropriate with a 15 year old (not that it matters, of course.)
 

Zigner

Senior Member, Non-Attorney
Mom knows the restrictions her son has. Mom can make sure not to drive near places he's not allowed to be. If she must, then she shouldn't take him with her.
 

Tim B

Junior Member
First of all, some of you are jumping to some awfully far fetched conclusions about things you have absolutely no idea about. All she wants to know if she has to take detours to drive around or not, and if she does, can she get a restraining order amended to allow it. Because we live in a small town, and driving routes are limited. I also understand that we have "no standing to do anything in this matter", however, if an attorney needs to be hired, we will have to do it. If anything can or has to be done, regardless of what it is, we will have to do it.

As far as him being her IHSS worker, do you people even know what that means? I don't think you do. Could you take out the trash when you were 12? Could you wash dishes when you were 12? Could you do laundry when you were 12? No? Then maybe he is better off then you were, even though he is mentally handicapped. As I have already said, IHSS is an acronym for In Home Support Services. That means anything that disabled people need to have done for them. I did not say he is her only IHSS worker either. She has another one that does things he can't, like helping her in the bathroom.

Furthermore, there are a lot of people talking about people with disabilities these days and how they should do things for themselves whenever possible. We fully agree with that. And even though he has the mind of a 12 year old, he makes his own money working for her, and does not ask anyone for anything. It is also not his fault that he is the way he is. He makes the best of his situation, and supports himself. It is just unfortunate that he has to learn that you can't trust everyone in this way.

So don't jump to such ridiculous conclusions. It says a lot about you and who and what you are.
 

CdwJava

Senior Member
I forgot to ask... I read somewhere that California has a law that says you must be released within 48 hours (instead of 72 hours) if no charges have been filed. If that is true, how does it work? He was originally arrested on a Thursday but released 6 days later on Wednesday without being charged, then a month or so later he was arrested again, also on a Thursday and then arraigned 5 days later on a Monday. Both times were over both 48 and 72 hours.
The standard between arrest and arraignment is 48 hours (two business - COURT - days). If he was held beyond the 48 hours without being arraigned, then that is a separate matter from his criminal charges.
 

CdwJava

Senior Member
A friend of mine's 31 year old mentally handicapped son
"Mentally handicapped" does not mean he is legally incapable of committing criminal acts. Unless he has a doctor willing to testify that he is incapable of understanding right and wrong, and what it is to break the law, then he can be found culpable for any criminal act he is charged with. His defense can certainly argue that he is an "idiot" and mentally incapable of committing a crime (or caring for himself) as a result.

was arrested for violating California Penal Code 288 (c) (1). Basically what happened was, he met this girl that lied about her name and told him that she is 18, but actually is 15. They exchanged cell phone numbers, she sent him a nude photo of herself, and he sent her one of himself in return. Her Mother found out about this exchange and had him arrested.
Well, actually, mom reported it to the police and THEY had him arrested. Mom's opinion in this would be largely irrelevant.

He was assigned an Attorney from the Public Defender's Office and he asked her to talk to his Mother about the case as he doesn't understand a lot of what's happening. He is basically like a 12 year old.
"Basically like a 12 year old" is also not a legal determination of culpability. Many adults are incapable of making many common adult decisions such as finances, etc., and still capable of committing criminal acts.

I went with her to see the Attorney. She basically said that even though he did not know the girl was only 15 years old, he didn't really have much chance of beating this, as California requires you to know whether anyone you associate with is a minor. And she said that the DA's office says he supposedly admitted to Police that he knows she is 15, but he was likely tricked into saying that. It's likely that since he thinks like a 12 year old, and his IQ is 72, he doesn't understand the problem of him associating with a 15 year old girl.
He is free to mount a defense arguing whatever they wish. But, if they have a statement where he admits to knowing she was 15 ... ouch! And, at an IQ of 72 he would seem to be better than even "mild" retardation by most standards. So, it may be a difficult road to follow to try and argue that he is incapable of understanding the consequences of his actions.

While that does sound like a much better thing than going to prison, there are things about it that bring up several questions that his Mother needs to know the answers to. She is disabled and in a wheelchair, and her son is her In Home Support Services (IHSS) service provider. Since it was listed as part of his sentence and restraining order that he can not go anywhere that children would be, like schools, parks, the teen center, etc., she wants to know if she is driving her car and he is with her in the car, do the restrictions about not going to those places prevent her from driving past one of those places if she does not stop the car? In other words, if he is not in control of the car, can the driver of a car in which he is a passenger go past these places without violating his probation?
He would not be allowed to go there if it would violate his probation. Even if.

But, unless she has young children, why would she need to go to the school or a park where kids might congregate?
 

LdiJ

Senior Member
"Mentally handicapped" does not mean he is legally incapable of committing criminal acts. Unless he has a doctor willing to testify that he is incapable of understanding right and wrong, and what it is to break the law, then he can be found culpable for any criminal act he is charged with. His defense can certainly argue that he is an "idiot" and mentally incapable of committing a crime (or caring for himself) as a result.


Well, actually, mom reported it to the police and THEY had him arrested. Mom's opinion in this would be largely irrelevant.


"Basically like a 12 year old" is also not a legal determination of culpability. Many adults are incapable of making many common adult decisions such as finances, etc., and still capable of committing criminal acts.


He is free to mount a defense arguing whatever they wish. But, if they have a statement where he admits to knowing she was 15 ... ouch! And, at an IQ of 72 he would seem to be better than even "mild" retardation by most standards. So, it may be a difficult road to follow to try and argue that he is incapable of understanding the consequences of his actions.


He would not be allowed to go there if it would violate his probation. Even if.

But, unless she has young children, why would she need to go to the school or a park where kids might congregate?
The question wasn't could she go to those places, the question was could she drive past those places on the way to somewhere else, if her son was in the car?

I am kind of curious about that myself. I live in a very large subdivision where someone could live there and not be living within 1000 ft of such a location. However, there are 4 entrance/exits to the subdivision and its not possible to leave or enter it without passing one of 4 different schools.
 
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CdwJava

Senior Member
The question wasn't could she go to those places, the question was could she drive past those places on the way to somewhere else, if her son was in the car?

I am kind of curious about that myself. I live in a very large subdivision where someone could live there and not be living within 1000 ft of such a location. However, there are 4 entrance/exits to the subdivision and its not possible to leave or enter it without passing one of 4 different schools.
Incidental passage or contact are generally not actionable ... but, they can be (provided there is a specific parole or probation condition prohibiting such passage near or by). However, if the school, park, or child gathering is out of the way and he is seen to be passing by such a place with any frequency, yeah, he could be in trouble. Best bet would be to take a circuitous route to the destination that avoids passing such prohibited places.

As for the 1000' rule, it's actually a 2,000' rule (for probationers and parolees) for residence. Parole agents may make exceptions to his rule, however ... it seems less clear whether probation officers have the same latitude. PASSING a school or park is not the issue in this case, it is where they reside. A probation or parole condition MAY add a distance to stay away from someone or someplace, but, just being a sex offender doesn't mean they cannot pass those places.
 
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Zigner

Senior Member, Non-Attorney
First of all, some of you are jumping to some awfully far fetched conclusions about things you have absolutely no idea about. All she wants to know if she has to take detours to drive around or not, and if she does, can she get a restraining order amended to allow it. Because we live in a small town, and driving routes are limited. I also understand that we have "no standing to do anything in this matter", however, if an attorney needs to be hired, we will have to do it. If anything can or has to be done, regardless of what it is, we will have to do it.

As far as him being her IHSS worker, do you people even know what that means? I don't think you do. Could you take out the trash when you were 12? Could you wash dishes when you were 12? Could you do laundry when you were 12? No? Then maybe he is better off then you were, even though he is mentally handicapped. As I have already said, IHSS is an acronym for In Home Support Services. That means anything that disabled people need to have done for them. I did not say he is her only IHSS worker either. She has another one that does things he can't, like helping her in the bathroom.

Furthermore, there are a lot of people talking about people with disabilities these days and how they should do things for themselves whenever possible. We fully agree with that. And even though he has the mind of a 12 year old, he makes his own money working for her, and does not ask anyone for anything. It is also not his fault that he is the way he is. He makes the best of his situation, and supports himself. It is just unfortunate that he has to learn that you can't trust everyone in this way.

So don't jump to such ridiculous conclusions. It says a lot about you and who and what you are.
A 12 year old can't be an assistant in the IHSS program. Apparently, the man isn't as disabled as you would have us believe. If he truly was, then he'd be under conservatorship.
 

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