is probation violation separate charge?

[cjbrown929]

What is the name of your state? California

My ex pled guilty last week to violating a restraining order (actual charge was a violation of PC 273.6A)I had obtained. She received time served (7 days), 36 mths probation, and a fine.

Unbelievably (or believably if you know her) she immediately began violating her probation by calling me 5-10 times a day. Fortunately, the DA is working with me.

My question is: how does a violation of probation work? Is it a separate charge, and if so, would it be listed in the penal code? Or does it allow the prosecution/court to simply resentence the person on the original offense?

cdwjava, are you still out there? (all replies are appreciated)

[seniorjudge]

Originally Posted by cjbrown929

What is the name of your state? California

My ex pled guilty last week to violating a restraining order (actual charge was a violation of PC 273.6A)I had obtained. She received time served (7 days), 36 mths probation, and a fine.

Unbelievably (or believably if you know her) she immediately began violating her probation by calling me 5-10 times a day. Fortunately, the DA is working with me.

My question is: how does a violation of probation work? Is it a separate charge, and if so, would it be listed in the penal code? Or does it allow the prosecution/court to simply resentence the person on the original offense?

cdwjava, are you still out there? (all replies are appreciated)

Q: Or does it allow the prosecution/court to simply resentence the person on the original offense?

A: Yes. But it is not a resentence; it is an imposition of the original sentence.

[cjbrown929]

The DDA in the case, when he discovered how unrepentant the defendant was, promised to get her some more significant jail time (30 days? 60 days?).

He had myself and my parents keep logs of harassing calls she made after she was sentenced on 1/03/2006. These were turned over to local police who apparently generated a report he is using to...what, stop the current probation?

She was sentenced to time served (7 days), so I guess she'd have to be resentenced?

Thanks for help. This woman is driving us nuts.

[BL]

Senior Judge answered your question , but in plain English , It's not a resentance .
When part of a sentence is probation , the offender agrees by it's terms , or can be brought back in front of the court facing the remainder of the sentence , as if probation never occurred.

You can be Jailed for the violation , then appear in front of the Judge , or you can be sent a summons to appear for the violation.

At that time , the Judge would decide the punishment .

It think that's it ..

[CdwJava]

It is not simply a violation of probation, these are NEW offenses and should be reported to the police and not just to probation and the DA. If they are 'kissing off' the violations as VOPs then the cops are not doing their job.

A subsequent conviction of 273.6 within 7 years of the first conviction can be a felony. Hence the reason to report it again to the police.

And since a violation of PC 273.6 is one of the FEW mandatory arrest provisions in CA, it should not be blown off.

- Carl

[cjbrown929]

Originally Posted by CdwJava

It is not simply a violation of probation, these are NEW offenses and should be reported to the police and not just to probation and the DA. If they are 'kissing off' the violations as VOPs then the cops are not doing their job.

A subsequent conviction of 273.6 within 7 years of the first conviction can be a felony. Hence the reason to report it again to the police.

And since a violation of PC 273.6 is one of the FEW mandatory arrest provisions in CA, it should not be blown off.

- Carl

Thanks for all replies. I left out a couple of things that I didn't think were critical here. I would have been satisfied with the sentence IF she had stopped calling. I had called the local victim/witness group, which works very closely with the DA, to make sure that my victim statement was taken into account by the judge.

The statement detailed this woman's four year campaign of terrorism by telephone (10,000+ calls. That's right 10,000+ calls).

When she started calling me only hours after pleading guilty etc, I contacted victim/witness to ask if my statement had been included. They weren't sure.

I was pleasantly surprised the next day when the DDA who handled the case called and apologized profusely. My statement had gotten lost in the shuffle, and he told me he was going to make up for it (again, because she was still calling). He had me keep a log of calls she made, then he called my local PD and talked to the watch commander and had him send an officer to pick up evidence and produce a report. He was only interested in calls she made after her sentencing. He called yesterday and said that he had "filed" against her, and that she would be arrested.

Hopefully this is more informative than boring.

I'm missing the point made by one of the posters. If she was sentenced to time served plus probation and a fine, how do they add more time?

[CdwJava]

She can serve MORE time by receiving a new conviction. She cannot generally serve more time for the VOP than she originally had hanging over her head pursuant to the original sentence.

- Carl

[garrula lingua]

CJ: as Carl said, she was originally sentenced on a charge that allowed a sentence of up to one year in county jail.

If she has only served 7 days, then she has 358 days left, which the Judge has power to sentence her on the original charge.

Additionally, as Carl said, a second charge can be filed as a misdemeanor (with one year max) OR as a felony (16months, 2 years or 3 years, state prison).

The charging decision is solely the District Attorney's choice; it would be expected that the second offense would be filed as a msdm, unless there was an associated injury.

Sounds like she's more mental, than criminal ...

[outonbail]

If this woman has made ten thousand phone calls, then was served a restraining order, violated it, then was arrested and served a week in jail for the violation, only to violate it upon her release from custody, she has some mental issues that aren’t being addressed properly.

As such, another thirty day sentence isn’t going to put a stop to her terrorizing you and your family. She has too much wrong between the ears to even be capable of changing her behavior like she was turning off a switch. She is going to need some serious help in order for her to see that she must move on and that her past with you is over.

She doesn’t understand the magnitude of what she’s doing to you and your family, or the magnitude of where she is headed. She may back off for a while after a month in the slammer, but eventually, she will pick up right where she left off, just before her thirty day vacation.

Since what your really after is getting her to stop this nonsense, I would consider either asking the courts to request a mental evaluation and see if she should be committed to a mental institution. Then she can receive the help she needs. Or, I’d ask the DA or Judge if this time around, she can be sentenced to something in the ballpark of three years in the state pen, with the sentence suspended and placed on formal probation. This way she can be monitored a little closer by the courts.

Then her fate is in her own hands as well. If she violates her probation, (and I'm betting she will) she will be doing some serious time. This should be enough time for her to get the idea and for you to figure out what your going to do when she’s released in a year and a half. (Maybe relocate?)

[cjbrown929]

Thanks for all replies.

This has been an extremely trying experience, one few people can even imagine. I liken it to the old game called "ding-dong ditch", where someone runs up, rings someone's doorbell, and runs away. Or rings it 10 or 20 times and runs away. And does it day and night, sometimes 50 or 60 times a day.

There has to be a mental component here, and I have attempted to make her relatives aware of it to no effect. The fact that she operates in society easily except for this made it more difficult for me to convince law enforcement of the gravity of the situation.

When she was charged with violating PC 273.6A, the DA was able to subpoena her (and my) phone records, which I am certain left no doubt that this situation was extremely aggravated.

If you want to keep track of the action, check out the riverside county court site (california), records search under case # SWM 032178

[stephenk]

how does she get your phone number?

You can always have a different line for friends and relatives and still keep the old line for her to call. The old line can be set up not to ring and with voicemail and let her rant to her heart's delight.

[cjbrown929]

Unfortunately, this nut knows my parents, who have a business out of their home, and thus a business phone. I have changed my # 13 times. When I do, she starts calling ,my parents at 3, 4am. I call and give her my # so she'll lay off mom and dad, who are 75yo.

[cjbrown929]

I just talked to the DDA. They are charging her with violating PC 653m(b) and violating probation. PC 653m(b) is a Calif statute that prohibits persons from using (among other things) a cellphone to repeatedly call someone, EVEN IF NO CONVERSATION ENSUES.

[CdwJava]

Originally Posted by cjbrown929

I just talked to the DDA. They are charging her with violating PC 653m(b) and violating probation. PC 653m(b) is a Calif statute that prohibits persons from using (among other things) a cellphone to repeatedly call someone, EVEN IF NO CONVERSATION ENSUES.

The DA is low-balling the matter. He could probably go for PC 273.6 and if convicted she could go to prison if she had a prior conviction (which, I believe she had). Instead he is going for the misdemeanor which has up to one year in jail and up to $1,000 in fines. It's easier, but unless she changes her ways she'll be ou tin a few months and go right back to it.

But, maybe it'll work.

- Carl

[cjbrown929]

cdwjava: I agree with you.

Fortunately, the resistance I had to overcome to get charges filed in the first place has been replaced with a virtual about face.

Still, I get a sense that higher ups in the DA's office work cases like these in a methodical fashion (ie, a slow ratcheting of charges) rather than addressing what myself and the other victims would consider a more "realistic" way.

In their (the DA's) defense, probably a great majority of these types of cases can be resolved once the defendant spends a day in custody and repents.