Judge Hesitant Not to Send Man Directly to Jail after He Failed to Surrender Three Years Ago


By Perla Brito

MODESTO, CA – Here in Stanislaus County Superior Court this week, Defense Attorney Roxanne Dominguez-Shell thought she had a quick case where her client would admit to a probation violation and be released to serve the remaining 60 days of his sentence.

But, that took a turn when Judge McFadden started reviewing the facts of the case and the accused’s failure to surrender three years ago.

Before calling on the case, Judge McFadden reviewed the facts and something caught her attention. She remarked, “That’s odd. There’s a bench warrant on this. He hasn’t ever served his jail time. It says he failed to surrender way back in 2021.”

The defense’s Roxanne Dominguez-Shell said, “Yes, your honor.” Deputy District Attorney Michael Schneid said, “He served a portion of the sentence and he must’ve pled out.”

According to Dominguez-Shell, the accused only had 60 days left of his sentence. Judge McFadden expressed concern because that was back in 2021. Dominguez-Shell nervously said, “Yes your honor, but we have all worked out a resolution in the matter.”

Judge McFadden was hesitant and said, “He’s here… finally after in 2021 not surrendering and then not coming back to court two times for when he got cited out. A no-bail warrant was stayed until today, not sure why it was stayed, but let’s hear from Ms. Dominguez-Shell.”

“So yes, the plan is to have him admit to a probation violation for a hundred additional days and for a surrender date to do the remaining of that time and to check in with probation today. Um… (the accused) is doing well. He’s a manager at AutoZone, he has stable housing, he has the sole custody of his son who he takes care of and he hasn’t committed any new law violations since this incident,” said Dominguez-Shell.

“Is there a reason why he never surrendered way way back?” asked Judge McFadden.

The reason presented by the accused’s attorney was that his mother was diagnosed with cancer.

Still unconvinced, Judge McFadden said, “Is that probation’s recommendation then?” The probation officer present said, “We agree to the offer, your honor.” Judge McFadden asked the probation officer if she verified all of this information and if the accused was actually employed. The probation officer claimed she reviewed all of the documentation but did not call to verify.

“I remand people when they don’t surrender. Oh, this is a DV case, did he ever do any of his counseling?” No one had a response. “Must’ve been a pretty serious case, he received 300 days. You say he only has 60 days?” continued Judge McFadden.

“He only owes 60 days, he had served 120 originally, for some reason they released him with 60 days left to serve.,” responded Dominguez-Shell. Judge McFadden sighed. Still unconvinced, she asked the probation officer again if she had verified this because she found it “odd.” The probation officer said, “Yes, he did serve 120 days.”

Judge McFadden continued to review the facts of the case. She then laughed and sarcastically said, “Yeah that’s only because he was in custody until he pleaded.” She added “then the court gave him a surrender date for the balance of the 60 days. It has nothing to do with the jail releasing him early. The court released him on his promise to appear and it’s been three years since we’ve seen him.”

Judge McFadden said she was still bothered by the recommendation “because he (accused) hasn’t done a single thing since he was released at the time he pleaded at his preliminary hearing.”

She said, “I can see maybe not surrendering, you know coming back a little bit later, but three years later and he hasn’t done a single bit of counseling or anything. I mean…I uh… yeah.. What makes me think that he’s actually going to follow through this time when he didn’t follow through the last time when he only had 60 days to serve? Now he has 160 left to serve. Now we’re really going to think that he’s really going to surrender and doesn’t even live in the county?”

Dominguez-Shell responded, “Yes, your honor because at this point in his life, he has his life together. During that time he did not, he was homeless and living on the streets. Now he has a stable job, stable housing, and he’s in the care of his son.”

“I mean if he really had his act together…In October of 2022 he didn’t show up. The court stayed the warrant, I’m not real sure why, but then in August of 2021 he didn’t show up again. I have doubts he’s going to show up,” said Judge McFadden.

“Well then that’ll be on him your honor and he will have to deal with those consequences,” said Dominguez-Shell.

“If he has children and he hasn’t done any of his counseling, there may still be violence going on or something. I mean the purpose of the counseling is so he can correct the issues that brought him before the court.,” said Judge McFadden.

“So how’s he going to do his jail time here when he’s in another county and employed?” asked Judge McFadden. “Who’s going to care for his children if he’s their primary caretaker? Has he made arrangements for them? Why hasn’t he made arrangements for them? Not necessarily knowing whether he’d be remanded or not. Um that concerns me about if you’re a responsible parent. You should have some caretaking arrangements made already for your child or children.”

Judge McFadden told the accused’s attorney, “He’s not even supposed to be living in another county. Our probation office can’t go out and supervise him and see how he’s doing. He’s done everything he’s not supposed to do. I mean absolutely everything other than you’re saying he has a job now but probation hasn’t verified that, probation hasn’t verified any of the information that we have here.”

“Is he gonna keep his job if he has to come here for a couple months and serve jail time?” asked Judge McFadden.

Dominguez-Shell responded, “Well that’s why the hope is for a surrender date so that he can work out all of that before surrendering and maybe even try to get an ankle monitor so he doesn’t have to.”

“He can’t do an ankle monitor. That’s the problem. Your client moved from our county without getting approval. If he had just surrendered on that date he might’ve just been released the very same day. He’s living in another county that makes it incredibly difficult for him to do this jail time and he could lose his job,” said the judge.

“Well, he’ll definitely lose his job if you remand him today so that’s the main concern. That’s why we’re requesting a surrender date so that he can organize that and not lose his job and not lose his family,” said the defense attorney.

Judge McFadden added, “I’m glad to see him doing well, but if that is all going to crumble because he never did surrender…there’s some grave concerns I have because then he’s going to have warrants outstanding again. He could get arrested at any time, including in front of his children which is really bad.”

Judge McFadden told Dominguez-Shell, “All of this needs to be planned, you can’t just say oh let’s just set a date for another surrender because otherwise you’re setting this client up for failure I think.”

Dominguez-Shell said, “She (the probation officer) did confirm that they have reciprocity and that he can do an ankle monitor out there and she did confirm his job and spoke to his manager.”

After establishing the accused is the “sole caretaker of the kids,” Judge McFadden said, “If he admits the violation today then go ahead and refer him to…well, we’re going to have to extend probation. I mean technically he could have a five-year period of probation which he might need in order to finish everything.”

She added, “In the past, no judge would give him another opportunity given the number of days he’s been gone in this case. He’d be remanded and going to prison right now. I’m very hesitant to go along with this. The only reason why I am doing that is because he claims he has some children he has full custody and care of so it’s for the sake of the children.

“You understand if you mess up again, you’re going to prison 100 percent,” said Judge McFadden to the accused, adding, “It’s really not good for children to see their parents arrested in front of them, which could’ve happened at any point in time. I don’t know how old your children are but at any age children do need a parent that is responsible and reliable and someone they can trust, but also someone that is not going to cause them issues.”

The accused admitted to the violation of probation. He was found guilty. His probation was reinstated with the same terms and extended to March 2025. His 160-day remaining jail sentence appeared to be accomplished out of custody with an ankle bracelet. 


About The Author

Perla Brito is a 4th year undergraduate student at California State University, Long Beach. She is majoring in Criminology and Criminal Justice and is set to graduate by Spring 2023. After graduation she plans on working at a local police department in the criminal investigations division. She intends to pursue a Masters in Psychology with a focus in Neuroscience in hopes of working on neurocriminology research one day.

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