COURT WATCH: Upper Term Recommended by Prosecution for First Time Probation Violation; Defense Cites Unhoused’s Inability to Pay Program Fees 

By Audrey Sawyer and Elena Fasullo 

MODESTO, CA – A man here in Stanislaus County Superior Court Tuesday was accused of violating his probation by not completing his treatment program, in addition to allegations of violating post-release community supervision.

According to Deputy Public Defender Tabasum Akbari, the lack of program completion was only because the accused could not afford to pay for the program fees.

But, despite it being the accused’s first violation of probation, Deputy District Attorney Travis Colby recommended the upper term of four years in local jail or state prison.

DPD Akbari responded that rather than the maximum sentence, the accused ought to get the lower term, noting the accused was only unable to complete the program due to a lack of finances.

Judge Shawn Bessey could not provide an indicated sentence, given that he wanted time to look over the plea. The matters were set for a contested hearing on the violation of probation for Aug. 26.

DPD Akbari had asked for 180 days in custody based on the violation of probation and to have the accused enroll in a different program, arguing, “He failed to complete the program. A part of that is that probation said he was unable to afford the $950 fee to enroll in the program.”

However, DDA Colby told the court the accused was “unamendable to probation” based on “refusal to abide by probation’s terms.”

A representative for probation said the violation was made because they provided the accused “opportunities to address the inability to pay for the program.”

Probation added the program was not due to its own recommendation, but one the accused agreed to complete with his public defender. Probation told the accused to remain in contact with probation and to also continue to consult with the public defender’s office. According to probation, the accused did not report on days as promised.

DPD Akbari explained that, based on the affidavit, the $900 fee to remain in the treatment program was something that the accused could not afford, and that the violation is because the accused could not pay to complete the program.

The defense stated, “I think that would be unfair. Other allegations or statements that are shown are that probation, instead of figuring out how to get him to this program or to find him another one, directed the accused, possibly unhoused, to contact the public defender’s office and figure it out from there.”

DPD Akbari requested the accused be sentenced to 180 days, with probation being revoked and then reinstated. DPD Akbari argued this was the accused’s first VOP and that it was from December 2022.

“He was released in 2023. I believe there were some issues with him being able to charge his GPS. His property items were stolen, as well as the GPS charger. On Jan. 26, 31, Feb. 4, 7 and 11th, or any three to four days probation has had contact with him, the report doesn’t state he should get a charger from probation if stolen, but contact the public defender’s office for any services,” said Akbari, not on Feb. 12, the report indicated the accused failed to report to probation.

The judge replied that he could not necessarily give an indication without reviewing the transcript first, but added that probation was granted specifically for the accused to complete the program.

Said the judge, “He was in that program because of criminal history, including prior history of domestic violence, as well as prior disposition to state prison. Probation was not necessarily suitable, but he was granted probation due to that program and being able to participate in that.”

Judge Bessey explained the appropriate term would not be local custody, but he needed to check the statements, and to see exactly what the prosecution had meant by suggesting the upper term.

Judge Bessey cited the failure to complete the program, along with the GPS concerns, and said that he wanted to at least see a summary of the plea before a final determination Aug. 26.

About The Author

Audrey is a senior at UC San Diego majoring in Political Science (Comparative Politics emphasis). After graduation, Audrey plans on attending graduate school and is considering becoming a public defender.

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