Acosta calls the VOP petition "another witch hunt"and the arrest warrant "unlawful"

 

Yesterday, I did a post on the DA filing a petition this month  to revoke Michael Acosta's probation. Today, I received a very lengthy email  from Acosta which I have included in this post. The title of the email was "The Unlawful Arrest Warrant." 

When I checked court records yesterday, there was no arrest warrant listed. I followed up and there is a bench warrant active for Acosta as of 12/12/2023. VOP petition was filed 12/13.

In October, I did a post that Acosta failed to report for probation and had a past amount due.

https://johnchiv.blogspot.com/2023/10/michael-acosta-failed-to-report-for.html?m=1

This is a post with details on the plea.

https://johnchiv.blogspot.com/2023/09/acosta-and-carroll-get-1-year-probation.html?m=1

E court listed the DA filed the petition. I reached out to DA Stacey Eads as well as Probation Adult Division Director Darren Ghisetti for comment.  Mr. Ghisetti forwarded my email to Probation Chief Coral Sanders. DA Eads and Ms. Sanders responded to me this afternoon.

Acosta's email to me (sent this morning):

Penal Code section 1205.3 is the controlling statute regarding community service in misdemeanor sentencing.  It clearly states that in any case in which community service is part of a misdemeanor sentence, the court shall specify that the community service hours must be in place of payment of all fines and restitution on a proportional basis.  It also states that the court must specify in its order the number of hours of community service that would satisfy the fines and restitution.  Any other use of community service, such as for punishment, is illegal in a misdemeanor case.  Certainly, issuing a warrant for failure to perform community service is also illegal, unless it is related to the nonpayment of fines and restitutions, as specified in Penal Code section 1205, which became operative on January 1, 2022 per AB 177.  However, to issue a warrant for failure to sign up for or failure to perform community service unrelated to nonpayment of fines and restitution is clearly illegal, which is how the County and the Court are persecuting me presently.

For further guidance on point, Penal Code section 1209.5 governs community service in infraction cases (which mine is not), but it demonstrates the legislative intent regarding the proportionality of community service hours to total fines and restitution, which should be calculated at an hourly rate that is at least double the minimum wage.

In my case, I was granted misdemeanor probation, because I have no prior record.  My recollection is that my fine was only around $250 dollars.  So even if I made no payment towards my fine, the total community service hours that I have to work in lieu of payment of the fine is 9 hours (8.3333 hours rounded up to cover it.) The other 91 hours the judge is requiring as part of our sentence is unlawful. Because the People of the State of California believe that we the people should be paid for all of the hours we work.  So I am happy to do the extra 91 hours if the probation department, sheriff’s department, or DA’s office wants to pay me at least double the minimum wage for those hours.

In addition, I have a payment plan with the County and have already paid $100 towards my fines and restitution, so the conversion of the financial penalties to community service hours at the time of this publication would only be 5 hours remaining.  I intent to pay the balance of my fine this morning to make the issue moot.

Furthermore, the sentencing court granted me misdemeanor, summary probation (in other words, not supervised by the probation department).   Imposition of a sentence was suspended, because my lack of a prior record made me eligible for summary probation.  So, the probation department needs to step off with its “notice of noncompliance.”  My primary obligation is to “obey all laws” which I have done so far.  Lacking any violation of law,  the $25,000 warrant issued seeks to illegally impose a jail time for a purported failure to perform unpaid forced labor, in violation of the California Labor Code.  

 

Finally, I did have two (2) days of custody credits back in 2020, which becomes four (4) days per Penal Code section 4019 at sentencing. The sentencing court is responsible and has an affirmative obligation to calculate my custody credits, which was not accomplished.  Since I wasn’t sentenced to any jail time, those custody credits must be credited towards the fines and restitution under the new Penal Code section 1205 effective January 1, 2022, and calculated at a rate of $150 per day, which places me way over the fines and restitution that I actually owe.

This is another witch hunt.  The $25,000 arrest warrant is far above schedule bail and is $10,000 more than my co-defendant’s bail for the same wrongfully alleged, non-violation of probation. For the reasons stated above, the execution of this arrest warrant for failure to enroll in community service in this matter is unlawful and a violation of my civil rights.  The only purpose the unlawful arrest warrant will serve will be to spoil my son’s Christmas, as I will have to post yet another uncalled for and outrageous bail, not tailored to my means as required by In re Humphrey (2018) 19 Cal.App.5th 1006, or spend Christmas in jail despite my recent obedience to all laws.     

Michael P. Acosta, Esq.

DA Eads' response (sent this afternoon):

I understand your inquiry to be directed to Mr. Ghisetti, but thought I would respond regardless.

Although I am not going to speak directly of an individual’s pending court matter, I can share a bit of the process, most of which I am sure you’re fairly familiar.  Generally, if an individual is placed on a grant of probation for a misdemeanor offense and then is alleged to have violated the terms and conditions, the DA files and litigates the petition to revoke probation outlining the alleged violations of probation.  Likewise, for individuals placed on a formal grant of probation, typically for felony level offenses, the Probation Department usually files the petition to revoke probation in the event terms and conditions are alleged to have been violated by the individual.  In some instances the DA may file a probation violation petition for an individual who is on formal supervised probation for an underlying felony offense.  Rarely, but on occasion, where circumstances warrant, an individual may be supervised directly by Probation for a misdemeanor offense.  Either DA or Probation may file a violation of probation under such circumstances.  Ultimately, regardless of whether the Probation Department or DA files the petition, the DA litigates the matter in court.  

Ms. Sanders' response (sent this afternoon):

Similarly to Ms. Eads, I can respond with information about how processes work, but not specific case information.  When someone is court ordered to complete community service work, their case is forwarded to probation’s Community Service Work Program for placement at a nonprofit agency.  Many of these referrals are for misdemeanor cases where the defendant is not supervised on probation by the Probation Department.  Our role in their case is limited to monitoring their progress in completing their hours and reporting on their progress to the Court.  We interview them once to determine a good fit with a specific nonprofit and to determine how many hours per week they will complete based on their availability.  After that we track time cards submitted to Probation by the nonprofit agency, and we notify the Court when their case is closed.  Cases can be closed because the person never followed through with their interview, they stopped working for a lengthy period of time, or when they successfully complete their hours.  Please feel free to reach out if you have any other questions about the Community Service Work program or any other aspects of probation.

Yesterday's post:

https://johnchiv.blogspot.com/2023/12/da-files-petition-to-revoke-michael.html?m=1

**This is a 2020 case and there are too many posts to link. I have done a lot of exclusive coverage. If you are not a regular reader, you can use the search feature on the blog to access all previous coverage.**