I Cut Off My Ankle Monitor. What Happens Now?

Penal Code section 1203.016(b)(3) requires a home detention participant to agree to “electronic monitoring, which may include Global Positioning System devices or other supervising devices for the purpose of helping to verify compliance with the rules and regulations of the home detention program.” Nothing in the scheme singles out alcohol monitoring for lighter treatment.

The same escape and revocation provisions, section 4532 and section 1203.2, govern both device types.

The controlling definition. For escape under section 4532, the Legislature used “prisoner” to mean a person “who has been booked, incarcerated at the time of his escape, or previously so incarcerated and temporarily in custody outside the confinement facility.” (People v. Diaz (1978) 22 Cal.3d 712, 716.) Everything below is an application of that sentence.

Situation 1. Programs under sections 1203.016, 1203.017 and 1203.018 place the participant in constructive custody. People v. Raygoza (2016) 2 Cal.App.5th 593 treated presentence confinement under a 1203.018 program as custody for credit purposes, which is a benefit going in. Sections 1203.016(f) and 1203.018(i) both say that willful failure to return and unauthorized departures are punishable under section 4532.

Situation 2. People v. Taggart (2019) 31 Cal.App.5th 607 held that “[t]he constructive custody inherent in sheriff’s parole involves relatively minimal physical constraint and is therefore insufficient to constitute custody” under section 4532(b)(1). Taggart is a sheriff’s parole case, not a probation case, so it is an analogy rather than a holding on point. The usual exposure is revocation under section 1203.2.

The contrary case, and what it actually held. People v. Cisneros (1986) 179 Cal.App.3d 117 called a probationer a prisoner in the constructive custody of the court under section 4532(b). Read the facts before you worry about it: Cisneros had already been arrested for the violation and ran during booking, so he was in actual custody when he fled. Taggart distinguished it on exactly that basis and noted that Cisneros never addressed contrary authority. No court has disapproved it, and a prosecutor who wants an escape count will start there.

Situation 3. People v. Trotter (1998) 65 Cal.App.4th 965 held that a defendant on own-recognizance release who ran from the courtroom at arraignment was not a prisoner under section 4532(b)(1), applying Diaz. People v. Pottorff (1996) 47 Cal.App.4th 1709 said of a defendant on supervised release that he “did not face punishment for escape if he violated the restrictions the court imposed,” and drew the contrast with 1203.016 participants directly. Section 1275(a)(1) makes public safety “the primary consideration” in setting or denying bail.

The gap in section 4532(b)(1). The felony subdivision describes a covered person as “a participant in a home detention program pursuant to Section 1203.016, 1203.017, or 1203.018,” but describes the escape as being “from the place of confinement in a home detention program pursuant to Section 1203.016.” Only 1203.016. Subdivision (a)(1), the misdemeanor provision, names all three sections in both clauses.

So for a felony defendant on a 1203.017 or 1203.018 program there is a textual argument that subdivision (b)(1) does not reach the escape. No published California decision resolves it. Taggart, People v. Allen (2016) 6 Cal.App.5th 1, and People v. Potts (2016) 247 Cal.App.4th 1167 all quote the participation clause without noticing the point. Expect the answer that the omission is a drafting slip. It is still an argument worth making, and it is unmade.

1170.05 is not 1170.06. Section 4532(c) makes escape from an alternative custody program “pursuant to Section 1170.05” a misdemeanor only. But section 1170.05 is the state prison program run by the Secretary of CDCR. The county program is section 1170.06, run by a sheriff or county director of corrections, and 4532(c) does not mention it. Most people reading this page are in a county program.

And 1170.06 is the one statute that names tampering. Subdivision (j)(2) says “tampering with or disabling, or attempting to tamper with or disable, an electronic monitoring device is punishable pursuant to Section 4532.” Sections 1203.016(f) and 1203.018(i) have no equivalent language and reach only willful failure to return and unauthorized departures. Where the device came off and the person never left the residence, there is an argument that no unauthorized departure occurred. Expect the response that the 1170.06 language clarified rather than expanded. No published decision resolves that one either.

People v. Kunes (2014) 231 Cal.App.4th 1438. A defendant serving a county jail sentence on home detention under section 1203.016 cut his GPS unit off with scissors, mailed it to the sheriff, and flew to Pennsylvania. The Court of Appeal called it “a question of first impression, but not hard to answer,” and held that severing the device supplied the force element under section 4532(b)(2), because force may be any wrongful use of force against property.

• Section 4532(b)(1), felony case, no force: state prison for “16 months, two years, or three years, to be served consecutively, or in a county jail not exceeding one year.”
• Section 4532(b)(2), felony case, by force: a full term of “two, four, or six years to be served consecutively,” commencing when the person otherwise would have been released, and “not be subject to reduction pursuant to subdivision (a) of Section 1170.1.”
• Section 4532(a)(1), misdemeanor case: a non-forcible escape is still a felony, punishable by a determinate term of one year and one day in state prison, or up to a year in county jail.
• Section 4532(a)(3): a home detention escape conviction under 1203.016, 1203.017 or 1203.018 cannot be charged as a prior felony in a later prosecution, but only where it was “not committed by force or violence.”

Section 1203.016(b)(4) lets the correctional administrator, “without further order of the court, immediately retake the person into custody” if the monitoring devices are “unable for any reason to properly perform their function.” Subdivision (c) lets a supervising peace officer do the same “without a warrant of arrest,” on reasonable cause and under the general or specific authorization of the correctional administrator.

Section 1203.2(a) lets any probation, parole, or peace officer with probable cause to believe a supervised person is violating a condition rearrest that person “without warrant or other process and at any time until the final disposition of the case.”

People v. Buell (2017) 16 Cal.App.5th 682 upheld admission of a monitoring company’s alcohol and tamper report at a revocation hearing under the substantial-guarantee-of-trustworthiness standard, not the business records exception. The probation case manager corroborated it live and testified that the spike was not consistent with an atmospheric interferent such as cologne or mouthwash.

People v. Rodriguez (2017) 16 Cal.App.5th 355 went further on GPS. Automatically generated location data is not a statement by any person, so it is not hearsay at all.

Revocation runs on a preponderance standard. On revocation and termination of probation, section 1203.2(c) lets the court pronounce judgment “for any time within the longest period for which the person might have been sentenced,” where imposition of sentence had been suspended.

Willfulness. People v. Hall (2017) 2 Cal.5th 494: “Revocation of probation typically requires proof that the probation violation was willful.” People v. Zaring (1992) 8 Cal.App.4th 362 reversed a revocation where the probationer was 22 minutes late because of an unforeseen childcare problem, finding nothing showing “irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court.” Hall cited Zaring approvingly.

The limit. People v. Breaux (1980) 101 Cal.App.3d 468 held that a mental disease or defect is relevant to whether a court revokes or modifies probation, but that insanity is not a defense to a probation violation charge.

Completed escape. A general intent crime. Section 28(a) makes evidence of a mental disorder “admissible solely on the issue of whether or not the accused actually formed a required specific intent… when a specific intent crime is charged.” Section 29 separately bars an expert from testifying whether the defendant had the required mental state.

Attempted escape. Section 4532(b)(2) reaches an “escape or attempt to escape.” People v. Gallegos (1974) 39 Cal.App.3d 512 holds that attempted escape requires a specific intent to escape plus a direct, unequivocal act, which is what opens the door to section 28(a) evidence on an attempt count.

Diversion. Section 1001.36 names bipolar disorder among qualifying conditions and does not list escape among the excluded offenses. It runs from the filing of a new charge “until adjudication,” so it does not reach a probation revocation proceeding.

Parole. Section 3010.10 is the one provision with a mandatory penalty written in: revoke parole plus 180 days in county jail, subdivision (e). It reaches only people required to register under section 290 as a condition of parole, and subdivision (c)(1) excepts removal by medical personnel during treatment.