Elections

Modesto candidate charged with battery, held office after moving

Joe Day
Joe Day

A candidate for Modesto City Council was charged with misdemeanor battery of his wife when they lived in Sonora. And he continued to hold an elected position as a Tuolumne Utilities District board member for about a year even though he had moved to Modesto.

Joe Day, 58, is running against Councilwoman Jenny Kenoyer to represent Council District 5 in the Nov. 7 election. The district encompasses north-central Modesto.

Day pleaded guilty to a lesser charge in 2008, and he resigned from the TUD board in 2011 on the day The (Sonora) Union Democrat published a story about his not living in the district, though Day says he already had made the decision to step down.

Day said it will be up to the voters to decide whether he should serve on City Council.

“There are things in life that come to you that are difficult to deal with,” he said. “We have problems and we try to overcome them. I think in the ways that really count, I’ve always worked in the best interest of the voters.”

The Tuolumne County district attorney’s office filed a complaint against Day on March 25, 2008, alleging he had committed misdemeanor battery against his wife. That was three days after police had arrested Day at his Sonora home.

Day resolved the case in July 2008 by pleading guilty to misdemeanor disturbing the peace and was sentenced to 18 months of summary probation, according to court records. He also agreed to attend 16 counseling sessions and comply with an order to do no violence against his wife. The Days eventually separated and their children live with Joe Day.

Day had the conviction expunged in March 2010, which means a judge ordered a not guilty plea entered in place of Day’s guilty plea and the complaint dismissed. People who have their convictions expunged do not have to disclose that they were arrested when applying for work.

Day and his wife, Lorraine, said he was innocent and he did not hit or harm her. Day said he did not have the money to contest the charge at trial but just enough to hire an attorney to settle the case. He said the incident came as he and his wife were under financial and other stressors. They lost their home to foreclosure in September 2010.

Day – who said he has a doctorate in biophysics from the University of California at San Francisco – said it was difficult for him to find work in his field while living in Sonora.

After working for a Bay Area start-up as a bioinformatics scientist for the last 11/2 years, Day said he is now getting his own web and internet services company, which is called KNXU Communications, up and running.

“We had a fight (argument),” Day wrote in his candidate questionnaire about the 2008 incident. “She was hitting me, all very mild. But she wanted out, and called the police. They have to take someone, so they took me. That’s OK. The kids were young, they needed their mom.”

Lorraine Day said in an email she dramatized the incident and told police Day had pulled her hair when he had not. She said the police told them that when they respond to a domestic call someone will be going to jail.

“Joe and I were informed by (the) arresting officer that when the police are called during a domestic dispute, one of the two parties (either the plaintiff or the defendant) will go to jail,” she wrote. “Department policy. No exceptions. The police do not leave empty-handed. Somebody will end up going to jail. Period. Rather than have me be arrested for filing a false report, Joe went willingly with the police officers.”

Acting Sonora Police Chief Turu VanderWiel said while he could not speak to the specifics of this incident provided this comment: “If there is probable cause that the crime of domestic violence has occurred, the officer should make an arrest in those circumstances. We are not going to make an arrest unless there is probable cause. Someone saying just take me to jail does not constitute probable cause for a crime.”

VanderWiel, who has been with the department for 13 years, said it is not likely someone would be arrested for making false statements and “we do understand that people recant their statements in domestic violence calls, situations.”

Tuolumne County District Attorney Laura Krieg said the case file was not available so she could not speak to the specifics of this incident. But she said the Days’ description of how Joe Day was arrested “does not sound like anything I’ve heard of.” She said it is very rare to prosecute someone for filing a false report.

Day was elected to the Tuolumne Utilities District board in 2006 and 2010. The district provides water and sewer services to most of the county’s homes and businesses. He resigned Nov. 8, 2011, the day The Union Democrat published the story in which Day confirmed he no longer lived in the district and had moved to Stanislaus County.

The paper reported Day was vague on when he had moved, saying he did not “know exactly when the clock start was.” The paper reported that based on state law Day’s seat would become vacant if he lived outside of the district for more than 180 days. Day confirmed that with The Bee but said at the time he thought he may have had as long as a year. The Tuolumne Utilities District declined to say how long a director can live outside of the district.

Public records show Day moved to Modesto in October 2010, about a year before The Union Democrat story. “I’m not disputing that,” Day said. When asked why he could not provide a more definitive response to The Union Democrat six years ago about when he moved, Day said the answer is complicated.

He said besides the Sonora home he lost to foreclosure, he owns a vacant lot next to the home. Day said it was his intent to build a small home on the lot and live there. He said the lot has a mailbox and he had mail sent there. He said he also looked for other housing. He said he stayed on the TUD board because he wanted to fulfill his commitment to the district’s residents but eventually realized he could not and resigned.

“In my mind, it depended on what is a permanent residence,” Day said about his response to The Union Democrat. “It depends on what the definition of a legal address is. What is the definition of a physical residence versus a legal residence?”

Kevin Valine: 209-578-2316

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