Citizens Arrest for Trespassing? Was not arrested.

[yulaw911]

There was one of those wooden gates around the house, I just unhooked the door and went around the side, i didn't hop over a fence or anything. No, she didn't say anything like "if you don't leave ill call the police". Her window was closed and she kept saying she couldn't hear me and i could barely hear her. Thats when i pulled out my phone and showed her that i had texted her. She then told me to email her my number and to go wait for 20 mins. I then left immediately and walked to the end of the street. Isnt that a sign that i cooperated with her?? That i wasnt sitting there refusing to leave but that i left when she told me to go wait?

 

[randolph76]

Yes, it is always good to have confidence in the attorney you plan to hire. But always beware, lawyers are scum. I once had an attorney tell me a similar story then deliberately not do what he said he would do in order to, I believe, compel me to retain him for a trial. This matter is not that serious. If you don't plan on hiring an attorney for trial, maybe tell him that if the d.a. does choose to file the charges, then you would be going with the public defender after that. This would stop him from trying such a tactic as described above if he knows he won't be able to proceed to trial. Anyway's. CdwJava made a point which I feel needs to be corrected. Above, he said:

"Did you have to enter an enclosed backyard? If so, if you entered onto the gated portion of a property without permission, then you have, arguably, committed trespass."

I do not believe this is entirely accurate under the California penal code...

California Penal Code 602 (k) states that the following acts are crimes:

(k) Entering any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owner's agent or by the person in lawful possession.

California Penal Code 602 (L) states that the following acts are crimes:

(l) Entering any lands under cultivation or enclosed by fence, belonging to, or occupied by, another, or entering upon uncultivated or unenclosed lands where signs forbidding trespass are displayed at intervals not less than three to the mile along all exterior boundaries and at all roads and trails entering the lands without the written permission of the owner of the land, the owner's agent or of the person in lawful possession, and (1) Refusing or failing to leave the lands immediately upon being requested by the owner of the land, the owner's agent or by the person in lawful possession to leave the lands, or (2) Tearing down, mutilating, or destroying any sign, signboard, or notice forbidding trespass or hunting on the lands, or (3) Removing, injuring, unlocking, or tampering with any lock on any gate on or leading into the lands, or (4) Discharging any firearm.

You did not enter a fenced property with the intent to interfere or harm the owners property rights...etc. Therefore, the only penal code i think you could be charged with, possibly, is P.C. 602(o) which generally states that it is unlawful to refuse to leave a property you have entered upon the request of the owner.

I would immediately obtain the police report in this case before you decide to take any deal the D.A. might throw at you.

What I see happening, worst case scenario, because their case is nothing, is that they would offer you a deferred adjudication of guilt, where you would plead guilty, be put on probation for one year, and if you stay out of trouble for that one year, the charges against you would be dropped and you would never have to tell an employer you were arrested for this charge. It would not be on your record. That is one possibility. But I think even that is too harsh for you. Like said above, you need to get the police report to see if it says that she said you refused to leave after being asked by her. If it does not say this in the police report, then there is no valid criminal charge against you and you should not accept probation or the plea bargain deal. Talk about this stuff with your attorney. If he says he thinks they can get you for trespass, ask him under what penal code. Don't let him give you a line of crap.

Just to know, where there any fences on the property? Did she tell you to leave and did you refuse?

OP already said he was cited under 602(o)(2) so it seems that gated part is irrelevant. I have a feeling based on legal advice given by actual attorneys in his area that they could get it dismissed. I think OP has been given all needed legal advice.

 

[CdwJava]

CdwJava made a point which I feel needs to be corrected. Above, he said:

"Did you have to enter an enclosed backyard? If so, if you entered onto the gated portion of a property without permission, then you have, arguably, committed trespass."

I do not believe this is entirely accurate under the California penal code...

Hence the word, "arguably."

I did not wish to address all the possibilities as PC 602 is a lengthy section and until or unless the OP posts back with additional details, it is rather time consuming to throw out all the possible permutations and possibilities.

 

[yulaw911]

I really appreciate all the help i received on here, you guys are great and made me feel semi ok about this whole situation. Today i found out from a friend that she has been telling people about how she got me "arrested". Is there any way i can get her to stop this? A "gag-order" of some sorts? Im going to bring this up to my attorney tomorrow, she is trying to tarnish my reputation because she knows i cant do anything to retaliate of course.

 

[randolph76]

I really appreciate all the help i received on here, you guys are great and made me feel semi ok about this whole situation. Today i found out from a friend that she has been telling people about how she got me "arrested". Is there any way i can get her to stop this? A "gag-order" of some sorts? Im going to bring this up to my attorney tomorrow, she is trying to tarnish my reputation because she knows i cant do anything to retaliate of course.

You were arrested. Just don't let it bother you she seems petty don't stoop to her level.

 

[yulaw911]

Hey guys, Just wanted to post an update about the situation. I hired an attorney and have been in contact with him regarding my case. He said that hes going to call the DA's office in a few weeks to find out who is on my case and see if he can get them to dismiss the case due to weak evidence. He said most likely we will have to go to the arraignment and see what i'm officially "charged" with. He told me that he cant get a copy of the police report until the arraignment is that true or not? He said if they decide to pursue it he will ask for something like a 6 month conditional where if i stay out of trouble for 6 months it will be wiped off my record. Is this the wisest route to go? Just trying to get some advice from you all since you guys are extremely knowledgeable.

 

[randolph76]

Hey guys, Just wanted to post an update about the situation. I hired an attorney and have been in contact with him regarding my case. He said that hes going to call the DA's office in a few weeks to find out who is on my case and see if he can get them to dismiss the case due to weak evidence. He said most likely we will have to go to the arraignment and see what i'm officially "charged" with. He told me that he cant get a copy of the police report until the arraignment is that true or not? He said if they decide to pursue it he will ask for something like a 6 month conditional where if i stay out of trouble for 6 months it will be wiped off my record. Is this the wisest route to go? Just trying to get some advice from you all since you guys are extremely knowledgeable.

I'm not going to second guess your attorney as they are licensed in your state and know the local court environment. You could plead not guilty or go for the conditional, it's up to you. What did your lawyer say when you asked him/her?

 

[yulaw911]

He pretty much told me asking for a conditional was kinda like a "worst-case" scenario that he sees playing out. He said that if he could get it dismissed before then that would be great and nothing else would be needed to be done. As of right now he said that he is going to give the DA some time to actually get the case and review it before he gives them a call to explain the situation a little further. I asked him if he could get a copy of the police report but he said that he can't get ahold of that until the arrangement.

 

[CdwJava]

Until arraignment, the state is generally not going to be required to provide discovery (and this includes the police report).

There appears to be a good chance it can be dismissed if the facts are as you say. It sounds as if your attorney has a handle on the issue.

 

[randolph76]

Until arraignment, the state is generally not going to be required to provide discovery (and this includes the police report).

There appears to be a good chance it can be dismissed if the facts are as you say. It sounds as if your attorney has a handle on the issue.

Agreed. Listen to your attorney and go from there.

 

[yulaw911]

Thank you CdwJava, I appreciate your input. He told me the same thing you did. He also said that if my "ex" told the police in the police report that she told me to leave and i wouldn't he could tell the DA that i DID in fact leave because she told me to wait by my car and that's where the police found me, my entire story checks out. Do my chances of getting the case dismissed drop significantly if she said that in the police report? Or is it still a weak case due to the fact that i wasn't anywhere near the property when the police arrived?

 

[yulaw911]

Thank you randolph76. Your input has been very appreciated during these trying times for me.

 

[randolph76]

Thank you CdwJava, I appreciate your input. He told me the same thing you did. He also said that if my "ex" told the police in the police report that she told me to leave and i wouldn't he could tell the DA that i DID in fact leave because she told me to wait by my car and that's where the police found me, my entire story checks out. Do my chances of getting the case dismissed drop significantly if she said that in the police report? Or is it still a weak case due to the fact that i wasn't anywhere near the property when the police arrived?

I think that your story checks out and is verifiable very much goes to your credibility. It looks much more like a stunt on the part of your ex. If that is part of her witness that she lied it would go against her credibility. Credibility is important when going before a judge. Keep honest and you should do fine.

 

[yulaw911]

Hey guys, Just wanted to post an update to this whole situation. I had my arraignment on Aug 3rd, the DA was being extremely rude and I understand its their job to "convict" but he barely said any words to my attorney and what he offered was that he was going to drop the first charge which was a trespassing charge but he ADDED another charge for "trying to open the window" which my ex stated i did in the police report. It didn't make sense since i had the box of her things in one hand and my cell phone in the other and the window was locked until SHE opened it. Everything else in the police report matched up with what i have written here, i was nowhere near her house when the police arrived and the box did contain exactly what i had stated. So he offered to drop the charge of trespassing and reduce the second charge to an infraction with a fine of $1500. I do not want an infraction because it still shows up as a "conviction" on my record and that is exactly what im trying to avoid.

So my lawyer motioned for trial. The judge then set a date for a "pre-trial conference". My lawyer asked the DA prior to all this for a 6 month conditional to which the DA replied that he had no authority and that before he did anything he was going to contact her.

Since this whole incident happened i have not had ANY contact with my ex whatsoever. But on August 7th, she sent me an email of just some random picture of an inside joke between us. This led me to believe she has no idea any of this is going on. Well i did NOT reply to the email and sent it straight to my lawyer. First she called the authorities to "get rid" of me and now she sent this email as some sort of contact. I don't know if this helps or not. In the police report she also stated that we were only going out for 6 months which is a complete and utter lie! We have many emails and people who can prove otherwise.

Anyway, fast forward to the pre-trail date, my lawyer was pretty confident the case was going to get dismissed once the DA had talked to my ex and had read all the files he had sent him but when we arrived at the courthouse we found out he hadn't even called her due to him being so busy. He proceeded to offer the same deal as before and my lawyer refused it. My lawyer had also sent him a bunch of emails between me and my ex and hotel records as well as the most recent email she had sent me showing that i in fact was NOT trying to contact her but she was attempting to contact me. I think this is called his discovery packet. The DA had not taken a look at that packet as well.

My lawyer truly believes that the case should be dismissed outright or i get offered a conditional which dismisses it at a later date. So we motioned for trial and the DA quickly changed his tune. He asked for my lawyer's card and was actually being very polite and courteous. The date for jury selection is set for September 7th and trial for September 21st. My lawyer had planned to file a motion for dismissal on the day of jury selection and he assumes that the DA will have contacted my ex by then and i'm sure she would be a lot more apologetic and not have anything bad to say since i have not been in any sort of contact with her. I just got off the phone with my lawyer and he said that a motion for dismissal will only work if there is no "dispute of fact" which there clearly is; shes claiming i opened the window and i'm saying i didn't.

This is my attorney's first trial if it gets that far, my question is does it hurt to still file a motion for dismissal? Or are there any other motions to file that could potentially get the case dismissed due to stuff being false in the police report, ie; length of relationship and etc. I know i should go to my own attorney with these questions but i wanted to get an outside opinion of all this. What is the most likely scenario for this? Is it likely that after the DA contacts her and assuming she doesn't say anything and seems apologetic and also reading through the packet my lawyer sent him with all the emails and other evidence knocking down her credibility, that he might decide to drop the case and not pursue it? Or is trial my only option at this point?

Sorry for all the questions, i'd appreciate any advice you guys have to offer.

 

[yulaw911]

Any advice would be greatly appreciated!