Citizens Arrest for Trespassing? Was not arrested.

[CdwJava]

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.

What code section is this charge?

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.

What record do you think that would be?

Besides, in CA employers ask about misdemeanor or felony convictions, not infractions. An infraction is the same as a traffic ticket.

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?

He has to have some argument - some grounds - to make the request. What is it?

995. (a) Subject to subdivision (b) of Section 995a, the indictment
or information shall be set aside by the court in which the
defendant is arraigned, upon his or her motion, in either of the
following cases:
(1) If it is an indictment:
(A) Where it is not found, endorsed, and presented as prescribed
in this code.
(B) That the defendant has been indicted without reasonable or
probable cause.
(2) If it is an information:
(A) That before the filing thereof the defendant had not been
legally committed by a magistrate.
(B) That the defendant had been committed without reasonable or
probable cause.
(b) In cases in which the procedure set out in subdivision (b) of
Section 995a is utilized, the court shall reserve a final ruling on
the motion until those procedures have been completed.​

And, of course, you would have to convince the court that your account was accurate. I doubt the DA would roll over on that, and usually a court will agree that the issue is a matter for a jury.

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?

If the DA feels she will be a poor witness, or lacks credibility, he may drop the matter. If she comes across as credible, then he may well go ahead. There is no way to predict his actions because we do not have the information he has.

 

[yulaw911]

What code section is this charge?

Just called my attorney and he gave me the two codes, PC 664, 602.5 (b)

What record do you think that would be?

Besides, in CA employers ask about misdemeanor or felony convictions, not infractions. An infraction is the same as a traffic ticket.

I'm applying to med school in December I'd just rather not have any misdemeanor on my record when the school conducts a background check. My attorney told me that if we take the deal with having the aggravated trespass charge reduced to an infraction it appears as a misdemeanor on my record? Maybe i'm misunderstanding what hes saying.

He has to have some argument - some grounds - to make the request. What is it?

995. (a) Subject to subdivision (b) of Section 995a, the indictment
or information shall be set aside by the court in which the
defendant is arraigned, upon his or her motion, in either of the
following cases:
(1) If it is an indictment:
(A) Where it is not found, endorsed, and presented as prescribed
in this code.
(B) That the defendant has been indicted without reasonable or
probable cause.
(2) If it is an information:
(A) That before the filing thereof the defendant had not been
legally committed by a magistrate.
(B) That the defendant had been committed without reasonable or
probable cause.
(b) In cases in which the procedure set out in subdivision (b) of
Section 995a is utilized, the court shall reserve a final ruling on
the motion until those procedures have been completed.​

And, of course, you would have to convince the court that your account was accurate. I doubt the DA would roll over on that, and usually a court will agree that the issue is a matter for a jury.

Im not exactly sure which grounds hes going to go with but im assuming 1B.

If the DA feels she will be a poor witness, or lacks credibility, he may drop the matter. If she comes across as credible, then he may well go ahead. There is no way to predict his actions because we do not have the information he has.

Hopefully that is the case. I have no priors as well if that helps anything. Also the window their claiming I opened cant be opened UNLESS its been unlocked from the INSIDE. That coupled with the fact that I had a box in one hand and my cell phone in the other its absolutely ridiculous to me that I can be charged with something I didn't do, its too late to even see if there were fingerprints on the window now. I know you cannot accurately predict anything that can happen but what do you feel is the most likely scenario if it indeed does go to trial now that you have the penal codes i'm being charged with.

 

[CdwJava]

Just called my attorney and he gave me the two codes, PC 664, 602.5 (b)

That would be an attempt to trespass in an occupied dwelling. Interesting.

I'm applying to med school in December I'd just rather not have any misdemeanor on my record when the school conducts a background check. My attorney told me that if we take the deal with having the aggravated trespass charge reduced to an infraction it appears as a misdemeanor on my record? Maybe i'm misunderstanding what hes saying.

I would not think that to be the case, though your state criminal history would reflect the charges, if not the conviction as a misdemeanor.

Arguing a lack of probable cause is common, but usually not successful.

I know you cannot accurately predict anything that can happen but what do you feel is the most likely scenario if it indeed does go to trial now that you have the penal codes i'm being charged with.

It can vary so much by prosecutor that I can't venture a guess. if they have not budged by now, then it would seem to me that the prosecutor has either not read the case file and is waiting until the last minute, or, sees something that gives him reason to believe he can prevail and should take it forward.

 

[yulaw911]

That would be an attempt to trespass in an occupied dwelling. Interesting.


I would not think that to be the case, though your state criminal history would reflect the charges, if not the conviction as a misdemeanor.

Arguing a lack of probable cause is common, but usually not successful

It can vary so much by prosecutor that I can't venture a guess. if they have not budged by now, then it would seem to me that the prosecutor has either not read the case file and is waiting until the last minute, or, sees something that gives him reason to believe he can prevail and should take it forward.

The DA admitted himself that he hadn't really looked at the case file and had not contacted my ex. When he offered the original deal he barely looked at the paper at the arraignment and wrote down that he would drop the first charge and reduce the second to an infraction, it seemed like he was throwing us a bone so to speak or expecting us to take it. I'm just trying to explore all avenues to avoid going to trial. Maybe this lax attitude of his with my case is indicative of the fact that maybe he is just waiting till the last minute and might in fact decide not to pursue it.

Another attorney, a colleague of my attorney, we spoke to at the courthouse suggested hiring a PI to interview my ex to see if she says anything that doesn't corroborate with the case file. And if she does he suggested calling the DA and letting him know that we would be planning to file a motion for dismissal as a courtesy in a way? I'm very hesitant as I do not want to throw more gasoline on the fire and it the whole thing just seems iffy to me. But if it would liken the chance that my case would be dismissed i'm all for it. Have you heard of anything like this CDW? I'm sorry i keep asking you tons of questions and every answer of yours is SO unbelievably helpful, i really truly appreciate it.

 

[CdwJava]

A PI will add even greater expense to the case. Whether he will come across anything new or useful is hard to say.

The key will be what the prosecutor believes when/if he looks at the file. He may or may not talk to your ex before trial. Some prosecutors do not do so, others do. If the case file shows what the DA believes is a winnable case, then he will go forward. If it is too iffy, then he probably won't. I would think your attorney might have better insight on the man doing the prosecution than any of us might have.

 

[yulaw911]

A PI will add even greater expense to the case. Whether he will come across anything new or useful is hard to say.

The key will be what the prosecutor believes when/if he looks at the file. He may or may not talk to your ex before trial. Some prosecutors do not do so, others do. If the case file shows what the DA believes is a winnable case, then he will go forward. If it is too iffy, then he probably won't. I would think your attorney might have better insight on the man doing the prosecution than any of us might have.

Yeah that's what I assumed when it came to the PI. Seems like its just making things more complicated. I guess all i can do is hope for the best and see if the motion is accepted and if not see what happens at trial. Thank you tremendously for your help cdw.