DA Rejects Charges Calls "office" hearing?

[Johnmelissa]

California

I was arrested 1 14 for battery (garden hose water). Next door neighbor, a cop, started spraying me with water, I did nothing and drove away. When I came back, he started spraying me a SECOND time. After 10 seconds I sprayed back in self defense and retreated up my driveway on my property. I did not know spraying water was illegal and did not call the Sheriff. The neighbor, a cop, called and had me citizen arrested. I asked deputies to citizen arrest the neighbor and deputies refused. His son witnessed for him and my wife and daughter witnessed for me (3 against 2). Neighbor has video surveillance with tape that, apparently was not offered or obtained by police. I am telling the truth. Neighbor/cop is lying and has a documented 7 year history of actions against us. We've had 3 complaints sustained against this cop by his employing agency. 3 12 the Sheriff said the DA rejected the charges and will send a letter setting an "office" meeting or hearing to "resolve issues?" What's this and what do I say/demand/settle for.What is the name of your state?What is the name of your state?

 

[CdwJava]

This is sometimes called "DA diversion". As an alternative to wasting time and money with a trial, the DA and the courts are more often turning to alternative methods to deal with events that are essentially disputes among the parties that need to be fleshed out.

You can choose to attend if you wish. However, if you have received a summons, then you will have to attend.

- Carl

 

[Johnmelissa]

Legal Implications

I meant what are the legal implications? Can the DA file charges against me after the "office hearing?" When is this legal journey legally and definitively concluded so that no more legal action may be taken against me? Would a successful "office hearing" constitute a guilty plea? Did the neighbor/cop falsely arrest if the "office hearing" is accepted by the DA? Since the TRUTH is that the neighbor/cop committed the crime, left the scene and conspire to implicate me and had me arrested will the real criminal, he, ever be charged with the crimes he committed. Do cops get to frame innocent people and get away with it. What a country. Please answer legally and comprehensively as I may have missed a technical point. Thank you.

 

[Bretagne]

You can always be charged if there's probable cause to believe you committed a crime. And future legal action can always be taken against you and can't be barred. A successful "office hearing" is not a guilty plea.

 

[Johnmelissa]

Point of "officer hearing"

What then is the point of the "office hearing?" The letter from the DA said, "we have elected to have an "informal office hearing" RATHER than file charges against you." Will a successful "office hearing" conclude this matter? There must be some end game and end point. No? Did you just say that 5 or 10 years from now or at a random point in the future any DA can arbitrarily file charges against me regarding this particular matter? By the way, all the "he said she said" evidence is in. When will this matter be considered concluded so that I can proceed to sue the citizen who demanded my false arrest and sue the Sheriff's Dept. for false arrest?

 

[CdwJava]

What then is the point of the "office hearing?" The letter from the DA said, "we have elected to have an "informal office hearing" RATHER than file charges against you." Will a successful "office hearing" conclude this matter?

As a practical matter, it will. This is frequently used in some counties in CA - mine included - to resolve issues that the courts would likely frown on being involved in. Mostly these are neighbor disputes that jump into the TECHNICAL criminal realm without really having to be there.

As a legal matter, in theory, you could still be charged. Though I have never seen that happen unless one of the parties came into the meeting and just blew off the DA and the other party. The idea is to sit down and discuss the problem and come to some sort of a resolution RATHER than go to court.

Did you just say that 5 or 10 years from now or at a random point in the future any DA can arbitrarily file charges against me regarding this particular matter?

The DA would have one year to bring charges for misdemeanor assault.

By the way, all the "he said she said" evidence is in. When will this matter be considered concluded so that I can proceed to sue the citizen who demanded my false arrest and sue the Sheriff's Dept. for false arrest?

Where's the false arrest? Law enforcement is required by law in CA to accept a citizen's arrest. If you sprayed the complainant with water, then you did commit the offense of battery and he has the right to have you arrested. By statute, the sheriff's department is immune from liability for accepting his arrest. In fact, had they refused, the officer could be guilty of a misdemeanor. And rather than playing the, "Well if he signed against me, I'll sign against him," game, they apparently chose to forward the whole matter to the DA - hence the reason the DA likely wants this sit-down.

The fact that the complainant sprayed you first - earlier - does not make his later complaint invalid. You are still free to try and sue the neighbor if you want, but from what you wrote you appear to have no grounds to sue the sheriff's department for doing that which they are required to do under the law.

- Carl

 

[Johnmelissa]

Two Phases

Phase 1: Neighbor/cop sprayed me with water. I did not spray him. I got in my car and drove away. I and my wife are witnesses to that. Neighbor/cop said in front of my wife to his son, "There's the Gargoyle. The Gargoyle is watching us."

Phase 2: I drive home and neighbor/cop sprays me. After 10 seconds I spray back in self defense.

We told the Sheriff Deputy that he sprayed me and that we wanted to make a citizen's arrest against him and they refused to do it. First come first served or favor the brother cop. Three adult eyewitnesses were asking the cops to arrest him and they refused. The only witnesses for the neighbor/cop were him and his minor son. Not to mention the 7 years of past transgressions by this neighbor/cop and NUMEROUS calls by us to the cops with requests to arrest him.

This neighbor/cop perpetrated a fraud on the deputies and the DA. And everybody's OK with it. They don't want the truth. The neighbor/cop has a video surveillance system directed precisely to the scene and it has been completely ignored. Forget justice.

 

[CdwJava]

Phase 1: Neighbor/cop sprayed me with water. I did not spray him. I got in my car and drove away. I and my wife are witnesses to that.

Had you called and insisted on a C/A then, you should have gotten one.

Neighbor/cop said in front of my wife to his son, "There's the Gargoyle. The Gargoyle is watching us."

Rude, but irrelevant to the crime of battery.

Phase 2: I drive home and neighbor/cop sprays me. After 10 seconds I spray back in self defense.

Instead of spraying back, you should have called.

We told the Sheriff Deputy that he sprayed me and that we wanted to make a citizen's arrest against him and they refused to do it. First come first served or favor the brother cop.

Could well be "first come ..." then forward the whole thing to the DA (which seems to be what happened). Obviouslt the DA is not keen on charging you with the battery and it sounds like he wants to get both of you in the same room to brign the issue to a close. One would hope that woul dbe what YOU want as well.

The alternative is more of the same or dueling restraining orders.

This neighbor/cop perpetrated a fraud on the deputies and the DA. And everybody's OK with it. They don't want the truth. The neighbor/cop has a video surveillance system directed precisely to the scene and it has been completely ignored. Forget justice.

They cannot compel the other fellow to turn over the tapes without a subpoena. Chances are for this they aren't going to waste their time. If his employing agency will not (or CAN not - as he is acting outside the scope of employment) act, then you can always sue him for whatever your attorney can find out to sue for.

Hopefully the DA can sit down and mediate whatever the ongoing beef is between you. I'm sure that the neighbor's account of your transgressions will be similarly unflattering as is your account of his.

- Carl

 

[Johnmelissa]

Truth

I appreciate your perspective. I think I would believe me to be a liar. Problem for the cop/neighbor is it's all on video. You discount the video and the three adults to one ratio of witnesses. The "Gargoyle" PROVES that he was there and that my wife was watching him. It's difficult to make people understand if they choose not to. My wife didn't dream "Gargoyle" up. She doesn't play video games at the age of 57 and only knows the classic reference as architectural. The neighbor/cop and his son play Nintendo in what they called in court their "game room." I guess there's a lot of difference in obtaining the TRUTH and FACTS and simply PROCESSING a case from the front line cop to the jury's verdict. No one CARES about the truth. They care about PROCESSING. Or else the whole thing is biased and corrupt in favor of brother cops. I have presented the FACTS as they occurred. Possibly responders on this forum could pose multiple "possible" alternative scenarios where one party is believed and then the other.

 

[CdwJava]

Problem for the cop/neighbor is it's all on video. You discount the video and the three adults to one ratio of witnesses.

It's not quantity of witness, it's often quality. Your family and friends are going to be about as valid as his family and friends.

As for the video, if it has not been seized, then it is not evidence.

And, in this case, it is ALL irrelevent because there is no criminal case.

Now, a civil case against the neighbor CAn sometimes hinge on quantity of witnesses. Since the burden of proof in a civil case is the preponderance of the evidence as opposed to beyond a reasonable doubt, you might fare better in that venue.

In this hose incident, your squirting him makes you just as guilty as he. This is NOT the kind of incident the DA is going to want to pursue in court. It's silly. That is why he wants everyone to come in and talk.

The "Gargoyle" PROVES that he was there and that my wife was watching him. It's difficult to make people understand if they choose not to. My wife didn't dream "Gargoyle" up.

He could have called her foul words, names of Playboy bunnies, or any number of things - it doesn't matter. Namecalling is not an element of the crime of battery.

I guess there's a lot of difference in obtaining the TRUTH and FACTS and simply PROCESSING a case from the front line cop to the jury's verdict. No one CARES about the truth. They care about PROCESSING.

It's a matter of resources. Few courts are going to want to see a full-blown trial over a couple of people spraying each other with hoses. The judges in my county would be very pissed. I assume the judges in yours will be the same way.

If you really want to get this before a judge, find an attorney to take it to civil court. But, without any damages, there really is no a whole lot you can sue him for.

Possibly responders on this forum could pose multiple "possible" alternative scenarios where one party is believed and then the other.

It's about resources (manpower, court time, money, etc.) and it's about the intent. If your intent is to extract a pound of flesh, go to civil court. If you want to RESOLVE the issue between you and your neighbor, see what the DA has to offer. It MIGHT work.

Court is about proving the elements of a crime beyond a reasonable doubt. You have more witnesses than he does, but you also admit to the same offense. The fact that he sprayed you first does not make your spraying him legally "okay".

Look, this guy could be a complete A.H. - I don't know. What I'm teklling you is that no one else is going to get excited about sending a hose spraying incident to trial - regardless of the fact it is technically battery.

If the system were so corrupted against you, do yuo really think they would have opted NOT to charge you? I'm thinking the DA sees this as I do - one or two people being juvenile, and it is apparently the latest in a long line of juvenile acts. If he can resolve it, let him.

Or, take it to civil court.

- Carl

 

[Johnmelissa]

Final Points

I presented the Gargoyle reference because it proves that the neighbor saw my wife watching him spray me first when I didn't spray back. I'm giving you PROOF POSITIVE that he sprayed me first when I didn't do anything; I didn't spray back. Everybody ignores that. My wife witnessed him spraying me first and me not spraying back.

How convenient. Everybody gets to ignore a video of the crime I'm accused of when it exonerates me completely by showing him spray me.

How can you believe I don't have a right to DEFEND myself when I am attacked?

For the sake of argument, let's say I'm telling the truth. A cop sprayed me then called the cops and had me arrested for spraying him. Isn't that a bad thing? I have video and witnesses and the evidence is simply ignored. Shouldn't evidence come into play? I was arrested and thrown in jail. Do I have to be framed and traumatized just cuz it's a cop? And cops are above the law? What world do you live in?

 

[CdwJava]

I presented the Gargoyle reference because it proves that the neighbor saw my wife watching him spray me first when I didn't spray back. I'm giving you PROOF POSITIVE that he sprayed me first when I didn't do anything; I didn't spray back. Everybody ignores that. My wife witnessed him spraying me first and me not spraying back.

Her assertion is NOT "proof positive". It is only proof that your wife SAYS he called her a gargoyle. I do not doubt that this happened, but her assertion can only be taken on its face and the credibility of the witnesses evaluated. But, if he says it did NOT happen, and she says it did, then it could be a "draw", so to speak. Since this is NOT going court, it's still moot.

Again, even if he did spray you first it does NOT absolve you of liability for spraying him back later on.

How convenient. Everybody gets to ignore a video of the crime I'm accused of when it exonerates me completely by showing him spray me.

They're not ignoring it - they do not have it! It is hard to heed something that does not exist. Has the neighbor produced this video?

And, once more, it appears the DA thinks the whole affair is too silly to even take to trial, hence his effort to mitigate this situation.

How can you believe I don't have a right to DEFEND myself when I am attacked?

Waiting 10 seconds to spray someone back is not likely to be considered self defense, it's likely to be considered retaliation. If you were being sprayed at the time you sprayed back, then it probably could be.

In any event, the DA is not filing and seems to think this too petty to take to trial.

For the sake of argument, let's say I'm telling the truth. A cop sprayed me then called the cops and had me arrested for spraying him. Isn't that a bad thing?

Of course it is.

I have video and witnesses and the evidence is simply ignored. Shouldn't evidence come into play?

Has anyone given the video to the sheriff or the DA? Where is the video? You keep writing as if you have it in your possession - do you?

And once again ... the DA apparently feels this is too petty to take to trial and is trying to mitigate this.

I was arrested and thrown in jail. Do I have to be framed and traumatized just cuz it's a cop? And cops are above the law? What world do you live in?

I live in the real world. If what you say is true, then you might have a civil case for wrongful arrest or some similar torts against your neighbor. Consult an attorney, tell him about the incident and your damages, advise him that the neighbor might have a video tape, and then see whether he asks you for money up front or offers to take the case on a contingency basis.

Look, I am NOT saying that what your neighbor did was right. But you seem to overestimate the impact of statements in court regarding low level misdemeanors. And, legally, there would appear to be no video. You speak as if it exists - does it? Who has it? The case against you is weak, as would be the case against him. If the mediation fails it is possible the DA might decide to charge you BOTH with battery and then see where it goes.

The DA wants to mediate. If you do not want to mediate, tell the DA you refuse, and then see where it goes from there. You might have to spend money on a criminal defense attorny at that point, but that is up to you.

- Carl

 

[Johnmelissa]

Post Script

Maybe you'll understand if this is a question. Where do you think my wife got the name Gargoyle? I'm not saying he spoke to her, I'm saying he revealed something my wife could never have known. When you understand that, you'll see it proves what she said and what she said is that she watched him spray me and I did not spray back. The irrefutable proof of everything I say is the video tape. Here's a question for you. If I know that he has a camera on his house that goes to his monitor and recorder, how the hell can I lie. I know there is a huge possibility that he will show me lying on the video. At the point I told the cops he had a video surveillance system, I would KNOW that if I lied, the video very well might prove me a liar. How the hell could I have lied to the cops if I know there's a video of the whole event. Do you understand? You'd have to believe I was a huge gambler if I lied to the cops knowing there's a video of everything I told them. C'mon. The fundamental question about the video, however, is WHY DIDN'T THE COPS GO GET THE VIDEO RIGHT THEN AND THERE? They didn't. They didn't want the truth - the facts - the video. Why didn't the cops obtain the video? Why didn't they go get it? That is the question. I know you are reading this. Why didn't the damn cops go get the truth on the video of the whole event? Why?

 

[CdwJava]

Maybe you'll understand if this is a question. Where do you think my wife got the name Gargoyle?

It doesn't matter. He can STILL deny saying it. Even if he did say it, it proves nothing and is not an element of the offense.

I'm not saying he spoke to her, I'm saying he revealed something my wife could never have known.

So YOU say. The fact she knows the term "gargoyle" means nothing. It proves nothing. Even if he did say it to her, so what?

The irrefutable proof of everything I say is the video tape.

And the video tape is ... where? WHERE is the tape?

How the hell could I have lied to the cops if I know there's a video of the whole event. Do you understand?

Yes ... I do understand. HOWEVER! As I said, unless this tape is currently in evidence - RIGHT NOW, then it is NOT evidence and is not part of this allegation. It does no magically appear because you say it exists.

The fundamental question about the video, however, is WHY DIDN'T THE COPS GO GET THE VIDEO RIGHT THEN AND THERE? They didn't.

Well, there IS this thing called the 4th Amendment. they can NOT just run inside and get his surveillance system. They can certainl make hay out of his inability to produce the tape if he usually has it going and a judge or jury can infer what they will from it.

However, since there is no trial, there is no need for the tape.

Now, if you really want to get this tape, you can commence a civil action and have an attorney subpoena the tape.

I know you are reading this. Why didn't the damn cops go get the truth on the video of the whole event? Why?

Maybe the neighbor said it wasn't working ... maybe he refused ... maybe he denied he had a system ... who knows? You can ask them that question.

However, as I have repeatedly said, this appears to be dropping OUT of the criminal realm, so it is all moot unless you commence a civil action.

- Carl

 

[Gevalia]

Why, why, why, why, why??? Holy Moses!

The correct answer to every single question you've asked so far is......BECAUSE this case is about two grown-ass men spraying freaking GARDEN hoses at each other! It's stupid, it's silly, it's childish, it's ridiculous. What do you want the cops to do, scramble a couple of F-14s?

You're being offered mediation. For crying out loud, go to mediation and get this assinine crap over with.

Grown men and garden hoses. Jesus, Mary, and Joseph. It just boggles the mind.

And before you get your knickers all in a twist and start spouting off at me about due process and the principal of the thing just spare me, okay?

Carl, you have got to be the nicest, most patient person I have ever seen online.