Using a 'Motion' to intimidate

[charlie neville]

What is the name of your state? Maine

I have a Protection from Harassment order in place against me. Her attorney has filed a motion with the court to extend the Protective order and in the final paragraph says, "Plaintiff respectfully prays for..., an award of attorneys fees in the event of the Defendant's opposition to this request for extension...."

This seems to me an attempt to intimidate me into not opposing the motion. Following a previous hearing in this matter he ask for attorneys fees and was denied, Isn't it normal procedure to seek attorneys fees once the motion is decided in ones favor?

thanks

charlie

 

[stephenk]

he is requesting fees on the argument that your opposition will require a reply on his behalf. The time spent on researching, preparing and filing the reply is extra work that he is claiming he will need to do. If the court grants the extension on the PO he will argue that your opposition was meritless and therefore he is entitled to fees for the reply.

on another note, since you were found "not guilty" of stalking in the criminal court, would you agree there seems to be enough evidence for this lady to obtain a protective order against you in the civil court? not guilty does not mean innocent, as you are finding out.

 

[charlie neville]

not guilty does not mean innocent, as you are finding out.

No stephenk, what I'm finding out is shyster lawyers can manipulate and misuse the legal system to achieve unjust ends, particularly when a wealthy and well connected person is pulling the strings.

And NO, I will not agree there is enough evidence to obtain a protective order. The order was granted based on my being arrested on false charges, nothing more, charges I was subsequently found not guilty of by a jury.

The presumption of "innocent until proven guilty" is a hallmark of the criminal justice system in this country. So, a 'not guilty' verdict at trial is in fact an affirmation of ones 'innocence' of the crime with which they were charged.

I'll add too, my dictionary defines innocent as: "Not guilty of a specific crime or offense; legally blameless"

charlie

 

[charlie neville]

stephenk--

I will assume your failure to respond to the previous post in the past 24 hours is a concession on your part that you are unable to refute what I've offered here, and I am in fact correct in my reasoning?

I draw this conclusion because you've posted elsewhere on the board, but not here.

On another note, this affectation you persist in of not capitalizing initial letters in a sentence; do you prepare your legal documents in the same fashion?

charlie

 

[stephenk]

still stalking me i see. in any event, since you never responded to your original thread after i posted the california penal code relevant to factual innocence, i have posted it again for you to review.

California penal code:

851.8. (a) In any case where a person has been arrested and no
accusatory pleading has been filed, the person arrested may petition
the law enforcement agency having jurisdiction over the offense to
destroy its records of the arrest. A copy of such petition shall be
served upon the district attorney of the county having jurisdiction
over the offense. The law enforcement agency having jurisdiction
over the offense, upon a determination that the person arrested is
factually innocent, shall, with the concurrence of the district
attorney, seal its arrest records, and the petition for relief under
this section for three years from the date of the arrest and
thereafter destroy its arrest records and the petition. The law
enforcement agency having jurisdiction over the offense shall notify
the Department of Justice, and any law enforcement agency which
arrested the petitioner or participated in the arrest of the
petitioner for an offense for which the petitioner has been found
factually innocent under this subdivision, of the sealing of the
arrest records and the reason therefor. The Department of Justice
and any law enforcement agency so notified shall forthwith seal their
records of the arrest and the notice of sealing for three years from
the date of the arrest, and thereafter destroy their records of the
arrest and the notice of sealing. The law enforcement agency having
jurisdiction over the offense and the Department of Justice shall
request the destruction of any records of the arrest which they have
given to any local, state, or federal agency or to any other person
or entity. Each such agency, person, or entity within the State of
California receiving such a request shall destroy its records of the
arrest and such request, unless otherwise provided in this section.
(b) If, after receipt by both the law enforcement agency and the
district attorney of a petition for relief under subdivision (a), the
law enforcement agency and district attorney do not respond to the
petition by accepting or denying such petition within 60 days after
the running of the relevant statute of limitations or within 60 days
after receipt of the petition in cases where the statute of
limitations has previously lapsed, then the petition shall be deemed
to be denied. In any case where the petition of an arrestee to the
law enforcement agency to have an arrest record destroyed is denied,
petition may be made to the municipal court or the superior court in
a county in which there is no municipal court which would have had
territorial jurisdiction over the matter. A copy of such petition
shall be served on the district attorney of the county having
jurisdiction over the offense at least 10 days prior to the hearing
thereon. The district attorney may present evidence to the court at
such hearing. Notwithstanding Section 1538.5 or 1539, any judicial
determination of factual innocence made pursuant to this section may
be heard and determined upon declarations, affidavits, police
reports, or any other evidence submitted by the parties which is
material, relevant and reliable. A finding of factual innocence and
an order for the sealing and destruction of records pursuant to this
section shall not be made unless the court finds that no reasonable
cause exists to believe that the arrestee committed the offense for
which the arrest was made. In any court hearing to determine the
factual innocence of a party, the initial burden of proof shall rest
with the petitioner to show that no reasonable cause exists to
believe that the arrestee committed the offense for which the arrest
was made. If the court finds that this showing of no reasonable
cause has been made by the petitioner, then the burden of proof shall
shift to the respondent to show that a reasonable cause exists to
believe that the petitioner committed the offense for which the
arrest was made. If the court finds the arrestee to be factually
innocent of the charges for which the arrest was made, then the court
shall order the law enforcement agency having jurisdiction over the
offense, the Department of Justice, and any law enforcement agency
which arrested the petitioner or participated in the arrest of the
petitioner for an offense for which the petitioner has been found
factually innocent under this section to seal their records of the
arrest and the court order to seal and destroy such records, for
three years from the date of the arrest and thereafter to destroy
their records of the arrest and the court order to seal and destroy
such records. The court shall also order the law enforcement agency
having jurisdiction over the offense and the Department of Justice to
request the destruction of any records of the arrest which they have
given to any local, state, or federal agency, person or entity.
Each state or local agency, person or entity within the State of
California receiving such a request shall destroy its records of the
arrest and the request to destroy such records, unless otherwise
provided in this section. The court shall give to the petitioner a
copy of any court order concerning the destruction of the arrest
records.
(c) In any case where a person has been arrested, and an
accusatory pleading has been filed, but where no conviction has
occurred, the defendant may, at any time after dismissal of the
action, petition the court which dismissed the action for a finding
that the defendant is factually innocent of the charges for which the arrest was made. A copy of such petition shall be served on the district attorney of the county in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner's factual innocence. The district attorney may present evidence to the court at such hearing. Such hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b).
(d) In any case where a person has been arrested and an accusatory
pleading has been filed, but where no conviction has occurred, the
court may, with the concurrence of the district attorney, grant the
relief provided in subdivision (b) at the time of the dismissal of
the accusatory pleading.
(e) Whenever any person is acquitted of a charge and it appears to
the judge presiding at the trial wherein such acquittal occurred
that the defendant was factually innocent of such charge, the judge
may grant the relief provided in subdivision (b).

 

[charlie neville]

Yes, you have posted it again...

...and it is as irrelevant to the current discussion as it was to the previous.


My reading of this verbose piece of legalese tells me "factual innocence" is is a concept relevant to a petition to the court to expunge all records of an arrest if there is not a finding of 'guilty' against the defendant; and has nothing to do with a guilty or innocent determination at trial.

Is there any other reference to 'factual innocence' in the California penal code which might, by some stretch of the imagination apply to the current discussion?

I find your stalking reference moronic, but then I consider the source and it makes sense.

I would assume the moderators of this board would notify me if they felt my responses to you could be in any way seen as 'stalking' you.

charlie

 

[stephenk]

you interpreted the section incorrectly.

 

[charlie neville]

I think my interpretation correct...

...but this entire excersize is irrelevant and off topic. (We went through this once before.)

Would you respond to mine of 11/29 9:59am where I answered your post earlier that morning in which you said:

"on another note, since you were found "not guilty" of stalking in the criminal court, would you agree there seems to be enough evidence for this lady to obtain a protective order against you in the civil court? not guilty does not mean innocent, as you are finding out.

With the following:

"not guilty does not mean innocent, as you are finding out."

No stephenk, what I'm finding out is shyster lawyers can manipulate and misuse the legal system to achieve unjust ends, particularly when a wealthy and well connected person is pulling the strings.

And NO, I will not agree there is enough evidence to obtain a protective order. The order was granted based on my being arrested on false charges, nothing more, charges I was subsequently found not guilty of by a jury.

The presumption of "innocent until proven guilty" is a hallmark of the criminal justice system in this country. So, a 'not guilty' verdict at trial is in fact an affirmation of ones 'innocence' of the crime with which they were charged.

I'll add too, my dictionary defines innocent as: "Not guilty of a specific crime or offense; legally blameless"

Unless you can address these points without resorting to quoting from some obscure and irrelevant California penal code dealing with 'factual innocence', further debate on this subject is pointless.

charlie

 

[stephenk]

here is section (c) that you conveniently ignored:

In any case where a person has been arrested, and an
accusatory pleading has been filed, but where no conviction has
occurred, the defendant may, at any time after dismissal of the
action, petition the court which dismissed the action for a finding
that the defendant is factually innocent of the charges for which the arrest was made. A copy of such petition shall be served on the district attorney of the county in which the accusatory pleading was filed at least 10 days prior to the hearing on the petitioner's factual innocence. The district attorney may present evidence to the court at such hearing. Such hearing shall be conducted as provided in subdivision (b). If the court finds the petitioner to be factually innocent of the charges for which the arrest was made, then the court shall grant the relief as provided in subdivision (b).


so in your situation, to be found factually innocent of the charge of stalking you would need to file a petition with the court to be found factually innocent. you would need to provide proof that the prosecution had no cause whatsoever to even bring charges against you. Then, if the court agrees with you, the prosecution is allowed to present evidence in support of the charges that were brought against, for example, you calling the women over 500 times in a one hour period, or the shrine of her pictures you had in your bedroom that were taken in her bathroom.

if the court agrees that the prosecution had sufficient evidence to charge you with the crime, then the court will NOT find you factually innocent of stalking. it will determine there was sufficient evidence to charge you with the crime and leave it at that.

the result of the finding of not being factually innocent means the woman can bring a civil action against you for your acts including the restraining order she currently she has against you. (you know the one you are currently fighting.)

Nyah, Nyah, Nyah!

 

[I AM ALWAYS LIABLE]

My response:

I personally enjoy using "neener, neener, neener" when making my points with opposing counsel. But, since Charlie Naval isn't an attorney, "Nyah, Nyah, Nyah!" is perfectly suitable for someone like him who doesn't know what the hell they're talking about.

IAAL

 

[stephenk]

when you use the neener quote do you also put your hands on each side of your head and do the the moose horns? that works great during a deposition.

 

[stephenk]

i really enjoy charlie the philosopher's use of logic - show me where not guilty means not innocent. okay, you showed me, but the penal code you cited is obscure and irrelevant in my opinion, therefore you have not shown me any proof.

 

[I AM ALWAYS LIABLE]

when you use the neener quote do you also put your hands on each side of your head and do the the moose horns? that works great during a deposition.

My response:

Wow!

I wouldn't have thought so, but our litigation mannerisms are quite different. I guess, that's the difference between Plaintiff's counsel, and Defense counsel. You see, yours is obviously the manner of Defense counsel. While in depositions (or even from Plaintiff's table in court), I, on the other hand, prefer the more effective method of placing my thumb to nose and waggling my fingers! If it gets really bad, I ask the judge for permission to approach the witness, and will do that simultaneously with a "raspberry" and spit all over the witness!

IAAL

 

[stephenk]

i wonder if Charlie the Economic Philosopher will respond?

 

[charlie neville]

Of course I'll respond...

...not to inane, sophmorphic and off topic posts though.

I've seen the two of you make these bullying efforts before. Are you two so unsure of your selves that you must resort to this?

Should either of you choose to continue to debate the original contention, I'm more than willing.

We must get beyond the "neener, neener, neener" and the "Nyah, Nyah, Nyah!" crap though!

Else, I'll see you later!

charlie