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CA Law, Criminal Police Investigation report legitimate to use to prosecute Defendant if Report Failed to list Witness at scene

Hanford, CA |

Only Victims and their statements tooken, Officer never listed or got any info from the witness that was there, yet he did ask witness permission to take pics of crime scene, which was not even the residence of the witness. This was an alleged DV case along with a knife being pulled out for self defense against the agressive attacking victim (father of the DV Victim - which there was never any DV just a domestic dispute and disagreement to use victims vehicle) But assumptions and coehercing of officer led him to exaggerate DV , due to a minor scratch on victim that was not caused by that incident when only victim and defendant were at the scene). DA went fm 12yrs to 4yr PB, defendant denied,. taking to trial. The morning prior to Prelim hearing, DA PB 16mo for 422 PC. ?? MISTRIAL???

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Attorney answers 6


It is very difficult to know if a mistrial occurred just based on the facts you provided. I would have to read the transcripts of the proceedings at the least.

As to your second question, yes, sixteen months is the minimum term for a violation of Penal Code section 422 (criminal threats).


Often witnesses are not listed. Some refuse to talk, some don't give statements and some just walk away. It sounds like a there may have been a plea-which really changes what you are asking. It is confusing what stage you are at and procedurally what occurred, therefore a more complete answer cannot be given. However, all in all, an issue would exist if statements were given and not provided. But if no statements were taken it may be because they refused to talk. They can testify at trial if they wish.

This is not intended as individual legal advice and there is no attorney client relationship established by this answer. It is advisable that you seek individualized legal assistance. This is not a substitute for hiring an attorney.


I agree with my colleagues--more information is needed. If no trial has taken place, there cannot be a mistrial. If you are referring to the fact that the DA changed the offer, that happens all the time, particularly if the district attorney realizes his or her case is weak or is having trouble getting the victims or witnesses served with subpoenas.


Mistrial? Not on these facts. Missing witness in police report can do nothing but help the defendant and should be used to claim a fraud upon the court. When you can get the police to be on your side then you should do it at all costs. Here the cop has to testify that the witness was not in his report. Exploit the situation. I wish you the best.
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It sounds like you are not quite at the mistrial stage yet. A mistrial can only occur after or during trial and you seem to be at a pre-trial stage. It's not uncommon for a DA to make better offers as he/she realizes that it will be difficult to prove the charges in the complaint or information beyond a reasonable doubt.

16 months is the mitigated term on a PC 422, which is criminal threats. Unless the defendant has a prior strike, he will get day for day credits and only have to do 8 months out of the 16. However, PC 422 is a strike offense. Therefore if the defendant takes the deal he will have a strike on his record, which will remain on his record for life. Further, the defendant would have to do his time in state prison and not county jail, unless he gets probation.

Were there any witnesses who can help prove this case was about self-defense (against the victim's father?) Will the victim give a statement about the scratch not stemming from DV? I think further investigation would be fruitful in determining whether or not the defendant should plead to a felony offense -- especially a strike offense.


It is a weak case and the DA knows it. They just want to hang a conviction on you like a leash.

My name is Stephen R. Cohen and have practiced since 1974. I practice in Los Angeles and Orange County, CA. These answers do not create an attorney client relationship. My answers may offend I believe in telling the truth, I use common sense as well as the law. Other state's laws may differ.. There are a lot of really good attorneys on this site, I will do limited appearances which are preparation of court documents it is , less expensive. However generally I believe an attorney is better than none.