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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1805
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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To keep you updated.....So my ex wife tried to use the incident

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To keep you updated.....So my ex wife tried to use the incident of the alleged Loitering or Prowling Charge and A Chance Meeting on my Birthday in December as her two incidents required by the Statutue for granting someone a Restraining Order. She was offered prior to the hearing by my Attorney a Mutual Agreement of Restraint since it was proven in court that we had a 14 year non violent History and Friendship including for a full year after we were divorced as we continued to date. She had a MUTUAL Agreement explained to her by the Judge as well and she declined both times. The judge believed our defense and stated that not even ONE Incident let Alone TWO required were proven that she was in any way shape or form in danger or harm or harm to her property so Her Injunction for the Restraining order was DENIED....So she could have had something at least with the Mutual Agreement but instead she walked out of court with nothing. I have not had any form of contact with her nor do I plan on doing so any time in the future. I am glad the Judge didn't allow her to abuse the System by giving her a legal piece of paper to entrap me in to a violation of a Restraining Order......Now on to the original Pending Criminal Charge. My Attorney...took care of the Arraignment and entered a plea of Not Guilty....and Now I received notice to appear in Court on May 13th for a Calendar Call. My Attorney says I MUST attend this first meeting....but then she will file papers so she can make future appearances for me without me attending however....being the nervous person I am...and want this to be done and not have any convictions on my Record....Could you please explain what a Calendar Call is? What is going to take place during this hearing....Secondly, my ex wife did not have any attoney with her at other hearing. Is your opinion that this is going to get dismissed still the same???
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Jim Reilly replied 7 years ago.
Hi again Larry and welcome back. Glad to hear that the civil case worked out so well from your perspective.

As you probably know, the burden of proof in a civil case (preponderance of the evidence) is lower than in a criminal case (beyond a reasonable doubt). Though the issues with respect to loitering or prowling are somewhat different than those related to a restraining order, this nevertheless bodes well for the criminal case.

"Calendar call" is nothing more than the the calling by the court of all the cases scheduled in that court on any particular day. Cases can be on the calendar for a variety of reasons -- arraignment, status or readiness conference, disposition discussions, hearings on pre-trial motions, trial itself, and post-trial proceedings such as post-trial motions or sentencing.

Since you have been arraigned, I would expect that this would be a status or disposition type hearing, at which the attorneys can discuss the case between themselves and/or with the court. If no resolution of the case is reached, it could then be set for further status or readiness conference, pre-trial motions and/or trial.

Part of the reason you have to be present for this hearing is the possibility that a disposition could be reached which would require your participation (particularly if it is to be a guilty plea -- which is not to say that I think that likely in your case -- just that the court requires defendants to be present because most cases do result in a guilty plea of some kind).

The fact that your wife had no attorney at the civil proceeding should not make any difference in the criminal case. It, of course, will be handled by the prosecutor and she will not need her own attorney for the criminal case.

As I mentioned above, the fact that the judge denied the restraining order is a good indication that the supposed loitering or prowling isn't much of a case. However, you should be aware that you could commit such an offense without actually creating any danger to your ex-wife, so the elements of the two cases are somewhat different. It still seems to me that the criminal case should either be dismissed or, at the very least, the subject of a deferred prosecution which would ultimately result in a dismissal.

Your attorney should be able to give you a more specific and detailed analysis of the possibilities, as she is able to review all of the reports and knows the local prosecutors and their proclivities.

Thanks again for asking your question here on JustAnswer and for getting back to me with this follow up. If you have any other questions about the situation, please let me know.
Customer: replied 7 years ago.
Thank you for your prompt response....I know it is difficult to understand my way of thinking and the personal elements as you don't know me or my ex wife. I realize she did not need an attorney for the Civil Injunction but could have hired one as I did. Secondly I realize that the State Prosecutor will be handling the case not my ex wife. However , on the personal I mentioned to Ex Wife has a mother that was a former state prosecutor for domestic violence crimes....and even if she didn't think she needed an Attorney for the Civil Case...She would have called her Mom in a possibly even attend the hearing for her or at least hire an Attorney for her. The reason that I KNOW she didn't and attended because she didn't want her mother to hear possible information about our 1 year history of dating after divorce and the contact has been mutual even the Night of Our DIVORCE. So after seeing all the witnesses and evidence we had at the Civil would be hard to believe that my Ex would Cooperate with the State...and press Charges and go through more embarassment and lying. According to my Attorney if SHE doesn't press charges the State has no Case. If the Witness who called the police (Who never identifyed me or left his address on the police report) doesn't want to get involved..the State has no Case...Also the police officer did not give me time to explain my reason for being at her home...and in the Civil Case I was given that Opportunity and ONE Judge obviously believed that and denied the Restraining Order. ex was offered protection in a mutual agreement...if she really was frightned by me Why Not Take it...instead of leaving the Court with NOTHING.. So I know you can't give me the Peace of Mind I am looking for...But My Attorney Promises Jail Time will never be an issue..believes strongly this will be dismissed....and says they are not gonna throw a first time offender of a petty crime like this that was a $25 Jail...However I am still a nervous wreck..I be fired from my Job of this is anything less than a dismissal on my Record....I appreciate your input...Larry
Expert:  Jim Reilly replied 7 years ago.
You're welcome, Larry, and thanks for the additional information. Based on what you've said here, I suspect you may be right about your ex-wife's lack of desire to cooperate in the prosecution of your case.

Without her testimony and if the other witness is not known to the police, then I agree with your attorney that the DA really doesn't have a case. I also agree with your attorney that jail time is extraordinarily unlikely for this offense, even if you do somehow get convicted. The fact that bail was $25 is a pretty good indication that this is not considered a jail time offense.

Try not to be too nervous -- it seems quite likely that your attorney will be able to get you out of this without a conviction and without any damage to your employment.
Customer: replied 7 years ago.
Well maybe I spoke too soon...My attorney called today to say she received the Discovery from the Prosecution and My Ex Wife and the name and address of the witness who called in the complaint were listed as witnesses for the prosecution. My attorney says she now has to depose them and the fact that my ex wife and the witness are listed on the Discovery. It made me a nervous Wreck that the State Attorney has already contacted them and they are willing to cooperate?? My Attorney tells me this is not necessarily true and that is why she will subpeona them for depositions. She again assures me this is not a jail time case and assures me that she will not let this go to trial...that this is just a long process that I shouldn't over think this or I will make myself sick..and assures me she will fix this? My ex wife has nothing to gain for herself by cooperating except causing more time away from work for her and once again being put thru similar torture she went through in the civil case. Whatever the Discovery scared the living daylights out of me and I have not been able to calm down as the only resolution that will be acceptable by my employer is a dismissal. I have a totally clean record and at 50 yrs old I am scared of the outcome scarring my future. Your input on this is muche appreciated...Larry
Expert:  Jim Reilly replied 7 years ago.

Your attorney is correct, the fact that the potential witnesses are listed in the discovery documents does not necessarily mean that they are willing to cooperate.

It also does not mean that the prosecutor has contacted them already. It just means that their names were included in the police reports that were submitted to the prosecutor.

You really should rely on what your attorney is telling you (including the part about not thinking about this too much!).

I have to admit that I don't understand why your employer has such an interest in this situation, unless you have some kind of security clearance, special license or work in some particularly sensitive job. But, you should also try not to worry to much about this aspect of the situation either (particularly since worrying will not change the process or the result). I understand that you may be finding it difficult not to worry, but it sounds like your attorney has a good handle on this. Let her do the worrying -- that's part of what you are paying her for.

If you have other questions as this goes on, please let me know.
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