Today Lindsay Lohan appeared in court and her attorney Shawn Chapman Holley, was ordered to prepare for a preliminary hearing on the theft charges regarding a necklace from a Venice, CA jewelry store. At this time it will also be determined whether she is in violation of her probation on her original 2007 DUI charge. The judge would have discretion whether to sentence her on both and has indicated that if Ms. Lohan entered a plea in his court she would be facing jail time.

All defendants who are charged with felonies are entitled to a Preliminary hearing at which the prosecution has to demonstrate that it has sufficient evidence to require the defendant to stand trial on the charges. The burden of proof is very low meaning that the prosecution must show minimal evidence to prove the elements of the crime and the likelihood that the defendant did it. Even if contradictory or inconsistent evidence is admitted on key issues, the matter will be held for trial because a question of fact will exist as to those issues.

The Los Angeles County District Attorney’s Office has a policy regarding its "Early Disposition Program." This means that a plea offer given prior to the preliminary hearing is supposed to be the best offer the defendant will get, and they advise that the offer could get worse, if the case proceeds to preliminary hearing. This means that the attorney must be really prepared, aware of all facts and circumstances pertaining to the allegations, the investigation, the evidence and the client’s condition and state of mind. This, minimally is required in order to fully defend a client and determine whether the plea offered is appropriate or whether there is a valid defense that should be pursued on behalf of the client.

Law Offices of Sara L. Caplan

P.O. Box 3335

Beverly Hills, CA 90212

Office: 310-550-5877

Fax: 310-362-0411

www.saracaplandefense.com

A civil compromise is a way to resolve a criminal case by ending any criminal proceeding with no conviction and providing full restitution for the victim. A civil compromise can be worked out in any case where the victim affirms under penalty of perjury, usually in a written Declaration, that he or she has been fully compensated for all damages from injuries sustained due to any conduct by a defendant or suspect in a criminal case, that they do not desire to pursue criminal charges against the defendant or suspect, that any such criminal charges should be dismissed, or not filed and that they will not testify against the defendant or suspect in any related criminal case. The court has the ultimate discretion whether to accept a civil compromise if a case has been filed. The prosecution has the discretion whether to file a case or not if a civil compromise declaration is presented to them prior to a case being filed.

Civil compromises are typically seen in cases involving personal injury or property damage like-assault, simple hit and run, shoplifting. However, negotiating a civil compromise can be tricky and should be undertaken only by experienced counsel-for many reasons. First, defendants and suspects can waive their Fifth Amendment constitutional privileges by making statements to the victim or victim’s counsel which can ultimately be used against them if the case does not resolve civilly.

Additionally, as was seen recently in the case involving Mel Gibson and estranged girlfriend, who is also the mother of his youngest daughter, there is a very thin line between negotiating a civil resolution and extortion. Simply, extortion or blackmail is the use of fear, by unlawfully injuring a person or his property, by accusing someone of a crime, by exposing someone to disgrace or by exposing any secret, to obtain property or money, or cause that person to give up a right they would otherwise have (such as reporting a crime or being a witness). Prosecutors and police are now investigating whether to bring charges to Mel Gibson’s former girlfriend Oksana Grigorieva, over negotiations between the parties attorneys concerning highly inflammatory and prejudicial tape recordings of Mr. Gibson.

In many cases civil compromises work very well and are easy resolutions which do not result in a criminal record. This is an especially good option for someone who has no record beforehand and/or who has a professional license which would be at risk due to any conviction.

When there is a victim involved in a criminal offense, resolving the matter becomes more complicated. A person or entity is a victim of a crime if they have sustained personal injury or property damage as a result of someone else’s criminal conduct. Protecting and compensating a crime victim is a primary responsibility of the prosecution and the court, and will be a required component of any negotiated resolution and sentence.

In personal injury cases such as domestic violence, hit and run, assault, battery, rape and murder, the victim and/or their family are entitled to restitution as well as protection from further harm. Theft, burglary, shoplifting, robbery are also cases in which victims are compensated for their losses and may involve a combination of personal injury and property damage or loss. A criminal court will issue a restraining order against a defendant to protect the victim from any further harm from the defendant. This order will remain in effect throughout the pendency of the case as well as throughout any term of incarceration or probation.

For example, Chris Brown did not attend the Grammy Awards primarily because a restraining order had been issued by the court which handled his assault and battery case against Rihanna who was a performer at the Grammy Awards. Such restraining orders prohibit a defendant from being in the same location as the victim and usually have a required distance they must stay apart. Occasionally a victim can request that the restraining order be lifted, which is usually the case if they have mutual children or they desire to reconcile. It is still within the discretion of the court whether to lift any such order.

There are similar stay away orders issued in shoplifting cases which require a defendant to stay away from the store and the premises from where merchandise had been stolen. These stay away orders remain in effect during the defendant’s entire sentence of incarceration and/or probation.

Restitution will be ordered to compensate a victim for personal injury, property damage or loss. Restitution will be ordered by the criminal court as part of any sentence, regardless whether there is related civil litigation for the same matter. However, restitution ordered in a criminal case is for compensation of actual loss including medical bills and work loss, cost of the property damaged or taken and will not cover emotional or physical pain or suffering.

In many cases where a victim’s damages can be compensated, there is a provision under California Law to resolve the case by way of a civil compromise in lieu of criminal proceedings. We will discuss this procedure in a future blog.