In a lot of TV shows, you see the detectives or officers responding to a call of a bar fight or domestic disturbance. When they arrive, the alleged victim says that they don’t want to “press charges” and the cop tells the suspect: “it’s your lucky day, Bob doesn’t want to pursue charges against you for punching him in the face after he told you the Chargers should leave San Diego.”
Unfortunately, there is a misconception that an alleged victim (also sometimes referred to as “victim” or “complaining witness”) has the power to decide whether someone is criminally prosecuted. When someone commits a crime, it is against “the public,” specifically, the state of California; thus, the charging document (i.e. criminal complaint) will be titled: “The People of the State of California v. John Smith.”
There are times when I am contacted by an alleged victim of a domestic violence dispute. He or she will tell me that they told the officers they didn’t want their loved one arrested and would not be pressing charges, but their loved one got arrested anyways. I will explain that when the officers arrive on scene, they will make a judgment call about whether there is probable cause that a crime has been committed. If the answer is “yes,” an arrest will very likely occur. The officers will then proceed to write a report regarding their investigation (e.g. third-party witness statements, alleged victim statement, pictures, etc). Most of the time, those reports will be forwarded to the prosecuting agency. In San Diego County, reports of arrests for misdemeanors that occur within the city limits of San Diego will be forwarded to the San Diego City Attorney’s Office for prosecution. Felonies within the city limits and the rest of the county are prosecuted by the San Diego County District Attorney’s Office.
Once the prosecuting agency receives the reports, they will review and make a filing decision. They can either file charges recommended by law enforcement, different, more or less severe charges. The prosecutor issuing the charges must have a good faith belief that the charges can be proven beyond a reasonable doubt. Ultimately, the decision of whether to file or “press” charges is within the sole discretion of the prosecuting agency. There are four branches where a criminal case can be filed: North County (courthouse located in Vista at 325 S. Melrose Drive); East County (courthouse located in El Cajon at 250 E. Main Street); South County/ South Bay (courthouse located in Chula Vista at 500 3rd Avenue) and Central/ Downtown (courthouse located in San Diego at 220 W. Broadway).
Each case is different, of course. During the “case review” stage, there are circumstances in which the prosecuting agency realizes they need one witness to be able to meet their burden. If that witness does not wish to participate and/or provides conflicting information, that may affect the prosecutor’s decision of whether to file charges. But again, if the state of the anticipated evidence allows the prosecutor to prove the case without that witness, then they can proceed. It is worth pausing for a moment to highlight something important: attempting to dissuade a witness in a criminal case is a crime! See Penal Code 136.1 (136.1 PC). This crime can be filed as either a misdemeanor or a felony (if it’s filed as a felony, it is considered a strike felony, specifically a serious felony).
So beware of learning about the criminal process (or your rights) from TV or from a cousin, who knows a guy, whose daughter is a patent lawyer. Do your research and/or contact a criminal defense attorney