Orange County Criminal Defense

Lindsey Lohan — Celebrity Justice

Lindsay Lohan’s exploits in court are always good fodder for the tabloids.  Yesterday, Lohan was sentenced to 120 days jail on a DUI probation violation and her grand theft charged was reduced to a misdemeanor.  First, let me explain what is occurring in her case.  Lohan had an original DUI conviction for which she was placed on probation.  While on probation, she is not allowed to commit new crimes, such as theft.  Stealing a necklace would’ve violated her probation.  Probation violations though don’t need to be proved beyond a reasonable doubt and don’t require jury trials.  That’s important because the judge can find a person in violation of probation before the jury trial on their new criminal case — which is exactly what happened here.  However, before a probation violation can be found, there needs to be a probation violation hearing (or the defendant must admit the violation).  In this case, Lohan’s probation violation hearing was run concurrently to her preliminary hearing, which basically means the preliminary hearing was used for two purposes — as a preliminary hearing and as a probation violation hearing.

Since Lohan was originally charged with felony grand theft (which used to be theft exceeding $400, but is now theft exceeding $950), she was entitled to a preliminary hearing, where the DA is required to present evidence that the crime occurred.  The standards of a preliminary hearing are similar to those of a probation violation hearing and some DAs will ask the judge to run the probation violation hearing concurrent to the preliminary hearing so that the court can find someone in violation of their probation before the trial starts.  This type of procedure is not common, but it can be used as a tool by prosecutors to leverage defendants into pleading guilty instead of having a trial.

This is definitely what happened in Lohan’s case.  She had her preliminary hearing and based on the evidence presented at the preliminary hearing, the judge found Lohan in violation of her probation and sentenced her to 120 days on the probation violation.  Lohan’s attorney appealed that decision and when someone appeals a sentence, bail is sometimes possible — and Lohan can easily afford the $75000 bail.  At the preliminary hearing, the judge also has the power to reduce the charge from a felony to a misdemeanor, over the DA’s objection, pursuant to Penal Code section 17b.  This can only happen in wobblers — crimes that could’ve been charged as misdemeanors from the beginning.  Grand theft is a wobbler.  Now that the judge has reduced Lohan’s crime, it will always be a misdemeanor.  The DA’s office can’t raise it back to a felony.

Lohan’s appeal of her probation violation will be difficult.  The standard for a probation violation is by a preponderance of the evidence, not beyond a reasonable doubt.  That means if the judge thought 51% of the evidence was against Lohan, she’s in violation of probation.  There would have to be an abuse of discretion for the judge to be overturned on appeal.  Lohan is probably just wasting her money with an appeal, but then she obviously has money to burn.

The reduction from a felony to a misdemeanor, though, is very surprising and this is an example of how celebrities are treated differently.  There’s no way an average joe will have his grand theft charge involving $2500 reduced to a misdemeanor after preliminary hearing, especially while on probation for an underlying crime.  The judge’s comment that she sees a “level of brazeness” with Lohan’s conduct regarding theft, coupled with her decision to give Lohan a chance by reducing the felony to a misdemeanor, only makes sense in the wacky world of celebrity justice.

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