The case stems from an incident that was caught on video on Oct. 20. A woman was walking near the corner of Broadway and Linden when she passed by a transient sitting on the sidewalk.
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As she walked by, he stood up and, with his pants unzipped, approached her from behind and lifted up her skirt, rubbing his genitals against her. He then shoved her to the ground.
Long Beach sexual assault highlights concerns about violence near Metro stop
Miguel Avila was arrested a short time later.
The Los Angeles County District Attorney's office reviewed the case but declined to file felony charges.
The woman who was assaulted spoke with Eyewitness News, expressing suprise and outrage at the DA's decision and urging the office to reconsider.
"It's mind blowing because nobody in their right mind thinks this is anything but attempted rape," Rebekah Pederson said. "Nobody in their right mind. Not one person."
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After the DA's decision, the Long Beach City Prosecutor's Office took over and filed a misdemeanor count of sexual battery, the most serious charge it is authorized to file in this case.
The 30-year-old was arraigned last week.
City prosecutors have asked Los Angeles County District Attorney George Gascón to reconsider filing felony charges.
"The LADA has the option to file felony charges, including attempted rape or sexual assault with intent to commit rape. Felony charges can only be filed by the LADA since the Long Beach City Charter only allows the LBCP to file misdemeanor charges.
The District Attorney's office told Eyewitness News they will take another look at the case, based on additional information including a new witness, to determine if felony charges should be filed.
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Pederson is stunned that the video footage itself wasn't already considered sufficient evidence.
"He's going to actually rape somebody," she said. "He will. He just hasn't been successful yet."
If Avila is charged with a felony, he faces increased jail time.
He is being held on $75,000 bail and is expected in court Nov. 8 for the misdemeanor charge.