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Many times people are arrested for crimes and never even charged more less convicted of the crime.  This could have serious consequences.  The Bail Bondsman will not refund all of your money and sometimes none at all.  The police may have had wrong information and in some cases, may have acted without probable cause. 

WHAT HAPPENS IF I AM ARRESTED AND NOT CHARGED?

This occurs more than you may think.  Many times poeple are arrested and no charges are filed by the District Attorneys Office.  The District Attorneys office is soley responsible for who is charged with most crimes in a particular county.

If this happens you may be confused as to what happened.  Sometimes the District Attorney will give the reports back to the local agency that arrested you and ask for more information.  Other times the District Attorneys office will simply tell you they have made a decision to not file charges against you. 

If this happens you will not be charged for that particular crime and the District Attorneys office does not have to give you specific reasons as to why they are not filing or going fowrard with charges.  Many times they will simply say there is insufficient evidence to proceed.  

DOES THE ARREST STILL SHOW ON MY RECORD?

This is a difficult question in the age of computers where almost everything shows up somewhere.  It used to be that only certain law enforcement agencies had access to what are commonly  referrred to as "rap sheets" or arrest without convictions.  However, now witt live scans and such it seems more people are gaining access to these records which  is problematic

NEW CALIFORNIA LAWS AND CHANGES TO LABOR CODE

 LABOR CODE SECTION 432.7 

LABOR CODE SECTION 432.7 IS AMENDED TO READ AS FOLLOWS:

An  employer whether a public agency or private individual or corporation shall not ask an applicant for employment to disclose through any written form or verbally about an arrest that did not result in a conviction.  This includes his participation in any pre-trial diversion programs. (mental health diversion, or drug diversion where they successfully completed the diversion program.  

WHAT ABOUT EXPUNGEMENTS?

The biggest change is bill 432.7  is the effect of the law on expungements when a crime is expunged the employer can no longer as about this conviction as it has been set aside and not a subject for a potential employer there are a lot of exceptions to this law and an Attorney should be consulted before you fill out job applications and turn them in.  

WHAT ABOUT JUVENILE ADJUDICATIONS?

Juvenile adjudications are not considered convictions in the same way that adult convictions are considered convictions; therefore, they are not considered convictions for the purpose of having to disclose the conviction.  There are some exceptions to this rule and again an Attorney should be consulted regarding your specific legal rights before you make a decision as to whether you should disclose something and nothing in  this article is meant as specific legal advice as to what you should be doing in a specific circumstance with these changes to the labor code it makes it easier for people who have turned there life around to able to gain employement and re enter the workforce if they had a case where they were arrested and not charged or had something that was expunged or a juvenile adjuidication.  If you have any questions about these changes give us a call and we can help you.  

Call us at 559441-1418, and we will walk  you through this. and help you to put this behind you and get the employment that you need.

 

 

If you or a loved one is seeking an expungement give us a  call at 559-441-1418, we can help you with this process.  As a criminal defense attorney with more than 14 years of criminal defense experience I have the experience to help you witth you expungement.  Below I will talk about what effect and expungement has on your record and what an expungement will not do and the process of expungement.  

 

WHAT EFFECT DOES AN EXPUNGEMENT HAVE ON YOUR RECORD?

Many  people believe that after an expungement that nobody will be able to find there record.  This is not correct and any Attorney telling you this is not giving you an accurate statement of the law.  The expungement will not blot out destroy erase or make it so people will not be able to find the record.  

WHAT GOOD IS THE EXPUNGEMENT IF THE RECORD IS NOT DESTROYED?

This is a good point where again there is much misinformation out there.  An Expungment is always a good idea for your record to show that you have complied with the terms of the court and a update on your clets or rap sheet will show that the crime has been expunged.  Meaning the court has dismissed or set aside the criminal conviction.  This willl result in the defendant being able to truthfully state they were not convicted of a crime.  However, that crime may still show up in records or in a fingerprint check. Again the actual file will not be destroyed.  There will remain a court file a case number and maybe even fingerprints.  But again as stated above you may truthfully state you have not been convicted of a crime.  The court file will say set aside or dismissed.  Ways in which the conviction can still be used

 

1. Exunged convictions can still be used as priors and strikes

2. Exunge convictions can still effect your driving privileges

3. Exunged convictions can still restrict your ability to possess a firearm

4. Expungements do not affect sex registry.

WHAT STEPS DO I TAKE TO GET A CONVICTION EXPUNGED?

1.  First we determine if you are eligible for an expungement if you were sentenced to prision you will have to seek a certificate of rehab rather than an expungement. 

2. We have to check is you  have any outstanding misdemeanor or Felony cases.  If you do you will not be granted expungement.  You must wait until those matters are cleared and then seek an expungement. 

3. Also you cannot exunge federal cases in state court. 

4. If you have any outstanding warrants you must first clear those warrants. 

GOING OVER YOUR RECORD

Me or my staff would go over your court records and then make sure there is no innnacuracies or other problems that need to be dealt with before proceeding with the court process. 

We have to make sure we have the correct court name addresses, dates of convictions and so forth if there are innacuracies we need to clear those up to make sure we have an accurate record.  

We will submit the paperwork for the expungement and then get you a court date.  You will need to be present for that court date and we will discuss your case with the Judge and make the appearance for you.  

As you can see this is a sometimes difficult process we have had clients come to us that have attempted this process on there own only to be frustrated and not get the required work done. 

Instead give us a call and we can get you through this process we have helped many people before and we can help you.  Give us a call 559441-1418.

If you or a loved one has been accused of domestic violence give our office a call.  Domestic violence charges are complex and there can be several layers to the cases.  

As a former probation officer, deputy district attorney and somoene that has practiced criminal defense for more than 15 years I have the knowlege to help yo through this.  I have helped many hundreds of people through the same problems.  

WHAT ARE THE DOMESTIC VIOLENCE CHARGES?

Under Penal Code section 273.5 the crime is considered a wobbler which means the offense can be charged as a Felony or a Misdemeanor.  

The elements are virtually the same

THE ELEMENTS OF OF PENAL CODE SECTION 273.5

1. Defendant willfully inflicted corporeal injury on victim.

2. Victim was either 

defendant was either defendant's spouse or former spouse 

person with whom he or she was cohabitating with 

fiance or former fiance or somoene wth whom the offender has, or previously has had an engagement or or dating relationship 

the mother or father of his child 

corporeal injury resulted in traumatic injury. 

There is a another crime which you  may be charged with that is Misdemeanor battery upon a spouse. 

MISDEMEANOR BATTERY UPON A SPOUSE

Defendant committed battery upon the victim 

At the time of the battery, Victim was the defendants spouse or fiance, or an individual with whom the defendant currently had or previously had, a dating relationship.   

This offense is very similiar to the above described crime and both are serious there could be restraining orders, from the court regarding these cases they could also affect your ability to see your children or get custody of your children, and could have a lifetime impact on your ability to own or posses a firearm or buy a firearm. 

AFFECTS ON OWNING A FIREARM.

Under California law if you are convicted of any Felony you cannot own or possess a firearm.  For a non domestic violence felony if your felony is later reduced to a Misdemeanor per penal code section 17b and not through prop 47 you can again possess a firearm. 

However, under Federal law if you are convicted of a Misdemeanor of Felony for domestic violence you can not buy a firearm, in fact when you go to buy a firearm you will blocked during the background from getting the firearm.  This is a lifetime ban and what is worse is that this may even include conditional pleas to misdemeanor domestic violence cases. 

WHAT IS A CONDITIONAL PLEA

A conditional plae is a plea where you plead guilty and then the case is dismissed and a not guilty plea is entered if you meet certain criteria such as completing domestic violence awareness class anger management and such. This may still be a reason for the federal government to keep you from you fireram rights.  

In a different blog article i go through how you can defend yourself from domestic violence charges.  As you can see this is a very complex and difficult area of the law and you should call us a soon as possible after you have been charged or arrested for domestic violence.  Yous should not be talking to police until you have sought legal counsel as to your legal rights and responsibilities. 

If you have questions give us a call at 559 441-1418 and we can get you through this we have helped many people under the same or similiar circumstances in more than 15 years of law and of a helping people througout the state of California.  

If you have charges pending give us a call and it is best not to talk to police until you have spokent to a lawyer.

 

 

If you or a loved on has been accused of this crime the ramifications can be serious.  As a former probation officer and deputy district attorney with more than 15 years of experience representing people accused of crimes I can help you through this.  

 

WHAT IS A BATTERY CRIME?

California law defines battery as any willful and unlawful use of force or violence upon the person of another.  The crime of battery upon a spuse is a different crime and has even more specific ramifications under Penal Code section 243 (e) 1

WHO IS A VICTIM OF DOMESTIC SPOUSAL BATTERY

A current spouse 

a person with whom the defendant is cohabilitation with

A person that is the parent of the defendants child

A former spouse

A fiance

A person with whom the defendant currently has, or has previously had a dating or engagement relationship with

WHAT MUST THE PROSECUTOR PROVE FOR ME TO BE CONVICTED OF SPOUSAL BATTERY 243 E 1

In order for you to be convicted of this crime the following the prosecution must prove the following elements

1. That you willfully and unawfully touched the alleged victim in a harmful or offensive way

And

2. The alleged victim is your current or former spouse your current or former cohibitant your current or former fiance, or someoene you are having a dating relationship.  or someoene you have a child with.

WHAT DOES WILLFULLY MEAN?

Willfully to acti willfully means that you committed the violent act upon someoen on purpose and not by reason of mistake or accident.

COHABITANT

Is an unrelated person to you for a substantial period of time.  The following factors apply as to wether there is a cohabitant relationship.

whether there was a sexual relationhsip

whether there was shared income or expenses

whether you consider yourselves spouses or romantic partners or 

the length or continuity of the relationship. 

SENTENCING AND PUNISHMENT FOR SPOUSAL BATTERY CHARGES - CALIFORNIA PENAL CODE 243E 1

If you are convicted of charges you can recive 364 days in jail and face a fine of up to $2,000.00

you must participate in a batterers treatment program

and may lose your rights to buy a firearm for life under federal law. 

WHAT ARE SOME OF THE DEFENSES TO THIS CRIME?

SELF DEFENSE- if you are protecting yourself or someone els than this may be a defense to the crime.

FALSE ALLEGATION- if you did not willfully or unlawfully touch another person in a harmful or offensive nature than that is a defense to this charge.   

INSUFFICIENT EVIDENCE- If there is insufficient evidence to convict you of the crime beyond all reasonable doubt than this is a defense  to the crime of spousal battery.  If ther is no physical evidence of the harmful or offensive touching ever happening than this is a defense to the crime.  Many times proseuctors will be looking for specfiic things to help them in prosecuting these types of cases. 

Are there physical injuries is there picutures of the injuries? is there independent witnesses to the alllged act

is there a taped statement from the alleged victim did the alleged victim make a statement on police body cams that may be used a evidence. 

 

These are all the questions that a prosecutor will be looking into to determine if they will prosecute or turn down the case or refer the case for further evidence.  

These cases can be complex and confusing and these are only part of the issues you will be dealing with in a case like this it is imperative to call an experienced Attorney as soon as possible so that you can get solid legal advice give us a call 559-441-1418

 

 

 

As a former probation officer, deputy district attorney and probation officer with more than 15 years of experience  I have the experience to help you through your criminal matters we can get you through this. 

Below I will be explaining the law of statutory rape or the laws of unlawful sex with a minor. 

 

CALIFORNIA UNLAWFUL SEX WITH A MINOR (PENAL CODE SECTION 261.5) 

In California it is unlawful to engage in sexual intercourse with a person who is under the age of 18 years old.  This is a very serious crime known as statutory rape.  You could face prison time as well as even possible registration as a sex offender.  I have had success representing clients charged with such crimes in the past.  A 10 out Ten rating from AVVO. and excellent google reviews attest to our ability to help clients with difficult cases.  

WHAT ARE THE LEGAL ELEMENTS OF STATUTORY RAPE LAW IN CALIFORNIA 261.5

In order to convict you of statutory rape the prosecution must prove the following elements.  

 

1. You had sexual intercourse

2. You and the victim were not married

3. At the time of the intercourse the victim was under the age of 18.  

 

STATUTE OF LIMITATIONS ON STATUTORY RAPE

If you are withing 3 years of the victim then the case is a Misdemeanor and must be filed within 1 year. 

If you are more than 3 years older than the victim it s a wobbler offense meaning it can be charged as a Felony or a Misdemeanor and three years statute of limitations apllies however, under Penal Code section 803 the so called DNA exception if DNA is found the statue many not apply if after 2001 and dna was collected and analyized within 2 years of the offense.  

OVER THE AGE OF 21

If you are over the age of 21 and the victim is 16 or younger than the offense will always be a Felony. 

 

REGISTRATION AND STATUTORY RAPE

Many people wonder if they will have to register as a sex offender is they are convicted os statutory rape.  The offense is a discretionary offense meaning it will be complicated.  If the Judge found that the offense was as a "result of sexual compulsion, or for the purposes of sexual gratification then there could be registration involved. 

The bottom line is that is that it is not mandatory registration for the offense.  

DEFENSES TO THE CHARGE

Iti is a defense if you actually and reasonably believed that the victim was older than 18 her actions words and where the encounter occurred such as meeting in a bar go into the defense. it must be a good faith belief.

NO PENETRATION

If there was not actual pentration of the vagina then there is a defense to the crime.    

 

The bottom line is a reasonable person in the same situation as you would have believed that the person was 18 years or older at the time of the intercourse than there could be a defense to the crime.  As stated above all of the circumstances of the encounter will be looke at including wha the victim says at the time of the offense.  

Many people ask if it is illegal to date a person under the age of 18.  The statutory rape laws deal with intercourse and that is for a reason it is difficult to tell what someones motives are for being with somoene under the age of eighteen.  However once the relationship becomes sexual then there is a difference and a crime has been committed.  There could even be kissing or holding of hands but not sexual intercourse this would not be a crime but could be some other crime. If you have any questions give us a call at 559-441-1418.

 

 

 

 

 

If you have been accused of a crime many people believe they will automatically be sentenced to prison and have to do time.  That is not necessarily the case escpecially nowadays with many of the changes that have been made to sentencing laws in California.  

When a person accused of a crime takes responsibility and is willing to enter into some programs and complet things offered by the courts they may be able to get the case dismissed or serve there sentence in some fashion other than Jail. 

As a former probation officer, deputy district attorney, and a criminal defense attorney with more than 15 years of experience I can help you get through this part of your life. 

WHAT ARE ALTERNATIVE SENTENCES?

Alternative sentences can help both the offender and society as a whole.  Many people believe everyone is entitled to some form of alternative sentencing.   This is not true. 

There has to be a program that is suitable for you such as mental health court or military diversion or drug court and you must be willing to satisfy the terms.  Below I will share with hyou some of the eligibility requirements and programs that are available.  

ALTERNATIVE SENTENCING REQUIREMENTS

The Judge in your case will take many different factors into consideration in determining if you are eligible for alternative sentencing.  

Whether you are charged with a violent crime

Your previous criminal history

Whether you are currently on probation or Parole

Your prior success or failure at  probation or Parole

Generally if you do not have prior strikes IE serious or violent felonies and you have not been accused of a crime that disqualifies you then you may in many misdemeanor offenses and some Felony offenses be eligibible.

TYPES OF ALTERNATIVE SENTENCES AND DIVERSION PROGRAMS

I will go over some of the diversion and alternative sentencing programs below these are not meant to be exhaustive list. 

AB 1810

MENTAL HEALTH DIVERSION PROGRAM

1. The court must find a mental health disorder as definded in the dsm manual.

2. Mental Health played a significant factor in the offense. 

3. significant relationship between mental health charges and or significant relationship between d's homelessness and charged offense. 

4. Defendant waives time and consents to treatment. 

5. Defendant does not pose an unreasonable danger to the community

referral must be to a currently operating mental health court. 

CONSEQUENCES FOR NOT COMPLETING PROGRAM

There will always be consequences for not participating in the program such as reinstating the criminal proceedings.  If the client picks up new charges or is not working in the program.  

There must be a recent diagnosis by a mental health professional.  

Determining Unreasonable risk of danger section 1170. 18 The court can look at the persons prior history, the factors of this offense and other factors the court deems important.  

MILITARY DIVERSION PROGRAM

1. Be a current or former member of the military

2. Be sufferering from Military sexual trauma (MST) Traumatic Brain Injury (TBI) Post Traumatic Stress disorder (PTSD) Substance abuse or or Mental Health problems as a result of his or her military service.  

the defendant initiates the process by completing form ri-cr052 request for military diversion, this form may vary from county to county in some countys a request is made on the record to initiate the process.  The court will schedule a hearing to determine if the person qualifies and will be a good fit for the program  

EXCLUSIONARY CRITERIA

Individuals with a prior conviction for the same or similiar conduct are better served by a post conviction referral to the program which is also availaible in some counties.  

If you or a loved one has questions please give us a call at 559-441-1418.

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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