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If you or a loved one has been arrested or charged with Domestic Battery it is important you seek legal advice as soon as possible.  You should not make statements to police wihtout first getting legal advice and counsel. 

Domestic Battery charges are complex and require experienced counsel.  As an Attorney with more than 15 years of experience with Domestic Battery cases I can help you throught this time.

Domestic Battery cases involve several overlapping areas of law, including possibly custody matters, restraining orders, and criminal cases.  If you do not seek legal counsel right away you run the risk of violating even more laws and getting  yourself into further legal problems.  Below I will go through a brief outline of the law as to the most common domestic battery chages which are the corporeal injury to a spouse as both a Felony and a Misdemeanor.  

This charge is a wobbler which means it can be charged as either a Felony or a Misdemeanor.  I will briefly go through the elements for both.

FELONY

1. Defendant willfully inflicted corporeal injury on victim.  

2. Victim was either:

defendant's spouse or former spouse 

person with whom he or she is or was in a cohabitating with

fiance or fiance or someone with whom the offender has or previously had an engagement or dating relationship.  

the mother or father of his or her child. 

3. Corporeal injury resulted in a traumatic condition

MISDEMEANOR

1, Defendant willfully inflicted corporeal injury on the victim 

2. Victim was either: 

defendants spouse 

person with whom her or she was cohabitating with 

fiance or fiance, or someone with whom the offender has, or previously had a dating relationship 

the mother or father of his or her child. 

corporeal injury resulted in a traumatic condition. 

Another common charge in relation to domestic battery is the charge of 243 e 1 domestic battery upon a spouse.  I will go through the elements in those type of cases. 

1. Defendant committed battery upon victim. 

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

Pc 243e1

 

These are the most common charges when it comes to Domestic Battery all have there own unique defenses.  

One thing that may occur and I have seen happen on several occasions is that after an allegation is made the prosecutor will have the alleged victim phone the person they say battered them.  When this happens they are trying to elicit incriminating responses from the person on the phone.  These can be used as evidence against you. Because they are made at the behest of Law Enforcement they can be used even if you do not know you are being taped.  This is one reason you should get legal counsel even before your first court date there are many others. 

The district Attorney often has a small amount of information to go on.  Usually they do not have your side of the story. It is up to your defense attorney and investigator to fully investigate the case even before charges are brought and give that evidence over to the prosecution so that the prosecution has a more full picture of exactly what happened. 

This could include pictures, of your injuries

witness statements

and or video evidence that constradicts the statement of the accuser.  These type of things need to be done from the beggining of the case in order for you to mount an effective defense under any of the charges listed above.  

So again if you or a loved one has been arrested investigated or charged give us a call 559-441-1418.

 

If your child has been arrested or in custody at one of the local juvenile halls you need experienced representation for him or her.  Juvenile Law is much different than adult criminal defense and obtaining a lawyer that does not have extensive experience in the Juvenile Courts is not optimal. 

As an Attorney that has practiced criminal defense in Juvenile Court for more than 14 years and was a Juvenile Probaiton Officer, before becoming an Attorney  I have the knowlege to help your child.  Below I will discuss the Juvenile court process and will continue with further blogs about some of the programs in Juvenile Court.

DETENTION HEARING

The first appearance a minor will make will be a detention hearing.  At that hearing the court will read the charges to the minor and determine if the minor should be detained in the juvenile Hall or released to the parents or placed on some sort of supervision such as the global positioning system.   This hearing is similiar to an arraignment in adult court. 

WHAT FACTORS DOES THE COURT CONSIDER IN WHETHER TO RELEAS THE MINOR

The court will consider several factors as to whether to release the minor including:

seriousness of offense

whether there are gang allegations or membership

past juvenile petitions

possible substnce abuse 

minors school performance

WHAT HAPPENS IF THE MINOR IS DETAINED 

If the minor is detained an adjudication hearing must be set whithin 15 days unless there is a time waiver.  A time waiver may be necessary depending on the complexity of the case. 

IF THE MINOR IS RELEASED

If the minor is released then the District Attorneys office has up to 30 days to bring the minor to trial absent a time waiver.

WHAT CAN HAPPEN IF MY SON OR DAUGHTER TAKES A PLEA OR IS PLACED IN DIVERSION PROGRAM

There are several diversion programs available for minors I will discuss some of them below.

COLLABERATIVE JUSTICE PROGRAM (CJC) a program where the minor could meet with the victim face to face pay any resitution and if he or she successfully completes the program have the matter dismised and the record destroyed

INFORMAL PROBATION

Informal probation is a program where a minor usually with little or no prior history and where the interest of justice would be furthered can before plea enter a program with probation to perform certain taskes i.e. community service etc. and the case will be dismissed and the records eventually destroyed

DEJ PROGRAM

This is a more stringent program for felonies there are different statutes that deal with the destruction of records in dej cases.  Usually these cases have more serious charges attached to them.  The prosecution will actually provide a sheet that states is the minor is eligible.  The minor will have to enter into an admission to the charge.  And then there will be a report from probation as to whether probation believes the minor is suitable for the DEJ program and the court will make a determiniation.  If found both eligible and suitable then the minor will be given certain things that he must do to have the matter dismissed and later expunged with a possibility of destruction of those records.   If the minor is not suitable then he or she can take back there plea and have the case set for trial or enter into a plea.   These destruction of records statutes are different from the statutes for informal or cjc program. 

These are just some of the programs availabe there is also juvenile drug court, behavioral health court, and many other options available to the minor.  If you have any qeustions give us a call 559-441-1418.

If you have been charged with domestic violence you should call our office as soon as possible.  With more than 14 years of experience as a Criminal Defense Attorney, and having handled hundreds of domestic violence cases, I have the know how to help you through this time.

WHAT IS A WOBBLER OFFENSE

A wobbler offense is a crime that can be charged as either a Felony or a Misdemeanor offense.  This is a critical distinction.  The reason is that if your crime has originally been charged as a Felony depending on the circumstances the crime may be reduced to a Misdemeanor as part of a plea bargain. 

WHAT IS A WOBBLER OFFENSE FOR DOMESTIC VIOLENCE

A good example of a wobbler offense is the offense of an alleged violation of Penal Code section 273.5.  

The elements of this offense are the following: 

1. Defendant willfully inlicted corproreal injury on victim.

2. Victim was either:

Defendant's spouse or former spouse 

Person with whom he or she was cohabitating with or

fiance or fiance or someoen with whoim the offender has or previously had, an engagement or dating relationship.  

the mother or facther of his or her child. 

3. Corporeal injury resulted in a traumatic condition.

This crime can be punished in the state prison for 2,3 or 4 years or Felony probation. 

or As a Misdemeanor meaning the crime wobbles down. 

This is a good thing. For example if the case begins to weaken, meaning the proseuction does not believe they can prove traumatic  injury or the victim is not cooperative. The prosecution can simply amend the charge to a misdemeanor count of P.C. 273.5. 

This means you would not have to be a convicted felony lose your right to vote and subject yourself to state prison possibilities. 

if the case is a Misdemeanor then the worst that could happen even if you violated your terms and conditions of probation would be up to a year in local jail. 

You would still have a 10 year restriction on the purchase of a firearm and would have to complete a 52 week batterer intervention program.  However the most serious consequences such as state prison and the loss of voting rights and loss of firearm rights for life would not be applicable.  

If you have been accused of a felony 273.5 you should give us a call and we can help you through this.  

If you have been charged with a misdemeanor offense and you are a veteran you have certain rights that may be afforded you.  One of those rights is to be treated in the military diversion program.  Penal Code section 1001.80.

WHAT ARE THE REQUIREMENTS FOR MILITARY DIVERSION  PROGRAM

A defendant who is charged with any misdemeanor offense and who satisfies the admission criteria, may be placed on diversion prior to adjudication.  A defendant is eligible if 1) he or she was or currently is a member of the United States Armed Military 2) The defendant may be suffering from mental health problems and other trauma including PTSD, and 3) the trauma resulted from military service, unlike Penal Code section 1170.9 , there is no formal eligibility requirement that the offense conduct resulted from the military service trauma, though such showing would be influential to the court in deciding whether a veteran should be diverted.    The Judge will decide if there is an appropriate and available treatment program, and if diversion is appropriate in the interest of justice. 

the court will suspend criminal proceedings during the completion of the diversion program.

Within two years of the grant of diversion, upon motion by the defendant demonstrating satisfactory  completion of the diversion program the judge will dismiss the criminal charge.  Additionally the arrest upon which the diversion was based shall be deemed to have never occured, with the exception being the application to be a peace officer, in other words if you are applying to be a peace officer in any capacity you must still disclose the arrest.  If you have been arrested or are charged with a misdemeanor offense and you are a veteran you should contact an Attorney immediately to asses  your rights.

If you are a veteran you may have certain rights you need to be aware of when entering into a plea or otherwises being sentenced for a crime.  As a Veteran myself and someone that has been helping veterans my entiere career I have the passion and experience to help veterans.  Especially veterans that may be facing the effects of having serving.  Many of our veterans today have served multiple deployments overseas. 

IF YOU ARE A VETERAN WHAT ARE YOUR RIGHTS AT SENTENCING?

Under Penal Code section 1170.9 subdivision (a) provides that if a defendant alleges that he or she committed an offense as  a trauma, injury, or other problem stemming from serivice in the United States military, the court shall, prior to sentencing, make a determination as to whether the defendant was, or currently is, a member of the United States Military and whether the defendant may be suffering form .... problems of his or her service.  The court may request through existing resources, an assesment to aid in that determination...

VETERANS AFFECTED BY THERE SERVICE MAY HAVE THAT CONSIDERED AS A FACTOR IN WHETHER TO GRANT PROBATION

Subdivision (b)(1) of section 1170.9 provides that an offense committed as a result of a trauma, injuyr, or other problem stemming from service shall be considered "a factor in facor of granting probation." Thus, the defendant veteran must satisfy he nexus requirement -i.e. it must be shown that the offense resulted from a military service trauma.  

Subdivision (b)(2) states the court may order the person into a treatment program "for a period not to exceed that period which the defendant would have served in the state prision or county jail.  ... Subdivision (e) provides that defendants committed to residential treatment programs "shall earn sentence credits for the actual time the defendant serves in residential treatment."

YOU DO NOT HAVE TO PARTICIPATE IN THE FORMAL VETERANS COURT PROGRAM TO RECIEVE BENEFITS OF THIS  NEW LAW

Subdivision E goes on to state that the services outlined above do not have to be part of a formal veterans court program, to recieve the benefits of the law under penal code section 1170.9

IS PENAL CODE SECTION 1170.9 RETROACTIVE?

Future legislation may take Penal Doce section 1170.9 retroactive, thereby providing more than 6,000 incarcerated veterans an oppurtunity to ask the Superior Court for a resentencing in light of trauma, injury, or other problems associated with their military service.  

If you or a someone you know is a veteran whose criminal act may have been the result of trauma from military service there is help in both rehabilitation and sentencing so give us a call if you have questions 559441-1418.

If you are a veteran of the armed forces or are currently on active duty you may have certain rights that you are afforded under new statutes and case law that you should be aware of.

These rights can help you get your life back on track and offer extensive help to people that may be affected adversely affected by there military service.  As a former Army, and Army National Guard Military Policeman and Persian Gulf War Veteran I am passionat about helping Veterans.  

SUBDIVISION (H) (1) of section 1170.9 states "it is in the interest of Justice to restore a defendant who acquired a criminal record due to mental health disorder stemming from service in the United States Military to the community of law abididing citzens." If the court finds the defendant satisfies the criterial set forth in (h)(1)(A) through (E), the court may grant restoritive relief.  (Penal Code section 1203.4 relief.  (Penal Code 1170.9, subd. (h)(4)(c) through I.  In other words, the veteran who recieves this relief has greater rights than a non-veteran defendant.

HOW ARE VETERAN RIGHTS DIFFERENT UNDER EXPUNGEMENT STATUTES?

The veteran who recieves section 1203.4 relief has greater rights than a non-veteran defendant such as the right to have the arrest record completely sealed.  (Penal Code section 1170.9 subd. (h)(4) which states: A dismissal pursuant of the court, order sealing of police records of the arrest and court records of the dismissal action, thereafter only viewable by the public only in accordance with a court order.) this is  great benefit for veterans that may be dealing with some of the problems associated with there mililtary service.  Such as ptsd and some of the problems associated with that disorder. 

If you are a veteran you should call us so that we can start to get some of the documentation you will need to start to take advantage of some of the changes in the law which could help you to turn you life around.  

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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