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If you have been arrested or charged with Misdemeanor domestic violence you need to get an experienced Attorney that has helped poeple in the local Fresno court system. 

As a Criminal Defense Attorney with more than 14 years of experience I can help you get through this difficult legal system.  There is a big difference in how you will be punished by the system if you take a plea deal or are convicted of domestic violence after a trial.

One of the biggest differences is the difference between Misdemeanor and Felony Domestic Violence.  

Domestic Violence under PC 273.5 is a wobbler offense.  Allowing the DA discretion to charge as either a Felony or a Misdemeanor.  This allows the court discretion to reduce a Felony to a Misdemeanor even over the objection of the prosecution usually after a preliminary hearing or probable cause hearing.  

Whether you are charged with a misdemeanor or a Felony will depend on the nature or seriousness of the truamatic condition and/or your criminal history.  

As a Misdemeanor or a Felony, you can be sentenced as follows:

First as a Misdemeanor 

Fine: up to 6, 000 usually much lower than this.  

Probation: Summary probation however, because it is domestic violence your probaiton will be supervised unlike many other misdemeanors.  Jail time.  although at least in Fresno many times depending of course on the particulars of your circumstances you will have in custody time. 

You will have a 52 week batterer treatment program you must complet

Community service will usually be ordered. 

And you are facing up to one year in jail if you do not abide by these terms.

and there will be a restraining order in affect for 10 years you will be served in court. Also, you can get this restraining order lifted if you are doing well.  The court will determine how well you are doing based upon your reviews which are set at 3 month increments.  If you are doing well then sometimes the restraining order can be lifted early.  

FELONY

Up to $6,000.00 fine

Formal probation officer with search and seizure terms and a prison sentence if you violate the terms of probation.

restraining order up to ten years the same things apply as to the 52 week batterer treatment program and the terms of the probation.  

there are enhancements that are applicable to Felony cases such as having a conviction within 7 years, or being armed at the time or causing great bodily injury.  

great bodily injury adds 3 years to your term and could result in felony and then an enhancement if you are convicted agains within a certain amoun of time.

If you have any further questions give us a call and we will continue with more blogs related to domestic violence. 

 

 

If you have been arrested for domestic violence you should contact our office as soon as possible.  You need experienced counsel.  Having handled hundreds of Domestic Violence cases over more than 14 years of experience I have the knowlege to help you through this time. 

In getting to how much time you could be facing for domestic violence there are several questions. 1. Is the crime a Misdemeanor or a Felony and was there Great Bodily Injury alleged and what is your prior history.  

IS THIS A MISDEMEANOR OR A FELONY?

If you are charged with misdemeanor domestic violence charge the maximum you could recieve is 364 days in counyt jail. Also, you will be ordered to attend domestic violence 52 class and you will have a restriction to where you cannot own a firearm for a 10 year period and there could be othe consequences and fees and fines. 

FELONY DOMESTIC VIOLENCE 

A conviction for a Felony Domestic Violence is a much more serious offense. You could either revieve probation, which may include up to 364 days in the county jail plus a probation term of supervised probation for a period of 2, 3 or 5 years and fees and fines, plus a 52 week batterer treatment program in addition to fees and fines.   If you are sentenced to prison you could recieve either 2-3 or 4 years in state prison.  

If you are given probationa fail to do the 52 week batterer treatment program or do not abide by your terms and conditions of probation you could have your probaiton revoked an be sent to the state prision for the above described terms.  

IS THERE GREAT BODILY INJURY ALLEGED?

If there is an allegation of greate bodily injury alleged that could add to  your term of up to three years in state prision.  In addition, great bodily injury is a strke and a violent offense, meaning your sentencing credits would be different it is also much more difficult to get a probation term if you are convicted of great bodily injury.  So you wold be subject to the underlying penalty of 2,3, or 4 years and you would be subject to another 3 years for the great bodily injury if that crime is alleged and you would have strike meaning any subsequent felony would be doubled up and all counts would run consecutive rather than concurrent (meaning at the same time) unless all the counts arise from the same course of conduct without seperate victims at seperate times.  

This means there is a wide variety of ways you could be punished for the maximum, however, these all depend on your prior record for domestic violence and other crimes the amount of damage and so forth. Sometimes the court will even look at domestic violence incidences that have not resulted in a conviction.  These could all come into play and many times the sentencing on these type of offenses become very complex.  That is why you need somoene that has been down this road before and understands the complexities of the system. As a former probation officer, deputy district attorney and having tried more than 50 cases, and handled hundreds of domestic violence cases I can help you in this time get through this. The reason I do this job is to get people through the difficult times like these when your freedom is at stake.  So give us a calll we will set up an appointment and sit down with you to get the right representation for you depending on the facts of your case and what your goals are as to the representation and what is needed to get you through this.  My phone number is 559 441 1418. 

If you have been arrested for domestic violence you should contact an Attorney right away to protect your rights.  As a former probation officer, deputy district Attorney and an Attorney for more than 14 years I can help you get through this.  

Below I will discuss the elements of the offense of Misdemeanor domestic violence and then the maximum you could recieve for a conviction and some of the consequences and maximum sentence for misdemeanor domestic violence.  

ELEMENTS

1. Defendant committed battery upon Victim. 

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

243 E 1

MAXIMUM PERIOD OF CONFINEMENT

The maximum period of confinement for this offfense is 364 days. in the county jail, you cannot be sentenced to state prison for a misdemeanor. 

Now that just means the maximum the Judge does not have to and usually does not impose jail time for a first offense.  Yould be given alternative work program time, which depending on the offense, the injuries, and prior record could be as little as 10 days.  This means you will have to pick up trash under the direction of the local sheriff and have some other consequences. 

WILL MY GUN RIGHTS BE AFFECTED?

Yes you cannot own or posses a handgun for a period of 10 years.  The statute in Penal Code section 243 e States in part. 

Any person who has been convicted of Section 243 e and who within 10 years of the conviction, owns, or has in his possession, or under his or her possession a firearm is guilty of a public offense. 

Therefore, by being found guilty or pleading guilty to this offense there will be consequences to your driving privilege, and you will be unable to have or possess a gun for a period of ten years.  

COULD THERE BE A RESTRAINING ORDER?

Yes there may also be a restraining order in effect which you must abide by or you can be charged with a new and different offense because of the violation of the terms of that restraining order.  

WILL I HAVE TO DO A 52 WEEK BATTERER TREATMENT PROGRAM?

Yes when you are either convicted or plead guilty you will be required to complete a 52 weeek batterer treatment program.  Sometimes after you have completed a certain number of classes the Judge can modify some of the restrictions on your restraining order making it easier for child custody drop offs and so forth. 

Usually you will be ordered by the court to appear for reviews of your case.  At these reviews the court will evaluate your progress to see how you are doing since your conviction. Have you been going to your classes, have you abided by the terms of the restraining order, have you attended and completed your court ordered alternative work program hours.  If you have not done these things the court could order you to be taken into custody to serve out your sentence in the county jail.  up the the maximum of 364 days.  If you have been in compliance than the court could lessen some of the restrictions that you have regarding restraining orders, and so forth.  The court cannot order your guns returned you must turn over to a third party that properly fills out the paperwork or to a licensed gund dealer,  I would suggest a licensed gun dealer that knows the law and how to handle some of the complexities of the gun laws.  

If you have questions you could give us a call at 559 441-1418, and we can help you through this. And give you the representation you need. 

If you or a loved one has been charged or is being investigated for a drug crime such as 11379 of the Health and Safety Code you need an experienced Attorney that has dealt with the often complex and difficult area of the law. 

As a former probation officer, deputy district attorney, and a criminal defense attorney with more than 14 years of experience I have the knowlege and experience to handle these type of cases. 

 

FIRST LETS LOOK AT THE STATUTE

1  Defendant transported sold, furnished, administered, or gave away a controlled substance

2. Defendant knew of the controlled substances presence 

3. Defendant knew it to be a controlled substance. 

Many times how this will occur is someoene is driving down the street and the police are tipped off that the car contains narcotics.  The police pull the car over a dog sniff reveals the presence of the drug or in in the case of the Highway Patrol, the person signs a waiver of this Fourth Amendment rights at the scene in and searches the vehicle finding the illegal substances lets say Methemphatamine for example.  

At this point several things will happen including the police will attempt to speak with both the police and tell them where you got the drugs etc. 

 

CAN THE CASE BE PROSECUTED BY THE FEDERAL GOVERNMENT UNDER MANDATORY MINIMUMS

The short answer to that question is yes depending on the amount of illegal drugs found.  Say for example its usually about two pounds for a kilo.  The more weight you are in possession of the more of a chance you have of being prosecuted by the Federal Government throught the US Attorney.  If that occurs you would be subject you to mandatory minimums of at least 10 years in a Federal prison. 

PROSECUTION IN STATE COURT

Usually in state court what is called a weight enhancement will be added to your charge.  

11370.4B1  ENHANCEMENT METHAMPHETAMINE OVER 1 KILO

So lets say you are charged with that enhancement which adds a 3 year enhancement to your sentence you would be facing a maximum of Seven  years in local prision. 

ARE YOU ELIGIBLE FOR LOCAL  PRISON

The answer to that is yes.  Under the provisions of 1170H you are eligible for local prision commitment. 

DOES THE WEIGHT ENHANCEMENT MAKE YOU INELIGIBLE FOR LOCAL PRISON

No it does not this is a crime where you could still serve local time even with the weight enhancement. 

This has a very big impact on the sentencing choices for the Judge the Judge could give what is commonly referred to as a split sentence.  A split sentence means for example that you would get say a 3 year term of 36 months you would server 18 in and 18 on post release community supervision through local probation.  

There is a presumption for a split sentence, and the split does not have to be 50 percent in and 50 percent on supervision it could be 2 years in and 4 on post release community supervision for example. 

CAN THE WEIGHT ENHANCEMENT BE STAYED BY THE JUDGE 

Yes the weight enhancment can be stayed by the Judge and if he does could make the sentence much lighter usually in the case where the amount was very close to the limit.

CAN YOU RECIEVE PROBATION 

Yes you can recieve probation the court would have to find unusual circumstances, and then weigh the probation factors under penal code section 4.414 if after both finding unusual circumstances or the interest of justice would prevail and after going through the factors in 4.414 the court may enter a grant of probation even with the weight enhancement not being struck.  This depends on all the factors of the case and is frankly where an experienced Attorney is needed to show the Judge whey this case should be treated differently.  Such as low amount of weight, first time offender, and a lot of other fators.  

As you can see this is a complex area of law and if you have questions give us a a call at 559-441-1418.

If you or a loved one has been charged with Domestic Violence you should seek legal counsel as soon as possible.  As a former probation officer, deputy distict attorney with more than 14 years of experience, I can help you through this.  

I have handled hundreds of domestic violence cases in Fresno including Felony and Misdemeanor cases.  

You need experienced counsel.  I have that experience to help you if after reading this article you still have questions give us a call at 559 441-1418.  

 

COMMON DEFENSES TO DOMESTIC VIOLENCE

1. False Accusation 

Many times we have cases where the accusation was proven to be either false or completely taken out of context with no physical evidence to back up the story.  Believe it or not these cases are often taken to trial.  

2. Insufficient evidence

There could be insufficient evidence to conivict you.  This could be lack of Injury, no visible injuries, no inedpendent witnesses, no 911 call, 

3. Lack of cooperation from the alleged victim.  Now there is a lot of misunderstanding about this.  First, the myth that an alleged victim can drop charges against the person they made the claim against.  This is not the case.  The District Attorney and only the District Attorney will decide if they will drop the charges with an uncooperative victim.  Sometimes there will be enough evidence wihtout his or her testimony to go forward with the case.  Such as body cam evidence, witnesses, visible injuries, past domestic violence disputes that fit a pattern etc. 

4. Self Defense many times a person can be defending themselves and get charged with domestic violence.   We have even seen cases where the person had defensive wounds a story that was corroborated and is still charged with domestic violence.  If you were defending yourself from attack you could be charged with domestic violence even though you were defending yourself.   

There are many other defenses to domestic violence that we could go through here and have gone through in seperate blogs.  The main thing is that you get an Attorney right away.  Waiting and letting the supposed evidence pile up with a one sided story is never a good idea.  Defenses sometimes get worse as they go along due to witnesses taking off a one sided story being presented to the prosecution etc. 

Sometimes even before charges are filed we have had success with getting favorable evidence to the prosecution through statements and physical evidence such as pictures etc. and other evidence that is so overwhelming the prosecution does not file charges.

The way a cases usually works is that the police arrest and investigate and then give the results of that investigation over the District Attorneys office.  The District Attorneys office makes a choice regarding whether or not to file charges and what charges will be filed.  This depends on a lot of different factors.  Sometimes a Warrant can be issued for your arrest by passing the prosecutors office completely.  This is when the Detectives go to  a Judge and ask him to sign a warrant for someones arrest based upon propable cause.  However, it is still the prosecutors job to prosecute or not to prosecute.  This part cannot be bypassed.  Sometimes you can convince a prosector not to go forward with a case even if a warrant has been filed for your arrest. This is another reason you should seek legal counsel right away.  Many times your choices and options are limited the further you have gone in the court process.   The more the prosecution has invested in the case the more difficult it will be for them to simply drop charges.  So if you have been accused or arrested of domestic violence give us a call.  

Here I will be going back to some of the blog ariticle on Homicide with an article on Felony Murder.  

As a former Army, and Army National Guard Military Policeman, Probation Officer, Deputy District Attorney and Crimina Defense Attorney with more than 14 years of experience trying several Homicide cases I have the know how to give you the best defense possible even in very complex cases such as Felony Murder.  

WHAT IS FELONY MURDER

When a person kills another person (regardless of the inent to kill ) in the commissiono an inherently dangerous felony he or she is guilty of first degree murder.  As long as the death was forseable. 

NO INTENT TO KILL NEEDED

The prosecution does not hav to prove intent to kill only intent to commit the underlying inherently dangerous felony. 

 

DEFENSES NOT AVAILABLE IN FELONY MURDER CASES

The defense of Self Defense in Felony Murder cases is usually not available which could have a huge impact for your case.  Getting a self defense instruction in a Homicide case is vital.  This is because for example if you are committing a Robbery and the person being robbed fights back and you kill them this is not self defense number 1 and number 2 self defense is  not applicable and you would not get the jury instruction for self defense because the prosecution because only has to prove the intent to commit the underlying crime.  Meaning he has to prove your intent to commit the Robbery and not the intent to kill and part of Robbery is resisting the attempt to stop you from committing the Robbery is the force element needed for Robbery.  

If you have any further questions you could 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
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