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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.

If you have been charged with a Felony offense you should seek legal counsel right away even if charges have not been filed yet.  The difference between a Felony offense and Misdemeanors are serious and can have a  lifelong impact on your freedom, ability to obtain employment in the future, and even your ability to vote, or own a handgun. 

As a former probation officer, deputy district attorney, and adjunct criminology instructor, and an Attorney that has obtained not guilty verdicts in five different counties, I have the knowlege of the system to make sure you are represented adequately and if at all possible kept out of prison.

THE DIFFERENCE BETWEEN FELONIES AND MISDEMEANORS

There are many differences in California between the two crimes.  The main difference is that you cannot be sent to state prision for a misdemeanor. You can be sentenced to local jail depending on the severity of the crime.  You can be sentenced to six months for some crimes and one year for other crimes.  If you are convicted of certain a "violent misdemeanors" such as domestic violence battery and several others you right to own a firearm can be restricted for up to ten years minus a court order stating otherwise if your job requires a firearm.  

CONVICTION OF A FELONY OFFENSE CAN MEAN PRISON TIME

A conviction of a Felony offense even a first time offense could result in jail time.  There are many other consequences, such as losing the right to vote, losing the right to own a firearm, and many others.  And for many people the most important part is that you can go to prison for a Felony.  Even a first offense.  And even if you are given probation. 

MISDEMEANOR VERSUS FELONY PORBATION

What many people do not realize about Felony probation is that they are getting what amounts to a kind of stayed prison term.  What that means is that if they violate there probation they could go to prison for that term.  They are getting what is referred to a no initial state prison term.  That does not mean you will never be sent to prison that just means right now you will not be sent to prison. 

FLASH INCARCERATION

For more minor violations you could go for a short stint in the local county jail. However, if you continue to violate your probation officer could recommend you be sent to state prision for a term to be decided by the Judge.  If you sign for a Felony conviction you could, even if you do not commit another offense go to state prison.  Only for the most minor offenses will your probation officer go the route of "flashs incarceration" which means a short corrective stay in jail of usually 10 days to correct your behavior wihtout having to come before the Judge.  

LOCAL PRISION COMMITMENTS

Under 1170 H certain Felony incarcerations are to be served at the local level rather than state prision.  What this means is that you are a sentenced local prision commitment than you will not be transported to state prision you will serve out your prison commitment at the local jail.   This could be good for several reasons you will be getting half time which means for every day you get a day credit.

And there is a presumption for what is called a split sentence.  

WHAT IS A SPLIT SENTENCE?

What a split sentence is a sentence for example: You are sentenced to sixteen months in local jail.  The time would be split in half.  Meaning 8 month in jail and 8 months on supervision. This means that you could be out in four months which equals 8 months and is the split in time. 

If you were sentenced to prison and say it was a crime not eligible for local time.  You would be sentenced to sixteen months and must do the eight months followed by a parole term. 

If you have any question give us a call at 559 441-1418. 

 

If you have been convicted of a crime you may be able to get that offense expunged from your record.  We have helped many clients expunge crimes from there record and get the help they need in getting a new start on there life.  

All cases are different and you need to speak with us regarding the specifics of your case. One thing that is a misconception about expungements is that they will dissapear from your record.  This is not exactly true.  Although there is new legislation in this area in regards to Juveniles making your record dissapear is difficult.  What an expungement will do is show as an update on your record. What this means is that the offense will show on a livescan or on a record check as an expunged crime. This is different from sealing or destroying your records as is happening under many sealed or destroyed petitions in Juvenile Court. Please read my blogs on thos subject. 

WHO IS ELGIBLE FOR AN EXPUNGEMENT?

If you are charged with certain Misdemeanor or even Felonies you can petition the court for an expungement, or ask for an early termination of probation and expungement at the same time.  

See my article on early termination of probation and expungements.

If you are not currenlty charged with a crime 

not on probation or parole 

did not violate your probation-in some cases you can still get expungement on this see an attorney

and a few other factors will be taken into consideration by the court. 

The court will then either grant or deny the request.

Sometimes the court will deny but give a future date to return and get the expungement done.

The court will sign an order and the order will be sent to the Calirornia Department of Justice and an update will be entered into your clets or criminal history showing the expungement. Also, you will have a copy of your minute order that will  show the expungement. 

 

WHAT IS THE EFFEC OF THE EXPUNGEMENT?

The effect of the expungement means that private employers cannot use that conviction as a basis for denial of employment. 

However, for state licensing purposes for jobs that require licensing such as nurses, doctors, lawyers, etc. they can ask for this information.  And for jobs in any area considered a peace officer position, including local and state corrections and working as a juvenile corrections officer. 

FURTHER INFORMATION 

If you have any further questions regarding expungements do not hesitate to call our office and we can help you.  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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