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This is a continuation on some of my earlier articles on the law of Homicide.  If you or a loved one are charged with Homicide  you should call right away so that we can start to help you as soon as possible.  

WHAT IS CAPITAL MURDER

First Degree Murder with special circumstances as defined in Penal Code section 190.2 subdivision (a)(1)

2. First Degree Murder with a prior murder of either first or second degree.  Penal Code 190.2 a 2

3. Multiplle murder, at least one of which is of the first degree, in the instant proceeding (Penal Code sectin 190.2 subd. a3. 

one of which is of the first degree, in the instant proceeding. 

If the trials are severed and the defendant is convicted of a second degree murder in the first trial and a first degree murder the special circumstances applies, and the person is subject to the death penalty.  if the defendant is convicted of First Degree Murder in the first trial and second degree murder in the second trial then they are not subject to the death penalty. 

there are also some other death penalty eligible murders such as murder by explosive device, such as a murder of a police officer in the performance of there duties.

 

There are also several other murders which fall under this type of eligibility for the death penalty.  I will be continuing this series of articles as to other types of murder and death penalty eligible cases. 

I will be doing a series of articles on the law of Homicide.  I will continue with the law of manslaughter and the absence of Malice defenses.  If you or a loved on has been arrested for any Homicide related case you should get an experienced Homicide Attorney.  I have tried more than a dozen Homicide cases including five first degree Murder cases.  This is not a crime where your local dui guy can handle give us a call. 559-441-1418.

Penal Code section 187 defines Murder is the unlawful killing of a human being by another or a fetus with malic of forethought. 

THREE TYPES OF MURDER

Capital Murder, First Degree Murder, and Second Degree Murder.  

DEGREES OF MURDER

1ST DEGREE MURDER

PC 189 All murder which is perpetrated by means of a destructive device or explosive , a weapon of mass destruction, knowing use of ammunition designed primarliy to penetrate metal or armor, poison , lying in wait, torture, or by any other kind of willful deliberate and premiditated killing or which is committed in the perpetration of, or an attempt to perpetrate, arson, rape, carjacking, robberry,kidnapping, train robbery, carjacking and several other crimes.

SECOND DEGREE MURDER

Second degree Murder, is the unlawful killing of a human being with Malice of forethought.  but without the additional elements, such as willfullness deliberation and premeditation.  that would support a conviction of first degree murder. 

the  unalawful killing of a human being by another is the most serious crime in the penal code and has no statute of limitations.  The law is complex and very interesting.  we will discuss the defenses to these homicide crimes in later articles we will go through the homicide law and then the defenses and I will even discuss some of the many homicide cases that I have personally handled.  Some of which have garnered local, state, and even interanational press, due to the complexities of the cases and there newsworthiness. 

You can look at some of the press interviews regarding these cases on the in the news portion of the website.  There you will see how difficult and complex these cases can be.  You are in the right spot we can get your family member through this process, and have the wealth of experience from having been down this road and handled homicide and atttempted homicide cases in four different counties and having achieved aquitalls in willful premiditated first degree attempted murder case and first degree murder cases.   

The reason I do this job is to get families through the worst experiences of there lives with these type of charges and help them to the best of my abilities.   As stated above, I will go through the entire law of Homicide and Murder and then go through some of the defenses.  

Before I go further in that if you or a loved one are being investigated for Murder it is imperative that you get cases specific advice as soon as possible. Even if you feel that self defense is readily available as a defense you must speak with an Attorney as soon as possible before speaking with Law Enforcement.  If you speak with Law Enforcement first you must realize they are not your counsel they may not have your best interest in mind. They are not paid to be your counsel or Attorney they are paid to investigate crimes.  This includes if you are a witness to a Murder or a Homicide you should immediately seek experienced legal counsel to represent your interest. 

So if you have any questions after reading this article do not hesitate to give us a call at 559 441 1418. 

When the new year rang in California's recreational pot laws have taken affect.  California has broad new legalization of Marijuana for recreational use under new laws that take affect on the new year.  Remember California was the first state to legalize medicinal Marijurana use and the law was criticized for being under inclusive and abused at the same time.  The move came almost two decades after the State was the first to legalize medicinal Marijuana.  

California joins the state of Colorado and the District of Columbia in legalizing the recreational use of Marijuana.  

THE FEDERAL LAW STAYS THE SAME

There has not been a change in the status of Marijuana at the federal level.  In fact, the Federal government still clasifies Marijuana as a drug on the same level of PCP, LSD, and heroin. 

there will be an affect on the Calfornia economy as the tax revenue from the sales of Marijuana will probably exceed 1 Billion although those estimates have been disputed. 

 

THE NEW RULES

You must be 21 years or older and must buy from a licenses authorized dispensary.  in an earlier blog I went over some of those exact laws and limitations on this in my article on prop 64 and the changes and penalites etc.  

In some cities there will be confusion because you will not be able to find dispensaries open that are licensed and up and running.  That is because the licensing process for those buinses which can be difficult even for an experienced Attorney  to navigate are so onerous that locals cannot meet the requirements by the January 1 legalization date. local regulation will not be approved in time for the Jan 1 date.  This includes in larger cities such as Los Angeles and San Francisco. 

LOCALLY

In Fresno has banned the sale of recreational pot and it is unclear how they will handle people that decide to ignore this law. (I would not and am not advocate anyone ignore laws) I have seen people do this to face steep penalties and cost.  Also the source of the Marijuana must be legal again creating regulatory problems that must be cleared up and only time will tell how these problems are dealt with. 

If you have any question do not hesitate to call 559 441-1418. 

 

If you have been arrested or involved in a Domestic Violence situation it is imperative that you get legal advice as soon as possible.  Many times you will be arrested or questione and believe that you do not need the advice of an Attorney this is not true.  Domestic Violence cases are more involved than they appear. 

There is a misconception that if the alleged victim of domestic violence does not testify that somehow the case will be dismissed.  This may or may not be true and it depends upon the factual circumstances of the cases before the court.  

For example if there are independent witnesses to the alleged domestic violence incident, those witnesses can be called into court, and testify as to what they have witnessed.  

Also, any statements that the person alleged to have committed the domestic assault makes to law enforcement can be used agains the person that made the statement.  

Medical Records can be used to show there was an actuall injury and there could also be expert testimony.  

Has there been previous incidences of alleged domestic violence? if there has been previous incidences of domestic violence under some circumstances those can be 

As you can see it is very difficult to know exactly when a domestic violence case will be dismissed and depends on the factors listed above. 

 

If you have been arrested for domestic violence or a related charge.  You should call us immediately at 559441-1418.   When you are arrested for domestic violence you should know that even if it is a misdemeanor arrest the repurcutions could be big, including restraining orders, turning over guns, and you must be present at your court appearances even for a misdemeanor domestic violence case.  Usually, you can hire an Attorney to make all court appearances for you in a domestic violence case.  However, if you have been charged with domestic violence you must be personally present for your court appearances, at least the first court appearance.  Usually you will be served with a protective order at that appearance. 

As you can see you definitely need experienced legal counsel to help you through what could be a very difficult process.  

 

If you are charged with certain crimes or are the subject of a restraining order you will be probibited from owning or possessing firearms.  Pursuant to Penal Code section 29800, The California Department of Justice provides a form for individuals who are prohibited under the law from possessing firearms such as 1. any person who was convicted of a felony, a specified misdemanor, or a specific firearms offense.  2. Any person who is addicted to Narcotics; 3. any person who is the subject to a protective order; or 4. any person who was found bya  court or menatl health facility to have certain mental disabilities.  There is a list on the DOJ website of all people prohibited from owning or possessing firearms.  

The exact duration of the prohibitions vary and there could be subject to federal law which may or may not be more restrictive than the states restrictions.  

The prohibition against firearm possession is effective immediately upon the occurence of the prohibition even sucha s the date of the conviction or the date when a protective order is issued.  and that prohitbition requires immediate relinquishement of all firearms.  

There is a form that gives the person a power of Attorney over firearms The form helps people who are prohibited from owning firearms to transfer the firearms, relinquish or sell the firearms on behalf of the person so that the person prohibited from owning the firearm can sell or get rid of the firearms on behalf of the other person.  

This doesnt transfer ownership but instaed gives the other person the power to deal with the firearms.  

A person subject to a protective order (as defined in Family Code section 6218) is subject to special rules.

1.  Within 24 hours of being served wiht notice of the protective order, surrrender all firearms to the control of local law enforcement officials, or sell the firearms  to a local licesnsed gun dealer immediately or transfer to a licensed gun dealer.  and immediately surrender the gun to law enforcement officer upon the officers request.   Family code section 6389 sub c 2.

2.  Within 48 hours of recieving the order, provide proof to the court that issued the order that all firearms have been relinquished.  

if a person has a power of attorney for firearms relinquishment, sale or must relinquish the firearms to local law enforcement officials, or sell the firearms, to a licensed gun dealer on behalf of the gun owner within the times set forth above so that the gun owner is able to comply with the law.  

in other cases that do not involve a protective order but or a more specific court order the person with the power of attorney for firearm relinquishement, sale or disposal, must do one of the following: 

1. Take the firearm to a licnesed firearm dealer so that it can be sold or transferred.

2. Surrender the firearm to a California law enforcement agency so that it can be held for the purpose of safekeeping. 

3. Surrender the firearm to the California law enforcement agency for the purposes of destruction. 

4. Under no circumstances does the transfer to a power of Attorney allow the person to possess firearms past the 30 day period. 

special rules apply to assault weapons.  

If you have any more questions please call us 559-441-1418.

This article will be dealing with the extradition process for someone if they are considered a fugitive of justice.  If you are in a Calfornia Jail, either here in Fresno or somewhere else you should seek legal help immeditiately.  

There are strict timelines that must be adhered to in the processs. 

1st if there is a identification issue. There will be a hearing within 10 days to determine the identity of the person is the correct person.  In other words if the person is the person listed as the fugitive of Justice.  This can be done through fingerprints, photographs, or through circumstantial evidence, many times in court the tattoos and other identifying information will be looked at and booking photos etc. After that the state has 30 days to come pick up the person.  This time period can be longer if the Judge orders an additional 60 day hold. 

there are two types of extradition

1. Exradition From Calfornia 

2. Extradition to California.

 

For example extradition into California typically means you committed a crime in California and either fled the state or left while out on bail and you are picked up in another state. 

In the other situation you are being held in Calfornia for a crime that has allegedly been committed in another state and that state wants you back.  

 

If you hav committed a crime in California and flee to another state for example several steps will take place regarding the extradition.  

Before California will demand your return, it will weigh the time and expense of having you returned to California against the the severity of the crime alleged to have been committed.  

If California decides to extradite you they must 

1. Issue a proper demand for extradition

2. send and agent to pick up within 30 days.

3. bring you back to the state to 

answer charges 

be sentenced 

or be reincarcerated

If you are incarcerated here in California, it is required that California actually insures you are the person being sought before the extradition.  

there must be a proper demeand from the home state

an issuance of a governors warrant

conducting a probable cause / identification hearing to ensure you are not being falsely accused or improperly subject to extradition.

there are certain conditions when you can post bond

have the case resolved here while incarcerated in california 

or prove tha you are not the person being sought.

Sometimes clients will want to voluntarily surrender to the home state especially if the charges are serious and they are unikely to be bailed out pending the outcome of the case.  

If you have any questions let us know and give us a call 559-441-1418.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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