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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.

 

 

If you are being charged with a crime and will be having a preliminary there are many laws and regulations which deal with preliminary hearings.  Many times people are concerned with only the timing issues of a preliminary hearing.  In other words will I get my preliminary hearing within 10 court days or 60 calendar days of my arraignment, plea of not guilty or reinstatement of ciminal proceedings after competency finding.  We will adrress those issues later but lets start with what a preliminary hearing is, what evidence is allowed and the timing issues.  

 

INTRODUCTION

The primary purpose of the preliminary hearing is governed by Penal Code section 859 B.  and this section effectively provides the defendant with the right to a speedy preliminary hearing.  

PRELIMINARY HEARING BASICS

Usually a Felony case begins with a prosecutor filing a criminal compaint or a grand jury indictment,.  If a complaint is filed, a preliminary hearing is to determine if there is a sufficient or probable cause to hold the defendant to answer for trial.  If the Judge does not find sufficient or probable cause then the complaint should be dismissed.  The court may also reduce the Felony to a Misdemeanor per Penal Code section 17b.  

There is also a right to  a continious in one session preliminary hearing the preliminary hearing is in one continious hearing.  With no substantial breaks in between this can be waived by the defendant.  

The preliminary hearing is an evidentiary hearing. And the prosecution has the burden of showing of facts sufficient that would lead a reasonable person of ordinary caution to have a strong suspicion of the persons guilt. 

WHAT EVIDENCE IS ALLOWED AT A PRELIMARY HEARING

Unique to a preliminary hearing is the fact that hearsay from a qualified police offcer with five years of experience or who testifies to his training at the police academy can be allowed.  This type of hearsay would not be allowed at a trial.  This is what is commonly referred to as prop 115 evidene, referring to the propposition passed by voters in 1990. 

WHAT EVIDENCE MAY THE DEFENSE PRESENT AT THE PRELIMINARY HEARING

The defense has a right to call witnesses to establish an affrimative defense such as self defense. 

Negate an element of a crime such as an accident defense in an specific intent crime. 

Impeach testimony of a prosecutorial witness

or bring in there own law enforcement witness who can then bring in exculpatory hearsay. 

TIME LIMITATIONS 10 COURT DAY AND 60 COURT DAY RULES

10 DAY RULE

Under Penal Code section the defendant has a right to a preliminary hearing within 10 Court days of arraignment or plea of not guilt whichever occurs later.  

IN CUSTODY RULE

There must be a preliminary hearing within 10 court day or the complaint dismissed the prosecution may refile once.  And if the defendant is in custody on other cases than it is not applicable and the complaint will not be dismissed. The prosecution can establish good cause a necessary witness is unavailable or sickness so forth. 

60 DAY RULE

A  good way to think of the 60 day rule is apart and seperate from the 10 day rule.  The 60 day rule is not limited to in custody defendants.  The 60 day rule also utulizes calendar days rather than court days and again applies to both in custody and out of custody accused.  The only exception to the 60 day rule is if the defendant personally waives the 60 day rule with a time waiver.  The 60 day rule prevents postponing the preliminary hearing  even if the magistrate finds good cause for the delay.  

If you or a a loved one needs help we can get you through this.  call 559441-1418. 

 

 

 

 

If you have been accused of Domestic Violence you should get legal representation as soon as possible.  I have been representing clients in domestic violence cases for more than 15 years.

As a former probation officer and deputy district attorney I know the ins and outs of the system I have also been a criminal defense attorney for more than 15 years and can get you through this time if you have been accused of Domestic violence.

Below I will outline the offense of Domestic Violence and some of the defenses.  These defense are not meant to be exhausitve  and if you have been accused of a crime you should seek legal counsel as soon as possible.  

the following elements are of 273.5 And can be charged as either a Felony or a Misdemeanor. 

1. Defendant willfully inflicted corporeal injury on a spouse

2. Victim was either defendants spouse or former spouse

or a person who they were cohabiltating with

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

the mother of his or her child

corporeal injury resulted in a traumatic condition

DEFENSES

Self defense or defense of another person- that when you committed battery you were defending yourself

Wrongful accustion that the accusation was made up or wrong

That there was not traumatic condition

It was mutual combat - a very misunderstood terms and usually both parties agree to fight. 

This is again not a exhaustive list and meant to be only a partial list.  

If you have questions give us a call 559 441-1418. 

 

As a former probation officer, deputy district attorney, and somoene that has been practicing criminal defense for more than 15 years and having tried more than 50 cases, I have the know how to help you through you through this. 

The reason I do this job is to help people facing the most difficult times of there lives.

If you or a loved one has been arrested for a Misdemeanor offense you should call our office immediately.  You need experienced representation to help you through this and we can help you. 

WHAT ARE MISDEMEANOR CASES

Misdemeanor cases are cases where you cannot go to state prison.  This means you could still serve local time of up to 364 days.  Also you coulb be placed on probation for a period of up to five years in addition to whatever punishment you recieve. 

VIOLATIONS OF MISDEMEANOR PROBATION

For every violation of misdemeanor probation that you get you could recieve additional jail time up to the maximum of 364 days.  Also you could have your probation time extended and restarted.  

Any jail time that you served would be local jail time.  Meaning in the local county jail rather than the state prison system.  

Things could get complicated if you are accused of several different Misdemeanor or crimes the sentences can be run consecutively rahter than concurrently. 

WHAT IS THE DIFFERENCE BETWEEN CONSECUTIVE RATHER THAN CONCURRENT TIME?

Concurrent sentence means at the same time.  how this would play out is that you are convicted of several different misdemeanors.  The judge could say that all convictions will run concurrent at the same time, which means you would not be subject to 364 on each conviction.  

CONSECUTIVE TIME?

This means that the convictions will be run after you finish the first sentence.  This means that the terms could be stacked upon each other.  This means the terms would be 364 followed by another 364.  And this could go on.  This is a legal sentence. 

POST CONVICTION RELIEF

After you have served your probation period, and sometimes even before that time you can ask the Judge to expunge your conviction from your record.  For a more full blog on that subject please see our blogs on expungement. 

There are different types of probation for different types of crimes and they vary as much as the crimes vary. For example a case in domestic violence, will have 52 week anger management classes and formal probation, and you will have severe firearm limiations. 

For DUI cases you will have to attend clases and pay more fines than usual for other misdemeanor cases.  

If you have questions do not hesitate to give us a call although many people think that misdemeanor cases are completely minor and they do not need an Attorney this is not the case.  There could be sever consequences for you and your family for even misdemeanor cases. 

You need to have an Attorney go over your rights and obligations before you speak to law enforcement.  Also, you should get help in conducting your investigation from an Attorney.  

give us a call at 559441-1418 if you have any questions we represent people not cases and we can help you through this. 

 

 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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