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If you or a loved one has been arrested for any Homicide or Murder related offense you should definitely call our office.  Even before any questioning has happened.  You should seek representation as to what your options are, and what your defenses are before making a decision to speak to the police. 

Many people think that if they do not talk to the police that they could be in some type of trouble.  There still is a Constitution in this country and you can choose not to talk to the government in the form of the police if you choose to remain silent.   That silence cannot be used against you in a court of law period.

Also, when choosing a Homicide Attorney please hire an experienced Attorney.  Someone that has done Homicide cases.   In some of my earlier blogs I have discussed the defenses to Homicide.   Here, in this blog, I will be discussing just the different levels of Homicide. First, the most serious which could lead to the Death Penalty.  Again hiring the local DUI guy will not be good enough for Homicide representation, ask if the Attorney if they are death qualified, have done murder cases, how many Murder trials to verdict, how long have they been an Attorney.  These are the type of questions you should ask.

SPECIAL CIRCUMSTANCES MURDER

These are the most serious and can lead to the Death Penalty.  The prosecution does not always choose to seek the death penalty in a special circumstances case and may instead opt for a plea to life without the chance of parole.

To be found guilty of this type of murder.  You must not only be found guilty of Murder but the added special circumstances must be found true.  Such as Murder of  Police officer, Murder of more than one person etc. There are many more.

FIRST DEGREE MURDER

Is a Murder with Premiditation and Deliberation and done as a result of a rash impulse.

SECOND DEGREE MURDER

Second degree murder is a murder done with Malice.  either expressed through actions which show an intent to kill.  Such as shooting someone with a gun in the head at close range.

or an implied malice the physical part whch is doing an act inherently dangerous to human life, 2. the mental element which is acting in reckless disregard to that danger.

As to the Mansluaghter crimes there is a seperate blog dealing with the defenses to Homicide, if you have any qustions as to those defenses feel free to look at those blogs

or give us a call at 559 441-1418.  

 

 

Under proposition 57 there were several Juvenile Justice reforms that were put into place.  However, lawmakers in California have introduced a series of criminal justice reform bills in the hope of keeping more juveniles out of prison.  The proposed measures would require minors to speak with an Attorney before waiving there rights during interrogations. , eleminating incarcerating minors under 12-years-old and ban life sentences without the possibility of parole

These laws have not been approved if approved reforms would change how the court treats juveniles charged with a crime.   For example instead of incarcerating Juveniles in the juvenile justice facilities or commonly called juvenile halls the child welfare services would be called into to deal with those children. 

Incarceration rates nationwide for most children has dropped nationwide and locally.  Juges can now take into consideration not only the circumstances of the crime but also take into account other factors such as mental development, education, and home life.

These could help the kids that come through the system get the best oppurtunity at changing there lives.

If your child has been arrested give us a call so we can help you through this difficult time.

If you have been arrested for Domestic Violence whether as a Felony or a Misdemeanor you should call our office immediately.  As discusssed in some of our earlier blogs.  There could be a many issues wich affect your case and your ability to mount a defense.  If you wait until charges are filed, or until you have court you could be making serious mistakes which could affect your ability to defend yourself in court. 

After reading this article give us a call if you have any questions 559-441-1418.

WHAT IS MUTUAL COMBAT?

Mutual combat is a fight into which both parties enter willingly, or in which two persons, upon a sudden quarrel, in hot blood mutually fight upon equel terms.

There is a Jury instruction that deals with this issue.

A person who engages in mutual combat or who is the first one to use physical force has a right to self defense only if:

1. he or she actually in good faith ties to stop fighting

AND

He/or she indicates by word or by conduct, to his or her opponnent, in a way that a reasonable person would understand, that he or she wants to stop fighting and that he or she wants to stop fighting and that he or she has stopped fighting.

and he or she gives there opponent a chance to stop fighting.

if a person meets these requirements, he or she then has a right to self defense if the opponent continues to fight.

This defense is obviously problematic and difficult.  Officers are trained to arrest the "primary aggressor" in domestic violence calls.  In fact this is codified in Penal Code section 1370 (B) discourages the dual arrest of both parties and seeks to arrest the primary aggressor. This will be intermingled with the Mutual combat scenerior and make

this defense more difficult but not impossible.

it is difficult to sort out who is the primary aggressor in many of these situations.  So many times the officers and even prosecutors call a case "mutual combat" this can be to your advantage if both parties have injuries and it is difficult to determine the first or the primary aggressor.  

MUTUAL COMBAT

Mutual combat is the situation where you have two evenly matched individuals agreeing to a fight much like in the old westerns. The gunfighters agree to go to the center of main street at high noon to shoot it out. 

Most domestic violence situations don't include both parties agreeing to a fight. It is more of a spur of the moment argument full of passion rather than a reasoned fight.

If you have any questions do not hesitate to call.

 

 

 

If you have been arrested for a Felony 273.5 domestic violence offfense it is imperative that you get legal help as quickly as possible.  There will be many factors involved in a domestic violence cases from the beggining.  We have handles hundreds of domestic violence cases in Fresno County alone.  I will personally handle your case. 

If you have questions after reading this article don't hesitate to give us a call. 559441-1418.

You should know that if you have been arrested for domestic violence you may have a restraining order against you but not her.  What this means is that the alleged victim may attempt to contact you which is perfectly legal but you may not speak to her.  This could be a trap, many times the alleged victim will be taping the calls or giving over the text or emails to law enforcement to help in the investigation.  This is one of many different tactics used by law enforcement to attempt to prosecute you for Felony Domestic Violence.

Further, if you bailed out and then contact the victim while there is a restraining order in affect you can have your bail revoked, and charged with violation of the restraining order.  There could also be child custody issues involved.  In other words how do you see your children if there is restraining order in affect?

FIRST WHAT IS FELONY DOMESTIC VIOLENCE UNDER PENAL CODE SECTION 273.5

The elements for the offense are as follows:

1. Defendant willfully (meaning on purpose) inflicted injury on victim.

2. Victim was either:

defendant's spouse or former spouse

person with whom he or she is or was cohibitating with

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.

 

If you are found guilty or plead guilty of this crime you could be sentenced to state prison for a period  of 2, 3 or 4 years and

you could lose your gun rights for life is you are convicted of a Felony you will not have the right to own or possess a firearm.  Further, if you are found to have inflicted great bodilly injury to the victim you could have a strike offense on your record for future purposes.

In Fresno County you willl be ordered to complet a 52 week batterer treatment program if you are given probation.

CAN I GET PROBATION IF FOUND GUILTY OR PLEAD GUILTY TO A VIOLATION OF 273.5

YES depending on many circumstances you could be afforded Felony probation such as your prior record, the severity of injuries, and taking responsibility at an early stage in the proceedings among many others.

WHAT ARE SOME OF THE DEFENSES TO AN ALLEGED VIOLATION OF 273.5

This is not meant to be a complet list only a partial list there could be many other defenses to this charge.

1.Self defense that at the time you inflicted injury you were defending yourself from attack or somoene else.  Often men and women will be legally defending themselves at the time the injury was caused but because the police show up and there is injury to only one party they arrest the other person.

2. False accusations

Sometimes people get injured from something and then just make up a false accusation to make sure the other party is arrested.  We have even seen where someoene injured themselves and called police.  When emotions are involved many things can happen in domestic violence cases there is many emotions and other things involved. 

If  you have been arrested or think you may be give us a call for a case evaluation.

 

 

 

If you have a current or past problem with a violation of probation.  Give us a call we can help you.  As a former probation officer, deputy district attorney, and a criminal defense attorney with more than a decade of experience handling these type of matters I can help you get throught this. The reason I do this job is to help people throught the worst times of there lives.  When there freedom can be in jeopardy because they are accused of a crime.

PROBATION VIOLATIONS

Probation violation cases vary widely depending on whether you were placed on Misdemeanor or Felony  Probation. 

Misdemeanor Probation

If you were placed on misdemeanor probation usually that means you were placed on informal probation. That distinction nowadays means less and less because the terms of probation have become so much more difficult.

WHAT HAPPENS IF A VIOLATE MY MISDEMEANOR PROBATION?

If you violate your misdemeanor probation it usually happense in two ways a so called technical violation, although I don't like this language and a new law violation. 

say for example your probation officer asks you to take a drug test.  And the drug test come back with the presence of cocaine.  This is a violation of probation.  Your probation officer will either take you into custody right away or place a warrant out for your arrest.  Once you are arrested you cannot bail out because you have a violation of probation hold on you when you are booked into the jail.  Sometimes you can plead to the violation of probation case and agree to a certain amount of time while you await charges on another case, so that the violation of probation case can be lifted and you can get bail. 

you can either admit to the violation of probation or you can ask for a contested hearing on the violation of probation.  At a violation of probation hearing the burden of proof is a preponderance of evidence, much like a civil case,  not the proof beyond a reasonable doubt standard, that is applicable to a criminal trial, and in an added twist hearsay is allowable in a violation of probation case.  therefore, these cases can be very difficult to win based on the lower burden of proof and the hearsay which is allowed. 

TIME CREDITS

Time credits always play a part in a violatio of probation case.  In other words for a misdemeanor case you can do up to one year in a county jail.  If you have already done a year on the case and you are on probation then you cant keep doing time for the violations of probation.  In a Felony case you would just be sent to state prision as discussed below. 

FELONY VIOLATIONS OF PROBATION 

in a Felony case the law above all applies except the consequences for violating your probation are much more severe. 

In a Felony case when you are placed on probation you are getting a suspended sentence.  For example if you are placed on probation for a home burglary,

you could be sentenced to 2,4 or 6 years in prison or you could be placed on probation. 

If you are placed on probation you could be violated.  If you are violated you could be sent to prison for any of the amounts of time specified above.  This means that your sentence is suspended not stayed but suspended, even on the first violation you could be sent to prison. Or you could be placed on probation again with the date that you are off probation extended, and you can try again. Or to stay out of prison if you are convicted of a violation you could be required to waive all your time credits.  This often happens because a person has waited so long in jail that they have used up all the time they could spend in local prison.

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

Many times people will call the police regarding the actions of there son or daughter.  Many  times they just need help with a bad situation.  However, the police  getting involved in your life can be very problematic.  And could cause you to have to testify against your son or daughter, even when you dont want to.

If you are in a situation the best thing to do is to consult an Attorney as soon as possible.  As a crimnal defense attorney with more than 14 years of criminal defense experience I know the ins and outs of the system. 

The short answer to your question is yes you could depending on the circumstances be ordered to give testimony.  You can offer to the court that you have a 5th amendment right against incrimination and if the court finds that you have legitimate 5th amendment right then everything stops there.  For example the facts in the police report were false or you made a false police report. 

Now if the court decides that you do not have a legitimate 5th amendment right, the Judge will order you to testify. 

THE QUESTION BECOMES CAN I GO TO JAIL IF  I REFUSE TO TESTIFY AND I AM HELD IN CONTEMPT

The question can be a little  tricky but the answer most of the time is that you can be held in contempt, for failure to testify, but no you cant be put in jail.  The reason is that the Code of Civil Procedure under section 1219, is you have been the victim of sexual assualt, domestic violence, or severl other crimes committed by family members than you cannot be jailed for failure to testify against the perpertrator. of the domestic violence.  So in other words the domestic violence victim cannot be jailed for failure to testify agains the perpetrator.  This included domestic violence situations.

WHAT DOES THE COURT MEAN BY "DOMESTIC VIOLENCE"

"Domestic Violence" means domestic violence as defined in section 6211 of the Family Code. 

Family Code section 6211 provides:

"Domestic Violence is abuse perpetrated against any of the following persons:

A. a spouse or former spouse

b.  a cohabitant or former co-habitant

c. A person whom the respondent has had a child, where the presumption applies that the male parentage is the father of the child under uniform parentage act.

or under section E any other person related by consanguinity or affinity within the second degree. 

WHAT CONSANGUITY MEANS

The blacks law dictionary states it is a blood or kinship relationship; the connection or relation, this would include parents, and possibly other lineal descendants.  Thefefore, if you were a parent and you were the victim and you refused to testify then you would not be subject to jail time. 

You still could be held in contempt and have other liabilities.  As you can see this is a complex area of the law and you need very case specific information so give us a call if you have questions 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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