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Many of the firearms laws in this country especially in California are very confusing and lead to many people not knowing exactly how to go about exercising there rights as stated in the constitution to have arms.  

 

If you or a loved on has been accused of a firearm offense give us a call the laws can be very confusing nothing in this article is to be taken as legal advice and you should contact an Attorney as soon as possible if accused of a crime.  Give us a call at 559 441-1418. 

 

The Second Amendment of the constitution guarantess the right to bear arms. However, there are numerous restrictions to the right to bear arms.  One such restriction is reflected in California Penal Code Section 25400 PC which makes it illegal to carry a concealed firearm on ones person or on ones person or in ones vehicle. 

WHAT DOES THE PROSECUTION HAVE TO PROVE?

1. The defendant carried on his or her person or vehicle a firearm capable of being concealed on that person.

2. The defendant knew that he or she was carrying a firearm.

3. The firearm was substantially concealed on the defendants person or in his vehicle.

A firearm is any device designed to be used as a weapon from which a projectile is expelled or discharged through a barrel by force of an explosion or other form combustion and has a barrel length of 16 inches or less. 

The gun or firearm does not have to be in working condition and many times the prosecution will, continue even after it is found the firearm was fully non-operational.  Firearms carried in belt holsters are not considered to be concealed.

There are several related crimes to the carrying a concealed firearm and they will be discuessed below.  

OTHER SIMILIAR OFFENSES

Manufacturing, Selling or Possessing Dangerous Weapons -California Pneal Code 16590 PC

Openly Carrying a Firearm Penal Code 26350

Assault with a Firearm. 245 A 2

DEFENSES TO THE CRIME OF CARRYING A CONCEALED WEAPON

One of the most commonly asked questions to an Attorney or Law Enforcement Officer is how do I legally transport a firearm? 

The answer to the question is to keep the firearm in the Trunk of the vehicle not the glove compartment, or in a locked container within the vehicle and unloaded.  With the bullets kept seperately.  

If you violate these rules you could be guilty of a misdemeanor offense, as long as there are no aggravating factors.  

WHAT ARE THE AGGRAVATING FACTORS?

Aggravating factors can be things such as have you been convicted of having a concealed weapon on previous occasions.  

Or if you were previously procluded from owining a firearm

If you are a convicted Felon. 

HOW DO I GET A CONCEALED WEAPONS PERMIT

I will be doing a more lengthy blog post on this subject in the future however, briefly if you are eligible you can apply through your local Sheriffs Department or the Police Department and follow the instructions that they have for you.  If you have a concealed weapons permit you are able to carry except in areas where there is a no gun policy or where there is a Federal Law  that prohibits the carrying of firearms on the premises.  

I have both prosecuted and defended many different gun cases if you have questions give us call I represent people not cases and  I can sit down with you and let you know exactly what your legal rights are and how you can properly assess your case we are here to help you. So if you have questions give us a call at 559 441-1418 and we can help you get through this.  

 

 

If you or a loved one has been arrested the stress can be enough, if you are undocumented then the case can be even more stressful and can have very scarey implications.  

Undocumented workers face a whole different level of possible complications from a DUI arrest.  Undocumented immigrants face possible problems of deportation any time they come into contact with Law Enforcement. 

The Immigration and Customes Service places a higher priority on deporting person with criminal records, a DUI arrest or conviction can hieghten chances of deportation considerably.  

HOW DOES ICE GET INVOLVED?

Even though a DUI is a local arrest do not get a false sense of security.  A DUI goes into a database shared by Law Enforcement including ICE and if you are arrested someoene from ICE can ask local law enforcement to come in and interview you and the local authorities will often provide them with the space and time to do just that.  Your best bet is to bail out as soon as possible this is your legal right and may save you from further problems.  

THE ARRESTING OFFICER

The arresting officer will sometimes will directly contact ICE depending on your status.  

COURT RECORDS

ICE officers often scan court records to determine if any people in there existing databases are on calendar or in any courts they then can come to court and take people into custody and have done this of course this depends on your status and is done on a case by case basis.  You must get legal advice before you first court date and even after your court date ICE agents can and sometimes do pay a visit to people in there database that are on the court calendar.  

WHICH IMMIGRANTS ARE TARGETED FOR DEPORTATION?

It used to be that ICE focused its efforts on toward undocumented immigrants that posed the "highest level of risk to the community" and did not focus on low priority.  High priority were usually people faced with the most serious crimes and those from "terrorist organizations"  however, president Trump recently signed legislation that has changed that focus. now people that have committed a public offense or that pose a risk to public safety are considered just as deportable and this is not a well written order and can be construed in many different ways and is often hard and difficult even for experienced Attorneys in this area to understand.  Therefore, a person that would not have been categorized as high risk in the past can now be considered high risk by an Immigration Officer. 

HOWEVER, JUST BECAUSE YOU ARE ARRESTED FOR A DUI DOES NOT MEAN YOU WILL BE DEPORTED

Being arrested while undocumented does not guarantee you will be deported the deportation process is costly and long and usually, the government will spend the money on more high priority cases.  And many times even if you are interviewed by ICE it does not mean that you will be deported many people are interviewed and then not deported and allowed to go home.  The problem is that ICE has been alerted to your presence in the country at a time yo may not be caught up in all of your paperwork this poses a problem. DUI is usually by iteself is not a deportable offense. however, the other circumstances surrounding your arrest and the alerting of ICE to your presence can be the problem.  

WHAT IF I HAVE A GREEN CARD OR VISA?

If you have a green card or a visa then you will be given additional protection usually you will not be deported unless multiple duis or drug duis or a dui with injury.

if you have further questions do not hesitate to call us 559441-1418.

If you or a loved one has been arrested for Assualt then you need an experienced criminal defense lawyer to help you.  Below I wll be explaining some of the elemements of the law you should not use this article as a substitute for getting legal advice from an Attorney.  If you have questions after reading this article give us a a call at 559 441-1418. 

1. Definition and Elements of the Crime

Bettery is defined in Penal Code section 242.  To prove a charge of Battery the prosecutor must prove. 

1. The defendant intentionally and unlawfully touched another person in a harmful or offensive manner.  

2. AND, the defendant did not act in self defense, in defense of another or act reasonably when disciplining a child.  

The slightes touch can be enough to satisfy the battey statute. It must be done in a rude or angry manner.  Making any contact with the person is enough even if it is just through the clothing.  The touching does not have to cause pain or injury.  The physical contact can even be made to something the person is holding.  Such as a purse or a backpack.

WHAT IS NOT A DEFENSE

It is not a defense that you were resonding to verbal act of  provocation.  The provocation must have put you in reasonable fear of a physcial attack.  

You can be the first one to fight in an altercation but it must be reasonable and you must be acting in self defense and not attacking somoene because they verbally said something to provoke you. 

WHAT IS A DEFENSE TO BATTERY?

SELF DEFENSE

A person is allowed to use defense or physical violence to protect himself or others.  It must be imminent harm or  protecting himself or others from being the victim of a crime.  And your use of force must be reasonable. 

UNINTENTIONAL CONTACT

If you are a person that accidentally touched somoene then you have an accident defense. 

PARENTAL REASONABLE FORCE

A parent using reasonable force to discipline a child.  If the court feels that the level of force  used by the parent was not "reasonable under the circumstances then the person can be held liable under the statute. 

PENALTIES 

The penalties for violation of this statute vary from case to case and could include up to six monthes in jail, fines work program parenting classes, or any combination of the above. if you are charged with a misdemeanor especially in Fresno County then you could be entitled to a 977 appearance which is an appearance your Attorney  makes on your behalf.  

If the case is a felony or there is great bodily injury there could be a strike involved and there could be the possibility of up to four years in prison,  a strike on your record and there could be loss of gun rights for the remainder of your life.  Of course this depends on the circumstances and how the District Attorneys office wants to procede. The local District Attorneys office is the one entity that decides exactly what charges will be filed and how the case will proceed after they get the case from the police agency that filed a police report.  

After that point the District Attorney's office will decide if the case will proceed as Felony or a Misdemeanor and how the case will be dealt with if you have any questions about a particular case then you should give an Attorney a call as  former probation officer, deputy district attorney, and a criminal defense attorney with more than 16 years of experience I can help you get through this and help you.  Give us a call 559441-1418. 

 

If you  or a loved on is facing criminal charges in Fresno or any other county in California, and after reading this article you have any quesions give us a call and we can help you 559 441-1418. 

 

Defendants who are convicted  of Fresno County offenses may faceb a wide variety of consequences.  People convicted of Felonies may have a hard time finding jobs even some housing may be affected.  Also, some state licensing agencies will not allow you to obtain certain State professional licenses.  And you will lose your right to own or possess a firearm.  

CAN CERTAIN FELONIES BE REDUCED TO A MISDEMEANOR?

If you are convicted of certain Felony offenses you may be eligible to have that Felony reduced to per Penal Code section 17b and possibly even expunged which would give you even more protection under the law. This is a critical step for people trying to move on with there lives.  

WHAT IS THE PROCESS? 

If we were your Attorney we petition the Court to reduce the Felony conviction to a Misdemeanor per 17 b.

WHAT IS PENAL CODE SECTION 17 B. 

Under Penal Code section 17b a person convicted of a Felony that could have been filed as a Misdemeanor is eligible to have the offense reduced per 17b, this is a so called "wobbler" offense.  

WHAT OFFENSES ARE CONSIDERED "WOBBLERS" 

The Felony you were convicted of must be one in the California Penal Code that is is one that could have been charged as a Felony or Misdemeanor.   And you must have been granted probation for this penal code section to be applicable.  

Burglary

Grand theft 487

Criminal Threats 422

And Spousal Battery 273.5

Felonies that can only be charged as a Felony are not reducable under this Penal Code.  

Under 17b a Felony can be reduced after the preliminary hearing or at the time of sentencing.  or even folowing a plea of guilty or no contest.  I have had Judges decide the reduce at all the above times and even at trial after the prosecution has presented there cases.  We asked the Judge to throw the case out under 1118 but instead the Judge reduced to a Misdemanor the cleint pled to the Misdemeanor and the case was over and the client was immediately released time served.  

EARLY TERMINATION OF PROBATION?

Yes the Judge can even reduce if you have completed all the terms and conditions of probation then the Judge can terminate probation and reduce to a Misdemenaor and then even expunge we have had this scenerior occur on at least two occasions.  

WHAT FACTORS DOES THE COURT CONSIDER IN GRANTING A REDUCTION?

In deciding whether to grant the reduction the court will take into consideration several factors including: The underlying facts of the offense, the defendant's performance on probation, the defendant's criminal history, and the circumstances that would support the misdemeanor reduction.  such as potential job offers or an upcoming background investigation where the reduction could help the person get the job and move on with their lives.  

THINGS A REDUCTION DOES NOT HELP WITH

If required to register you will still have to register, if you are given a strike then you will have have that strike on your record and there could be other consequences not releived as a result of getting the case reduced.  If after reading this article you are interested in possibly getting your conviction reduced then give us a call and we will see how we can help you get started.

We have helped many people move on with there lives and we can help you so give us a call 559-441-1418. 

 

 

 

 

For example

 

 

If you have been arrested for a DUI in Fresno or anywhere in California you will have a lot of questions as to what is happenning and what penalties you will be getting.   Below I will break down at least a little the differences in the penalties for 1st 2nd and third duis.  

 

While each case is different if convicted of a DUI you coulb be facing the following penalties:

FIRST OFFENSE:

Up to six months in Jail

Possibility of ignition interlock device installed in your car.

Up to 10 months drivers license suspension 

Up to $2,600.00 in fines

SECOND OFFENSE:

Up to one year in jail

Instillation of an ignition intelock device in your car 

Up to 2-years drivers license suspension  

Up to $2,800.00 in fines 

THIRD OFFENSE:

Up to one year in jail 

Instillation of ignition interlock device in your vehicle 

Up to 3 years drivers suspension 

Up to 3 years drivers license suspension

These are baslines and do not include minimums in Fresno County althogh each case is different the baselines or minimums could be much less than what is put forth above.  For example the first offense for a DUI in fresno county usually means a DUI class and a 4-8 days of alternative work program instead of jial and a drivers license suspension.  

The Judge will take into account such things as BAC and other considerations.   The Judge will take into consdiration when you pled at what stage in the proceedings and other factors in determining your exact sentence.  

WHAT IS THE DECISIONS FOR LIFE CLASS?

Decisions for life is a local class that is offered in Fresno County and may be offered in different counties whith a different name.  If you complet the class and pay for the class your fine could be reduced by up to half.  You just have to complete the class and show proof.  Usually this is a one day class and does not require a lot of money to attend. 

WHAT IS AOWP?

This is the initials for alternative work program.  Often instead of being locked up in the County Jail the Court will order you to attend alternative work program time which means that you will not be locked up in the county jail you will instead be able to pick up trash, do other things ordered by the Fresno County jail so that  you don't have to do in custody time.  AOWP is actually meant to be in custody time.  

The results of a DUI can be many and long lasting the law seems to be changin on an almost daily basis.  However, if you have questions you can give us a call as an Attorney with more than 16 years of experience that has both prosecuted and defended cases you can count on me to help you get through this. 

HOW LONG WILL I BE ON PROBATION?

You can be on probatio for 2-5 years and during that time period you cannot have any measurable amount of alcohol in your blood stream while drivng any mototirized vehicle.  This includes cars, motorcycles, atv's and all other rest.  If you are caught driving with measruable amounto alcohol your probation coujld be violated and you could go to jail or have your probation start over.  

If after reading all this you have questions give us a call at 559441-1418 and we can see how we can help you get through having helped many hundreds of people before we can get you through this time in your life especially if you have not been through the system before you will need someone to help you get through this and we can help you. 

If you or a loved one has been accused of crime it is vital that you get experienced counsel to help you with your legal problems. As an Attorney with more than 16 years of experience and someone that has the know how to help people through there difficult circumstances.  Having done both trials in plea deals in more than 12 different counties and represented thousands of client I have the experience to help you.  Many cases require more expertise than what the local "dui guy" can give. so give us a call after you read this article if you have any questions.  

BEING CHARGED WITH CRIME.  

If you have been charged with a crime you may be confused and scared.  You may not be guilty of the crime you may not understand the legal process and it gets more scary as you go along.  In some cases the prosecutors will allege charges that may be difficult if not impossible to prove in order to help in plea negotiations.  If you have been charged with a crime you have probably heard the words plea deal in your case and may confused as to what that really means.  

WHAT IS A PLEA DEAL?

A plea bargain or a deal is an agreement between you and the prosecutors where you of what offense you will plea to and what the ramifications or sentencing you will get for that plea or "bargain" 

A sentence is always up to the sole discretion of the Judge and we will get further into that below. 

Plead deals are unique and very fact specific to the case at hand.  And can very as much as individual cases very. There are several kinds of Plea deals that occur every day in courtrooms across California. 

STIPULATED DEAL

A stipulated deal means that the prosecution and defense agree as to what the terms of the agreement are and the sentence.  If the Judge agrees with this agreement that is what you will be sentenced to.  For example you agree to plea guilty to one count of domestic battery and the agree with the prosecutor you will get Felony probation or wha tis commonly referred to as NISP or no iniital state prison time. 

WHAT IS A SO CALLED LID OFFER?

A lid means there is not an exact agreement reached but rather a range. For example you plead guitly and the District Attorney agrees that there will be a 16 month lid. What this means is that you will at most, get a 16 month prison sentence however, you could get probation the 16 months is the lid of the amount of time you can get. 

WHAT IS A COURT INDICATED? 

A court indicated is when you go to the Judge and ask the Judge what the court will give the person if they plead guilty without or sometimes with the District Attorney not agreeing.  This means it takes away some of the guess work as to what you would get. 

 

All of the above are good options but only depending on the factual circumstances of your case and wether or not you want to go to trial the final decision is yours.  And I have done many many Felony, Misdemeanor, and Juvenile trials we dont push people into anything although sometimes there is such a good offer from the prosecution that sometimes it is absolutely in your best interest to take the offer from the proseucution.  This is a case by case determination based upon how good the case against you is.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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