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If you or a loved one has been charged with a sex crime give us a call at 559 441-1418.  Sex crimes are a complex area of law and you need an experienced Attorney for your defense.  It is not enough to call the local DUI guy to represent you on this charge.

 sex crimes charges can be everything from Spousal Rape

Date Rape 

Statutory Rape 

Oral Copulation by force

The punishment penalties and stigma from any type of sex charge conviction can be harsh and severe. 

The punishment can include lifetime registration

Loss of firearm rights

Social stigma

and inability to live in certain areas of town.

you could also be sent to prison.

I will go over some of the law below on some of the offenses listed above. 

RAPE LAW

Penal Code section 261.5 defines "Rape" law

Rape occurs when an individual engages in sexual intercourse wiht another person and that sexual act is accomplished against that persons will or against that person consent. 

usually through force or fear

the sexual intercourse can also be accomplished through duress a direct or implied threat 

WHAT IS DURESS?

Duress is a direct or implied threat sufficient to 1. coerce a reasonable person to perform or act in a way that they would otherwise not have peformed in.  for example telling someone they will be arrested deported etc if they do not engage in a sex act.  

MENACE?

A threat or declaration or act that shows an intention to inflict injury upon another.  

dear of bodily harm to yourself or somoene else.  

the alleged victims fear must be actual and reasonable under the circumstances, or if unreasoanble the accused must know of the victims the accused must knowe the victims fear under the circumstances or if unreasonable the accuse dmust know the victims fear and take advantage of it. 

fear of retaliation a  threat to kidnap falsely imprison or inflict pain injury or death upon the alleged victim or another person.  

FRAUD?

Fraudelently convincing the other person that the sexual act serves a professional purpose.  even though it does not.  Such as a therapist who convinces there client that having sex with them will help there sexual dysfunction issues. 

If someone has sex with someone else under these circumstances than yes they can be charged with a violation of Penal Code section 261. Under the Rape law.  

PENALTIES AND PUNISHMENTS

Rape is Felony and not a wobbler offense that can be charged as a misdemeanor or a Felony. 

You can get probation but only if the allegations does not include force or violence. 

3, 6 or eight years.  

 if there is a great bodily injury than an additional three to five years

If you have any other questions give us a call at 559 441-1418.  As an Attorney with more than 15 years of experience I know the ins and outs of the system, having worked as a  probation offcier, deputy district attorney, probation officer, and taught future police officers at Fresno City College I can help you with your criminal defense needs. 

 

Uner new law AB 1810 significant changes have occured in the way in which people suffering from Mental Health disorders are treated by the court.   In some cases the case will be dismissed or diverted after the succesful completion of treatment and a diversion program.  

WHO IS ELIGIBLE FOR MENTAL HEALTH DIVERSION?

Anyone with a mental health disorder, wether the offense is a Felony or Misdemeanor.  

WHAT IS THE PROCESS?

1. Court must find:

    A. Mental Health disorder as defined in the DSM. 

    B. The disorder played a significant role in offense.

    C.  Significant relationship between disorder and offense, and or significant relationship between defendant's homelessness and charged offense.  

    D. Defendant will respond to treatment ( based upon mental health expert opinion),

    E.  Defendant consents to treatment (waives time) and consents to participation.

    F. Deosnt pose an unreasonable risk of danger  to community

  Section 1170.18 DA, defense, meantal health expert, defendants defendant's past criminal history, violent history if any and any other factors the court deems appropriate 

2.  There must be a referral for treatment made by the county mental health agency, existing collaberative court, or outpatient treatment the court must be satisfied the programming will meet the defendant's needs.  

3.  Defendant begins programming and court and counsel recieve regular reports 

     A. D's doing badly = Court holds hearing to determine whether to reinstate crim proceedings, whether program should be modified,  or whether D should be conserved 

If defendant picks up a new misdo case while propensity for violence or d picks up a felony or d is engaged in conduct making him unsuitable for the program then the defendant can be terminated from the program and criminal proceeedings reinstated. 

If the defendant does well on the program court must dismiss.  DOJ gets notice case was diverted, arrest erased and sealed.  

If defendant substantially complied with diversion, no significant new law violations unrelated to defendants mental health theres a plan in place for for long term mental health care. 

DETERMINING MENTAL HEALTH DISORDER

There must be a recent diagnosis by qualified mental health expert  Exclusions for pedophelia, antisocial personality disorder, and borderline personality disorder.  

DETERMINING MD PLAYED A SIGNIFICANT ROLE IN OFFENSE:

Court can review PO reports, PH transcripts, witness statements, mental health provider statments and medical records. 

REGULAR REPORTS ON DEFENDANTS PROGRESS

No specificity in how often court must get reports. 

Determining whether program meets defendants needs court can consider defense opinions, prosecution opinions interest of the community, treatment through private or public funds, inpatient or outpatient treatment is ok.  

The new law authorizes the State Dept. of Hospitals to contract with county to fund and expand pretrial programs for people who may otherwise be incompetent to stand trial due to mental health disability. 

These changes will make a huge impact on the ability of local authorities to properly deal with people suffering from mental health disorders.  If you or a loved one has been arrested and these new laws may impact you then give us a call and we will sit down and give you a free case evaluation regarding the different options you may have regarding this new law. 

These new laws are different from the already existing mental health courts in that there could be complete diversion of the offense due to these laws.  Our phone number is 559 441-1418 and we can help you make a decision regarding how to properly proceed with your case.  If your loved one is incarcerated you should begin to build some of the evidence you need in order to help with this determination including mental health records etc.  This could be a lengthy process that usually begins when a person has been arrested. 

 

If you have been accused of a sex offense you could face sever consequences.  As An Attorney with more than 15 years of exerience and having tried and won sex offense cases in at least two different counties you need experienced counsel. 

There are many issues that arise in sex offense cases that are particular to those type of cases.  

If you or a loved one has questions after reading this article give us a call at 559 441-1418. 

First, there are many different sex crimes in the Calfiornia Penal Code.

With almost all sex offenses cases you will have to register for a lifetime unless you get an governors pardon and in some cases a certificate of rehabilitation after a period of registering for at least 10 years.  

One of the most common sex crimes is Rape

1. When a person engages in sexual intercourse through 

force or violence

There are many other sex crimes in the California Penal Code  and every case is different. 

 

DEFENSES TO SEX CRIMES

FALSE ACCUSATION

LACK OF EVIDENCE

There could be many times and different reasons why someone can be falsely accused of a sex crime.  If you have any questions give us a call. 559-441-1418.

 

If you or a loved one has been arrested for a drunk driving offense you should call our office as soon as possible.  With more than 15 years of experience and having personally handles many hundreds of dui cases a a deputy district attorney and a defense attorney.  

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

WHAT DO PROSECTORS HAVE TO PROVE IN A MSDEMEANOR DRUNK DRIVING CASE?

1. proof that you were driving sometimes in drunk driving cases this will be an issue.  Such as where the office did not see someone driving and approaches the car in a  parking lot, and the car is not hot, and there is no proof of driving such as no keys in the ignition no seat belt on.  And the car may have been parked there for a long period of time.

The essence of a DUI case is that you were on a roadway impaired or with a BAC over .08.  

There must be movement of the vehicle.  Sitting in a running vehicle while you are parked at say an event is not driving or movement.  Instead, there must be a showing of the car being driven while you were impaired or over the legal limit. 

PROOF THAT YOU WERE UNDER THE INCFLUENCE

For example blowing over the legal limit or submitting to a blood test and being over .08 even if you blew below the legal limit of .08 you could still be arrested if the officer believes your ability to drive was impaired, such as bad drivng, etc. 

ARREST WITH PROBABLE CAUSE

Based upon all the surrounding facts there must be probable cause to arrest.   The officer may only arest if they follow certain procudures and the stop was based upon reasonable suspicion that a traffic infraction had occured.  Where many DUI cases fall apart is during this stage an officer inexperienced in DUI procedure may make mistakes in paperwork and procudure that are such they make the case fall apart. 

There are many other factors that can affect a DUI so if you have any questions give us a call. 559-441-1418.

 

 

 

If you have been convicted of certain Misdemeanors or any Felony offense or have are the subject of a restraining order your gun rights will be affected.  Unfortunately the gun laws have both a state and federal component that are very difficult and confusing.  You should definitely consult an Attorney for a full indication of how your situation will affect your ability to own or possess a firerarm.  

RESTRAINING ORDER

Someone who is the subject of a restraining order cannot have possesion of a firearm while the restraining order is in effect.  Whether it is a civil or criminal restraining order. 

Whenever a criminal restraining order is in effect the police will be notified. And they can with a warrant enter your house to look to see if you have a weapon. 

If the police show up at your residence without a warrant then you can tell them to leave they will either get a warrant or they cannot enter.  

Regardless you should not have a weapon in your possesion if you are the subject of a restraining order. 

STATE LAW

If you have a Felony charge reduced to a Misdemeanor you can sometimes possess a weapon again.  I say sometimes because you should get an opinion from an Attorney before possessing a weapon after a Felony conviction. And nothing on this site is meant as specific legal advice which you should get from an Attorney regarding your personal legal problem.

MISDEMEANOR CONVICTIONS

A misdemeanor conviction for domestic battery will stop you from possesing a gun for a 10 year period.   This could be true even if the crime you pled to was not a violation of pc 243e or a violation of 273.5 which are the two domestic violence related misdemeanors.

I will give an example below.

FEDERAL LAW

Federal law determines who can buy  or legall obtain firearms. And the law is different from the state laws.   And should definitely be looked into before buying or obtaining a firearm. 

The Federal Statute is 18 U.S.C.  922 (g)(1-9)

Which gives a list of people that are prohibited from possesing shipping transporting or recieving firerams or ammunition.  

this includes 

a person that is convicted of a crime punishable by more than one year

a fugitive from justice

a person that has been adjudged mentally defective

a  person unalfully in the United States

and a person convicted of a domestic violence related offense. 

This is not in any way an exhaustive list. 

Under Federal Law you cannnot own posses or buy a firearm after any of these events have occured where this can be very tricky is if your state gun rights are restored you will still not be able to buy a firearm and under Federal Law possess a firearm. 

So lets take on scenerio.  You and your wife get into a fight she call the police she has a small mark on her arm.  You enter a conditional plea to a non domestic violecne 242 simple battery.  You complet a class and the case is dismissed under this scenerio you may have had your gun rights permanently taken away. 

Because the Federal Government will say that you entered into a plea of guilty even though conditional and it was for domestic violence or stemming from domestic violence (even though you pled to a non domestic violence charge) the federal government under the above-mentioned statute can and will stop you from buying a gun in the future.  And there is no time prohibition they can do this indefinetely.  And you can get proesecuted under this statute if you are found to be in possession of a weapon.  As you can see these laws are confusing and tough to understand give us a call 559441-1418.

 

If you or a loved one has been arrested or facing Drunk Driving charges give us a call we can help you through this time. As an Attorney with more than 15 years of experience I can tell you that dealing with a driving under the inlfuence charge can be difficult and time consuming. We can help you. Give us a call at 559441-1418. 

Below I will describe the difference between a Misdemeanor and Felony Drunk driving and some information regarding both offenses. 

WHAT IS THE DIFFERENCE BETWEEN A MISDEMEANOR DRIVING UNDER THE INFLUENCE AND FELONY?

One way to be charged with Felony Driving Under the Influence is if you meet the following elements within a 10 year period.

 

1. Defendant drove a motor vehicle.

2. Defendant did so while under the influence of an alcoholic beverage.

3. The defendant has suffered three prior convictions of the Misdemanor section. 

an all of these factors occured withing a 10 year period. 

 

If the following are true then there are many consequences that may occur. 

PRISON

You are eligible for prison.  Becuase it is a Felony to have four convictions wthin 4 years you can be sentenced to prison for a period of 16 months 2, or three years. 

The facts are important  here.  Was anyone injured? how close in time are the convctions? what is the BAC when the offenses occured. Was there property damage.  Has the defendant been afforded the oppurtunity at treatment at an earlier time and did not take advantage of that treatmen.  All of these things will come into play when the Judge makes a determination as to what your sentence will be. 

The Judge will have to make a determination of both whether or not you should be given Felony Probation, or sent to prison.  The Judge will also have to determine if the defendant should serve 16 months 2, or 3 years.  

If given Felony Probation you will usually be ordered into in patient treatment, or sent to County Jail for  a period od 1 year. If you are given a 1 year sentence you will have to do six months of that sentence and then still serve a period of probation.  If you violate your Felony probation you could be sent to prison for any of the terms of the sentecning range.  In other words for 16 months 2, or 3 years.  

If you are given Felony Probation you could be ordered to attend substance abuse in patient treatment. Or out patient treatment.  Failure to comply with the treatment program could be a violation of probation.  And again subject you to prison.  

It is always best to be proactive.  If you have a fourth DUI you should be going to AA meetings and obtaining proof.  And admitted to your alcohol problem.  Making sure you get on the scram x program which will give an indication if you are drinking alcohol.  

You will be booked for a fourth DUI and you will have to get bail money and there could be terms placed on you as part of your bail.  You should folow those terms as closely as possible.  And of course do not drive.  Do  not consume alcohol, and prove that through both the scram x and going to outpatient treatment and AA.  The in patient treatment should be reserved for after the conviction in most circumstances.  

If you have any further questions do not hesitate to give us a call and we can help you through this. Be proactive get into contact with us and a Bail bondsman.  Our phone nyumber is 559 441-1418, I have done  many hundreds of DUI cases in several different counties and can help you through this and help you hopefully stay  out of prision.

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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