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If you or a loved one needs a certiificate of rehablilitation, then after reading this aricle is you have any further questions give us a call and we will help you out and get you on track.  Many times people come into our office frustrated because they are trying to do all the work alone and are having a hard time with the paperwork and procedures needed to obtain a certficate of rehablilitation.  

WHAT IS A CERTIFICATE OF REHABILITATION?

In short a certificate of rehabilitation is a court order declaring that a person convicted of a Felony has been rehabilitated.  If a petition is granted, it is forwarded to the Governer by the Court and constitutes the application for a Pardon.  The laws pertaining to a Pardon it does not guarantee that you will be given the pardon only that it will be forwareded by the governor.  

If you have been convicted of a Felony and reside in California you may apply to the superior court in your county of residence. 

Special laws apply to sex offenses.  Persons convicted of sex offenses that are misdemeanors specified in 290 may apply if the conviction has been dismissed under Penal Code 1203.4

Persons convicted under penal code section 288 288 a or 286 c are not eligible for a cerficate of rehablilitation.  

Some offender may be relieved of there need to register.  

WHO MAY APPLY?

1. You were convicted of a Felony and served your sentence in a California prison.

or 

2. A misdemeanor sex offense specified in 290 and that offense was dismissed under 1203.4 and 

have been discharged from custody, parole, or probation; and 

have not been incarcerated in any penal institution jail, or agency since release; and

are not on probation for the commissio of any other felony and 

have resided for five years in California immediately prior to filing the petition.  

PERSONS NOT ELIGIBLE

Those that do not meet the above requirements or 

those who are convicted of misdemeanors except those convicted of misdemeanor sex offenses sex offense as discussed above. or 

those convicted of sex offenses under penal code 286c 288 or 

those who are serving a mandatory life  parole, or

those persons in military service. 

WHEN TO APPLY?

Four years for persons convicted of penal code 187 209, 219 etc.  

2. Five years for any person convicted of any offense for which sex offender registration is requires under penal code section 290. there are some exception sto this.

3. two years for any persons convicted of an offense not listed above and that does not carry a life sentence or 

any additional years ordered by the cour if the person served consecutive sentences.  

PROCEDURES FOR APPLYING

The petition must be filed in the superior court of the applicant's current county of residence (Penal Code 4852.06) THE Petition can be obtained from the clerks office, if our office represents you the we will do this part of the process and go about getting the paperwork together and filing of the necessary paperwork.  

Once all the paperwork is filed and the proper people are notices then there will be a hearing scheduled.  The District Attorney will be present at the hearing and sometimes probation or parole will be there. 

the court could hear evidence or decide the case as the court sees fit.  I have sometimes seen cases where the court will allow testimony and have had my clients do some testimony with the district attorneys office asking some questions and then the court making a decision after that has occurred.  If you have any question after reading this article give us a call and we can help you out our number is 559 441-1418.  We can get you through this. 

 

 

Many times people come into my office confused about the difference between a Felony reduction and an expungement and how to go about the entire process and whether they are even eligible for a reduction and if not what relief they are entitled to in the law. 

If after reading this article you still have questions give us a call at 559 441-1418.  

WHAT FELONIES ARE ELIGIBLE TO BE REDUCED PER 17 B OF THE CALIFORNIA PENAL CODE?

 Certain offenses in Calfornia are punishable either as a felony or misdemeanor.  Those offenses are called "wobblers"  If you were convicted of a wobbler as a Felony, the Judge may be permitted to later reduce the offense to a misdemeanor so long as your sentence did not include a prison term.  

The easiest way to reduce a Felony wobbler to a misdemeanor is to request the reduction at the same time you are asking for an Expungement.  Alternatively you  can file a seperate motion to reduce seperately from your expungement.  You can file a motion to redcue any wobblers using the forms and instructions provided by the court.  

REDUCTION VIA PROPOSITION 47 OR PROPOSITION 64

for certain offenses you my be eligible for reduction per proposition 64 or 47 you should consult an Attorney before seeking relief under these statutes or even under a 17b this is because some of the relief offered may not entitle you to regaining your firearm rights and restoring those rights under the law.  Therefore, before you seek to do any legal work on your own get advice from an experienced Attorney to help you through the process.  

WHAT IF I WAS SENTENCED TO PRISION?  

If you were sentenced to prision the proper avenue for you to take would be a certificate of rehablitation.  The effect of this shows that you have completed your parole and a Judge has found that you are suitable have the certificate of rehabilitation.  This process can be lenghty in all of the above situation but may help you to get employment and to help yourself to move on with your life.  

A certificate of reahabiltation is an order signed by a Judge declaring the person convicted of a Felony is now rehabilitated.  If a petition for a certificated of rehabilitation  is granted, it is forwarded to the Governor by the Court and constitutes an application for a pardon.  A seperate application for a Pardon is not needed.  

The minimum level of but not a guarantee to apply is that you were convicted of a Felony or a Misdemeanor sex offense requiring registration.  and that misdemeanor was dismissed or on the Felony conviction you served a  prison sentence 

have been  discharged from parole 

have not been incarcerated since release 

have paid all fees fines and restititution 

are not serving any sentence on any other felony or on probation or parole and 

have resided in California for the immediate five years prior to asking for the certificate.  We always advice our clients to please get proof of all of the above before the scheduled date for the hearing.  You must be present for the hearing with all paperwork properly filled out and proof of everything.  The Judge will hold a hearing and you may even be asked to be sworn in and testify as to what is in the moving papers.  We always make sure our clients are prepared for this if it does come down to the District Attorney placing somoene on the stand.  

If after reading this article you have further questions give us a call at 559 441-1418 and we can help you to get thes offenses behind you.  

And to move on with your life.

If you or a loved one has been arrested for carrying a concealed dirk or dagger givfe our office a call and we can help you.  559441-1418. 

There is much confusion in the law and even amond some Attorneys as to what a dirk or dagger is and what constitutes some of the defenses for a dirk or dagger and what is not considered a dirk or dagger.  

WHAT ARE THE ELEMENTS OF THIS OFFENSE?

1. The person carried on there person a dirk or dagger

2. The knew they were carrying it

3. it was substantially concealed.

4. The defendant knew that it could be readily used as a stabbing weapon.

WHAT IS NOT CONSIDERED A DIRK OR DAGGER?

There is a recent California Supreme Court decision from People v. Castillo  which went into detail what is not considered a Dirk or Dagger.  The court in part said that an ordinary pocket knife was never considered a dirk or dagger.   This included a Swiss Army knife that was the subject of the above mentioned case. The court also went into the fact that just because a swiss army knife is concealed does not turn the swiss army knife into a dirk or dagger. 

DEFENSES TO CARRYING A DIRK OR DAGGER

Illegal Search and seizure mant times police officers pull someone over and commit flagrantly illegal searches and seizures, the officers will sometimes attempt to justify these unlawful searches after the fact.  Unfortunately many times they get away with it.  However, whenever there is a search in a case we always look to see if there is a basis for a 1538.5 otherwise known as a search and seizure motion to be ran on the case.  We will look for did the officer have probable cause to search a vehicle, did he or she have any reason to believe that the person was armed and presently dangerous, and other considerations.  This is done make sure the officer actually had reason to search and uncover the items the person was later arrested for. 

2. The object was not a dirk or dagger by the definition.  In other words the items was not and was never meant to be dirk or dagger.  This can be defense to the crime, and can be complicated as I have seen people prosecuted for carrying ordinary household items and later prosecuted for carrying a dirk or dagger, if the item in the eyes of the prosecution was carried in the manner ordinarily used for that items. 

3. THE ITEMS WAS NOT CONCEALED. 

In order to be liable the dirk or dagger must be concealed carried outside the clothing properly stored and visible can be a defenses to the crime. Many people for there work must carry things that are considered illegal in another context.  Therefore, if you are carrying the item in a manner in which the items was meant to be used and not a a weapon than that can be a defense. As you can see these can be very tricky areas where there must be research on the items and determinations made as to whether this defensed should be used. 

A knife carried in a sheat and worn openly suspended from the waist fo the wearer is not considered conealed.  

 

IF THE ITEM HAS INNOCENT USES

If the item has innocent uses than the Judge or Jury will look at all the sorrounding circumstances, such as where the person was going at what hour with whom and whether the items was altered in any way to dtermine if the person is guilty. Again these are factual determinations. 

IF THE ITEMS HAS INNOCENT USES

If you or loved on has been suspected or arrested for any homicide related offense you will have many quesitons.  If after reading this you have any questions give us a a call at 559-441-1418.  Below I will give an overview of Homicide law and give some defenses to the offense.  

WHAT IS A HOMICIDE?

A Homiicide is the unlawful killing of a human being by another with malice. and wihtout justification.  

WHAT ARE SOME OF THE DEFENSES TO HOMICIDE?

There are two types of defenses to Homicide.  One is a complete defense, such as Self Defense, Defense of Others, or the police have arrested the wrong person, meaning a false accusation.  There are other defenses however, this is meant to be a brief overall view of the law of Homicide. 

SELF DEFENSE

People are allowed to protect themselves from the use of deadly force if they reasonably  believe that they or someone else is at the risk of death or serious bodiy injury.  

Example: If someone pulls a gun on you and is robbing you, under most circumstances you could shoot the person to protect yourself from death or serious bodily Injury.  

DEFENSE OF OTHERS

A person is said to step into the shoes of another person when that person is facing death or serious bodily you can step into that persons shoes and use force necessary to protect a  person from death or serious bodily injury.  

FALSE ACCUSATION

Sometimes people that are accused of a Homicide may have been falsely accused of the crime.  This may happen through false innacurate in person false identifications or other problems.  

There are many other defenses and situations that occur in Homicide cases.  This area of the law is a vast and has undergone many changes in the past few years if you have questions in the future let us know and we can help you.  Call 559-441-1418.

 

If you have a child that has been arrested or detained it is vital you get experienced representation as soon as posssible.  Below I willl go through some of the considerations and law as to Juvenile Hearings and specifically Juvenile Detention Hearings.  If you have questions after reading this article do not hesitate to give us a call at 559 441-1418.  

WHAT HAPPENS IF MY CHILD IS ARRESTED?

If your child is arrested or comes into contact with an police officer the officer will make a determination as to wether to cite and release the minor or to go a more formal route and have the minor transported to the Juvenile Detention Center.  

HOW LONG WILL IT TAKE TO HAVE A HEARING?

A minor that is sleeping at Juvenile Hall must be given a detention hearing within 48 hours.  If the minor is not brought before the court within 48 hours of arrest then the minor must be released.  The charges may still go forward which is a different issue with different timelines, (usually within 15 days or 30 if the minor is out of custody)

WHAT WILL HAPPEN AT THAT FIRST HEARING?

The first hearing in a Juvenile Court is referrred to as a detention hearing.  At the detention hearing there are several things which will be determined including time waivers I.E. will the minor be waiving his right to a Disposition or trial within the 15 days, and wether the minor will be housed at Juvenile Hall or be allowed to go home to a parent or guardian pending the outcome of a case. 

Below I will go into the factors the court will consider when deciding if the minor will be going home or if the minor will be housed at the Juvenile facility pending the outcome of the case.  

1. The court will determine if the case was brought withing 48 hours.

2. Is there a pima facia case, or probable cause to believe a crime has been committed by the minor.

3. Can the minor be returned to the home of a parent or guardian. 

The Defense will look at the complaint and in Fresno County there will be a detention memo provided.  That is where the detention information will be gathered.  

If when looking at the detention memo and petition, I.E. a complaint in adult court the Attorney feels there is not a sufficient probable cause to hold the minor for the crime. If the Attorney does not feel there is probable cause they can at detention hearing ask for a Dennis H. Hearing where the officers will be required to come into court and be subjected to cross examination regarding there police reports and the probable  cause element.  If there is insufficient probable cause then the minor will be released.  Probable cause is a lower standard than proof beyond all reasonable doubt, Therefore often this will not work. 

However, that is not the end of the analysis. The court must determine even if there if probable cause whether to house the minor at JJC or to have the minor returned to the home.  

WHAT DOES THE COURT LOOK AT IN MAKING THAT DETERMINATION?

The court will look at Welfare and Institutions code 635 and 636 for factors such as is there a urgent necessity, will the minor make his court appearances, so forth.

This determination must be made every fifteen days is the case has not been resolved.  Usually the court will not change there minds unless there is a a substanitial change in circumstances. 

The court will consider grades, attendance, if there are allegations of gang membership, the nature of the chage, etc. the nature of the charge will be taken at face value unless there is a Dennis H. hearing requested then the court must make a probable cause determination.  

The court may if the Attorney needs more time to gather evidence for the detention hearing do a detention hearing and not make a determination on detention until the next court date.  This sometimes happens if the family is not prepared for the first court date with grades attendance and so forth. 

If after reading this article you have further quesitons give us a call at 559441-1418. 

 

If you or a loved one has been arrested for a DUI you will have many questions as to what will happen and what defenses you may have to the dui.  With alist two Decades of experiennce and having both prosecuted and defended DUI cases,  I can help you get through this.  If after reading this blog you still have questions give us a call at 559 441-1418.  We can help you get through this.  Experience and results matter.  

Below I will go through some of the defenses to a DUI case this is not meant to be an exhaustive list and you should definitely seek legal help as soon as possible before the longer you wait before seeking legal counsel the worse things may get for you.  

1.  There could be errors in the DUI breath testing.  There could be maintenence errors or an operator that is not used to using the machine or using it in the right way can cause problems.  Sometimes even gerd or other problems can affect the accuracy of this machine. 

2.  So called mouth alcohol could affect the accuracy of the test. Such as burping or even recent dental work could affect the amount of the breath alcohol and affect accrucy of the instrument.  The key is to prove these things and be able to show to the district attorney of the jurors. 

3. Rising blood alcohol defense  This defense means that your blood alcohol was higher when you took the test than when you were actually driving. 

Alcohol takes a certian amount of time to go into the blood stream.  between 50 minutes and three hours.  to absorb into you system.   For example if you had just finished driking, and were investigated for DUI shortly thereafter your bac may not have reached peak absorption rate.   When this is the case your blood alcohol rate is still rising and may give rise to rising blood alcohol rate.  And an elevated BAC.  This is bacause your bac at the time of the test is irrelevant it is your bac at the time that you were driving which is the relevant factor.  

prosecutors will often overlook this fact when they are prosecuting a DUI.  

4. There are innocent reasons you showed the objective symptoms of DUI  There could be many reasons that you have objective symptoms of a DUI

such as being out late at night having allergies and many other reasons many times we have officers who simply recite in there reports the exact same information as to every case.  We have to make sure there is no innocent explanation for the facts of the case and go into a defense based upon those facts many times the facts stated in the report do not make any sense and should be examined thorroughly.  

 

Now all of these factors wont necessarily mean that the prosecutor will dismiss the case. It is up to the District Attorneys office what cases they will prosecute and which cases will be dismissed.  Many times with the above factors we will meet with the client and then make a determination as to whether the client wishes to go to trial if the prosecutor refuses to either dismiss the case or reduce the charges.  If you show many mistakes or irrgularites in the stop arrest and gathering of evidence by the police then either the District Attorney can either reduce the charges dismiss the case or refuse to do any of those things ask that you go to trial. This is a determination made after we gather all the evidence and through the discovery process gather all the evidence the prosecutor has. 

 

If you have quetions call us at 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
5588 N Palm Ave,
Fresno, CA 93704
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