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I have known Gerald Schwab for nearly eight years and have consulted with him on several matters. He knows what he is doing about the law, tactical issues and practical strategies for getting problems solved. Most importantly for me, he is direct, candid and has integrity I really respect.

~ Gerald Schwab

FRESNO NEW MARIJUANA LAWS

 

If you or a loved one has questions or concerns about Marijuana Laws and the changes that have taken place with these laws dont hesitate to give us a a call at 559 441-1418.  As an Attorney with almost twenty years of experience and having handled over one thousand cases in Fresno County alone I have the experience to get you through this.  

 

There have been many changes to Marijuana laws in Calfornia over the past few years, with major legislation aimed at lessining the penalties for Marijuana possession.  Below I will outline the changes to the law, how the new laws affect minors and what to do if you are given a ticket for Marijuana.  

 

One thing I want to deal with up front is that although the penalties have been lessened for possesion you cannot legally sell Marijuana and you cannot legally smoke while driving or even have your Marijuana in a vehicle without it being in a properly sealed baggie or container.  If you are smoking while driving or have the Marijuana unsecured you can be arrested or ticketed and have your car searched.  

 

11357 is the statute dealing with Marijuan Possession

Marijuana under this statute is still illegal to possess, however the law makes an exception if the amount is less than an ounce for a person over the age of 21.  The law allows for one 28.5 grams of Marijuana or concentrated (hassish) 

Possesing more than this amount or on k -12 school ground or possession while under the age of 21 are all prohiblted.  

MINORS

Minors under the age of eighteen who are in violation of this statute will be given an infraction ticket and made to attend a drug awareness class before the case can be dismissed. This will save the minor from having a criminal record for possesion of Marijuana and give them an oppurtunity to clear there record.  Without long term consequences to there lives.  

persons between the age of 18-21 will be given an infraction.  For a first offense for being in violation of the law.  

 

In short you must be 21 years of age and have less than an ounce of Marijuana or concentrated cannibas.  If you are younger than 21 you cannot posses Marijuana however, if caught you would be liable only for an Infraction offense.  

 

Search and Seizure law

There have been cases and Judges looking mostly into how this affects searches of vehicles.  You are not allowed to smoke Marijuana while driving and if you are smoking while driving you are subject to arrest if you were impaired and your vehicle could be searched as part of that arrest if the arrest occurs.  However just having weed in your vehicle may not be enough if it is in a small amount and not being smoked and properly stored then it is not illegal to posses and therefore, should not lead to a search of your vehicle.

I have seen some cases coming down where the person was smoking or posssesing small amounts of Marijuana on school grounds say you are a teacher you cannot keep a small amount of Marijuana in your purse of locker or briefcase, this is illegal if you are at a school that teaches k-12.  I would not suggest even posssesing at your childrens school events or when you have children in the vehicle many times when pulled over the officer can smell the Marijuana and will investigate further and if you have children in the vehicle it could end up in a bigger problem.  Again nothing  I say in a blog post is meant to be legal advice and you should seek legal advice as to specific progblems.  

 

 

 

 

 

FRESNO PROP 57 NEW LAW

This article will deal with some of the changes to the law brought about by prop 57.  This article will deal with the subject broadly and is not meant as legal advice if you have any questions after reading this article give us a call at 559 441-1418. 

 

WHAT IS PROP 57  AND HOW DOES IT CHANGE THE LAW?

       Under the terms of prop 57 the California Department of Corrections and Rehabilitation must allow defendants convictied of certain non-violent offenses to be considered for parole upon completion of the primary offense without the enhancement portions of their offense.   No longer do offenders have to serve there enhanced portion of there sentence.  

Also, prop 57 changed the way someoene would have to serve there sentence.  And the time credits allowed for a speicific crime.  The department of Corrections has the descretion  to move up the parole date on someone by granting them more time credits.  The way the law stood before the department was limited in the way they could reward tim credits and good time work time. 

HOW DID PROP 57 AFFECT JUVENILE COURT? 

Prop 57 effectively repealed Prop 21, which allowed for the direct-file of of juvenile offenders in teh adult criminal justic system.    Under prop 57 the Judge retains the sole discretion as to whether a juvenile will be kept in the Juvenile Justice system or in the adult system.  Under the old law prop 21 that was a decision made by the District Attorneys.  

Most ot the  sweeping changes of prop 57 deal with the incarceration of violent offenders but the difference if with the juvenile justice system.  Now a minor must be over the age of 16 to be given what is referred to as a transfer hearing.  A Transfer hearing is the hearing where the Judge decides whether the minor will be treated at the Juvenile level or he or she will be transferred to the adult  court system.  In addition, there is no longer a presumption that if the minor committed or is alleged to have committed certain offenses he was presumbed to be ineligible for juvenile treatment and the burden switched to defense to prove that he was treateble at the juvenile level.  This has now changed and is no longer the law.  Now there is no presumption and the Judge makes a determination based upon the preponderance of evidence shown in a transfer hearing. 

 

Many Attorneys feel it is very limited what they are allowed to show at that hearing.  This is actually not true. 

An Attorney now under prop 57 can argue among other things the sophistication or lack of sophistication of the minor and the ability to rehabiliitate the minor at the Juvenil level.  This gives the Attorney broad latittude to argue the facts in the underlying case that show lack of sophisticiation and that the minor can be rehabilitated in the juvenile system.  

As you can see prop 57 is a broad law with sweeping changes to many different parts of the law including non-violent offenders and Juveniles and transfer hearings as well as the way in which custidy credits are counted at the incarceration level.  If after reading this artice you still have questions feel free to give us a call. As an Attorney with more than 18 years of experience handling all levels of cases I have the know how to help you with your case.  Give us a call at 559 441-1418. And we can help you with your case by giving you a free case evaluation and see what we can do to help you get through this part of your life, or the life of a loved one who is facing charges in California.  

 

 

FRESNO DEFENSES TO MISDEMEANOR CASES

If you or a  loved one has been arrested or cited for a Misdmeanor offense you should get legal help as soon as  possible.  As an Attorney with more than 19 years of experience and having tried more than 50 Felony Jury trials and handles over a thousand Misdemeanor cases, I have the know how to get you through this.  

 

Below i will be going through some of the defenses to Misdemeanor cases, including some of the changes to law that has helped both Veterans and people facing Misdemeanor cases move on with there lives as soon as Possible.  In another blog I went through the new law as to so called, Court Diversion, I will briefly go through that again and go through veterans diversion.  And what happens if you do not qualify under one of those programs. 

ARE YOU A VETERAN DO YOU QUALIFY FOR VETERANS DIVERSION?

This program is not so much a defense as it is a diversion program.  If you are a Veteran facing Misdemeeanor charges you may qualify for Veterans diversion program.  

You would have to be a Honorably discharged veteran, facing Misdemeanor charges, and there must be a nexus between your milltary service and the current charges.  For example PTSD or alcoholism, had a relatiionship to the charges.  You would have to get a Military 100 form showing proof of your mililtary service.  Then that your qualify for one of there treatement programs at the VA.  The VA will have to cooperate with this process.  This means they will have to let the court know that you have a nexus between the offense and service and they have a program to help you.

In Fresno you willl stay in the same court and not go to a specific Veterans Court for a Misdemeanor and instead show your progress in the court you are assigned. After you have completed the program your case will be dismissed under the expungement statute, which is 1203.4. 

WHAT IS COURT DIVERSION?

In Fresno County you will often hear people talk about court diversion.  This means under new law that was recently passed you may be eligible to have your case diverted before even entering a Plea.  This is a huge benefit to mostly first time offenders.  It gives you the oppurtunity to get your case resolved without having to enter into and admission and have the cases show as a conviction on your record beccause the case is diverted wihtout having to enter into a plea.  

Under the old law the prosecutor would decide if the case were diverted.   The court did not have a say in this process.  This has now changed the court over the objection of the prosecution may decide over the objection of the prosecution.  The court will look at certain factors such as the prior record of the person, how serious the current case is, wether you have any other factors such as addiction and other problems.  

If the court grants this diversion you will be given certain things to complete such as anger management or alcohol classes or other programs and then come back.  And the case will be dismissed. 

WHAT HAPPENS IF I DO NOT QUALIFY FOR ONE OF THOSE PROGRAMS?

Even if you do not qualify for one of thos programs all is not lost.  In a Miademeanor case you can after successfull completion of probation, and then petition the court under Penal Code 1203.4 to have the case dismissed and expunged.  What this means is that after the conviction on your record the case will show as dismissed and expunged.  This will always look better on your record.  

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

 

 

FRESNO HOMICIDE TRIALS

If you have questions regarding a Homicide case that is going to go to trial you need experienced trial counsel on your side.   As someone who has tried seven homicide cases in the last four years.  I have the experience to handle a Homicide case.  Below I will explain the difference between hiring an Attorney for a Homicide case and hiring an Attorney for a Homicide trial which are very differennt. 

 

When hiring an Attorney for a homicide it is important that the Attorney has handled Homicide cases and has tried some of those Homicides to verdict.  

 

WHAT IS THE DIFFENCE BETWEEN HIRING A DEFENSE ATTORNEY FOR TRIAL OR AT THE BEGGINING OF A CASE?

When hiring an attorney at the beggining of a case you may be only hriing him up until a certain point in the case for example, you may hire him for a set amount of money up until the preliminary hearing is complete and then a  new and seperate contract must be entered into for they purposes of trial.  You can enter into a contract at the begginning of a  case for the purposes of trial representation also, however this must be spcifically stated in the contract.  

If you do not have a contract for trial at the beggining of the tiral then you willl either  have to hire that Attorney again or you will have to have to find new representation or you will have to have your case assigned to the Public Defenders office for representation.  

 

So at the beggining of your case make sure  you understand what exactly your representation is for thand the terms of that representation.  This is all very important and should be handles at the beggining of your case.  If you have questions give us a call at 559 441 -1418

 

 

FRESNO DEFENSES TO HOMICIDE CASES

If you or a loved one has been accused or arrested for a Homicide case then give us a call at 559 441-1418.  Homicide is the most serious crime in the California Penal code and there is no stutute of limitations.  As someone that has tried 7 First Degree Murder cases, and won one Juvenile Homicide case and had another homicide case reduced to Involuntary Manslaughter I Have the experience to help you with your case.  

 

As a Attorney with more than 18 years of experience, and 50 Felony Jury trial as well as experience handling homicide cases we can definitely help you.  This is not a case where hiring inexperienced counsel or the local DUI guy will be sufficient.  Experience and results matter. 

 

Below I will be going through the charge of homicide briefely and then the defenses to homicide, nothing in this article is meant to be legal advice and you should seek experienced counsel.  

 

WHAT IS A HOMICIDE CASE?

Homicide is the unlawful killing of a human being by another.  

below  I will go through some of the defenses to that charge and some other ways of attacking a homicide case that do not amount to defenses but rather negate the Malice element.  

 

DEFENSES TO HOMICIDE

Ths is not an exhaustive list and is meant to be only a partial list again if you or a loved one is charged with Homicide get legal advice as soon as possible. 

1. Self Defense/ At the time that you acted you were in reasonable fear of death or serious bodily injury.  

This is really a two part test were you in actual fear for your life and was that fear reasonble if the answer to those questions is yes than self defense is present and it amounts to what is  referred to as a  complete defense.  This means you could walk out of the courtroom if the jury agrees.  These type of cases usually go all the way to jury trial because th District Attorneys office does not agree if they charged the case as a Homicide. Sometimes you can change the minds of the District Attorney before trial by giving them evidence in the form of witness statements that back up your claim of self defense.  For example a witness saw the alleged victim pull out a gun first then you shot.  

 

2. Defense of others 

This is similiar to the defense above except you are stepping into the shoes of someone else meaning that another person had the right to defensd themselves against another person and that you stepped in and defended them. 

For example: A person pullls gun on someone and threatens to kill them you see this happen and then pull your gun out and kill them. 

 

Below I will explain two types of mititgation in a Murder, these defenses are not complete defenses and are actually not defenses at all they do not negate an element but if found true by the trier of fact they will show that the person that committed the Homicide did not have Malice.  

For a person to be found guilty of Murder they must possess Malice Express intent to kill such as pointing a gun at someone very close range and shooting several times. 

Implied Malice has two elements the phsical doing an act inherently dangerous to human life, the natural and probable consequence is death and the mental element conscious disregard for that danger.

 

MANSLAUGHER

SUDDEN QUARREL OR HEAT OF PASSSION

If somoene acts during a sudden quarrel or after adequate provocation then purposely kills someoene they did not possess Malice and are guilty of Manslaughter

IMPERFECT SELF DEFENSE

If a person acts with an actual belief in the need to use deadly force, but that belief was unreasonble then they are guilty of Manslaughter becasue they do no posses the Malice needed for First Degree or second degree murder. 

 

This is by no means  full explanation and there are many other defenses. 

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

 

 

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 View Map
Phone: 559.441.1418
Website: https://fresnoscrimedefense.com/