~ Gerald Schwab
Many times I have people call my office wanting information regarding Mental Health Diversion or Veterans Court. There have been many changes in the past two year regarding these programs. Below I will give a brief overview, not meant as particular legal advice, but as a general overview as to the different programs.
- Let's start with the Mental Health Diversion program.
The Mental Health Diversion program is a pre-plea program. Meaning you do not have to enter into a plea agreement in order to complete the program. This is a great advantage, because if you complete the program you will not have a conviction on your record. The case was diverted from the Justice system before a plea was entered. You can in most cases but not all say to your employer you were never convicted of a crime.
What are the requirements. ?
Another advantage to the Mental Health diversion program is that the program is for both Felony and Misdemeanor cases, with some exceptions.
you must be suffering from a diagnosed major mental illness which contributed to the current offense before the court. You will have to file a motion or your Attorney can do for you and attach the paperwork proving this mental illness and file with the court, the court will then set a date for hearing as to suitability.
If accepted into the program, you will be given a court date in 97b courtroom assigned a treatment team, and required to cooperate in the treatment of your mental illness. if you satisfactorily complete the program then your case will be dismissed even if a Felony.
2. Veterans Court Program
The veterans court program is similiar although not exactly the same as the Mental Health Diversion program.
If you are a Veteran with either ptsd or substance abuse issues related to your service which then contributed to your current offense then you may be eligible for Veterans Court.
How does the court work? you will be required to waive time
File the proper paperwork with the court after going to the VA to establish a treatment plan. The court will make a determination of you eligibility and then you will be placed in the Veterans court program. You will be required to enter a plea of guilty and then comply with the program.
What happens if I complete the program?
If you complete the program the outcome will depend on the nature of the charges.
If you entered into a plea of guilty to a Felony offense than your Felony case can be reduced to a Misdemeanor.
If you pled to a Misdemeanor case then the effect will be that the case will be dismissed through the applicable statute for that offense. Usually 1203.4
What if I qualify for both programs?
Many people qualify for both programs and you should consult with an Attorney fo the best fit for your long term mental health and or sobriety. Both programs are different and offer different advantages or disadvantages.
Although this is just an overview and the programs are more involved and this blog is not meant to substitute for legal advice about your specific situation. If you have questions after reading this blog feel free to call us at 559 441 1418. We have helped many clients in both situations to get through the programs and get there lives back on track. And many people in these programs get there lives not only back on track but finally get the help they need from some of the problems.
So If you or your loved ones need help and have further questions about these program and how you can be helped dont hesitate to call.
In this article I will go over the basics of the law of probation not meant to be legal advice, your case is particular to you if you have questions after reading this blog give me a call at 559 441-1418.
If you are place on probation there are one of several penalties you can recieve for either a Felony or Misdemeanor matter.
The Court will suspend imposition of sentence for a conviction.
For Felony cases an imposition of a sentence wil be suspended and you will be given probation for a period of time most the time now it is for a period of two years Felony probation.
Probation allows you to stay in your home and complete certain terms and conditions of probation such as paying fines, anger management, not getting into any more trouble etc.
DIFFERENCE BETWEEN FORMAL AND INFORMAL PROBATION?
For Felony 'formal probation' you must see a probation officer and check in there are some misdemenaors that require formal probation unless the court allows for informal.
Even if you are on informal probation you must adhere to your terms and conditions of probation.
WHAT HAPPENS IF YOU VIOLATE PROBATION?
If a person violates there probation your probation could be revocked, modified, or completely terminated.
If the court terminates the probation then he must serve a jail sentence. If the terms are modified the probation may be extended, kepp the present date and add other terms, or a combination along with local jail time without the probationer having to go to prison if a Felony case for a term.
that depends on how serious the violation is and wether there have been other violations of probation, or wether the person has complied with other terms and conditions of probation before the current violation of probation and wether there are current other law violations along with the violation of probation.
if you are found to be in violation of Midemeanor probation the court can sentence you to local county jail for a period as punishment or add other terms or make the probationer come to court to check on there status.
A Probation Officer does not need a warrant to search your home or car if you are subject to search and seizure terms and can arrest you without a warrant for violations even violations amounting to hearsay. As long as thre hearsay is considered to be reliable the court can rely on that information and base a violationo probation on that information.
ARE YOU ENTITLE TO A VOP HEARING?
Yes you are entitled to a vop hearing to ascertain if there is evidence by a preponderance of evidence that you violated your probation. meaning more probably then not. This is not the same level of proof needed for a law violation. And you do not have a right to a hearing by trial. The Judge will make a determination if you violated your probation and then there will be sentence imposed.
Many times when a probation officer violates someones probation they will make a recommendation to the court where if the probationer admits to the violation they will ask the court for a certain sentence. Then if the court ok's this sentence, that is the sentence imposed.
This occurs many times especially for minor or first time violations, however, this is not guaranteed and the person on probation wether misdo or felony should never violate there probation, the penaltes are always severe and many times involve going to jail
many times people think it was a minor violation and the Judge disagrees. If you are accused of a violation of probation call 559 441-1418.
The laws regarding sex registration have been changed recently and a new tier system will be in place. In the past if you were convicted of any sex offense you would be required to register for life. However, under new legislation in California the period is now tiered. If you have any questions after readifng this article give us a call and we can help you with your situation.
Below I will go through the new tiered system briefly and explain when certain offender would be eligible to be taken off the registration list.
1. Tier one is for people convicted of the lowest level of sex offenders, such as Misdemeanor sexual battery, or indecent exposure. A person that is on tier one will have to register as a sex offender for a period of at least ten years. If convicted in Juvenile court the mandatory period is five years.
2. Tier Two
This tier is for people convicted of mid-level sex offenses including lewdness with a minor under 14 and non-forced sodomy with a minor under the age of 14. A person ordered to register under this tier will have to register for a period of at least twenty years. If convicted in Juvenile Court then he will have to register for a period of ten years.
3. Tier 3
This tier is for people convicted of the most serious sex crimes and requires a lifetime registration. These offenses include Rape (in most cases) lewdness with a minor by force. sex trafficking, sex crimes against children 10 years of younger.
When the time period for a persons registration is up it does not mean that he automatically stops having to register. The person must go through a petition process through the court, and a Judge will make a determination of the persons being taken off the sex registration requirement.
The person must file a petition then the person must wait for a period of 60 days and the state will have the oppurtunity to review and to file and objection or response to the petition.
WHEN DOES THE PERIOD OF TIME START TO RUN?
For tier one or two the period of time begins to run when the person is released from incarceration or placement. This includes all civil committments for the offense.
For each time that the person fails to register under a Misdemeanor the person could be extendes for a period of 1 year. If the person was convicted of a Felony and fails to register the time period is extended by a period of three years.
After these periods are completed get an Attorney and file a petition. The court will give you a court date and you will be assigned a court room. Make sure to do this in the County in which you reside and are registering. At that time the court will have a hearing and give you and the prosecution an oppurtunity to be heard regarding the registration requirements.
Nothing in this article is meant to be legal advicie and of course every case is different and this is meant for inormaiton purposes.
If after reading this article you have questions give us a call at 559 441-1418. We can set up an evaluation of your case and determine if you qualify and how you should go about getting a hearing to go over your case.
Although the law has changed it is still complicated and you should seek legal advice before attempting to go through this process on your own. Because you may have had a better result with the help of an Attorney to get you through the difficult legal process.
If you or a loved on has questions regarding how to safely store a firearm and stay whithin the bounds of the law. This article will answer some of your questions for you. As an Attorney with almost two decades of experience I can help you if you have questions or problems with local gun laws. The gun laws are now very difficult even for Attorneys or Firearms experts to follow. So this is an area of law that you may have questions about give us a call 559 441-1418.
WHAT ARE THE ATTORNEY GENERAL OPINIONS AND HOW DO THEY AFFECT GUN STORING AND SAFETY?
Attorney General opinions are not law rather they give legal opinions to local law enforcement as to how they should handle certain legal positions.
WHAT IS THE ATTORNEY GENERALS POSITION AS TO STORAGE OF A FIREAM?
The California Attorney Generals position on storage of a firearm, is that the safest way to store a gun is with a state- approved firearm safety device and keeping the gun in a locked container. And store the gun unloaded and ammunition in a different locations.
PENAL CODE SECTION 25100
California gun laws further require gun owners to store the gun unloaded and in an area that is both not accesible to children or people that are prohibited from owning or possesion guns within the state of california.
violation of this statute is a Misdemeanor in the state of California and can result in a year in county jail and the penalties can be more severe if the gun causes injury or death.
HOW CAN I LEGALLY TRANSPORT A GUN IN A VEHICLE?
2. locked in the trunk of the car or in a locked container within a vehicle
3. apparent and not concealed within the vehicle
If you have children within your house you must follow other guidelines. Mostly it is out of control of the minor meaning it is in a locked container and in an area the child does not have access to the gun and the container is locked with a some kind of locking device, meaning a combination lock or a key lock. One of the ways in whick law enforcement comes into contact with individuals violating these laws is if they are called to the home for a legitimate reason such as a domestic violence call. Officers are usually able to enter a home without the permission of the owner of the home for a brief period to make a check on the welfare of individuals within the home. At that time the officers often come into contact with firearms that are not properly stored. At that tme they can make an arrest based upon what is in plain sight while they are in the home.
You can also be pulled over during a traffic stop and some people may have a firearm in the vehicle that is not properly stored or is fully loaded. Sometimes people are on there way to the gun range and do not properly store there gun when travelling to and from the gun range this could lead to a Misdemeanor charge and local county jail time. Some people get in hurry and do not pay attention to the detail of the law.
Nothing in this article is meant as legal advice any legal problem is individual and should be spoken with an Attorney as soon as possible. Every case is different and as stated above the gun laws in the state of california are very confusing and can lead to you not knowing exactly what your legal rights are if you have question give us a call at 559 441-1418.
If you or a loved one is in need of legal services give our office a call, we can assist you as an Attorney with more than 19 years of experience and having gained full acquitals in three different counties, and having more than 50 Jury trial I can help you get through this.
In this article I will be discussing changes to the law and so called "youthful offender" law California Penal Code 3051, which I will go over who is eligible who is not and how the law works.
WHO IS ELIGIBLE ?
Someone who committed a crime before there 26th birthday and is given a de-facto life sentence. Such as 50 to life.
in the above example if somoene is given a life term of 50 to life because the offense is longer than 25 to life then the person would be eligible for parole after serving 25 years in prison. It would have to be a meaningful shot at parole and not just a hearing. This means that a Franklin hearing would occur, which I will go over in a different blog. At that Franklin hearing there would be the chance to go forward with a meaningful evidence of mitigation regarding the individual a so called time machine so that the information will not be lost to time.
If you reciveved a sentence of less than 25 years to life than you will be eligible for Parole the first time at the point of 20 years and given a meaningful oppurunity at Parole.
WHAT IF I AM GIVEN A DETERMINATE SENTENCE?
If you are given a determinate sentence which means a specific date rather than, for example, 15 to life. than you are given a determinate sentence. for example 50 years in prison rather than 50 to life. If you are given that sentence than you are given your first shot at parole after 15 years.
WHO IS NOT ELIGIBLE?
Any person that has strike offense is not eligible for youthful offender status. If you have prior strike and then get a indeterminate term even if the term is very lengthy and you would otherwise be eligible you would be found to be ineligible.
if you recived a life in prison without the possibility of parole after you turn 18 then you are not eligible even though you are under the age of 26 when the offense occured. If you are under the age of 18 when the offense occurred which makes you eligible for youthful offender status.
This can be very confusing part of the law and you need experienced counsel to lead you through this. If you need an Attorney who knows the ins and outs of the system then you should give us a call and we can help you.
If you or a loved one is being faced with a lengthy sentence is under the age of 26 when the offense occurred there is hope that even if given a lenghty sentence after trial that they could with good behavior and a parole hearing one day be released from Prison. This could even figure into the settlement negotiations. And if your Attorney is not an experienced Homcide Attorney they may not know the ins and outs of that law and how to use it to your advantage in bringing about a settlement to your case. If you have questions after reading this article give us a call 559 441-1418 nothing in this article is meant to be legal advice and every situation is different and you should get legal advice immediately, due to the complexity of this part of the legal system. If your loved one is incarcerated have someone start making call right away on his behalf.
Gerald Schwab, Jr.
CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA