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If you or a loved one have been charged with Homicide offense I.E. Murder, First or Second Degree or Homide, you need an experienced Attorney that has handled Homicide cases. Having been  a Criminal Defense Attorney for more than 14 years and having tried more than 5 First Degree Homicide cases, and having defended dozens more, I have th e experience and knowelege to help you or your loved one out.

First the definition of Homicide.  The killing of a person by another with Malice of Forethougth, I will explain Malice below. 

FIRST DEGREE HOMICIDE DEFENSES

For the prosecution to prove First Degree Murder the District Attorney must prove that not only did someone kill another person with Malice, but they killed that person  with the extra element of premiditation and deliberation.

Premiditation can occur contrary to popular belief in an instant it just means that the person that committed the murder, premiditated before the killing and deliberated before the killing.  No specific amount of time is needed just premiditation.

 

Defense to First Degree Homicide/ Rash Impulsive act

If a person acted Rashly and impulsively than they did not act with the requisite premiditation and deliberation.  They instead acted out of a rash impulse.  For example a person walks into a room and announces that they just Raped a women in the next room.  Betty herself a victim of a past Rape pulls out a gun and kills the Rapist.  This would be an example. There could be other defenses besides this below.

 

SECOND DEGREE MURDER

Like first degree murder the prosecution must prove not only a homicide occured but that the person that committed the homicide acted with Malice.  now contrary to what many Attorneys believe imperfect self defense and heat of passion are not defenses to homicide rather if the person acted out of heat of passion or imperfect self defense than they did not act with Malice. 

 

I went over Imperfect Self Defense in another article so lets look at Heat of Passion

if a person acted under Heat of Passion after adeqaute provocation then they did not act with Malice and should not be held liable for Homiicide. 

Self Defense

If a person Honestly believed in the need to use deadly force and that belief was reasonable then they should not be held liable for any crime and should be found not guilt.

This also pertains to the Defense of Others which means that is you honestly believe you needed to use deadly force to protect the life of yourself or others and that belief was reasonable than you step into the shoes of the person you are protecting and should not be convicted of Homicide.

 

These are meant to be very general overview of the defenses to give you an idea of how those defenses work. 

If you have any questions than call 559-441-1418.

If you have been arrested for Domestic Violence in Fresno you should immediately call our office to set up a case evaluation.  Many Domestic Violence cases are complex and could affect your gun rights, voting rights, and much more and even result in jail time for even first time offender. 

As a former probation officer, deupty district attorney, criminology professor, and experienced criminal defense trial attorney I know the ins and outs of the system. 

Many Domestic Violence cases are based upon false accusations.  Many times the police will be strictly adhering to what they refere to as the domestic violence protocals. 

These protocals take the discretion out of the hands of Law Enforcement and make them make arrest on cases in which many times in years past law enforcement would not have made the arrest.

Therefore, you need an experienced Criminal Defense Attorney to carefully evaluate the merits of your case and decide what the best course of action would be to follow. 

Please give us a call 559-441-1418.

If you have been charged with what is commonly referred to as a "wobbler offense" that means an offense that can be charged either as a Felony or as a Misdameanor. 

These cases can be very complex and you need an experiecned Attorney help you.  If you call our office we can give you a case evaluation to discuss your case, and evelauate your defenses.  Many cases including domestic violence cases can be charged as a Felony or a Misdameanor.  I often see bot the District Attorney and Judges give either a Misdameanor at the outset of a case or change the charge to a Misdo at a later point.

 

For example we had a case where our client was charged with Felony Domestic Battery.  This offense if a "Wobbler" offense.  After reviewing his case and the client deciding he wanted to negotiate for a settlement, we offered to have our client plea to a Misdameanor with 52 weeks of anger management.  The District Attorney agreed to this deal based on proof problems with the case and the complaining witness agreed.  This meant that our client was not a convicted Felon, did not have to give up firearms for life, (there is a 10 year ban for most domestic violence offesnes)

This also meant that he did not lose his right to vote or have to disclose that he is a convicted Felon. 

This is exactly the reason you need experienced counsel for your domestic violence or other "wobbler" offenses. 

there could also be the example where you plead to a Felony and later the case is reduced to a Misdameanor after certain terms and conditions have been met. 

Sometimes you can even plead to a Felony and have the Felony reduced at the time of sentencing.

There are many different scenerior that we can go through, and we have even had prosecutors change there charges from non "wobblers to wobblers" in order to faciliated settlement on what the prosecutors consider weaker cases.

As someone that works in the courtrooms of Fresno and all over California but especially the Central Valley  I have the experience to handle these complex situations.

If you have any qeustions please call 559-441-1418.

The penalties even for a first time DUI can be severe.

A first time offense means you have been arrested for a DUI and you have not been convicted within 10 years of a prior DUI.

This law came into affect in 2005.

 

So in other words if you have a current DUI and a conviction within 10 years it will be treated as a second time DUI. 

 

For a first time DUI offense or second offense 23153 within 10 years Vehicle code section (13352, 23554, 23560)

MAXIMUM

90 days up to one year in jail. , 390 to $5,000.00 fine, and one year or 3 year license suspension.  if granted probation it could be up to 5 years.

FIRST OFFENSE VEHICLE CODE 23152 within 10 years (Vehicle Code section 13352, 23536, 23538)

96 hours up to 6 months in jail, $390, to $1,000.00 fine, and a 6 month drivers license suspension.  If granted probation it could be up to 5 years. 

SECOND OFFENSE VEHICLE CODE SECTION 23152 whitin 10 years ( Vehicle Code 13352, 23540, 23542)

90 days to 1 years in jail $390.00 to $1,000.00 fine, and a 3-year drivers license revocation.  If granted probation it could be up to 5 years.

THIRD OFFENSE 23152 WITHIN 10 YEARS (VEHICLE CODE 13352, 23546, 23548)

120 Days to 1 year in jail, $390 to $1,000.00  fine, and a 3-year drivers license revocation.  If granted probation it could be up to 5 years.

RECKLESS DRIVING

Reduced from driving under the influence Vehilce Code section 23103. 5

5 days to 90 days in jail, or  $145.00 to $1000.00 fine or both.  If alcohol or drugs is involved, this conviction will act as a seperate DUI conviction if i commit a subsequent DUI offense wihin 10 years if probation is granted it could be up to 5 years. 

 

If  you have been arrested or cited for a DUI it is time to take action we can do a case evaluation with you to determines some of the defenses you may have available to you as well as discuss the penalties above. Many courts locally in Fresno County have there own specific ways of handling the fines fees, etc.  So give us a call and set up a case evaluation 559-441-1418. 

 

 

 

This article will deal with what happens at the begginning of a DUI case.  And how a DUI case will proceed, and what will happen at your first court date.  As a former probation officer, deputy district attorney, and someone that has both prosecuted and defended DUI cases I know the ins and outs of the system. 

When you are first arrested for a DUI you will have a court hearing date placed on your ticket.  That ticket is your first court date.  Many people think a lot of stuff will happen at that first court date.  However, that first court date is the date when you have what is called an Arraignment. 

WHAT HAPPENS AT ARRAIGNMENT 

Your first court appearance is an arraignment.  At that court date you will be given police reports and other videos etc.  Many people think they can go down to police headquarters or to the CHP and get there police reports.  This is not true.  You must be an Attorney or a victim to get police reports.

You will be appraised of your charges and will enter into a time waiver or set your next court date within the statutory time period.

 

WHAT IS A TIME WAIVER?

A time waiver or statutory date means that if you do not enter into some kind of time waiver your next court date will have to be whithin the statutory time.  It depends on the case as to whether you should waive time.  A time waiver can be specific to the time out date, meaning the date the case has to be tried, if the time waiver is specific then you can waive the statutory tme plus a waiver of say ten days.  The court will accept this as a waiver of time.  To go beyond this date there must be good cause. 

a General Time Waiver

a general time waiver means that the time is waived and that there is no specific date that the case must proceeed to trial. 

Of course you should consult your Attorney and listen to them as to what kind of waiver you should enter into. 

 

Many time she District Attorneys office will not have the case filed by the first court date.  What this means is that for whatever reasons the Deputy District Attorney in charge of filing the case has not got around to filing charges.

in a Misdameanor case the District Attorneys office has one year in which to prosecute a case. That means that they may at any time during that one year period the DA can bring charges regarding a DUI case or any misdo case.  In that case you may be stuck calling the da's office one time per week to find out if charges have been filed and what those charges are.

 

As you can see just the begginining of a DUI case can be complex and confusing we have helped many hundreds of clients through this process.  The reason I do this job is to help people get through the worst time of there lfe. 

Give me a call so we can give you a case evealuation and see how we can help you.

 

 

Again I will be taking some time off from my regularly scheduled blogs as to DUI defense and writing today on a subject of defenses to Homicide cases. Having tried more than 5 first degree homicide cases and having handled close to a hundred more I know the ins and outs of the homicide defense system.

One of the first things you must ascertain in a Homicide case is  a very clearly defined defense to the Homicide i.e. was it self defense? defense of others?

This must be very clear from the begginning of the case for both your client, the prosecution and prospective jurors. 

 

WHAT I WILL BE DISCUSSING TODAY IS A CASE WHERE IMPERFECT SELF DEFENSE WAS THE DEFENSE

WHAT IS IMPERFECT SELF DEFENSE?

Imperfect self defense  is a defense to either a first or second degree murder charge.

the bottom line is that the defendant will usually be admitting to having committed a killing; however the degree of the homicide is aguably not first or second degree murder.

In order for somoene to be convicted of second degree murder for example there must be malice.

there must be either an intent to kill or doing an act inherently dangerous to human life with the psychological element, acting with disregard to that danger.

 

IMPERFECT SELF DEFENSE

If someone acted in Imperfect self defense, than they did not act with malice.   

 

1. what imperfect self defense is is the honest but unreasonable belief in the need to use deadly force.

this differs from self defense on one key factor.  Self Defense,  which could lead to a full aquital, the person had an honest belief in the need to use deadly force, and that belief was reasonable. 

 

In imperfect self defense if the jury believes the defense the affect would be a conviction for mansaughter and usuallya 6 to 12 year sentence. 

 

So back to the case study. 

We had a client that honestly believed she needed to use deadly force against a  person that was in her home and would not leave. 

We were able to bring in a psychologist that explained how our client may have had a honest but enhanced feeling that she needed to use deadly force based upon her past trauma.  This was used to explain how her past trauma made her honestly believe that she needed to use deadly force.  Now we did not argue and did not need to argue that the belief was reasonable.  In fact, we stated that her belief in the need to use deadly force was completely unreasonable.

The result is that the jurors have to decide based upon all the factors available to them if they believed that the person had an honest belief in the need to use deadly force.

Again that belief does not have to be reasonable like the belief has to be for self defense as a defense.

The result could be very big for a client.

For example, if a person is tried for first degree murder than if convicted they face 25 to life in prison, if convicted of second degree murder than the person faces 15 to life in prison.  This is of course, before any enhancements are included to the sentence. 

If you are convicted of Manslaughter you have an out date meaning that you will not be given an indetermianent sentence, for example, 25 to life. instead you will be given a sentence such as 6 to 12 years again with any enhancements.   This could definitely be a good thing. indeterminent sentences are to be avoided because you never know an exact date when you can be expected to parole.

Again give us a call if you have any questions. 5594411418.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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Fresno, CA 93704
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