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Bail hearing, baling someone out of jail and so forth can be more complex than simply going down to a bail bondsman.  If you or a loved one has been arrested or a has a warrant out for your arrest you need to obtain legal advice from an Attorney as soon as possible.

I am an former probation officer deputy district attorney, and adjunct criminology professor.  I know the ins and outs of the system if you have questions please call. 

 

IF YOU HAVE A WARRANT OUT FOR YOUR ARREST

If you have a warrant out for your arrest you can bail out on that warrant.  You would have to obtain a bond for the amount listed on the charge.  For example if you have a warrant for battery you would pay the bail schedule for that charge and be given a court date for your arraignment.  You should keep your paperwork with you because a police officer may pull you over and believe that you  have an active warrant when you have actually bailed out ont the warrant.

CAN MY BAIL GO UP AFTER I POST A BOND?

The short answer to that question is unfortunately yes. because the District Attorneys office has the final say as to what charges are filed, the District Attorney's office could decide to file additional charges than the charges you were bailed out on.

For Example you bailed out on a battery charge but the District Attorneys office decides to file Attempted Murder Charges.  This would mean you would be responsible for a bond for the Attempted Murder charge.

Many times a bail bond company will work something out on the additional security needed for that bond.  However, you are responsible for the additional bond amount. 

IS IT POSSIBLE FOR THE COURT TO KEEP THE BOND AT THE ORIGINAL AMOUNT?

Again the short answer to that question is yes. Many times we will argue to the court that the same amount of bond that was originally posted should stay in place although the charges have changed.

WHAT FACTORS DOES THE COURT TAKE INTO CONSIDERATION?

In decidiing if the court will keep the amount the same or increase the amount the court will consider two factors

1. Flight Risk is the person with the bond a risk to flee the jurisdiction. What are his ties to the community? how long have they lived in the community? do they have employment in the area.

2. Is the person a danger to society based upon the facts of the case, is the person a risk of danger to the community at large.  is there some allegation in the complaint that makes the person seem to be a risk to the community at large.  Such as gang membership, use of guns in the crime. It should be noted the facts in the complaint will be taken as true in making this determination. 

BAIL HEARINGS

Many times unless the prosecution agrees there must be a noticed hearing to decrease bail.  It requires two days notice and written request for reduction.  this could sometimes give us time to prepare letters witnessess, pay stubs, etc, to have the bail reduced. I have sometimes had the mother of a client stand up and say she will perosnally watch over the person to make sure he abides by the terms of the bail.  The mother was so intimidating that the Judge agreed to the bail reduction on the spot.

These bail hearings can be used one time andd one time only unless there is a a substantial change in circumstances.  The good news is that often the Judge will take into consideration all factors such as vidoe of the incident etc. 

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

If you have been convicted of a petition in the Juvenile Court system changes in the law may be in your favor to have the mater not only expunged but to have the records destroyed.  This would have a huge impact on changing your life and enabling you to move on with your future. 

As a former Juvenile Probation officer, Deput District Attorney, Adjunct Criminology Instructor and A Criminal Defense Attorney that has been practicing in the Juvenile Courts for for more than a Decade.  I can certainly help you with your Juvenile matter.

CHANGES IN THE LAW/WIC 786

There have been significant changes in the Welfare and Institutions Code that deal with sealing of Juvenile records.  Many of these changes indicate that if you were arrested and adjudicated in the Juvenile Court after one year your case will automatically be calendared for what is referred to as a Welfare and Instutitions Code section 786 hearing.  This means that if you have not violated your probation, or sometimes even if you have violated your probation, and you have not committed a Felony or a Misdameanor crime of moral turpitude, then you would get your records sealed.

This is more expansive than an expungement in adult court.  In adult court your record would only show the expungement update.  It would not contrary to what you may have heard destroy the records. Many people think and expungement destroys the record in adult court this is not accurate.

However, in Juvenile Court under the new law this would be accurate.  This is a huge distinction and differenene in the way the law was handles and how it is handled now.

This can help you get employment and just move on with your life.  Take advantage of this oppurtunity to get rid of the records of a past youthful indiscretion.

SEALING OF RECORDS PURSUANT TO WIC 781

781 deals with Juveniles that were before the court, before the changes in the law came into affect.

the law states in pertinent part:

In any case in which a petition has been filed with a Juvenile Court to commence proceedings to adjudge you a ward of the court; in any case in which you were cited to appear before a probation officer or are taken before a probation officer, pursuant to 626, or in any case in which you were taken before any officer of a Law Enforcement agency, you or the County Probation officer may, five years or more after the jurisdiction of the juvenile court has terminated as to your matter, or, in a case in which no petition has is filed, five years or more after you were cited to appear before a  probation officer pursuant to 626, or in any case at any time after you reach the age of 18 years, petition the court for sealing of the records including records of the arrest relating to your case records in the custody of juvenile courts or probation or law enforcement officicals, or any other agencies that you allege to have the records in your filings. 

As you can tell from the reading of this article this law is very expansive and good for former minors. All of the records in the hands of anyone that had anything to do with the former minors case have to be destroyed this is way more expensive than the law for adult expungement and helps the former minors much more in moving on with there lives.

there are some exceptiona dna caveats

Notwithstanding any other provisio of law, the court shall not order records sealed in any case in which you were found by the Juvenile Court to have committed an offense listed in subdivision(b) of Section 707  when you were 14 years of age or older.

AFFECT OF THE SEALING 

Once the court has your records sealed, the proceedings in the case shall be deemed to never had occurred, and you may reply accordingly to any inquiry abou the events, to never have occurred, and you may properly reply accordingly to any inquiry about the events, the records of which have been sealed as having never occurred.

This section does not allow for the sealing of records for offenses listed in section 707.1.

PROCEDURE FOR SEALING OF RECORDS

Thes proceedings may be different for different counties but they will be similiar to the ones listed below.

After reviewing the above information if you wish to petition the Court for a Sealing of your records do the following:

1. Appear at the Probation Office.

2. Request a complete sealing packet, which will be provided to you by probation staff. 

3. Pay a processing fee.

4. Haven and interview with the probation officer. 

5. At this meeting you will need to provide all necessary paperwork and documentation.

6. If your request for sealing is not being objected to by any responding agency, you will recieve documentation.

7. At the scheduled future hearing, you are expected to appear in person.  Failure to appear may result in a denial of your petition.   and all monies forfeited.

If you have been charged with certain crimes in the State of California your property may be seized and forfeitud under both the State of California Laws and the Federal Law.

This article deals with the State of California Law which is different from the Federal Law.  The Federal law of fofeiture is much more in the governments favor.  Many Attorneys think that all forfeiture is handed over to the Federal Government and the States only termporarily hold the seized assets.  This is not true. However, under the so called "equitable sharing" statutes the States can do an in run around the more stringent state laws even if the Federal Government has not taken the underlying case. For example you  will be tried in state court but the federal government handles part of the case for asset forfeiture purposes.   This is legal and does happen but not always. 

THE ITEMS SEIZED MUST be "directly traceable" to the illegality.  For example you are charged with a drug crime and there is unusual transaction in your bank account, or you drive an expensive vehicle and do not have source of income.  This may give the police probable cause to seize the assets and later do a forfeiture in State Court. 

Now this article is not meant to be legal advice as to your spefific case circumstances.  You should defenitely consult with an Attorney. Call our office I have represented many people under the same or similiar circumstances and can help you through this complex area of the law.

After seizing you property meaning taking your property in order to permantly take your property or have you forfeit the property you must be given notice of a hearing and an oppurtunity to show the legitimate source of the funds, or in the case of property that you obtained the property through legitimate means. 

The burden of proof is clear and convincing evidence not the proof beyond a reasonable doubt standard. And to seize your property the government needs is a Warrant.

 

In order to forfeit some assets under the California Law such as boats planes etc. you need a conviction or a plea. This is of course after you are served with notice of intent to seize assets, and then you file a response. At this point to seize certain assets the prosecution must get a conviction through plea or trial.

It should be noted that the timelines in asset forfeiture cases are very stringent you recieve notice of the hearing and must respond with form MC -220 and give notice to the District Attorney if you do not do this you could have waived your rights to a hearing.

Also if the government has seized less then $25,0000.  then there must be a plea or conviction.  However, if the government has taken over $25,000.00 then it needs a conviction or to prove in a hearing by clear and convincing evidence that the money was directly traceable to illegal activity of the crime. 

The state law of California are again very much more stringent than the Federal Law.  Which favors the government much more. 

This article was not meant to be exhaustive.  This is a very complex area of the law.  consult with an Attorney.  We would be glad to help you. 

559-441-1418.

If you have been charged with certain crimes, and your assets have been siezed including your bank accounts you need to act very quickly.  As an experienced  Criminal Defense Attorney with more than 14 years of experience I know the ins and outs of the system. 

 

WHEN CAN BANK ACCOUNTS BE SEIZED?   I want to state at the outset that seizure and forfeiture are two different things that are often mixed up.  Seizure happens when the government takes control over your possession, including boats rv's cars money, bank accounts etc.  There is one set of proof standards for seizure and one set for forfeiture each with there own complexities.  Also you have Federal versus State laws and to make things even more confusing to people accused of crimes there is even what is referred to as equitable sharing.  Which means the prosecution can get around the more stringent State laws of California and give the forfeiture portions to the Federal Goverment even if the Federal Government has not taken the underlying case.  I will go into that further in my next blog post dealing with asset forfeiture more generally this blog deals with specifically bank accounts.

Bank accounts can be seized upon probable cause.  Usually there will be an affidavit and a warrant from a Law Enforcement official.

For Example a person is pulled over the officer is suspicious and calls a drug dog to the scene.  The dog hits on the trunk giving the officer probable cause.  The officer then pops the trunk and finds two pounds of meth.  Because this is such a large amount the officer calls in the Narcotic cops who believe that the person may be selling.  The police then get a warrant for the persons home and find bank records.  They get a warrant for the bank records signed by the Judge and seize the bank account because they believe there are drug profits going into the account I.E. large amounts of money being deposited. 

This account will often be subject to a Warrant and seized.  This is based upon the Probable Cause contained in the search and seizure Warrant.  Usually the Narcotics Officer will state he believes there is money luandering happening in the bank account based upon large amounts of cash being deposited. 

At this point your account is seized no money coming in or out of the account and it will stay that way until certain things happen.

In state court the prosecutor has one year to do a noticed asset forfeiture hearing.  There based upon clear and convincing evidence starndard the prosecutor must prove that the cash put into the account was from the proceeds of drug sales.  If the prosecution is only  alleging one instance of Sales and there is evidence presented that you had just sold property resulting in you obtaining a large amount of cash then you could get the money back.

But remember the prosecutor has one year to bring the noticed action.  Many times they will wait to see if there is a conviction through plea bargaining in the case.  If there is a conviction in the underlying case then it will be much more difficult to get the money back if not impossible.  This is beause a conviction on the underlying case means the govt can keep the money.

So you must try to get the money back in the pendency of the case.  This may be difficult because the prosecutor has time to bring the forfeiture action 1 year. 

Some Attorneys will tell you to file for an injunction in Civil Court to get the money back.  However, you should definitely consult with an experienced Attorney before taking this action because you must have your ducks in a row and make sure you can show a legitimate source of the money before undertaking this aciton.

Some Attorneys believe that all cases will go to the Federal Government under Equitabe Sharing and that the State seizure of the money is only temporary because the state will give over all forfeiture cases to the Federal Government.  This is not true and many cases stay with the State Courts. 

Nothiing in this blog is meant to be Legal Advice as to your Specific Case you should defenitely consult with an experienced Attorney about the specifics of your case before taking action 559-441-1418.

 

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.

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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