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If you or a loved one has been arreste for a Misdemeanor case, you will have a lot of questions.  As a forme probation officer, deputy district attorney, ajunct criminology instructor and an Attorney with 18 years experience more than 50 Felony Jury Trials, and having handled Misdemeanor cases as a District Attorney and private Attorney, I have the knowlege to help you.  


With new laws that have recently passed have changed the way Misdemeanor cases will be in a profound way.  I will go through the changes in the law below, and show how these changes can help you with your case.  of course nothing in this article is meant as legal advice and should contact an Attorney as soon as possible.  


I will start with the old law and how the changes to the law have affected the way in which Misdemeanors will be handled in the future.  




The way Misdemeanor cases were handled in before ab 3234 was passed if someoene was arrested or brought to court for a Misdemeanor violation the prosecution had complete control over whether or not that person would recieve what is referred to a diversion. 

There are two types of diversion what are commonly referred to as pre-plea diversion and post plea diversion.  And the prosecution was in charge of and controlled wether a person would recieve one of those types of diversion.  This was a very big difference as  I will show below.



John is arrested for a simple Misdemeanor battery he has no prior criminal history and has worked the same job for 20 years and no longer drinks alcohol.  The prosecution could insist that he plea guilty be placed in a diversion program for a specific time period and then the charges would be dismissed with no need to get an expungement because the case would have already been dismissed.   However changes to the law in ab 3234 would profoundly affect how this case would be handled today.



After the passage of ab 3234 a person can recieve diversion on any Misdmeanor case over the objection of the prosecution.  There are exceptions to this rule such as stalking crimes requiring registration, domestic battery and several other cases.  However, most cases are not pre plea diversion eligible even over the objection of the prosecution.



So looking at our case with John on a Misdemeanor Battery if the prosecution refused to give a pre plea diversion or before admission diverstion the Judge over there objection could rule against them and place John into a diversion program for up to 2 years.  In addition if he were to complete the diversion program the arrest would be deemed to never have occurred and he would not have to admit the arrest on private application for employment or for rental applications.  


This is a very big difference in the way cases were handled in the past purely to the discretion of the prosecution and no where the Judge could be sold on the fact the person should be given an oppurtunity to give the person pre-plea diversion and a chance to have the offense deemed to never have happened.  This is a factual determination and where legal work and an experienced defense attorney come into play.  As an Attorney you must be prepared to argue the specific facts as to why this particular person is worthy of diversion.  Not just argue that there is a law out ther that says the person can get diversion.  


If after reading this article you have any questions give us a a call at 559-441-1418 and we can evaluate your case. 




If you or a loved one has been accused of homicide you should contact an Attorney as soon as possible.  As someone that had tried 7 First Degree Murder casses and handles at least a dozen more Homicide cases and attending and completed the Death Penalty conference.  I have the know how to get you through this.  Nothing in this article is meant as legal advice you need to contact an experienced criminal defense Attorney as soon as possible.  As an Attorney with more than 18 years experience and more than 50 felony Jury trials we can help.

Below I will be going through some of the Homicid law and the changes that hav occurred recently which made a lot of changes to both the Homicide law and defenses available to people. 

WHAT IS SB 1437 ?

SB 1437 is California legsilation which made major changes to Homicide law in the state of California.  The legislature in the state of California decided that some of the Murder liability was way to broad and they needed to change the law to make it more limited.  


The way the law stood before sb 1437 as to both Felony Murder law and Natural Probable consequences were very broad.  And the way prosecutors used the laws was so expansive and confusing that jurors would not have to find very much to find a person guilty of First Degree Murder.  Making it more complicated was the fact that prosecutors dont have to prove and jurors did not have to agree on the theories as to how the person accused was guilty of Murder.  For example the prosecutore can make arguments saying a person is guilty of Murder under a Felony Murder Rule theory a  natural proble consequence theory and accomplice liabilty theory and then throw all those theories to the jury and hope for a guilty verdice.  Aslo under the old theory of Felony Murde before changes under sb 1437 there could a person sitting in a car as a lookout for a Robbery someoene inside kills somoene and under a foreseability doctrine that person sitting in the car could be held liable for First Degree Felony Murder and be put in jail for a term of 25- to life.  That was not a very high bar for the prosecution to leap over. 

Making it easier the prosecutor could also ask for a Murder conviction under the So- called NATURAL AND PROBABLE CONSEQUENCE THEORY of liability.  Under this theory the prosecutor would simply have to show a person did an act inherently dangerous to human life and the natural and probable consequence was death. He or she could argue both theories and then leave it up to the jurors, who do not have to agree as to the theory as to wether the person was guilty of Murder.   As you can see this left a lot of confustion and not a lot of proof. 


The new law made a lot of changes and narrowed the liability and eliminated one of the above theories therefore, tiightening up the law and making the jurors do more factual analysis of the actual actions of the individual person.  And it should be pointed out that these changes deal with the person that did not pull the trigger the same analysis would be made before and after sb 1437 for persons that pulled the trigger.


Under sb 1437 Natural and Probable consequences theory is eliminated.  The prosecution can no longer use this theory to convicte somoene of Homicide eliminating one theory that the jurors could use to convict.  Also the so called second degree felony murder rule was eliminated although it was rarely if ever used by prosecutors. 


There were two major changes to this law.

1.  The prosecution must prove that the non principal or non killer was a major participant in the underlying crime

2.  That he acted with Reckless indifference to human life when he acted 

both of these factors must be present to hold the non shooter for example liable


The juros will look at the individual factors to determine if the person is liable under these theories. 


How close was the person to the actual crime

Did he try to stop the offense

Did he know the person was armed

Did he give him the gun

and the jurors can consider any other factors that are relevant to this factor


The factors here may have some overlap with the above-factors such as gun use

proximaty to the actual crime

did he flee afterward

did he try to help the victim

did he see the offense happen

These changes make it easier for the Jurors to look at the actual participation of the person and wether they themselves should be punished with Felony Murder.  If you have any questions after reading this article give us a call at 559 441-1418. 

If you or a loved one has been arrested or charged with Vehicular Manslaughter it is imperative that you get experienced legal advice as quickly as possible.  You will have a  lot of questions which with an offense as serous as this is very fact intensive.  Nothing in this article is meant as legal advice and every situation is different.  I will go through the offense below and go over what the offense is, such as the elements.  Give us a call at 559 441-1418 if you have any questions after reading this article.  



Vehicular Manslaughter is an offense relating to accidents that lead to a fatality and you are now charged with vehicular manslaughter.  In order to understand if your charge was appropriate you need to understand the kind of driving that triggers such a charge and the specific elements dealing with that charge.  I am going to go over the elements of vehicular manslaughter without gross negligence and then on a different blog go over the elements that include gross negligence. 


1.  A human being was killed 

2. The killing was unlawful

3. Defendant drove a vehicle in the commission of an unlawful act without gross negligence


3. Defendant drove a vehicle in the commission of a lawful which might produce death in an unlawful manner, but without gross negligence.  



This is when a person drives carelessly or shows some form or negligence, such as when the driver is distracted and briefly takes there eyes off the road.  


Driving under the influence of drugs regardless of (whether they are prescription or illegal) or alcohol is considered reckless behavior.  


Driving while excessively sleepy because when people are very tired they do not have the reflexis they would normally and can cause the person to actually fall asleep and cause and accident and if that accident results in death then that person. 



This occurs when somoeone violates a safety statute.  And there is an accident that results in death.  




A person is very tired from working the night shift they are driving home from work one night and they fall asleep on the road.  There vehicle hits another vehicle after the driver falls aaleep on the road.  The driver was violatiing the above driving while excessively sleepy and possibly speeding and then hit the car causing a death.  This would be the case of someone who could be charged with vehicular manslaughter.  



Driver is driving down the street at an excessive speed someone is walking in the road  and becasuse the driver is going to fast he cannot see the person walking across the road and hits the person causing the person to be injured and later lose his or her life.  This would be an example of someone violating a statute (speeding) and this caused the death.  This person could be charged with vehicular manslaughter.




Under Penal Code 192 the statute dealing with vehicular manslaughter the prosecution has the ability to charge the case either as a Felony or a Misdemeanor meaning the charge is a wobbler offense.  



As a misdemeanor conviction  one year and a $1,000.00 dollar fine. 

As a Felony conviction you could get Felony probation or 2 up to 6 years in prison and a $10,000.00 dollar fine.  


As you can see this is a serous charge and as stated above you should get legal representation as soon as possible.  As an Attorney with more than 17 years of experience and having handled several of these cases we can help you get through this call us at 559-441-1418.



If you or a loved one has been arrrested for a DUI you will have a lot of questions.  The process can be long and take a lot of time, and be difficult to understand.  If you have any questions after reading this article give us a call at 559 441-1418, and we can help you get through this process.  


The first thing you should know is that if you are currenlty on probation or parole taking a plea or being convicted of a DUI will result in the violation of your probation, or parole and could lead to a sentence on that underlying case.  So for example if you are on probation for a Misdemeanor Battery and you take a plea to a Misdemeanor DUI then you will be automatically admitting to a violation of your probation for that offense if you are currently on probation for that offense.  You will be sentenced for both the DUI and the violation of probation.  


For a first offense DUI the minimum sentence you can recieve for a DUI 96 hours to six months in jail, $390.00 to a $1,000.00 fine and 6 months drivers suspension.  If granted probation it could be up to 6 years, however, with new changes in the law it could be considerably less than that amount of time. 

Usually in Fresno County Superior Court you will be ordered to do AOWP time instead of in custody time the court will order a certain amount of that time depending on many different factors including blood alcoohol content and if you have any priors and the specific facts as to the case.  


There will be DMV consequences as a result of the plea when this occurs you will be given written notice and within 10 days of your arrest you should request a DMV hearing and  the suspension or revocation of your license will be stayed. 

The best way to think of this is as two different court processes.  The DMV process and the actual court process.  In the past if you lost your dmv hearing you would go through what was commonly called a hard revocation where you could not drive for a specific amount of time at all.  This has changed in many counties including in Fresno County where you could get the ignition interlock device placed into your vehicle and then be able to drive.  This could save you some time as you will not have the hard revocation.  You would have to show the dmv tha tyou have placed this into your vehicld and and have an sr 22 which is a proof of insurance after the dui and pay a fine and you will be able to drive.  This is important to note that you will still have a suspended or restricted licens for a certain amount of time and then after the period of six months you will be able to drive without any restrictions.  

As you can see this is  long and difficicult process and you wlll have a lot of questions throughout the process we have helped many people with this process and can help you to get through this process.  We have helped hundreds of others in the same situation.  So if you have questions after reading this article give us a call at 559441-1418.  and we can set up a  case evaluation with you 

Nothing in this article is meant as legal advice and is for informational purposes only cases are always dependent on the facts. 

If you or a a loved one has been arrested for a Domestic Violence case give our office a call. Domestic violence cases can be complicated and involve everything from batterer treatment classes to limitations on gun rights.  Below I will go over what the diffefence is between the most common domestic violence charges the 273.5 and the 243E charge.  If after reading this article you have any questions give our office a call at 559-441-1418.  


First I will go over what a 273.5 is as both a Felony and Misdemeanor and then go over the 243  E charge and then explain the difference.  

WHAT IS A 273.5? 

1. Defendant willfully inflicted corporeal injury on victim.  

2. Victim was either; 

Defendant's spouse or former spouse 

person with whom her or she is or was in cohabitating with 

fiance or someone wiht whom the offender has or previously had, an engagement or dating relationship with 

the mother or father of his or her child 

3. Corporeal injury resulted in a traumatic condition. 

WHAT IS A 243 e ?

Defendant committed battery upon a victim. 

2. At the time of the battery victim was either the defndants spouse or fiance, or an individual with whom the defendant currently has or previously had a dating relatiionship. 

PC 243e1.


The difference between the two charges is that for a conviction of 273.5  you must have inflicted some type of injury on the spouse in  order to be convicted under the 273.5 statute.  if you used physical force on a person and that person suffered and injury no matter how slight you will be charged with the crime under the penal code 273.5  whereas under 243 e there is no need for the injury to have occurred.  


both offenses are wobbler offenses which means they can be charged either as a Felony or as a Misdemeanor.  If you are convicte of the misdemeanor, you face up to 364 days in jail, and fines of up to $6,000.00

For a Felony violation you can get probation or up to two, three, or four years in state prison and fines of up to $6,000.


There are many collateral consquences to this conviction are many.  

first as to gun rights even as a misdemeanor, a conviction under either one of the statutes above could have profound affects on your ability to legally own or posses a firearm.  If you are convicted of a Felony your gun rights will automatically be stopped meaning you cannnot own or possess a firearm under both state and federal law. 

If later under penal code 17b you get a reduction under state law you could then be able to possess a firearm.  However, under federal law which is the supreme law of the land and where there is a conflict with state law it is just as if the state law does not exist you will still not be able to own or possses a firearm and in fact when you go to but a firearm you will not be allowed to purchase the firearm.  This is becuse the federal governmemt passed a law which made it illegal for a person that has been convicted of a domestic violence offense from purchasing a firearm again for the remainder of there lives.  This is true even if the offense was a misdemeanor for all purposes.  That means you could be charged wiht a federal offense even if under state law you are able to own a firearm under the existing statutes.  

Nohthing in this article is meant to be legal advice as to your specific circumstances.  if you have additional questions call us 559441-1418.






If you or a loved one has been convicted of a Domestic Violence case and need or want an expungement give our office a call.  Many peopple wonder if a domestic violence case is somehow exempt fromt he expungement statutes they are not. 

In this article I will go over the Misdemeanor Domestic Violence elements and then what an expungement is and how you can get one and what are the effects of an expungement but first I will go over the firearms rights and how the expungement will not get your firearm rights back.  


The answer to this question is no and I will explain.  Federal Law has changed recently to exclude those who committed domestic violence cases from owning or possessing firearms.  


In state law someone that has committed a violent Misdemeanor or  domestic violence offense has a 10 year  ban on owning or purchasing or posssessing a firearm.   After that period has run out then the person can again lawfully own possess a firearm.



for Domestic Violence cases only the right to own or buy a firearm is not restored after that 10 year period has elapsed.  That means under Federal Law when you go to buy a firearm you will not be able to and the application will be denied.  This does not change even if you get an expungement on a domestic violence case.   Many people falsely believe and even some Attorneys advertise that a expungement somehow erases your record this is not true. 



In another blog post I will go over a Felony Domestic Violence offense and how to reduce that offense to a Misdemenaor.  

1. Defendant willfully inflicted corporeal injury on a spouse

2. victim was either:

defendant's spouse or former spouse

person with whom he or she was cohabitating 

fiance or someoene with whom the offender has previously has or had a dating relationship 

the mother of his or her child 

corporeal injury to that person



Under the statute for expungement which is found in Penal Code section 1203.4 you can get an expungement for this offense if you are not currently on probation, have completed your probation period, which will always be formal probation for a domestic violence offense and are not currently facing or subject to any other charges.  

the court will always look to see if you had violations of your probation do you complete the 52 week batterer treatment program, and did you do as you were directed by probation.  

We always gather all information regarding he above requirements get letters of recommendation and do investigation before setting a court date to have the matter set for a possible expungement.  


The effect of the expungement is that you can for most places of employment and housing truthfully answer that you have not been convicted for any offensse and that is a truthful answer.  again what it will not do is completely erase the conviction and for government of background information for peace officer positions give you the right to not answer the question that you have never been convicted of a crime.  You shoul always consult with an Attorney when filling out applications and nothing in this article is meant as specific legal advice.  If you have questions after reading this article give us a call and we can sit down and help you get an accurate appraisal of your case give us a call 559 441-1418.



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Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418