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This article will deal with the crime of participation in a criminal street gang.  This is completely different from the sentencing enhancemnt.  If you are charged with a gang crime you need experienced representation.  Many times people hire Attorneys that do not have experience in  the criminal street gang laws.  The Lawyer has never even tried a gang case.   This is not acceptable.  The gang statutes are very tricky and require experience. 

As someoene that has tried several gang homicide and attempted homicide cases, and handled hundreds of Gang cases, I have the knowlege to properly represent you. 

If after reading this article you have any more questions don't hesitate to call 5594411418.

 

There are actually two parts to Penal Code section 186.22 A .  The first part deals with the crime of "engaging in gang activiity" this is actively and knowingly participating in a criminal street gang.

In order to convict you of this offense the prosecutor must prove the following three facts.  (otherwise known as elements)

1. That you actively participated in a gang

2. Knowing that its memebers "engage in a pattern of criminal activity"

3. that you willfully "promoted furthered or assisted in felonious conduct by gang members.

 

The offense of active and knowing participation in a criminal street gang punishes act of being involved with a gang irrespective of any other crime.  This law targets individuals who has the intent and objective to  further promote, or assist a gang in its unlawful conduct. 

Furthermore, the law not only applies not only to the person that personally and actively committs the crime but also to anyone who aids and abbets that individual.

 

Many times in Gang cases the "Active" participation element along with the intent element are where the most action or litigation occurs.

Many times a person who has either aged out of a gang or no longer "actively participates" in a gang are charged with this crime.

This is even though the person has  not had contact with Law Enforcement for several years, was not wearing gang attire when arrested, and has not been arrested for several years he will be arrested for actively partiicipating.

There is no computer program that keeps track of every time a gang member joins or leaves a gang.

Many members simply age out of the gang or its gang activities; however they may still have some friends with possible ties to a gang

Some gang members simply hang out with other gang members and are not active members.

They may not have committed any crimes or been arrested with other gang members. Gang Membership is a fluid concept many gang are not higly structured.  They may have only a handful or more hardcore members while most members are not as involved.

For a person to be concicted of this gang crime they must be an active member.   Therefore, they cannot be the person that simply hangs out with other gang members or parties at the same parties with them or even hang out with the other gang members.  They must actively participate.

This could be how many times they have been stopped with other gang members, do they were the exact colors of that are associated with the gang, do they admit to being actively involved.  Have other members debriefed and explained how involved they were.  These are all things to take into consideration.

Also how long has it been since all the above things happened? in other words did all the things discussed above happen ten years ago? if so then as stated aobve the person may have already aged out of the gang and not be actively involved anymore.

As you can see these are complex issues and you need an experienced Attorney that has tried these type of gang cases if you have questions give us a call 559 441 1418.

Proposition 47made many changes to the law all over California.  These changes could have profound affects on your life, if you have questions please call us at 559 441-1418. I will be addressing a few of the areas where prop 47 has made changes to the law and some areas where the law has stayed the same. 

Proposition 47 went into affect on November 5, 2014, the day after its pasage. the proposition applies to sentences imposed on or after November 5, 2014,

1. The proposition is not retroactive for people sentenced prior to Prop 47 even if their cases were not yet final.   People who have already been sentenced must use the petition process.  This does not mean you are out of luck if you were sentenced before this date it only means that you must use the petition process. 

ELIGIBILITY FOR POST-SENTENCE REDUCTION; PARTIAL RETROACTIVITY

1. The offense must have been committed prior to prop 47 passage in order for the defendant to be able to have the offense reduced by means of an application or petition.  The petitioning process is limited to those with Felony convictions "who would have been guilty of a misdameanor"if prop 47 had "been in affect at the time of the offense" 1170.18 (a). 

2. People sentenced after prop 47 passed are eligible for relief so long the offense occurred before proposition 47 passed.  That will only be necessary when the original sentencing was botched.

DEADLINE TO FILE APPLICATIO OR PETITION

1. Originally people had to file there application by November 4, 2017 unless they showed good cause for not filing earlier. 

2. The deadline has been extended to Novembere 4, 2022.

BELOW IF WILL GIVE A SUMMARY OF SOME OF THE OFFENSES ELIGIBLE THIS IS NOT AN AXHAUSTIVE LIST

1. PENAL CODE 666

simple possession health and safety code section 11350, 11357, 11377).

2. ELIGIBILITY DEFENDING ON THE FACTS

A. Legally, post-sentencing reduction requires that you file a declaration for these offenses stating the facts proving eligibility proving eligibility based upon the facts for the offense is not automatically eligible or the court may summarily deny the petition or application.

some offenses eligible

470-476 if forgery related to a specific items and value less than $950

476 a if totoal of all convictions less than $950.00

ATTEMPTS

No cases directly address whether attempts are aligible. 

JUVENLE COURT CASES

1. Juvenile offenders are eligible for prop 47 relief.

STRIKES CAN BE ELIBIBLE FOR PROP 47 RELIEF

The fact that an offense is a strike does not in and of itself make the cime inegligible for prop 47 relief. 

459. 5 crimes

elements

entry into a commercial establishment

with intent to commit larceny

while the business is open during regular business hours.

where the value of the property taken or sought to be taken is less than $950.00

EXCLUSIVE PENALTY

a. if an act is punishable as shoplifting it must be so punished rather than by some other charge.  "any act of shoplifting as defined in subdivision a shall be charged as shoplifting. 

VALUE OF THE PROPERTY OR VALUE OF THE PROPERTY SOUGHT TO BE TAKEN DOES NOT EXCEED $950.00

if the defendant is unsuccessful in obtaining the property one uses the value of the property sought to be taken.

If the defendant was succesful then one uses the value of the propety taken.

SPECIFIC EXCLUSIONS

People required to register as a sex offender are excluded and not included

it should be noted for the sex offenses however prop 47 is not meant to have any affect on sex offender it is meant for a different category of offenders.

PEOPLE WHO WOULD POSE AN UNREASONABLE RISK TO PUBLIC SAFETY ARE EXCLUDED FROM RESENTENCING.

The unreasonable risk of danger to public safety refers to people means an unreasonable riske the petitioner will commit a super strike. 

As you can tell the prop 47 law can be complex if you have any further questions don't hesitate to call

559 441-1418.

 

 

If after reading this article you have any questions please give me call.  As a former probation officer, deputy da, and a criminal defense attorney and adjunct criminology instruction I know the ins and outs of the system.  

I have the know how to make sure that you have the best oppurtunity to get your record cleared and your life on track. 

 

JUVENILE RECORDS.

Welfare and Institutions code section 786 has made the clearing of your Juvenile records much easier.  If you were convicted of a non 707 b offense in other words an offense the court deems as not one of the most serious, your record can be ordered cleared and the records destroyed usually within 4 years.  

It should be noted that even if the records are not destroyed becuase you committed a 707b offense the records are not publice records. 

If you are applying for a position licensed by the state of california or a law enforcement position you might still have to disclose certain offenses.  Certrainly you should seek legal advice.  

 

WHAT IF MY OFFENSE HAPPENED WHEN I WAS AN ADULT

It depends on several factors including were you convicted, were charges filed, or did you have your case dismissed in court, or were you acquitted following a jury trial.  

The first factor is wether you suffered a conviction. If you did suffer a conviction you cannot get your records destroyed this is true even if you got an expungement.  Many people believe that an expungement is an order destroying records.  

Generally speaking you have two years to ask for a distruction of your record.  The Judge can hear cases beyond that period of time based upon good cause.   This is two years after the date of arrest or filing of the accusotory pleading.  

1. You can petition the law enforcement agency to destroy a record of an arrest that did not result in conviction.  You ask the arresting agency that arrested you to destroy the record and to update the cii or arrest report.  This is if you have been arrested but not charged.

2. If this does not work you can petition the court.

 

This second step is for people that have been denied relief by the police. 

However if you were arrested and charges were filed you cannot seek relief from the arresting agency you must petition the court.  

If at the time of dismissal the judge believes you to be factually innocent he may order a finding of factual innocense and order the sealing of records.  Also, if at the time of acquittal the Judge believes the defendant to be factually innocent the Judge at that time may order sealing of defendants records.  

 

WHAT IS FACTUAL INNOCENSE

To be factually innocent the evidence must exonerate you not just raise a doubt as to your innocense.  

 

If you have any question please give us a call to discuss your issue. 

 

 

Proposition 64 passed several weeks ago.  Under the law if you are 21 years or older you can consume Marijuana in the privacy of your home. Contrary to belief of some it does not allow for public use of Marijuana. 

Also you can possess up to an ounce of Marijuana on your person in publice.  You may also grow up to 6 plants for your personal use on your own property.   

The new law did not make legal the sale or distribution of Marijuana.

However you can gift small amounts of Marijuana to other people.  This means you can give away part of the Marijuana you are growing for your personal use but cannot sell that Marijuana.

Also, the new law does not make dispensaries legal to sell Marijuana you must still have a Medical Marijuana card to recieve Marijuana from a dispensary. 

This means there is still nowhere for recreational users of Marijuana to buy pot.  You must still have a Medical Marijuana card to buy or recieve Marijuana from a dispensary. 

So the limbo is you can smoke inside your home but you cannot buy the Marijuana anywhere in the state of California.

The laws may change as to that aspect maybe the local authorities will allow some sales of Pot in a licensed established Medical Marijuana dispensary.  This is not the current state of the law.  You can grow your own so to speak, up to six plants and smoke inside your home.

The state of California has until Jan 1, 2018 before the state has to start issuing licenses allowing retail estblshments to sell non-medical  Marijuana.  This will be probably to already established places and will be strictly liensed and watched industry.   

The law was written to allow some temporary permits, however again this will be a very highly regulated area of the law and could take a while for local agencies and governments to figure out this law. 

and again it is legal to gift the Pot however it would be good to only gift to the Medical Marijuan patients.  And remember whoever is recieving the  Pot must also be 21 years of age. 

As this law has just passed it is best to get the legal opinion of an Attorney before growing possessing or smoking this article is not meant for legal advice and only for information purposes.  If you have any questions we could help you. With more than 14 years of Criminal Law experience as a Former Probation Officer, Deputy District Attorney And Adjunct Criminology Instructor, I have the know how to handle your case and have handles many Marijuana related cases.  So if you have any questions please give us a call 559 441 1418.

Title 17 of the California Code of Regulations establishes the protocal for how California will administer, collect, store, and analyize

California DUI chemical blood tests

DUI breath tests

DUI urine test

 

A failure to comply with Title 17 of the Code could result in inaccurately high BAC levels.  causing innocent people to be falsely accused of Drunk Driving.

 

These violations of protocal are where successful challenges to DUI are often fought and acquitals attained. 

 

When I handle DUI Cases i go through the paperwork and procedure that was used to ascertain if  a DUI case should be taken to trial. 

I ask for certain things in the discovery process with the Deputy District Attorney such as

 

MVARS this is the video of the stop.  I want to see if the stop was legally justified and if the officer told the truth in his report.

Callibration logs for the machines used to test the blood alcohol level of the person accused.

and many other things I am looking to see if

There was an unauthorized person performing the blood draw.

using an alcohol based agent to sterilize the draw site. 

having an insufficient amount of anticoagulent or preservative and or

not properly storing the blood sample.

 

'Blood tests are probably the most accurate type of test to get an accurate reading of blood alcohol in the blood. 

however blood test can still be challenged and often are challenged. 

AS TO BREATH TESTS

breath test must come from deep lung air, or "aveclar air"

the person that administers the test observe the person for 15 minutes prior to breath sample

that during this time the person does not eat drink or throw up

that the breath testing instrument is calibrated every ten days of 150 uses whichever occurs first.

Title 17 imposes these safeguards to ensure that DUI breath tests are as accurate as possible.  One of the most significant problems arises when these precautions arent followed

I have seen officers on the stand that do not understand how calibration works or even how the machine would show if it was not properly calibrated.  How are they to know if the machine is not properly calibrated if they do not even know the signal for if the machine was not properly calibrated?

GERD

Those with the medical condition of GERD (acid reflex) often give off falsely higher breath test results.  That is because the body constitutely produces mouth alcohol this can and often does affect the amount of BAC that could be making your BAC seem higher than it actually does.

This of course does not matter if you took a blood test rather than a breath test.  This is a critical fact that we will use to adequately fight your DUI case.  another factor that could lead to a violation of Title 17 and blood alcohol content results, is as stated above the maintenence of the machine used to measure blood alcohol content.  if the operater of the machine was not properly trained to use the machine or is the machine was not properly calibrated both of those factors can result in a falsely high blood alcohol reading. 

Some officers are better trained at DUI stops than others.  For example, if an officer that usually does not do DUI stops is conducting the stop then he may not be familiar with the paperwork and procedure needed to properly conduct a DUI investigation.  Some officers do not conduct a lot of traffic stops and sometimes will call for other officers to assist them with the stop.   Sometimes a better trained officer is not available and the untrained officer will have to conduct the investigation himself.

These are some of the issues that we look at to assess your DUI

Please call if you have any questions.  559 441-1418.    

 

Proposition 57 made several changes to the law for Juvenile Hearings in Fresno Ca and the rest of the State of California.  One of the biggest changes is what were called "fitness hearings" these are the hearings that were done to determine if a minor will be charged as a Juvenile or an Adult.  This obviously is a very big decision for the Court to make and now this important decision will be left in the hands of a Juvenile Court Judge rather than a Deputy District Attorney.

If your child has been charged with a crime you should contact an experienced Attorney right away.  This Attorney must be experienced in Juvenil Defense.  As a Former  Juvenile Probation Officer and Deputy District Attorney, and Adjunct Criminology Instructor I know the ins and outs of the Juvenil Justice system.  Call me and we can set an appointment for a case evaluation.

I wil outline below some of the new areas of law that deal with "fitness hearings" first these hearings are no longer called fitness hearings.  the way it used to work if a minor was charged with certain crimes a hearing would be held to determine if the minor would be tried in Juvenile or Adult Court.  The way the law worked before is that the minor was presumed unfit and must overcome that presumption by a preponderance of evidence on each and every element in order to stay in Juvenile Court.  Also if a minor was charged with certain listed offenses such as Murder and several others a Prosecutor could make the decision to directly file the case in Juvenile Court. 

 

THERE HAVE BEEN FIVE IMPORTANT CHANGES TO THE LAW IN CALIFORNIA AS A RESULT OF PROP 57 IN RELATION TO JUVENILES

 

1. The hearing is no longer a "fitness" hearing the are transfer hearings.

2. There is no presumption that a minor should be transferrred to adult court.  This was not the case under previous law.

3. The standard: "Preponderance of the Evidence" remains unchanged. 

4. Because there is no presumption for or against the Juvenile, the prosecutor bears the burden to show why your client should be transferred to adult court.

5. The Court determines whether to transfer  the minor or have the minor remain in Juvenile Court by a totality of the circumstantes analysis.  Although prop 57 did not change the criteria the criteria were changed so that with additional language effective January, 2016, with much greater focus on indicia of youthfulness.

These changes mean there is much more oppurtunity to argue for cases to stay in the Juvenile Court that would have, in the past been transferred to adult court.   

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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