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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.

 

As a former Juvenile Probation officer, and someone that has practiced Juvenile Law for more than 14 years I know the ins and outs of the Juvenile Justice system. 

And if your child has been charged with a crime you need experienced representation.

This articel will deal with Juvenile Probation and the ins  and outs of Juvenile probation.  If after reading this article you have any questions please give us a call at 559 441-1418.

Usually a minor will be placed on probation for a period of six months or a year.  The minor will have terms and conditions of probation to comply with during that time period. Even if the minor was placed on probation for a non-serious or violent offense the minor should understand that even minor violations of probation can result in  the minors probation being extended for a period of one year or another six months.

I have seen minors with very limited criminal history be placed on probation and have there probation violated several times for minor violations which has the effect of having the minors probation period go on for years on end.  Sometimes until there 18th birthday or even beyond.

Also, the minor must always be aware that if he admitted a petition, which inluded a serious offense listed under Welfare and Institutions Code section 707b then the minor could be sent to the Division of Juvenile Justice.

These things must be explained to the minor before he takes any pleas to any of the offenses listed in 707 B even if he will be placed on probation.

For example if the minor was given Juvenile Hall time and probation for  a Robbery and then violated his probation, then he could be sent to the Division of Juvenile Justice even if the violation was for a minor violation such as failing to attend school every day. 

Deputy District Attorneys often make arguments to the court to have a minor sent to the Division of Juvenile Justice for even the most minor of violations. 

Therefore, your child needs experienced counsel, like myself that has been involved in the Juvenile Justice system for many years to help you navagate what is often a complex system.

Again if you have any questions dont hesitate to give us a call.  559 441 1418.

I will again be taking a break from my series on DUI and be looking at post conviction relief.  There are several different ways in which this works and this article is not meant to be exhaustive.  Please if you have questions give us a call at 559441-1418.

Post conviction relief is meant to be "rehabilitative" in nature, meaning that while there may be some release from the penalties and disabilities resulting from the conviction, the fact of the conviction remains and carries significant consequences.

This is an important distinction some of the information regarding post conviction relief is wrong and not explained properly by defense attorneys.

For most non government and non licensed positions post conviction relief can be very helpful.  However, for any postion in law enforement or in a position that requires licensing the conviction must be disclosed.

I believe it is still worth it to get the conviction taken care of through certain legal avenues.  It looks like you have rehabilitated and taken care of the things which led to the conviction. 

PC 1203.43

AFTER SUCCESSFUL COMPLETION OF DEJ/DEOJ.

WHAT IT DOES

allows the court the court to invalidate a conviction due to misinformation.  This is limited to certain cases, regarding information about the consequences of the guilty plea to a dej/deoj conviction. 

because pc 1000 says that if a defendant successfully completes dej program the charges are dismissed and the guilty plea is not a conviction "for any purpose"

However, under immigration law and several employment law statutes, the dej dismissal provides only rehabailitativer relief.  This means you must still report the conviction however, as stated above the relief still looks good and should be sought.  And if you were given advice that stated that otherwise you may under certain circumstances go back to court to plea that and have the conviction completely wiped out due to you relying on misinformation. 

You should certainly seek legal advice when attempting to do this as it could be very tricky. 

PC 1473.3

WHEN Applies to any conviction where the non-citzen is no longer imprisoned or restrained and can show either that 1. the conviction is legall invalid due to prejudicial legal adice regarding the immigration consequences of the plea; or the failure to investigate or negotiate the immigration consequences or 2. There is newly discovered evidence of actual innnocens. 

WHAT IT DOES

Allows the court to invalidate the conviction.  If the plea is vacated the conviction ceases to exist for any purpose and voids its immigration consequences. 

 

NEW LAW

236.14

Relief granted pursuant to this bill can reasonably be described as true expungement a pc 236.14 if the person was convicted of a prostitution related offense that was non-violent and a direct result of being a victim of human trafficking than the court may vacated the concition and order the records of the conviction be destroyed.  vacate means that the arrest and any adjudications or convictions suffered by the petitioner are deemed not to have occurred.  and all the records in the case are to be sealed and destroyed pursuant to this section.

additionally a petitioner who has obtained an order purusant to this section may lawfully deny or refuse to acknowlege an arrest, conviction, or adjudication that is set aside pursuant to the order. 

This means the case is trully expunged. And a person that is victimized as a human trafficking victim can have this matter taken off there record and it will not be used agains them.  For example if a women is trafficked that came from out of the country say thailand and she is attempting to gain citzenship this section can be very helpful to her in staying in this country.

The difference between the above statute and the more traditional 1203.4 is that you must still admit the arrest and conviction except not to private non governmental postions and the arrest will still show up as the government is not required to destroy records. 

If you have any question feel free to call. 5594411418.

I will again be taking a break from my discussion of DUI law in Fresno Ca. to do a case study on a closed case from Juvenile law.  As a former juvenile probation officer, juvenile corections officer, and Attorney with more than 14 years of experience practicing in Juvenile defense I have the know how to help your son or daughter if they have had a petition filed against them in Juvenile court. 

After reading this article feel free to contact my office at 559-441-1418.  One of the main things to remember when dealing with Juvenile court is that the Juvenile system is much different than the adult system especially now after recent changes in the law. In fact it is so different that now there are mandatory continuing legal education credits that are mandatory for Attorneys that accept Juvenile Court appointed cases at any level whether as conflict counsel or Private Attorneys. 

Fortunately, the laws that have come into affect either through prop 57 or other cases, or legislative actions including propositions, I believe have been mostly favorable to minors involved in the Juvenile Justice system.  under penal code section 786,  a minor could have his records not only expunged but destroyed.  this could have a profound impact on a minors ability to move forwared after a youthful indescretion. 

There is also the DEJ program which is available to minors even if they are charged with a Felony offense.  If the minor completes certain program requirements the case is dismissed.  The expunging and distruction of records under DEJ take a lot longer and are handled under different statutes that are not as favorable to the minor.  That is why we even in cases of felonies, ask for inormal probation. 

INFORMAL PROBATION

In a recent case we handled the minor was accused of a Felony, the minor did not have a prior record, and was doing well in school and the community.  Under these circumstances the minor could still recieve informal probation complete those terms and have the case dismissed without ever having to enter a plea.  The minors record would then be ordered sealed and destroyed.

This happened in a cases we handled recently and the minor was given a second chance and we are sure will take full advantage of this oppurtunity.

It should be noted that Juvenile records are not public records and not subject to the public coming and looking at the records.  That does not mean that there is no way anyone could find the records that is a totally different issue. Many times when a minor is taken into custody they may be fingerprinted and there could be records from that and records from Juvenile Hall etc. 

In one case that we handled a minor was arrested for a school fight.  He was given a notice to appear in Juvenile Court.  He was not fingerprinted and was given inormal probation.  Because he was not fingerprinted, and he was not booked into Juvenile Hall and he never entered a plea, the only place the record of this event ever happening was with the school. 

With that said if the minor was to want to become a peace officer, or an Attorney so forth it would probably be best for him to admit to the law enforcement contact.  In peace officer positions and especially law  enforcement positions it is always better to admit something that a police department may have a record on instead of just assuming you don't have to admit to it.

Many Law Enforcement agencies will be understanding of youthful indiscretions that are admited to and learned from.

Again if you have any questions do not hesitate to call.

Like my previous article which dealt wich took a break from the DUI series, this blog will be looking at some recent cases and case studies dealing with reductions of Felony cases to Misdemeanors. 

As a former probation officer deputy district attorney and adjunct criminology instruction  I know the ins and outs of the system.  I would like to go over a key difference as to first reductions per prop 47 and reductions per 17 b of the Penal Code and reductions per 1203.4. 

 

First a key thing which has come up in a recent case is that  a reduction per prop 47 does not give you right back to own or possess a firearm.  Now this is tricky because even though a reduction per 17 b could be construed to fully give back your rights to a firearm this could be a more difficult question and should be discussed with an experienced criminal defense attorney. 

But for certain a reduction per prop 47 does not have the affect of giving rights back to own or possess a firearm. 

 

REDUCTION PER 17B

A Felony reduction per 17b is available for people that were convicted of a Felony that is a wobbler ( could have been charged as a misdemeanor or a felony) and where you did not go to prison for the Felony.  After the completion of probation and if you have fulfilled all the terms you can file a motion to have your charge declared a misdemeanor. 

EXPUNGEMENT

You can also under Penal Code section 1203.4 move the court to expunge your record.  This means the court will move to have the case declared a misdemeanor and have the plea guilty withdrawn and a not guilty plea entered and most importantly update your arrest record to show  an expungement.  this could have many good affects including making it easier for employment military service etc.

If you have question you could call our office and we could sit down with you so that you could understand all of the ins and outs of such a program, and the different options that you could pursue.  Having recently done several of these cases and with the knowlege that every case is different, I can tell you that having these cases reduced can also help with your immigration status.  If this is something you would like to pursue give us a call at 559441-1418. 

 

I am going to interrupt my series of blogs regarding Driving Under the Influence to go over a case study regarding lookout or accomplice liability.  This is based upon a case that is already closed.  All cases are different and should be thorougly reviewed by an Attorney.  As a former probation officer, deputy district attorney and a criminal defense attorney for 14 years, I know the ins and outs of the system, and can properly discuss a complex case. 

The case I will be discussing is a Gang Case that I handled some years ago.  Many kids that  I have represented (this kid was 16) do not understand the complexities of the law. Many have been through the Juvenile Justice system where cases are handles much differently and many times more lenient. 

 

THE FACTUUAL CIRCUMSTANCES

My client was a minor with four other minors that were members of the same gang.  My client was not armed, and in fact had no history regarding violence and had only been arrested once on a minor charge that was handled informally through the Juvenile Court system. 

He and several friends were walking around one of the minors was armed.  They came across a jewelry store that was open.  One of the minor decided to rob the store.  There was not any evidence of any of the minors making any detailed plans to rob the store and there was only one witness from outside the store.

The armed minor went in and proceeded to attempt to rob the store.  The owner of the store was armed and after some struggle the owner of the store was robbed and shot.

The minors did not get away with any money or property and my client did not enter the store. The minors were later caught and admitted to there respective involvement in the robbery.

Unfortunately before the parents of my minor hired me they had recieved bad legal advice that my clients liability was limited and he should not take any deals from the District Attorney.  I will explain below.

Under the 10-20-Life statute a felon that commits a crime while armed and causing great bodily injury can be sentenced to life in prison.

The person must personally be armed and personally inflict great bodily injury. 

However, the only exception to this rule is if the person is a gang member acting with specific intent to promote further or assist in criminal conduct by gang members.

If the prosecution proves that the person was a acting with that intent even as a lookout all persons involved are subject to the statute and could be sentenced to life for the great bodily injury.

back to our situation my client admitted that he was probably acting as a lookout during police questioning.  that means he was acting with specific intent to promote further or assist in criminal conduct by gang members, this makes him subject to the sentencing guidelines.  Therefore, he was given bad legal advice by an Attorney that did not understand the complexities of gang statutes that they were dealing with. An inexperienced Attorney that did not have the know how to properly advise the cilent.  The offer from the prosecution was generous considering his exposure.  These are the types of problems that can arise in gang cases and accomplice liability cases.  Many times they are more complex than they look on there face. 

Many times a gang detective will be called at both preliminary hearing and trial.  Unfortunately, these gang detectives are given much leeway as to there testimony and often are used by the prosecution to fill in the blanks so to speak in an otherwise weak case.

Next blog post I will discuss reducing felony cases to misdemeanors per 17b and the difference between that and reducing per prop 47. If you have any questions please call 5594411418.  

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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