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Many times when people come into contact with the criminal justice system they are confused and unsure how and what is going on.   That is one reason to call and retain the law office of Gerald Schwab.  As a former Probation Officer and Deputy District Attorney with nearly 14 years of experience I know the ins and outs of the sytem.  Check out my 10.0 rating from AVVO or my National Trial Lawyers Top 100. or my reviews from Google.

I represent people not cases and can help you through your case as a person not a case.

 

Here I will explain in a brief way what you can expect from the various stages of the legal system.

 

ARRESTED IN FRESNO?

First you will have to Bailed out of Jail the amount you will have to pay the bail bondsman depends on the nature of the charges.  Usually you must pay 10 percent down. 

You can ask for a bail reduction if your bail is high.  However it must be in writing with two days of notice and you only get one shot at a Bail Reduction absent a substantial change in circumstances. 

WHAT IS ARRAIGNMENT?

I have had many clients that believe the first court date is when everything will happen including a trial. That is not the case.  The first court date you will have is called and Arraignment.  You will be appraised of the charges. enter into a time waiver and given discovery if the District Attorney has already given the discovery over.  Depending on the type of time waiver you enter a new court date will be calendared.  A time waiver can be complicated but basically it means that you have right to a preliminary hearing within 10 days of Arraignment.  If the court cannot hear the case within that time period then it must hear no later than 60 days. 

If you waive the 10 day but not the 60 days that means you must have a preliminary hearing within 60 days of your arraignment, if your preliminary hearing is not heard within that time period then you must be released. Many times the District Attorney will dismiss the case and refile the case if they can't for some reason have the preliminary hearing completed by the time out date. 

Also, the District Attorney if they are not ready within the time period has the option of going to a Grand Jury to hear the case and that Grand Jury takes the place of the Prelimiinary Hearing.

 

WHAT IS A PRE PRELIMINARY HEARING

This is a date usually set aside for attempts to do two things.

1. Attempt to settle the case during negotiations with the Prosecution

2. Make sure all discover is turned over to the defense.  Many times the District Attorney will bring the discovery to court.  Discovery is the police reports, mvers, call logs, and dispatch logs and other evidentiary items that must be turned over to the defense. 

 

WHAT IS A PRELIMINARY HEARING?

A preliminary hearing is where there will be what some call a mini trial although it is usually very much different from a trial in almost all aspects.  A preliminary hearing is a hearing to determine if the is probable cause to hold the defendant over for trial.

the burden of Proof is different Reasonable Grounds to believe a Crime has been committed and Reasoanble Probability that this defendant was the person that committed the crime.  This burden is much less than the proof beyond a reasonable doubt standard that is applied for a criminal trial.  And the prosecution does not have to bring any witnesses they can rely on the police reports to get them past the burden of proof.

That is a basic overview of the criminal justice process, I will go over in another post the process after a preliminary hearing.  If you have any questions call us at 559-441-1418.   

In an earlier article i discussed the law of Petty theft in Fresno Ca.  I would like to expand on that article a bit because I think there could be some complexities to the law.

If you ar arrested for Petty Theft in Fresno Ca, or in a surrounding area, it is essential that you get legal help as quickly as possible to understand your legal rights. 

As a Former Probation Officer Deputy District Attorney, and Adjunct Criminology Instructor and an Attorney with nearly 14 years of experience I know the ins and outs of the system. 

 

First, as stated above Petty Theft can be complex more complex than it might seem at first.  Also, the stakes are high for your future employment rights.  Many employers are wary of hiring anyone with theft related offenses.  Also, Petty theft is considered a crime of moral turpitude wich could affect licensing with state agencies, or employement in Peace Officer positions.

 

WHAT CAN I DO IF I AM CHARGED WITH PETTY THEFT

One of the first factors we look at is what is the total amount of the theft.    If the allgeged theft is for less than $50.00 than your case could possibly be handled as an infraction under penal code section 490.1A which would be a very good outcome.  An infraction is not a criminal offense and is akin to a speeding ticket.  This means that even if you were arrested for a Misdameanor you could say that you were not concvicted of a Misdameanor Theft charge.  You could be subject to fines but not jail time.

 

DIVERSION PROGRAMS

For a first time Petty theft offender you are eligible for Diversion; however, there is two types of diversion programs pre-plea and post plea. 

 

PRE PLEA DIVERSION PROGRAM

in a pre ple diversion program you would be eligible to have your case dismissed without having to enter a plea and your case would be dismissed.  You would have to attend a Petty theft diversion program.  On a application you could say that you were not convicted of a Theft offense.  

POST PLEA DIVERSION PROGRAM

The post plea diversion program means you would have to enter a  plea and then if you complete certain conditiions such as obey all laws etc you would have your case dismissed.  This means you would have to admit to having been convicted of a Theft related offense.  You could say the case was later dismissed. 

Some courts and Deputy District Attorneys have been reluctant to give pre-plea diversions out in new cases.  This if unortunate because if you have led a law abiding life up until the time of the theft arrest you would still have a theft conviction on your record.  Contrary to information that some Attorneys have told there clients there is no law stating that the DA must give you a diversion program.  The only time the DA must give you a Diversion program is for state mandated programs such as PC 1000 the drug diversion program that was created and mandated by the state.  Research has indicated local programs created by local authorities and not mandated by the legislature are not the same and are not mandatory by the District Attorney or the Courts.  Many Attorneys most of them new do not understand this distinction and often give out erreneous advice based upon the belief that local theft diversion programs for pre-plea diversion are mandatory.

Many Misdameanor Deputy District Attorneys do not understand this distinction and sometimes give out pre plea diversion and others do not

 

CIVIL FINE FOR THEFT

There is also a civil fine for theft.  This means that you may get a letter stating you must pay a civil fine.  I tell my clients to pay such fines. usually someoen that is paid is less likely to show up to court and will not cooperate with the District Attorney's office if the case goes to trial.

 

If you have any more questions don't hesitate to call us 5594411418.

 

 

If you have been charged with Felony Stalking in Fresno Ca or in another county I can help you as an experienced trial attorney that has helped over a thousand clients in Fresno County alone and as a former probation officer and Deputy District Attorney I know the ins and outs of the system to help you. 

The statute for Stalking is Penal Code Section is 646.9, which states

1) A person willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person; and

2) That person makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family.  

For purposes of Penal Code 646.9 "harasses" means engaging in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.  Penal Code section 646.9 

 

CREDIBLE THREAT

Credible threat is defined as a verbal or written threat including one used by an electronic communications device.  Such as cell phones computers, vidoe recorders, 

THREAT

In determining whether a threat has been made the court may look at the entire context of communications it is not necessary that the person making the threat had the ability to carry out the threat. 

 

PUNISHMENT

Stalking is a wobbler meaning it can be charged as either a Felony or a Misdameanor.  

if you are found guilty of the Misdameanor stalking you can recieve up to a year in county jail, fines, and

FIREARM RESTRICTION

If convicted you will be subject to a 10 year firearm ban.

BATTERER TREATMENT CLASS

Also, if convicted you might have to attend a 52 week batterer treatment program in addition to any other punishments

RESTRAINING ORDERS

You will also be the subject of a restraining order, meaning you may not go near the person, call the person, or otherwise have any contact with the person.

 

FELONY STALKING PUNISHMENTS

If you are convicted of Felony Stalking depending on the exact type you could face a prision term of 2,3, or 4 years.  

FIREARM RESTRICTION

As a convicted Felon you would be prohibited from owning or possessing a firearm

BATTERER TREATMENT PROGRAM

You could also be ordered to attend and complete a batterer treatment  program

PROBATION ELIGIBLE

You would be eligible for probation, as a term of probation the court could order you to spend up to 364 in local jail, in addition to any other terms and conditions of probation.  

IF SENTENCED TO PRISON YOU WILL HAVE TO SERVE YOU COMMITMENT AT STATE PRISON RATHER THAN LOCAL JAIL.

A conviction for stalking makes you ineligble for a so called "local prison commitment" which means you would go to state prison.  

If you have prior conviction for stalking you will have a different possible punishment triad.

the difference would be a 2,3, or 5 year possible sentence.  

there are also some circumstances under which the court could order sex registration. There would have to be facts to indicate the registration is necessary and the court would have to make that finding.  However, if the court deems it necessary the court could decide to have the person convicted register as a sex offender.  

 

There is also the offense of stalking while a temporary restraining order is in effect.  If there was a restraining order, injunction, or other order restricting a person from contacting another person and contact occured this would constitute both a violation of the restraining order and a new and different crime for the stalking.  

As you can see the stalking area of the law is complex and you need experienced counsel call 559 441 1418 if you have any questions.   

 

 

If you have been arrested for a DUI and you are under the age of 21 different laws and rules will apply, along with different punishments.  Although I went through this in a previous article I would like to address these issues again.  Having been in Criminal Defense and DUI defense for more than 13 years and having personally handles many hundreds of DUI cases as both a Deputy District Attorney and a Defense Attorney I have the knowlege to help you with your case.  If you have any questions do not hesitate to give us a call.

 

HOW DOEST THE DRIVERS LICENSE RESTRICTION DIFFERENT FOR SOMEONE UNDER 21?

 

The main differenes are two-fold the length of the revocation is longer 1 year as apposed to 30 days with a suspension period for someoen older than 21. 

For Exampl:  If you are over the age of 21 and you are arrested for driving under the influence you have a period of 10 days to make an appointment with the DMV to schedule a hearing with the DMV this is completely different than your criminal Court hearing. 

If you lose this hearing your license will be revoked for a period of 30 days.  Some Attornys call this a hard suspension meaning no driving is allowed.  After, that revocation period is over you can get your license back on a restricted basis if you 1, sign up for a 3 6 or nine month DUI ecucation class.  (you don't have to complete just sign up), 2 Pay $125.00, 3, obtain an SR 22 from your insurance company. Than you will be able to get your license back albeit on a suspended status meaning you have to drive back and forth to work and your DUI class.  for a period of up to 4 months then your restriction ends and you can drive again.

The difference is you are under 21 is that your license is revoked for a period of 1 year absent a critical need.  That means you cannot drive for a period of 1 year with no exceptions again unless there is a critical need. 

 

WHAT IS A CRITICAL NEED?

 

If you can convince the Judge, not DMV, that you have a critical need to drive you can get your license back.  That means you are a student and must drive to school because it is to far, and there is no alternative method of getting to schoool.  In other words there is no bus or other public transport systems that are available in your area. 

Or it could be you need to transport a relative to a Doctors appointment and you cannot get them to the appointment any other way. 

The Judge will then order your license to be given back to you and you can drive for that purpose.

 

WHAT IS THE LEGAL BAC LIMIT FOR SOMEOEN UNDER 21?

The so called legal limit or the per se limit can be as low as .05 this is called the "zero tolerance policy" for driving under the age of 21 with a bac over .05.  You can also be charged under either 23152 a or b counts.  or you can be charged with an infraction.  This infraction offense still counts as a 2 point violation on someones driving record.

 

The best case scenerio would be to get the infracation and a critical need exception found by the court that way you could keep your license and drive a vehicle with a critical need and only face a court punishment for an infraction rather than a misdameanor. 

If the minor is a Juvenile, usually under the age of 18 the case must be handled by the Juvenile Cour which is usually a much better place for Juvenile offenders and reaches results that could lead to sealing of records.

 

Again if you have any questions about an underage DUI in Fresno or anywhere in California don't hesitate to call 559-441-1418.

 

The penalties for Domestic Violence depend on whether you were charged with a Felony or a Misdameanor.  I wrote an earlier article on Domestic Violence this article will deal almost exclusively on the penalties for Domestic vioence and wil concentrate on Fresno CA but are applicable to other places as well. 

If you have been arrested for Domestic Violence don't hesitate to call our office as An Attorney that has handles over 100 Domestic Violence cases, I have the experience to handle your case as a former probaiton officer and deputy district attorney I know the ins and outs of the system. 

 

First lets look at the penalties for Misdameanor Domestic Violence

if you are a first time offender and the case is settled for a misdameanor you will probably be looking at two-to five years of probation.  Also, you will have to complet AOWP program hours.  AOWP stands for alternative work program time.  This means picking up trash along the highway and other such tasks.  Usually you will be told by the court to either sign up for aowp by a certain date or check yourself into the jail to serve the time in custody.

It is important that you abide by this order of the court.  The court as any Judge will tell you does not make request of you only orders.  Therefore, if you do not abide by these ordders you can have a warrant out for your arrest.  Further, you will not be able to put yourself on calendar to get an extension after this date has passed.  It is never a good idea to disobey court orders, so sign up for your aowp on time. 

Once you have signed up for AOWP they can and usually will work with you on the hours.  However, I have seen people show up for AOWP thinking if they some medical issue they can simply not do the aowp.  This is not correct you will be referred back to the Judge usually to be placed in custody to do your time if  you have a medical limitation.

You may also be ordered to complete community service hours in lieu of aowp.  However, this will amount to a lot of community service hourse depending on the nymber of aowp hours you were ordered to complete.  ussually you have to do as many community service hours as the number of hours you would have to do aowp.

 

52 WEEK BATTERER TREATMENT PROGRAM

After a conviction for a domestic violence crime you will be ordered to complet a 52 week batterer treatment program.  This is a mandatory punishment and will not be up to the court.  To successfully complete probation you must complete this program. 

 

10 YEAR GUN BAN

After a conviction for domestic violence you will be prohibited from owning or possessing a firearm for a period of ten years.  There is an exception if you need your gun for employment.  You must have a hearing and a Judge will decide if there is sufficient evidence that you need your gun for your employment such as a police officer, etc, and the Judge can determine that you should be allowed to continue to own and possess a gun.

RESTRAINING ORDER

If a Criminal Protective order has been isssued in the case it will be renewed and you will have  a restraining order against you usually for a period of three years. 

After you have completed a certain number of days of batterer intervention program  the victim can go into court to ask the court to dismiss the restraining order. 

The court sometimes grants these request depending on how well the court believes you are completing your terms of probation, and after the victim has spoken with the victims advocate office.

in another note you must be present for your court hearings in a domestic violence case.  After the first hearing the court may allow what is called a 977 appearance , or an Attorney to be present for you, but you must show up at the first hearing.  This is even if you are accused of a crime that is not domestic violence but involves a crime against a family member. 

 

If you have been charged with Vehicular manslaugther it is a serious charge and you need representation right away.  I have personally handled many vehicular manslaughter and DUI with death cases in more than 13 years of experience.  You should call right away if you have questions.

 

When death results from driving a vehicle while under the influence of alcohol or drugs , Penal Codes homicide statutes may come into play. 

The person may be charged with manslaughter or in some cases Murder. 

 

The gross vehicular manslaughter while intoxicated statute is defined in section 191.5 and reads as follows

 A. Gross vehicular Mansluaghter while intoxicated is the unlawful killing of a human being without malice of forethougth. , the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehilce Code. , and the killing was either the proximate cause or the result of a negligent act.  The death must be the proximate result of an unlawful act and with gross not ordinary negligence. 

Vehicluar manslaughter is the same as above except without gross negligence.

 

Therefore, california has two statutes relating to vehicular mansluaghter, vehicular mansluaghter while intoxicated 192 c 3, and gross vehicular mansluaghter while intoxicated 191.5 A.

 

Therefore there are three ways to be charged with manslaugther resulting in death.

1. Penal Code section 193 C misdameanor or felony without gross negligence

2. Penal Code 191.5 A felony with gross negligence, but without malice

3. Penal Code section 187 usually you need a prior to show malice, or wanton reckless manor of death.

 

So remember there is a three step process the prosecution must prove

1. That you were in violation of 23152 a or b

2. and you did a negligent act

3. that negligent act proximately led to the death of another person. 

 

If the prosecution cannot prove those three you may be guilty of the misdameanotr 193 c. 

Example a women driving home after drinking with friends, is driving the speed  limit no near any intersections and suddenly a homeless person wanders into the street not wearing in protective clothing (similiar to a case I once had) and the driver strikes and kills him.

because there was no negligent act by the driver, and she probably would not have been able to avoid him even if sober she should only be guilt of the misdameanor crime.  She must have been doing some negligent act.  Here she was driving the speed limit, she was not acting innatentively, and he wandered into the street. 

 

The gross negligence statute is much more difficult for the prosecution to prove. 

For the gross negligence statute to apply there needs to be more than just be intoxicated for the gross negligence to apply.  However this could be shown by the overall method of driving in connection with the level of intoxication.  things to be taken into consideration will be the speed driven in relation to the maximum speed limit for the area, and ignored advice from others not to drive.  remember you must have been acting with conscious disregard for the circumstances in order to be found guilty  of this crime. 

 

A Murder charge for drunk driving offenses are rare usually for repeat offenders that are given the so called "waton advisement" that drinking and driving is ineherently dangerous to human life.

for example at trial the prosecution introduces evidence that the accused has two prior dui's and on his third dui kills two people when his car collides with there car.  Under these circumstances, the person could be  charged with Murder.  This is because when a person is convicted of a DUI they are given and advisement that driving under the influence is inherently dangerous to human life. 

if you have further questions do not hesitate to give us a call fresno criminal attorneys fresno dui attorney

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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