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Many times people are wrongfully arrested for everything up to and including Murder when they were simply defending themselves.  If you are charged with Assualt, Battery, or Homicide, it is important that you obtain experienced Criminal Defense Trial Counsel.  With many Felony Trials under my belt and excellent outcomes I have the experience to heldp you.  If you hire defense counsel for a defense such as Self Defense, you must have EXPERIENCED  defense counsel not just an Attorney that has been an Attorney for many years, one who actually does a lot of trial work is needed.

 

As for Self Defense the law of Self Defense is complex, lets start with Self Defense for a Homicide.

 

There are actually two kinds of Self Defense for Homicide, which is actually two defenses both of which I went into on my Homicide article, but want to go further into here. 

The two defenses are Self Defense and Imperfect Self Defense

 

SELF DEFENSE

Self Defense is someone 1. Actually believes in the need to use deadly force and 2. That belief was Resonable.

Lets break those down

An Example of Actual belief in the need to use deadly force would be if someone walks outside and you know that the person does not like you and is known  to have weapons.

You can testify that you actually believed in the need to use deadly force. 

WAS THAT BELIEF REASONABLE

If the before mentioned person came outside and you knew he did not like you and he suddenly turns and pulls a gun, you have your own gun and shoot him dead. 

Because ther other person pulled a gun first a reasonable person would be in fear for there life and this would supply a complete defense to the crime of Murder.

 

Now lets say under the same circumstances the person above comes outside and you know he hates you and he turns to you and you believe he is coming to kill you and you honestly believe that, but your assumption is wrong and the person is not armed and you shoot and kill him. 

you had an Unreasonable belief in the need to use deadly force and therefore, you would not be guilty of First or Second Degree Murder, but instead, Manslaughter. 

Let's look at this a little closer.

For both Self Defense and Imperfect Self Defense the first Element is the same

An Actual Belief in the need to use deadly force

If that belief is reasonable then the defense is complete and you could be found not guilty.

If you belief was unreasonable then the crime would be Mansaughter.

This unreasonable belief can reduce a First Degree Murder to Second Degree and Second Degree Murder to Manslaugher.

That is becuase you are not acting out of deliberation and premiditation, you are acting out of the unreasonable belief in the need to use deadly force.

And you are not acting out of Malice, which is needed for second degree murder because you are acting out of the unreasonable belief in the need to use deadly force, not with intent to kil. 

Now this unreasonable self defense is not available for example a Battery charge.

For a charge of Battery you must use reasonable force to protect yourself or someone else from force.

And you must only use the amount of force necessary to protect yourself. 

Many cases will involve self defense during a mutual combat situation, or when the original aggressor becomes the victim.  this is beause the person that was originally attacked used unreasonable force in protecting himself.  The person protecting himself cannot after having defended himself proceed to beat the person that attacked him unconscious for example.

 

If you have been charged with a Battery or a Homicide, please give us a call so we can held you out.

 

 

 

 

The answer to that question is complex, depending on whether there is a warrant for your arrest, and if there is exigent circumstances.  If you have been arrested you need experienced criminal defense help.  As an Adunct Criminology Instructor, former Probation Officer, and an Attorney with more than 13 years of criminal defense experience I can help you with your criminal defense questions.

In most circumstances the police need a warrant to enter  your home even if they have a warrant for  your arrest.  However, there is several exceptions to this.

 

HOT PURSUIT

If the police are in hot pursuet of a person suspected of a Felon the police may follow the person into the home to make an arrest.  They may even break a door or a window in order to gain access to the home, however, the police must be acting reasonably.

Also, threre is what is commonly referred to as the plain veiw doctrine which states that if the police have a legal right to be in the place where they are standing and if there  is something within plain view meaning they don't have to conduct an investigation to ascertain if it is illegal, they may seize that item. 

 

EXIGENT CIRCUMSTANCES 

 

Exigent circumstances means an emergency.  The destrution of evidence.  Or the person may be arming themselves with a weapon, or someoene may be in danger the police may enter the home to deal with the emergency. 

 

PENAL CODE SECTION 844

This is a section of law  I often see Attorneys, deal with completely wrong, and is sometimes reaises complicated issues of law.

California Penal Code section 844 states "to make an arrest, a private person, if the offense is a Felony, and in all cases a Peace Officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing the person to be, after having demanded admittance and explained the purpose for wich admittance is desired.  (CA Penal Code 844)

The meaning of this statute is that the Police to make an arrest for a Felony may break a door or a window to arrest a person if they have reasonable grounds to believe the person is in the home However, they must first knock and announce there presence and demand the person come to the door wait for him and then enter to arrest the person.

 

Knock and announce

This knocking and announcing is what is currently referred to as knock and announce. 

REASONABLE GROUNDS TO BELIEVE THAT THE PERSON IS IN THE HOME

The courts in decisions like people v jacobs have held that the police must have reasonable grounds to believe the person to be arrested is currently in the home.  Not that he lives there and might be home. 

The court willl look at factors such as did the officers see the person enter the home

did a neighbor see the person go inside

did the person see police and run inside

was the person to be arrested have his car outside

in Jacobs the police simply believed that the person to be arrested was inside because he was not at work the police entered the home and seized evidence that was illegal.  The court held that this was an illegal entry because the police had no ability to know if the person to be arrested was currently in the home. 

If the police illegally enter a home all evidence observed inside the home is illegally obtained.  Under what is called the fruit of the poisonous tree doctrine and the evidence would be suppressed.

 

If you or a loved one has been arrested inside your home without a warrant call us so we can help you.   

Vehicle Code 23109(c) VC "exhibition of speed"--also known as "speed ex"--is a fairly common vehicular crime in California. The legal definition of exhibition of speed is driving or accelerating at an unsafe speed, in order to show off for someone else.

Video surveillance cameras play an important role in criminal investigations. These cameras are in many locations, public and private, and proliferating in new places. For example,

The short answer to that question is yes.  Although as I will explain more in detail below, the questions regarding interrogation of minors is much more complex.  I will explain how those laws work and how these laws even affected the outcome of the netflix series making of a murderer. 

I have practiced criminal defense including Juvenile defense for more than 13 years.  I have won more than 10 not true petitions in Fresno County alone.  I have represented kids in crimes ranging from petty theft to double first degree murder.  I recently worked a deal having all adult charges against a minor dismissed by the District Attorneys office and having the case retured to Juvenile Court based on our investigation.   This saved the minor many decades behind bars. 

 

lets look at our first question

WHEN DOES A MINOR HAVE TO BE GIVEN MIRANDA WARMNINGS

unlike adults that only need warnings when there is police dominated custodial interrogation

a minor must always be given miranda warnings whenever he is questioned

 

DOES A PARENT HAVE TO BE PRESENT

NO. as  I will explain below that is only one of the factors the court looks at when determining if the minor gave a free voluntary uncoerced statement. There has been some bad advice given from some supposed experts on the next question.

 

IF THE MINOR ASKS FOR A PARENT DOES ALL QUESTIONING HAVE TO STOP

NO. despite what some Attorneys say this is simply not correct.  Again it is a factor that will be taken into consideration.  Some Agencies will not continue questioning however there is case law that says this is not a hard and fast rule.   The basic rule is did the police unfairly question the minor without a parent that is very much different than saying a parent must be present.   

 

A MINOR MUST MAKE A FREE AND VOLUNTARY WAIVER OF HIS RIGHTS

The burden is on the prosecution to establish by a preponderance of the evidence that the Miranda Waiver and subsequent statatements were voluntary.

This means the prosecution cannot use unfair tactics, cannot make promises of leniency or do anything else that would make the confession not voluntary. 

a confession is involuntary if an individuals will was overborne. 

In deciding if the minors will was overborne the court will look at all surrounding circumstances of the interrogation, both charecteristics of the accused, the details of the interrogation. 

the court will consider age

the minors experience with the criminal justice system. 

threats

promises of confinement

are all likely to have a more coercive affect on a minor than an adult.

RECENT MAKING OF A MURDERER CASE

In the making of a murderer case many people concentrated on things other than the minor and what happened during his interrogation.  This was wrong and the court found that minors will was overborne.

in citing the record the court found said the state court errred in finding that investigators never made promises during the minors interrogation.

instead the Federal Court that overturned the state court used the following factors.

the investigators repeadedly claimed to already know what happened on October 31, and assured the minor had nothing to worry about, These repeated false promises, when considered in conjunction with all relevant factors, most especially the minors age intellectual defecits, and the absence of supportive adults, rendered the minors confession involuntary.  Notice the court did not indicate the absence of parent or any one factors made the confession involuntary, rather, it was the combination of factors that indicated the minors wil was overborne. 

The cour then ordered the confession thrown out the District Attorney can now re-try or have the minor released from jail within a certain time period usually 90 days. 

This is the type of analysis that needs to go into every type of motion to suppress the minors statements.

unfortunately these suppression motions usually occur in the trial court.  We have in Juvenile cases did them earlier sometimes to show the District Attorney the problms in there case.  This has worked for us on several cases. 

If you have a minor charged with a crime and there has been a confession you must get experienced counsel immediately.  Call if you have questions.

 

A violation of Probation can be a serious problem.  As a former probation officer, and deputy district attorney and criminal defense attorney with more than 13  years of experience I know how to deal with the sometimes complicated issues that come from violations of probation.

 

WHAT HAPPENS IF I VIOLATE MY MISDAMEANOR PROBATION

A misdameanor violation of probation can result in you being put into the local county jail.  Now you will not be put into  prision because you are inelgible for prision.  However, if you violate you probation you could be taken into custody with a hold on you until you go to court.  Many times you cannot get out of jail until that violation of probation is lifted.  

You maximum period of confinement for a misdameanor is either six months or one year depending on the offense.  Why that is important is because if you violate your probation but have already served in custody the entire amount of time for that crime you cannot get more time.  In other words if you have already spent six months in custody and that is the max you cannot get more custody time.  In some counties when you violate your probation you will have a time in custody total on the violation making it easier for the court to asses your total time credits.  Often the Probation Department will have someoen in the court to help with these issues.  Remember that anytime you are on probation  and commit another offense you can be held in violation of  your probation.  Example you got a dui in 2003 and in 2004 you were convicted of another dui you would be in violation of your probaiton.

 

DO I HAVE TO BE CONVICTED OF THE NEW OFFENSE TO BE IN VIOLATION OF MY PROBATION

The answer to that question is no.  For a violation of probation, there is a different level of proof.  A simple preponderance of the evidence is needed for a violation of probation.  That means you could actually beat the underlying case and still have your probation violated. 

 

WHAT HAPPENSE IF I VIOLATE MY FELONY PROBATION

There are several things which could occur if you violate your Felony  Probation and all of them are more serious than the misdameanor consequences. 

One option is that you could be sent to state  prision.  If you violate your probation while on Felony probation you could be sent to state prison to complete your sentence.  What is worse the Judge could sentence you to any of three different sentences.  For example if you have a Felony Assult.  That crime carries 2-3- or 4 years. 

If you violate your probation you could recieve any of those sentences.  You would of course get time credits for any time  you have already spent in custody. 

You could be placed back on probation.  If this occurs the Judge has the option of revoking and reinstating under the same terms as the previous grant of probation and order more terms of probation.  This could include spending some time in custody at the Jail, or community service or alternative work program or a combination of the above. 

The court could revoke and reinstate but set your probation out another 2 or 3 years.  This means you would be getting off probation much later than you expected because your probation has been extended.  And of course you would get credit for the time you have already served in custody. 

This article does not deal with post release community service and pro 47 and split sentences and all of the other things that can now occur since the changes in the law. 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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