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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. 

 

 

A violation of 245 a1 is assault that is committed with any type of deadly weapon or by mean of force that is likely to cause great bodily injury to another. 

an adw charge is a wobbler which means that it can be charged either as a felony or a misdameanor. 

 

There are several factors the prosecutor will take into consideration as to whether to charge as a Felony or a Misdameanor. 

1. The type of weapon used to committ the alleged adw

2. whether the person whom you allegedly assualted sustained and injury (and )

3. the nature of the victim was he a firefighter, a police officer etc.

 

Many innocent people in California get wrongfully accused of assault with a deadly weapon.  Accusers often exxegerate or outright lie to the police. 

A skilled defense Attorney who practices criminal defense law can help you with your case.

HOW DOES THE PROSECUTOR PROVE THAT COMMITTED ASSUALT WITH A DEADLY WEAPON?

1. That you assaulted somoene and

2. That the assualt was committed with a deadly weapon or other means of force likely to cause great bodily injury.

the prosecutore doesn't have to prove that you injured another person or tha tyou even actually made physcial contact with someone, all that matters is that you had the present ability and intent to injure somoene. 

WHAT IS A DEADLY WEAPON

We typically think deadly weapon as being something like a gun or a knife; however, everyday items can be deadly weapons depending on how they are used. 

example swinging beer bottles

threatening to stab another in the neck with a sharp pencil. 

WHAT IS MEANS OF FORCE LIKELY TO PRODUCE GREAT BODILY INJURY

As previously stated

hands

feet and other body parts

do not qualify as deadly weapons under california adw law however, if you use your body to inflict "great bodily injury" on another you can still trigger an adw charge. This is because california penal code section 245a1 penalizes those who assualt with another

1. deadly weapons

2. instruments

3. any means of force likely to produce great bodily injury

As you can see the law for assault with a deadly weapon is a very difficult area of law.  You need an experienced Attorney that knows this area of the law.  As a former probation officer, deputy district attorney, adjunct criminology instructor, and criminal defense attorney with more than 13 years of criminal defense experience, I know how to represent someone in complex cases such as Assault with a deadly weapon.

I have tried cases ranging from petty theft to First Degree Murder, and have won acquitalls in three different counties and in adult and Juvenile Court.  Call us and we can make an appointment to go over your options and see what we can do. 

 

 

Being charged with a crime can put you in a stressfull situation. As you work to prove your case, there is someone else working against you. Innocent or guilty, there are some things that you should not do as you face criminal charges.

If you are being charged with adiing and abbetting a crime, you are probably confused as to exactly what aiding and abbetting is and how you can be found guilty of aiding and abbetting. 

If you are being charged or have been arrested for this crime. Then you should call our office.  I have more than 13 years of experience in Criminal Defense, have tried cases ranging from Petty Theft to First Degree Murder.  I have tried cases that were almost exclusively related to aiding and abbetting.  I have handled several hundred cases, and have personally tried 50 trials. 

"Aiding and Abbetting" is also called "accomplice liability" is not itself a crime.  It allows the state prosecute everyone that is "in on the crime" even if they did not perpetrate the crime directly. 

Example:

Alen, Bill and Charlie plan a bank Robbery. Each plays a different role. Alen draws up the diagram of the teller window and the safes.  He gives it to Bill (after which Alens role is done) Charlie drives Bill to the Bank and waits out front in the getaway car.  Bill actually goes in and Robs the bank.  Bill comes running out with the loot, jumps in the car, and Charlies drives the two of them off. 

Technically speaking only Bill did the actual "robbing" "but prosecutors could charge all three with bank robbery.  Bill would be the prinicipal perpetrator, Alen and Charlie as aiders and abbettors.  In alens case he's liable for the robbery even though he wasn't present at the crime scene. 

Thats because California's aiding and abbetting law holds all three liable if

they

Encourage

facilitate or

aid

in the commission of the crime, no matter how insignificant that persons role may have been.  But there must be some kind of involvement before someoen can be held liable.

Prosecutors often use this offense to ensare people in gang cases.

sometimes one gang member will commit a crime and the prosecution will accuse all the other members of the gang of aiding and abbetting in the crime.  Even though it is unclear what the other gang members actually did.

For example if two members go into a liquor store and two stay outside and unkown to the two outside, the two that went in decide to rob the store.  The prosecution will always charge the two outside with being aiders and abbettors especially if they are gang members.  The prosecution will alawys say the two outside are lookouts.  Even though there is absolutely no evidence they were lookouts.  They will even bring in a gang expert to say that gang members usually act together.

They cannot under recent case law testify as to the intent element of the crime, in other words the gang cop cannot say I believe the two outside acted with intent to aid or facilitate the robbery by acting as lookouts.  However, the gang cop can testify that he believes gang members act as lookouts for other gang members when they commit crimes.  This is often enough to sway jurors who are already prejudiced against the alleged gang members. 

You must have an experienced Attorney that understands how to write the motions in limine to attempt to keep out this type of testimony.  

 

DEFENSES

You did not aid facilitate or encourage anyone to commit a crime. 

you are being falsely accused

withdrew from participation

merely being present at the scene of the crime is not in and of itself aiding and abbetting however it can be taken into account when determining if you are liable. 

However presence at the scene of the crime is not required to be convicted of aiding and abbetting. 

KNOWLEGE ALONE IS NOT SUFFICIENT

Just because you know a crime is about to be committed and do nothing to stop it does not mean you are liable for aiding and abbetting. 

If after reading this article you still have questions do not hesitate to call.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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