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Almost always a Manslaghter at trial will be a defense or mitigation to first or second degree murder charge.  Rarely is manslaughter charged by itself as a charge brought by the District Attorney. 

Having tried more than 5 First Degree Murder cases, and having personally handled more than 20 more murder cases, and 10 Attempted Murder, cases I know the ins and outs of a Homicide trial.  I wrote earlier about the law of Homicide I will keep this article more to the crime of manslaughter and how that charge relates to the crime of Murder.

 

First as stated above, the District Attorney will usually charge someone on First Degree Murder charge.  As  a result if there is no question that the accused intentionally killed the deceased an argument will ensue to have the case pled to a charge of manslaughter.

If the defendant's argument is that someone else killed the deceased that is a very different defense. But lets say you are accused of First Degree Murder and you are going to trial, the District Attorney has rejected your offer of pleading guilty to manslaughter and the case is now at trial.

Many times I will simply tell the jurors up front they are here to decide wether the accused should be held liable for first degree murder, second degree murder, or manslaughter.

 

will wil admit that the defendant killed the deceased but wil say there was either one of three things present.

1. Provocation

2. Imperfect Self Defense

3. Heat of Passion

it should be noted that Self Defense, is a different defense. Meaning you or someones elses life was in danger of death or serious bodily injury and that is a complete defense to Homicide. We will have a seperate article regarding self defense.

WHAT IS PROVOCATION

Under Jury Instruction 522 Sufficient Provocaction can reduce a Murder from First Degree Murder to Second Degree Murder and Second Degree Murder to Manslaughter. 

This is because if you were provoked you acted out of the provocation in committing the intentional murder not deliberation and premeditation.  Contrary to Jury Instruction 570 which we will discuss below, the provocation does not have to be found reasonable just sufficient.  This is because if you are acting out of provocation then you will not be acting with malice which is needed for Second Degree Murder. 

Therefore the provocation shows you were not acting with deliberation and premiditation, and you were not acting with Malice.  Again this is a stand alone Jury Instruction, meaning it does not need a  lot of other Jury Instructions to explain it and must be argued properly to the Jury without mixing it up with the 570 Heat of Passion Instruction.  That is exactly why you need an Attorney that has tried Homicide cases.

WHAT IS HEAT OF PASSION 

The Heat of Passion Jury Instruction is Instruction Number 570. 

Heat of passion means that a person intentionally killed another person, however, when they did this they acted out of heat of passion with adequate provocation and before the passions had cooled.  You see in our criminal justice system we look at what the person did wrong and what there mental state or what they were thinking when they did what they did.   And our legal system believes that if someone kills someone before the passions have cooled then they should be treated as less culpible then say someoen that premiditates a killing. 

Jury Instruction 570 has two elements

Subjective Element was the person provoked, and acted due to that provocation and

Objective Element A reasonable person would have been provoked under the same circumstances. 

The standard explanation is if you walk in on your wife having sex with another man immediately grab a gun and kill the man.  This could lead to a manslaughter conviction because the person acted immediately before the passions had cooled and a reasonable person would be provoked to act without due caution and circumspection at a man sleeping with his wife.

WHAT IS IMPERFECT SELF DEFENSE

Imperfect Self Defense is another way to have a Homicide reduced from First Degree to Second Degree and reduced to Manslaughter. 

Imperfect self defense has two different elements.

1. That the person had an HONEST BELIEF IN THE NEED TO USE DEADLY FORCE

2. That that belief was unreasonable

so there is no reasonableness requirement.  In other words just as long as the persons belief was reasonable that he needed to use deadly force then the crime is manslaughter under the imperfect self defense doctrine. 

example

you are at a bar and a menacing looking person is staring at you.  At one point he even makes a comment a to you.  You decide to leave.  He follows you outiside.  Once outside he appears to reach for a weapon, you shoot and kill him.  It ends up  that he only was going for his keys to leave.  However the jury believes that you honestly believed in your need to defend yourself even though that belief was unreasonable you would not be guilty of first degree murde, because you were acting out of your unreasonable belief no premiditation and deliberation. 

You would not be guilty of Second Degree Murder because you were not acting out of malice you were acting out of your belief in the need to protect yourself with deadly force. Therefore you would be guilty of Manslaughter. 

A motion to suppress evidence is a motion to suppress evidence that has been illegally obtained as a result of an illegal search and seizure by government agents.  

If you have been arrested or your property has been seized you need an experienced Attorney to file motions do investigation, and determine if a motion to suppress is applicable to your case.  

As a former Military Policeman, Deputy Probation officer, Deputy District Attorney, with more than 13 years of experience in Criminal Law, and someone that has taught Legal Evidence at the Junior College level, I know the evidence code and can help you with your case.  There are several condiderations we look at when deciding whether to file a motion to suppress. 

1. Was there a search by a government agent.  This can be a more difficult question than it may look like at first.  

because for the search to be illegal there must be conduct by some government agent for example a police officer is a government agent.

2. Was there a search warrant.  If there is a search warrant than the question is whether that warrant was valid.   

a warrant must be based upon probable cause and be reasonably specific, and not vague or overbroad.  

but lets first look at a search without a warrant. 

For a search without a warrant to be valid there must be some firmly rooted exception to the warrant requirement. 

example 

Emergency search or seizure.

A search of you person and clothing as a result of an arrest. 

A search of your automobile ( police must have probable cause for this search). 

 

For the purpose of this discussion lets say I or whomever you have as your Attorney decides to file a motion to suppress evidence.  It would likely go something like this.

First he would read the police report, and find there was no warrant for a search and he does not belive the emergency situation that the police have related in your report. 

First, a motion must be written and served upon the District Attorney within 10 court days of the date of the calendared motion.  

Next, the officer will be called into court and both the District Attorney and the Attorney for the accused are allowed to ask questions of the officer. 

Usually there will be some guidelines to these questions based upon the moving papers of the accused and the response filed by the prosecution.

 

The Judge will consider both the argument of counsel and the moving papers and the testimony.  He will then make a ruling as to the admissibility of the evidene.  If the evidence is suppresed by the Judge that means that the evidence cannot be used by the prosecution to prove your guilt it is suppressed.  The reason for this is to assure lawfurl police conduct if the officer knows that evidence will not be admitted into court he or she will be less likely to introduce illegal means to obtain the evidence.  

We will save the fruit of the poisonous tree doctrine for a later discussion.  This is a tricky doctrine and needs more time.  

Many times the legality of a search is determined by the judge determining if the facts were sufficient to assume there was an emergency situation happening. 

example the police arrive at a home due to a call by a neighbor they do not have a warrant.  However, upon arrival they begin to hear screaming and yelling and someone sounding as if they are very scared.   They knock on the door several times and no one answers, they then hear a thud.  This could be an emergency due to the thud and the fact someone could be in danger.  If the officers enter and find drugs, a women hurt, and other indicia of drug sales most likely all of these items would be admissible.  This is becuase the Judge would most likely find under those circumstances that an emergency was occurring and the police needed to enter to prevent someone being hurt. 

If you have any other questions please give us a call this is a basic overview of motions to suppress and some deal with very difficult issues. 

 

 

 

 

 

 

Under California DUI law, you are currently considered to have given "implied consent" to a DUI chemical blood or breath test if you drive a car. If you refuse to take such a test after being lawfully arrested for DUI, and you are later convicted of DUI, you will face additional penalties for chemical test refusal.

Being offered probation is usually seen as a good thing and it is.  Howver, probation and the violation consequences can be serious.  If you have been arrested give me a call as A Criminal Defense Attorney with more than 13 years of experience I have handled many hundreds of cases that have resulted in probation 

First, there are two kinds of probation with very different consquences and requirements Felony Probation and Misdameanor Probation or as sometimes called bench probation. 

If you are conivcted of a Felony and have no prior history usually you will be offered probation. 

There are certain people that are inelgible for probation.  If you are convicted of a Violent Felony under 667.5 then you are not eligibe for probation.  You might recieve a stayed sentence which I will review later. 

Also, if you have serious felony, in other words a strike offense, under 1192.7 and a current felony conviction.  You are considered ineligibe for probation. 

In this case you could either get a stayed sentence, or go to a 90 diagnostic in State Prision

A stayed sentence means you will be given a prision term say for expample 5 years, but that sentence is stayed pending you successfully completing probation.  And if you violate you will automatically get that sentence of 5 years. 

A 90 diagnostic means you go to reception in the state prison system.  You will be evaluated to determine if you are a suitable candidate for probation.  Usually three different counselors will give there recommendation as to whether you are a suitable candidate for probation. 

The Judge does not have to go with there recommendation and may committ you to prison.

PEOPLE WHO ARE ONLY ELIGIBLE FOR PROBATION UNDER UNUSUAL CIRCUMSTANCES.

Under certain circumstances you could be offered probation under unusual circumstances. 

The law makes an assumption that certain people convicted of certain crimes are not eligible for probation.  except in unusaul circumstances or where the interest of justice will best be served if the person is granted probation.

1. If you inflicted gbi or great bodily injury you are presumpitively inelgible for probation. 

2. an offernse where you used a deadly weapon

an offense where you hurt or killed someoen in a drive by shooting

a grand theft of over $100,000 dollars.

There are several more crimes and this is not an exhuastive list.

HOW DO I GET PROBATION IF I AM PRESUMPTIVELY INELIGIBLE?

The sentencing Judge may look at certain factors to determine if you will be granted probation even though you are statutorily ineligible. Those are listed in rule of court 4.413.

 

These factors include the seriousness of the defendant's crime in comparison to others

wether youthful or aged

indicators of reduced culpability

The factors in 4.413 are considered to determine if the statutory limitation is overcome then the court looks at the factors in 4.414 to determine if probation should be granted.

Another factor which the court could look at is if there is presence of some mental health problem undiagnosed.  For example the person had an undiagnosed bipolar disorder and if he had been properly cared for then he probably would not have committed the crime. 

Of course there must be a psychiatrist or psyhcologist to make this diagnosis.  We often have psychologist examine our clients.

If the court finds unusual circumstances they must still go through the analysis under 4.414 to determine if probation will be granted these include:

1. the seriousness of the crime

2. wether the defendant was armed

3. the vulnerability of the victim

4. whehter the defedant inflicted physical or emotional injury

5. the degree of monetary loss to the victim

6. whether the defendant was an active or passive participant

7. whether the crime was committed under unusual circumstances such as great provocation, which is unlikely to occur

8. whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on part of the defendant,

9. whether the defedant took advantage of a position of trust.

the court also looks at factors as to the defendant such as

what is the prior record

prior performance on probation or parole

whether the defendant was remourseful

and there are several other factors

After looking at all these factors the judge can make the determination that you should get probation.

 

WHAT HAPPENS IF  I VIOLATE PROBATION

If you are on Felony probation and violate a  number of things could happen.

1.  You could be sent to state prison. and the term if up to the court.  If you are placed on probation for a felony, and you violate your probation you could be sent to state prision just for that violation. 

for example if you are on probation for vehicle theft you have a possible term haning over  your head of 1-2, or 3 years in prison if you violate your probation.  The court does not tell you which until you are sentenced they are not required to give you the minimum term. 

or if you were given a stayed term  of 1 year, meaning the judge sentenced you to 1 year in prison but stayed the term then, if  you violate that becomes your sentence. You get credit for any time you have already served against your sentence. 

or, you could have your probation revoked and reinstated under the same terms and conditions, with the same date of probation ending.  Say for example you have a minor violation of probation, or it is your first violation the court will often use this sentence and wil add some type of punishment, say time in the county jail. 

HOW IS MISDAMEANOR PROBATION DIFFERENT.

I belive the distinctions between Felony probation and Misdameanor probation are being blurred.   As a former probation officer, I have seen the misd probation become more restrictive and less like the court probation  of the past where you simply were on bench probation without many terms and conditions. 

If you violate your misd terms and conditions you could face jail time or other forms of probation depending on the severity of the violation.

Many times the probation department will put our a warrant for someoen that has violated misd probation, but never follow up and never revoke probation.  That means that if probation catches up with you 5 years later and brings you before the court the court no longer had jurisdiction of you.  This is because your 3 year term of probation has run out and altough you had a warrant out your probation was never revoked; therefore, your probation time ran out.  This is a fine distinction that most attorneys and many judges look past. 

So if you have questions feel free to call.

 

 

If you have been subpoenad for a court case usually it is becuase you are a witness that either the proseucution or the defense believes is necessary to there case.   You should contact an Attorney regarding your legal rights if you have been subpoenad for a case. 

I am an Attorney that has represented more than 100 witnesses in court cases throughout the state of California.  As  a Former Probation, Officer Deputy District Attorney and Attorney with more than 13 years of experience I can help you get through what could be a very confusing time.

 

DO I HAVE TO SHOW UP IF I HAVE BEEN SUBPOENAD

Yes you must show up for court.  If you do not show up for court after a lawful subpoena then you could be subject an arrest or body attachment wich is the order to bring you into court.    You should even if you are just a witness to a crime consult an Attorney.  The court system is complex and for many lay people incomprehensible, do not go in alone.

 

DO I HAVE TO TESTIFY

This is where things can get difficult.  If you are asked to testify again, you should seek legal counsel because as explained below your testimony could result in your arrest or being charged with a crime.

WHAT IS A FIFTH AMENDMENT RIGHT

All citzens have a constitutional right not to incriminate themselves this is whether you are an accused or a witness whether a court trial or even testifying before a Grand Jury.

If you are asked to testify before a Grand Jury you should immediately phone an Attorney.  This Attorney can find out if you have a Fifth Amendment right that should be asserted.   Not contacting an Attorney before tesfying especially in front of a Grand Jury is a very bad idea that could result in you being prosecuted. 

 

WHAT WILL MY ATTORNEY DO IF I MY TESTIMONY MAY INCRIMINATE ME

If your Attorney feels your testimony might implicate you in a criminal act then he will most likely tell you to exercise your rights under the Fifth Amendment.  This is usually done out of the Juries presence.  The Judge will hold a hearing to determine if you have a Fifth Amendment right.  If the Judge feels your testimony could cause you to incriminate yourself.  He will rule that you have a right to claim the Fifth Amendment privilege.

 

WHAT HAPPENS IF I EXERCISE MY RIGHTS UNDER THE FIFTH AMENDMENT

If you exercise your fifth amendment right then you will not be prosecuted for exercising this constitutional right.  However, the story does not end there. 

 

WHAT IS IMMUNITY

If the prosecution wants you to testify after you have claimed your constitutional rights then he must give you what is called immunity.

There are two basic types of immunity.

Use Immunity which is the more broad type of immunity and Transactional Immunity.  Depending on the circumstances you should try to get the most expansive immunity possible.  Just relying on the word of the prosecutor that he will not prosecute you is not enough.  If you are given immunity then you can testify without risk of your testimony being used against you. 

However, where things could become very confusing and even more difficult is the probleme where you get on the stand under a grant of immunity and then begin to admit under oath to crimes which could be prosecuted under a Federal Statute. 

If you were to do this the immunity grant that you signed with the local prosecutor is worthless as the US Attorney in your district is not obligated to follow that immunity agreement and you could be subject to proseuction under a Federal Statute. 

Therefore, if your case involves possible Federal charges you should involve the US Attorney in the immunity negotiations. 

 

HOW IS THIS APPLICABLE TO GRAND JURY TESTIMONY

Many people are under the mistaken impression that because Attorneys are not allowed in a Grand Jury Proceeding they cannot take the Fifth or seek counsel of an Attorney.  This is completely wrong.  You always have a Fifth Amendment right.  And before you into any Grand Jury proceeding speak with an experienced Criminal Defense Attorney not a civil Attorney that has no experience in these types of matters. 

 

 

 

 

You've been arrested for DUI and you swear you hardly had a drop to drink. Or, you don't believe the amount you drank should have gotten you to the blood alcohol level you were at the time of driving. Many people don't realize just how little alcohol it takes to make someone legally intoxicated. Here, we'll explain a bit about alcohol consumption and how women and men differ when it comes to measuring the blood alcohol content.

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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