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There are several reasons your child may be tried as an adult, as a Former Juvenile Probation Officer, and Deputy District Attorney, I have th know how to walk you and your family through this difficult and confusing time. 

First in most cases your child to be tried in adult court must be charged with a 707 B offense, and be 16 years or older.  There are exceptions to this general rule that I wll discuss below. 

A 707 B offense are your more serious crimes. 

Murder

Arson

Robberty

Rape with force of violence

Lewd or Lascivious act in violation of PC 288. (a)

Kidnapping for Ransom

Kidnapping for purposes of Robbery

Assualt with a firearm or destructive device

Attempted Murder

discharge of a firearm or specified weapon, as described in PC 12022.5 discharge of a firearm under 12022.53

A felony offense in which the minor was personally armed.

Torture

Aggravated Mayhem

Carjacking

Kidnapping while committing a carjacking

Voluntary Manslaughter

This is not an exhaustive list but meant to be illustrative

 

Before a Minor can be transferred to an adult court a fitness hearing must be held.  A fitness hearing is a hearing to determine if the minor is a fit subject to be heard in the Juvenile Court.  Under most of the statutes the minor is presumed to be unfit and the minor has the burden by preponderance of evidence, more probably than not, that he is fit for the Juvenile Court. 

For examply Welfare and Institutions Code section 707A

A minor may be transferred to an adult court when he has a pending felony and

two or more prior felonies, when he was 14 years or older

he is presumed to be unfit, and must prove his fitness under all categories of a fitness hearing

 

under 707 (d) (1) the minor is presumed not fit and most overcome the presumptio of unfitness.

this can be charged if the minor is over the age of 16 and has a pending 707 B offense as discussed above. 

under 707 (d) (2) if the minor is 16 years or older

A. If the offense as adult would be punishable by life imprisonment or death

B. Personal use of a firearm in commission of offense (PC 12022.5)

C. If WIC 707 B offenses

gang involved per 186.22

victim 65 or older.

If after trial or even after a plea agreement the minor pled or was not convicted of the crimes which sent him to adult court the case reverts back to Juvenile Court for disposition or sentencing. 

 

There are also certain cases which must be filed directly in adult court the case may not even be considered for Juvenile Court.  Again, if the minor is not convicted of the offense for which he was directly filed on he may go back to Juvenile Court.

 

Under Welfare and Institutions Code section 602 (b)

Any person who is alleged to, when he or she was 14 years of age or older, to have committed one of the following offenses shall be prosecuted under the general law in a court of criminal jurisdiction. :

Murder as described in Penal Code section 187 and the prosecution alleges the minor personally killed the victim.

 

The following sex offense, if the prosecutor alleges that the minor personally committed the offense, and if the prosecutor alleges one of the circumstances enumerated in the One strike law, this includes

Rape as described in paragraph 2 of subdivision a of the section 261 of the Penal Code. 

Spousal Rape, as described in paragraph 1 of subdivision a of Section 262 of the Penal Code.

Forcible Sex Offense in concert with another as described in Section 264.1 of the Penal Code.

Sexual Penetration as described in Section 289 of the Penal Code.

and several other cases as you can see this is a very complicated area of the law call me if you have questions with more than 13 years of Juvenile Practice experience I have the experience to assist you and your family. 

 

 

Junile Law in California is complex and ufortunately varies greatly from county to county.   As a former Juvenile Corrections Officer, Juvenile Probation Officer, I know the ins and outs of the Juvenile Justice system.  I have also practiced Juvenile Criminal Defense for Almost 13 years and represented hundreds of Juveniles in court in Madera, Fresno, Montery, Tulare, Kings, and Kern County. 

I will give you a basic overview of the Juvenil Court system below and at a different time go over what it means if you child is being tried as an Adult or a 707 b offense is alleged or if the case was directly filed. 

When looking at Juvenile Law there are several key differences with the adult court.

One is that a Juvenile is not entitled to Bail in Juvenile Court.

Also, a Juvenile is not entitled to a Jury Trial.

 

The first step in a Juvenile case.

Usually after an arrest or a warrant has been issued, a Detention Hearing is scheduled.  At the Detention Hearing the defense will provided with both a detention memo, and a petition. 

A detention memo is memorandum prepared by the probation department giving a quick glance a the minors life, is he or she attending school, what are there grades like, have they been in trouble before, is the family life stable.  All of these things are revelevent in the courts determination of whether the minor should be detained or allowed to remain in the parents home pending the outcome of there criminal case. 

At the detention hearing the minor's Attorney will enter a plea, either waive time for speedy trial 15 days for in custody minors, and thirty days for out of custody minors.  And will either stipulate to a prima facia case deny the stipulation.

It should be noted that a stipulation or non stipulation to a prima facia case is not a probable cause determination.  In other words the court will only be looking to see if on its face the police reports provide an adequate basis to hold the minor in custody and proceed.  In other words, no wether the minor is innocent or guilty, but only if a criminal offense has been committed and on its face without going further, the minor committed the offense. 

Some Lawyers, feel this is somehow a Probable Cause determination it is not.

If the Lawyer does not stipulate then the police reports will be read into the record.  A hearing may even be held where the police officers can be cross examined on the police reports to ascertain if a prima facia, on its face, offense has occurred. 

If a prima facial case exists, the court will determine if the minor should be held at Juvenile Hall or released to the parents either on Electronic Monitoring Program or on Supervision.  It should be noted The Attorney at this phase of  Detention Hering may bring what are called Affrimative Defense witnesses.

These are witnesses that show Self Defense or Entrapment. 

 

The electronic monitoring program is a program where a gps device will be attached to the minor to establish if the minor is abiding by the terms the Court gave to minor to stay out of custody. 

Home detention is simiar; however, there is no Electronic monitor attached to the minor.

The court will look at several factors to determine if the minor should go home on monitor home detention or stay at the Juvenile Facility.

How is the minor doing in school  Is the minor attending everyday, what are his grades.

Is the minor involved in gangs? if the minor has gang indicia IE admits, has gang tattoos,

Does the minor have a prior history and how serious is that history. 

All of these factors are taken into consideration by the court when making the determination of whether the minor should remain in Juvenile Hall or be allowed to return home to his family on Electronic Monitoring or Home Detention. 

After this determination. the case will be set for a settlement conference.

At the settlement conference possible resolution of the matter will be discussed with the District Attorney and possible Deversion Programs will be looked into.

What is a diversion  program? A diversion program is a program where if the minor admits the offense he will be ordered by the court to perform certain duties then the case will be dismissed and records sealed. below are the most common programs.

 

Informal Probation

If a minor is placed on informal probation he will be ordered to do community service and possibly other things.  When he or she is finished they will have another court date and if they completed everything the case will be dismissed and the records sealed. 

DEJ Program

Similiar to the Informal Probation Program. If the minor meets certain criteria, even if the case is a Felony and the minor is over 14 years of age, the minor will enter a 1 year program.  If he completes the program satisfactorily then at the scheduled court date the case will be dismissed and his record sealed.   

 

CJC Program

This program is the collaberative Justice Program, under this program the minor will meet with the victim make restitution, apologize, and then if the program is satisfied the case will be dismissed and the record sealed. 

There has also been new legislation from the California Legislature which requires the Juvenile Court to review Juvenile Convictions for possible sealing and destroying of records. 

Under this law, even if the minor was not part of the above-mentioned programs they could stil have there records sealed.  The way the law was before this new legislation the minor would have to come to court and set a court date and ask the court to review and possibly destroy records.  Now automatically the court will review the records after a certain amount of time has passed, and if the minor has not re-offended, and is in good standing the record of conviction will be sealed.

Also, Juvenile records are not public records therefore, the clerk of the court cannot release records of the conviction to the public.  If the minor is for example going for a Law Enforcement Job, he would still have to disclose the conviction to them.  Other than that, even if the records are not sealed they would be very difficult for anyone to find outside of Law Enforcement. 

A minor should not be made to feel that just because he or she has "youthful indiscretions" that there life is somehow ruined.  This is simply not the case.

 

What happens if I want to go to trial

If you do not take one of the above-mentioned deals then your case will be set for contested Adjudication.  Again, a Jury will not decide wether the petition if true only a Judge will make that determination. 

Other than the lack of  a Jury the trials are very similiar to adult trials with sworn witnesses etc. if the case is not proven by proof beyond a reasonable doubt the  petition is dismissed and the minor released if he is in custody. 

 

Probation

If you lose at trial or admit the validity of the petition or charges.

Then you will have to serve a term of probation, usually one year in Juvenile Cases, and or some time in Juvenile Hall and one of there programs. 

 

Again, this is a general overview of the Juvenile Justice system, for non 707 B offense or non direct file cases.  to discuss your Sons or Daughter's case don't hesitate to call get the experience of someone that has worked in the Juvenil Justice system for more than 13 years and worked as a Juvenile Corrections Officer, and Juvenile Probation Officer.   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In much of California, you are not allowed to use your own fireworks on the 4th of July (or at any other time of year).

Many people come to me when they are being investigated for a crime and ask should  I get an Attorney now.  The answer is yes.  I have had clients come to me and tell me that they have had other Attorney's tell them that they should wait until they are arrested and then call them.  This advice is simply I feel not only errenous but malpractice.

As a Former Army and Army National Guard Military Policeman, Persian Gulf War Veteran, Juenile Corrections Officer, Probation Officer, Deputy District Attorney, and Adjunct Criminology Instructor I know the ins and outs of the system, and waiting until you are arrested could cost you your freedom ruin your chances to get evidence, and hurt your chances at a Bail hearin.

You see when a Deputy District Attorney is reviewing the case they have a very limited set of facts they are looking at.  They never look at exculpatory evidence because many times they havent seen that evidence when they are reviewing a case.  I have represented many people at the stage of them being investigated and were able to give both the Detectives and District Attorney enough exculpatory evidence, that they simply dropped the charges. 

Exculpatory Evidence is evidence that shows your innocense  An Alibi witnesss that places you somewhere else when the crime occurs is a good example.

Even pre-charge we have had several instances where we provided enough evidence to have the case dismissed without an arrest even occuring.

Also, if you are being investigated for a crime often the police will want to interrogate you without an Attorney present.  If you do not hire an Attorney this is perfectly legal for the police to do.  And in most cases they will conduct the interview in a manner which does not implicate the need for Miranda warnings.  Talking to the police if you are being investigated for a crime without speaking to an Attorney is a very bad decision.  And if you were told by some Attorney that you did not need representation until you have been charged with a crime you would probably speak with the Detective and that is a very bad idea under any circumtances. 

If you have already been arrested you should contact us immediately.  If you are arrested for a Misdameanor you will usually be cited out with a date to appear.  If you hire legal counsel that legal counsel can make what is referred to as a 977 appearance, meaning you don't have to appear in court.  This saves you time and money as you will not have to appear in court and miss work and possibly lose your employment.

If you are arrested for a Felony offense there are one of three things that could happen

1. You could bail out at the Bail Schedule meaning you are booked into jail and bail schedule is set for the crime you were booked on.   You then call a Bail Bondsman before your first court appearance you pay 10 percent down and you are released.  You should know that this is the amount of bail based on your booking charge not what the District Attorney eventually charges.  Therefore if you are booked on a charge of Drunk Drving with Injury, and you bail out, and after bailing out the victim dies, then the District Attorney will add additional charges which could substantially change your bail amount.  You will be responsible for this incresed amount, if you cannot pay this additional amount you will be booked into jail until the case is concluded. 

 

Bail Reduction

At your arraignment or upon 2 days notice you can ask the court to reduce your bail.

 

The Court looks at several factors

1. Is this person a danger to society, based upon his prior record and record of violence, etc

2. And, will this person show up to court.  Does the person have prior failures to appear does he have contacts with the community, family, employment, long time in the community etc. 

Bail hearings can sometimes run into full blown hearings with people standing up to vouch for the in custody client I have even called witnesses, such as the police officer to show an affirmative defense is in the police reports.

It should be noted the court must take the charges as true at a Bail Reduction Hearing,  the Judge will not allow you to litigate the case I have seen, however, the Judge view videos and let the defense present some evidence.

 

If you are denied a bail reduction you cannot bring this up again absent substantial change in circumstances so if the Judge rules against you it is not permissible to just keep asking and hoping for a different answer. 

Own Recognizance Release

Another way you could be released in a Felony matter is on your Own Recognizance, this is usually available for less serious charges for people with little or no criminal history and the court does grant these type of releases fairly often.  Usually the cour will have the client sign a OR form with conditions he is to abide by and any restrictions the court will impose on the OR release. 

Pre-Trial Release Program

Another manner of release in both Fresno County, and several other counties is the pre-trial release program.  Usuall through probation, the probation department will interview you give you a score based upon prior history and other factors and then make a recommendation.  Again there could be several conditions placed upon your release if you are reliesed under this program.

If you have any questions don't hesitate to call the Law office of Gerald Scwhab.

 

 

 

 

 

At the Law office of Gerald Schwab, I am a former Army, and Army National Guard Military Policeman, Persian Gulf War Veteran, Juvenile Corrections Officer, Probation Officer, and Deputy District Attorney as well as an Adjunct Criminology Instructor who now defends people accused of Gang Crimes. 

I have defended more than 100 hundred gang cases, and went to trial on more than 15 serious Felony gang cases. 

It is vitally important if you have been accused of a gang crime to have an experienced criminal defense attorney handle your case.  Gang cases are much different than other criminal cases and you should be careful hiring an Attorney that purports to be some type of gang expert yet has never tried a gang case.  I have successfully defended and have achieved aquitals in gang cases and had gang cases either dismissed at preliminary hearing on at least two occassions in Fresno County. 

Penal Code section 186.22 is part of the California Street Terrorism Enforcement and Prevention Act.  more commonly referred to as Calfornia's Street Gang enforcement law.

 

In its simplist form this law states that anyone who committs a felony for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promot further or assist in criminal conduct by gang members is guilty of an additonal term of imprisonment how long that additional term is defendant on the underlying felony offense and whether any of the  people involved in the Felony offense were armed at the time of the Felony.

 

I thnk this is a good time to stop and look at how serious this additional gang enhancement can affect and work.

Many times I have represented individuals who were merely present at the time an armed fellow gang member was committing a crime.  The prosecutio will always assert that the other gang members were acting as lookouts for there fellow gang members.  This can lead to a a life imprisonment sentence for the lookout.  Let me explain how.

First, even if you are not a gang member say you went along with two known gang members to rob and individual.  During the course of the Robbery one of the Gang Members shoots and kills the person they were attempting to rob.  This now puts all three involved if proven, in jail for the remainders of there lives the reason.

Under the 12022.53 which is the so called "use a gun and your done" statute, a person that used a gun to commit a crime gets an additonal 10 years in prison, someone who actually fires a gun gets an additional 20 years in prison, and someoen who shoots the gun and causes Great Bodily Injury, is subject to life imprisonment. 

Now normally the person getting life must have personally inflicted the great bodily injury, however, the once exception to this is if you were acting with  specific intent to promote further of assist in crimnal conduct by gang members.  It does not matter if you are not a gang member. 

Therefore in the above example the non-gang member above would be subject to life imprisonment for the crime.  Because he was acting as a lookout IE acting with specific intent to assist the gang member in committing the Robbery he is guilty of the underlying crime as well as liable under the 10, 20, life provision and will never get out of prison because usually the enhancement will be stacked upon the underlying crime, they do not run concurrent or at the same time.   Therefore the sentences will usually end up very high levels 25 to life plus 15 years plus any other crimes. 

This perfectly illustrates how gang crimes are different and must be defended an experienced trial attorney.

 

If after reading this article you have question give us a call at Law office of Gerald Schwab. 

 

The crime of Participation in a Gang.

There are two parts to the Penal Code section 186.22 the first part deals with seperate crime of "engaging in gang activity" the second part deals with sentencing enhancements. 

Lets begin by looking at the first part Penal Code section 186.22 a

1. That you actively participated in a gang.

2. knowing that the members engage in a "pattern of criminal gang activity"

3. That you wilfully "promoted, furthered, or assisted in felonious conduct by members of that gang.

 

if proven you face either a Misdameanor or a Felony punishable by 16, months 2 or 3 years in jail. 

 

under the firs element you must be Actively participatie not passively or nominally, participating.  This is a factual determination.

 

Penal Code section 186.22 B Sentencing Enhancement Law. 

The second part of the Gang Statute deals with the sentencing enhancement law.   

Unlke the stand alone statute this statute does not require active membership in a criminal street gang only that

you acted

for the benefit of

at the direction of or

in association with any criminal street gang, and

with the specific intent to promote further or assist in criminal conduct by a gang member again you don't have to be a gang member only that you assited a gang member in criminal conduct. 

This is an enhancement and therefore enhances your sentence depending on the underlying crime.

If a non serious non violent felony than it adds to 2,3, or 4 years to your sentence, to be served in State Prison.

If it is Serious Felony than it adds 5 years to your sentence.

And is f Violent Felony it adds Ten Years.

And as stated above under the 10-20-life provisions it could add a life sentence.

 

There are also severl other statutes that if you are convicted under this statute in addition to those you could face life in prison if you are convicted of those crimes in conjunction with the Gang sentencing enhancement.

 

Penal Code section 215 Carjacking

Penal Code section 213 Home Invasion.

 

or a 12022. 55 discharging a weapon from a motor vehicle commonly referred to as a drive by shooting. if that shooting causes death or great bodily injury. 

 

Penal Code section 186.22 D

there is one last penalty that Penal Code section 186.22 imposes and that is the misdameanor enhancement. 

Under this statute the prosecution  is allowed to turn a midameanor into a Felony under certain circumstances.  If the Misdameanor was committed "for the benefit of at the direction of or with specific intent to promote further or assist in criminal conduct by gang members than the midameanor can be enanced to a Felony. 

However, the additional Gang Enhancement of 186.22 b cannot be added to the crime.

An example if someone committed the Misdameanor of 417 brandishing a weapon and called out a gang slogan while doing so this could be enhanced to a Felony; hower, the additional enhancement under 186.22 cannot be added to the sentence. 

If you have any questions regarding these crimes don't hesitate to call the Law office of Gerald Schwab.

 

 

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There are  several defenses to California DUI charges as part of the process of assesing whether to take your case to a Jury we always look through the charges and decide if based upon some of the factors below it is advisable to go to trial.  There are actually more defenses to DUI cases, and DUI cases have become more complex over the past 5 or six years.  When consulting an Attorney you should be clear as to whether you want to go to trial to challenge every aspect of the case or whether you want to take a plea agreement with the District Attorney.  Either way it is advisable to hire an Attorney to establish all defenses to your underlying case. 

There is no such thing as an open and shut DUI case.  There are a number o DUI defenses that could result in reduced or even dismissed charges by either the prosecution a Judge or a Jury. 

Some of the Defenses to a charge of DUI are as follows. 

1. California DUI breath test are subject to a wide variety of errors.  These include but are not limited by the following.

malfunction improper handling by the police

DUI breath testing is the most common way of to measure BAC ; however it is not the only way of testing, and is not necessarily accurate.  the DUI breath test does not measure the amount of alcohol in your blood it only measures the amount of alcohol in youur breath which is then converted to measure the amount in your blood stream.  Therfore DUI breath testing is succeptible to several influences that could affect its accuracy. 

Mouth alchol could alter the accuracy of your DUI breath test.  Residual alohol in your mouth could affect the accuracy of the testing.  You suffer from GERD or acide reflux this could defenitely affect the test. 

What is a "Rising Blood Alcohol" and how does that affect your DUI

What Rising Blood Alcohol means is that your BAC was higher at the time you took the test than at the time of driving. 

Alcohol takes a certain amount of time (typically between 50 minutes and three hours) to absorb into your system.  If for example you just had recently finished drinking and wer investigated for DUI shortly thereafter your alcohol may not have reached its peak absorption rate.  When this is the case your blood alcohol is still rising, which can cause a false high DUI BAC result.  

This is becasue your BAC at the time of your blood or breath test is irrelevant what is relevant is what your BAC was at the time of driving.  Just because you have a BAC that is above the legal limit when you submit to a DUI chemical test, does not mean that what your BAC was at the time of driving.  particularly if you were "on the rise"

Prosecutors like to assume that everyone is beyond their peak absorption phase when they submit to California DUI chemical testing, we know, however, that this isn't the case and that rising blood alcohol is a very legitimate DUI defense.  This defense is applicable to both blood testing and breath testing. 

 

 

 

 

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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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