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I have personally tried more than 10 sex crimes cases in three different counties.  In addition, I have handles almost fifty other sex crimes cases in more than 13 years of criminal defense experience if you have been arrested for a sex crimes case do not hesitate to call today. 

There are seval different types of cases that fall under sex crimes cases.

Penal Code section 262 PC "spousal rape"

Date Rape

Penal Code section 261.5 "statutory rape"

"Oral copulation by force"

Penal Code section 289 "Forcible Penetration with a Foreign Object"

The punishment penalties, and stigma of a Sex Crimes conviction can be severe

However rape cases involve a number of evidentiary issues both emotional and physical.

A skilled and experienced Attorney is needed to investigate and possilble obtain the best expert witnesses.

Below I will discuss several issues as to Rape cases.

1. Overview of Rape Law

2. How does the prosecutor prove that I am guilty of Rape

3. The penalties and punishments for Rape.

4. How do I fight a California Rape Charge

5. Rape and related offenses.

1. Overview of California Rape Law

As per Penal Code section 261 Pc rape occurs when an individual engages in sexual intercourse with another person when the sexual act is accomplished 1. Against tha persons will 2. without that person's consent and by means of

force

violence

duress duress can be an express or implied threat  which would coerce a reasonable person to perform an act which he or she would not otherwise have performed/ or

2. Agree to an act which he or she otherwise would not have submitted. Convincing an alleged victim that he or she will be arrested, incarcerated, or deported, for example.

Fear of Bodily Harm to oneself is or to another (that the alleged victim's fear must be actual and reasonable under the circumstances. 

Also, if the alleged victim

1. To intoxicated to consent to the activity

2. Unable to give consent due to a mental disorder or physical disability which the accused knows or reasonably should know about, or

3. Unconscious about the nature of the act (either because he/she is asleep, unconscious, or fraudently induced into having sexual intecourse and the accused know or reasonably should know that this is the case.

 

2. How does the prosecutor Prove that I am guilty of Rape

in order to prove that you are guilty of Rape the prosecutor must prove four facts

1. That you engaged in sexual intercourse with another person (any penetration will suffice, regardless of how slight). 

2. That you were not married to the other person ( that is a seperate crime known as spousal rape)

3. That the intercourse was against the will of the other person

4. That you accomplished the act by one of the means above.

It is the third element that raises the most issues so we will look at that.

 

Agains the will and consent

Simply put against the will and consent. means without the other persons consent.  but what is meant by consent.

Consent means positive cooperation in an act or attitude as an excercise of free will.  A person who "consents to sexual intercourse does not freely and voluntarily with knowlege of the true nature of the sexual act.  There are three important things to consider in understanding consent

1. The fact that the alleged victim are or where in a dating relationship does not in-and of-itself constitute consent without the alleged additional evidence of consent.

2. The fact that the alleged victim asked you to use a condom does not in and of itself constitute consent

3. The fact that the alleged victim initially consented to and participated in the sexual intercourse does not in and of itself prove consent.

Resistance is not an element of Rape

The prosecutor does not need to prove that the alleged victim tried to resist in order to prevail at trial. 

Under the old rape law if a women froze during an attack then the defendant would be found not guilty because there was not sufficient resistence.

However, that is not the law today.

California Rape law applies to both men and women

 

3. Penalties, Punishments and Sentencing for California Penal Code section 261 Rape

Rape is a Felony if convicted you could face

Formal Probation

Prision for 3, 6, or 8 Years.

and the Lifetime registration requirement.

If there is Great Bodily Injury and additional 3,4, or five years.

 

HOW DO I FIGHT A RAPE CHARGE

To accuse someoene of Rape requires little or no evidence ; however, for the person to be convicted there must be proof beyond a reasonable doubt.

False Accusation

Someone may accuse you of rape out of Jelousy, anger, or any other reasons

Consent

If the person consented then they cannot be Raped.

Insufficient Evidence

If the alleged victim does not see medical attention there may be no physical evidence to corroborate her statements.  Also, if no one sees or hears the incident than a similiarly there is no evidence. 

Mistaken Identity

Mistaken Identity can happen for a variety of reasons

poor lighting

faces masks

prejudicial in person lineups or photographic lineups.

Penal Code Section 261.5 Statutory Rape

Statutory Rape takes place when an adult has sexual intercourse with an individual under 18, referred to as a minor. 

If you have been arrested for or investigated for any of the offenses listed above call us immediately. 

 

 

 

 

The penalties for repeat offenders of DUI laws certainly do escalate for 2nd and 3rd time offenders.  As a former deputy district attorney, and someone that has been practicing criminal defense for 13 years I know the ins and outs of DUI law.   Please call for any questions. Below I will give a brief overview of how the 2nd and 3rd time offenses escalate punishments for DUI offenses.

But first, sometimes I recieved phone calls from people who are facing a DUI after a Felony DUI these DUI's are always treated as Felonies. 

 

For second time offenders with a BAC below .15

First the administrative penalties, the DMV will give a hard revocation of your license for a period of one-year.  However, after 90 days from conviction, not from charges, but convction you are eligible to go to the DMV and have an ignition interlock device placed on your vehicle.  You wil also have to sign up for the repeat offender DUI course 18 month and get an sr-22. and pay a fee.

 

As far as criminal court you will get additional days of aowp then you did for your first offense.  This of course depends on your BAC if  your BAC is .15 or above you are considered to have an elevated BAC which could lead to higher penalties and costs. 

Many times I am asked should I go to A.A. to impress the Judge.  Certainly if you are serious you should go to A.A. and get proof.  Also, the Judge could order either A.A. or outpatient treatment as a condition of release.  If ordered you should certainly go, or it could result in being taken into custody.

 

3rd Time DUI consequences

On a third time DUI you don't have the option of the iginition interlock device after 90 days and still must complete the repeat offender DUI class the 18 month class.

As for court consequences you have 120 days minimum jail sentence for 3rd time convictions.  How this is handles is some extent up to the Judge and your circumstances. 

If the court orders you into treatment you can count this as your in custody time, of course this is at the Judges discretion, and you should not preemptively go to in-patient treatment because the Judge will not give you credit for those days unless ordered by the Judge.

You can also, get on what many people refer to as the monitor.  However, you should make sure you are on what the scram program calls the scram 2 program because that is the only program the Judge will give day for day credits for.  The scram 2 program has a built in alcohol sensor as part of the device.

If  you are taken into custody to begin your 180 days as some Judges will do, you can still bail out because you have not yet been convicted.

What is AOWP

The AOWP progam is a program in Fresno County this is for the most part work release. 

You have probably seen them on the side of the road picking up trash.  In Fresno County you can do up to 90 days AOWP time and the remainder of the 120 days must be spent in custody.   If the Judge agrees custody could be the scram 2 program, in patient treatment program, or a combination.

The good thing about the above-mentioned programs is that they keep you out of actual custody at the Fresno County Jail facility.  If however, you do not cooperate or complete the terms as outline above you will have a turn in date from the Judge.  The Judge will not want to hear that you did not complete things you were ordered to do by the Court.  In addition, most times the court will not even let you put yourself on calendar to argue for more time to complete AOWP or other things you will be sent to Jail.

You certainly need experienced counsel for this type of offense especially as the consequences get much harsher.  If you need help do not hesitate to call us.

 

Marijuana possession is a federal crime

Over 20 U.S. states have legalized medical marijuana. Yet even in Washington, Oregon, Colorado, Alaska and the District of Columbia – where recreational use of cannabis by adults is legal – underage public college students who need medical marijuana may not use it on campus. This means not just in classrooms and public areas, but in campus-based housing, such as dorms.

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).

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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