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California had its primary election on June 7, 2016. As always, California officials were working to ensure there was no voter fraud in California.

If you have a warrant out for your arrest you can give us a call right away so that we can help you out.  As a Former Probation Officer, Deputy District Attorney, and Criminal Defense Attorney for more than 13 years I have the experience to help you.

First, Even if you have  a Warrant you should call us next you should see a Bail Bondsman. 

The Bail Bondsman can look up what the Warrant is for and provide you with a bond so that you don't have to go to Jail because you have technically alread been bailed out.

As long as more charges arent added, or different more serious charges are not added you should be fine. 

You will be given a court date by the Bail Bondsman usually 10 days from the time of the bond.

 

Many times peopl are arrested without there being a warrant for there arrest.  If this occurs the arresting agency cannot bond you out.  Typically the arresting agency will arrest and book you and fingerprint you and attempt to interview regarding the crime.

 

It is always best to speak with An Attorney before making any type of statement. 

You will be then transported to the County Jail and booked and given a bail amount based upon the charges at the time of booking.

You can then call a bail bondsman and arrange bail based upon the schedule.

Now one important thing that you should know  is that the District Attorney and the District Attorney alone, makes the decision on what charges you will be charged with. So in short you can be arrested for one set of charges and at your first court appearance (arraignment) you can a bunch of different charges based upon what the prosecution feels they can prove.

This can drastically change your bail amount. Many times bail bondsman do not charge bail amount for enhancements such as Gang Enhancements that are brought by the District Attorney; therefore, you bail could go up by many hundreds of thousands of Dollars based upon the different charges.

 

Therefore, you should call an Attorney to help you with this process if you find you have a warrant out for your arrest.

 

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. 

 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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