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If you or a  loved one has been arrested or cited for a Misdmeanor offense you should get legal help as soon as  possible.  As an Attorney with more than 19 years of experience and having tried more than 50 Felony Jury trials and handles over a thousand Misdemeanor cases, I have the know how to get you through this.  


Below i will be going through some of the defenses to Misdemeanor cases, including some of the changes to law that has helped both Veterans and people facing Misdemeanor cases move on with there lives as soon as Possible.  In another blog I went through the new law as to so called, Court Diversion, I will briefly go through that again and go through veterans diversion.  And what happens if you do not qualify under one of those programs. 


This program is not so much a defense as it is a diversion program.  If you are a Veteran facing Misdemeeanor charges you may qualify for Veterans diversion program.  

You would have to be a Honorably discharged veteran, facing Misdemeanor charges, and there must be a nexus between your milltary service and the current charges.  For example PTSD or alcoholism, had a relatiionship to the charges.  You would have to get a Military 100 form showing proof of your mililtary service.  Then that your qualify for one of there treatement programs at the VA.  The VA will have to cooperate with this process.  This means they will have to let the court know that you have a nexus between the offense and service and they have a program to help you.

In Fresno you willl stay in the same court and not go to a specific Veterans Court for a Misdemeanor and instead show your progress in the court you are assigned. After you have completed the program your case will be dismissed under the expungement statute, which is 1203.4. 


In Fresno County you will often hear people talk about court diversion.  This means under new law that was recently passed you may be eligible to have your case diverted before even entering a Plea.  This is a huge benefit to mostly first time offenders.  It gives you the oppurtunity to get your case resolved without having to enter into and admission and have the cases show as a conviction on your record beccause the case is diverted wihtout having to enter into a plea.  

Under the old law the prosecutor would decide if the case were diverted.   The court did not have a say in this process.  This has now changed the court over the objection of the prosecution may decide over the objection of the prosecution.  The court will look at certain factors such as the prior record of the person, how serious the current case is, wether you have any other factors such as addiction and other problems.  

If the court grants this diversion you will be given certain things to complete such as anger management or alcohol classes or other programs and then come back.  And the case will be dismissed. 


Even if you do not qualify for one of thos programs all is not lost.  In a Miademeanor case you can after successfull completion of probation, and then petition the court under Penal Code 1203.4 to have the case dismissed and expunged.  What this means is that after the conviction on your record the case will show as dismissed and expunged.  This will always look better on your record.  

If after reading this article you still have questions give us a call 559-441-1418.



If you have questions regarding a Homicide case that is going to go to trial you need experienced trial counsel on your side.   As someone who has tried seven homicide cases in the last four years.  I have the experience to handle a Homicide case.  Below I will explain the difference between hiring an Attorney for a Homicide case and hiring an Attorney for a Homicide trial which are very differennt. 


When hiring an Attorney for a homicide it is important that the Attorney has handled Homicide cases and has tried some of those Homicides to verdict.  



When hiring an attorney at the beggining of a case you may be only hriing him up until a certain point in the case for example, you may hire him for a set amount of money up until the preliminary hearing is complete and then a  new and seperate contract must be entered into for they purposes of trial.  You can enter into a contract at the begginning of a  case for the purposes of trial representation also, however this must be spcifically stated in the contract.  

If you do not have a contract for trial at the beggining of the tiral then you willl either  have to hire that Attorney again or you will have to have to find new representation or you will have to have your case assigned to the Public Defenders office for representation.  


So at the beggining of your case make sure  you understand what exactly your representation is for thand the terms of that representation.  This is all very important and should be handles at the beggining of your case.  If you have questions give us a call at 559 441 -1418



If you or a loved one has been accused or arrested for a Homicide case then give us a call at 559 441-1418.  Homicide is the most serious crime in the California Penal code and there is no stutute of limitations.  As someone that has tried 7 First Degree Murder cases, and won one Juvenile Homicide case and had another homicide case reduced to Involuntary Manslaughter I Have the experience to help you with your case.  


As a Attorney with more than 18 years of experience, and 50 Felony Jury trial as well as experience handling homicide cases we can definitely help you.  This is not a case where hiring inexperienced counsel or the local DUI guy will be sufficient.  Experience and results matter. 


Below I will be going through the charge of homicide briefely and then the defenses to homicide, nothing in this article is meant to be legal advice and you should seek experienced counsel.  



Homicide is the unlawful killing of a human being by another.  

below  I will go through some of the defenses to that charge and some other ways of attacking a homicide case that do not amount to defenses but rather negate the Malice element.  



Ths is not an exhaustive list and is meant to be only a partial list again if you or a loved one is charged with Homicide get legal advice as soon as possible. 

1. Self Defense/ At the time that you acted you were in reasonable fear of death or serious bodily injury.  

This is really a two part test were you in actual fear for your life and was that fear reasonble if the answer to those questions is yes than self defense is present and it amounts to what is  referred to as a  complete defense.  This means you could walk out of the courtroom if the jury agrees.  These type of cases usually go all the way to jury trial because th District Attorneys office does not agree if they charged the case as a Homicide. Sometimes you can change the minds of the District Attorney before trial by giving them evidence in the form of witness statements that back up your claim of self defense.  For example a witness saw the alleged victim pull out a gun first then you shot.  


2. Defense of others 

This is similiar to the defense above except you are stepping into the shoes of someone else meaning that another person had the right to defensd themselves against another person and that you stepped in and defended them. 

For example: A person pullls gun on someone and threatens to kill them you see this happen and then pull your gun out and kill them. 


Below I will explain two types of mititgation in a Murder, these defenses are not complete defenses and are actually not defenses at all they do not negate an element but if found true by the trier of fact they will show that the person that committed the Homicide did not have Malice.  

For a person to be found guilty of Murder they must possess Malice Express intent to kill such as pointing a gun at someone very close range and shooting several times. 

Implied Malice has two elements the phsical doing an act inherently dangerous to human life, the natural and probable consequence is death and the mental element conscious disregard for that danger.




If somoene acts during a sudden quarrel or after adequate provocation then purposely kills someoene they did not possess Malice and are guilty of Manslaughter


If a person acts with an actual belief in the need to use deadly force, but that belief was unreasonble then they are guilty of Manslaughter becasue they do no posses the Malice needed for First Degree or second degree murder. 


This is by no means  full explanation and there are many other defenses. 

If you have questions give us a call 559 441-1418.



If you or a loved one is a veteran and have been arrested or are in court for some reason you have certain rights.  There have been changes in the law to help veterans that have become involved in the legal stystem to in some cases clear there record and in other cases to have cases reduced to Misdemeanors.  

The article below is not meant to be legal advice for your individual case. 


If you have questions after reading this article please give us a call at 559 441-1418. 



Veterans treatment court is meant to help veterans target the root cause of the criminal behavior.  And to resolve the cases through different treatment options.  

The Veterans meet with treatment providers and others involved in the court system to make sure the root causes of the there behavior whether it bee substance of mental health problems are being addressed.   



Have served in the military

Pled guilty in a criminal case

Be experiencing post traumatic stress disorder

Brain Injury 

substance abuse or other disorders

So the sequence would be that you have served in the military.  You have a current criminal case, and you are experiencing post traumatic stress traumatic brain injury or several other problems and are willing to enter into a plea of guilty and to proceed with the military court program. 



The answer depends on several factors but in general if you offense is a misdemeanor you can enter the program and after you have completed all of the requirements then your case can be dismissed and the records expunged. 

If your case is a felony and you complete the program the case can be reduced to a Misdemeanor and in some cases even expunged.  



The program is 18 months long and has several steps to the program including showing up in court and abiding by court orders to seek treatment meet with mental health professionals and cooperate with the court.  The court process has several stages.  And you can only go on once you have completed the earlier stages.  


As you can see this can be a long involved process that can be very difficult to navigate without the help of an experienced Attorney.  As a Veteran myself I love helping other Veterans especially onces that are struggling in the community after service to there country and have helped hundreds of veterans in the courts around California.  

It is important that after you have been arrested to gather  your documentation of military service and any issues you have been having since exiting active duty or National Guard service.   To be placed in the program you must provide documentation of both your service and any difficulties that you have been having since leaving the service.  Then you msut contact an Attorney and get that documentation to them as soon as possible. 

Then the underlying case must be dealt with including entering any pleas that are needed to enter the program and your case handled through the veterans court.  


If youre case is otherwise handled through a different diversion program than you may not need to enter into the Veterans court program.  This is why you need an experienced Attorney to go through any and all your different options before you enter a plea or enter into a prgram.  If you have any questions give us a call at 559 441-1418.  We can help you get through this and go through some of your different options that are avaialibel to you.  give us a call if you have quetions. 




If you or a loved one has been charged with gross vehicular manslaugther give us a call.  This is a very serous offense and you will need experienced counsel to help you through this.  As an Attorney that has handled several of these cases and been a Defense Attorney for more than 18 years I have the knowlege and experience to help you through this.  


Below I will go through the elements of the offense and what are some of the defenses and factors taken into consideration as to whether the offense is gross vehicular manslaughter or another kind of manslaugther. 





1. The driver of the vehicle violated Vehicle Code section 21310, 21352, or 23153 

2. The killing was either the proximate result of the commission of an unlawful act wich might produce death in an unlawful manner, and with gross negligence.  

3. The unlawful or negligent act was the cause of death of a human being. 


In breakin this down it means that a person has to be 

legally intoxicated (under the influence of alocohol or drugs) 

They drove with gross negligence

and caused and accident in which another person was killed. 



The grossly negligent act must be seperate from the DUI in other words the proseuction cant say you were intioxicated, therefore you were grossly negligent.  


example someone after consuming alcohol drives 40 miles per hour over the speed limit and runs a red light and then hits another car causing a fatality.  



This offense is a Felony punishable by 4, 6, or 10 years. 




You were not intoxicate at the time of driving

you were not grossly negligent

your negligent act did not cause the death was not the proximate cause of the death.  


Often prosectors will attempt to prosecute somoene for gross vehicular manslaughter when there is not gross negligence only ordinary carleessness such as running as stop sign and not running a stop sign at excessive speed.  violating a traffic law while intoxticated is not enough for gross vehicular manslaughter there must be something more involved than that.  


such as excessive speeds weaving through traffic while being very intoxicated.   Not mere negligence.  Part of the job of the defense attorney is to determine exactly the speed that one was driving and if there were other factors that may have contributed to the accident such as a sudden emergency was the person that was killed crossing the street agains the light and not paying attention and the estimated speed was only slightly above the speed limit etc. 

Many times these determination come down to expert opinions based on several factors.  Sometimes the police will do a accident reconstruction of the scene depending upon the agancy involved and the jurisdiction.   If this is true we have had reconstruction experts come back with reports that were actually favorable to us and helped our case.  And in many other circumstances you must hire a defense expert to go over the prosecutions expert to determine if there report was accurate.  

As you can see these can be very complex cases that often require expert opinions as to exactly what happened and how the negligence if at all caused the death.  

If after reading this article you have questions regarding your case and would like an evaluation give us a call and we can help you get through this.  my phone number is 559 441-1418. and we can help you get through this and use my experience as somoene who has handled these cased before and had results.  again my number is 559 441-1418. give us a call. 







If you or a loved on has been arrested or accused of a DUI  you will need to seek legal representation as soon as possible.  As an Attorney with more than 18 years of experience and having handled hundreds of DUI cases, having both prosecuted and defended DUI casses, we can get you through this. 


Below I will be going through the new DUI court in Fresno County.  This court is for repeat DUI offenders that meet certain criteria.  And what the requirements are for this court and how it works.  If after reading this article you have any quuestions give us a call and we will help you.  559 441-1418. 



The first thing you should know is that there is a screening process for applicants to the DUI court.  Once a person has been screened and deemed eligible for DUI court the person will be referred to the DUI court.  Participants will be assigned a case manager, and a Probation Officer to ensure that they recieve supervision and support needed comply with their conditions of Probation while reciving treatment services.  A supervision and tretment plan will be developed for each participant to ensure their success with program goals.  



At a minimum the duration is 12 months and there are 4 phases to the program.  

phase 1 orientation phase 60 days. 

phase 2 90 days

phase 3 90 days 

phase 4 120 days

If you are referred to DUI court you must complete all four phases of the program in order to graduate.  


The reason for the court is to reduce recidivism for repeat DUI offenders and to ensure the safety of the community.  It is up to both the case managers and the Probation Officer to determine if you are making satisfactory progress and the court of course will have the final say in whether you are progressing through the program.  



You must attend all court appearances on time and dressed appropriately.  

comply with all orders of the court. 

enroll in drunk driving program 

attend all aa meeings and other meetings are required by the court.  

submit to hair and urine samples for drug testing.  and or submit t alcohol breath testing as ordered by the Judge Probation Officer or Treatment provider.  

there are several other requirements that are mandated once you are in the program. 



1. Must be 18 years old or older

2. Must reside in Fresno County

3. Must be assesed as High Risk

4. Offense must be for a second or third DUI


Out of county residents

If you are pending Felony Charges or violations of of Formal Supervision 

History of violence with one of the following will be a violation whithin the past 5 years 


gang history

290 registrants

protective order violations


As you can see this can be a long process and there could be a  lot of confusion regarding whether you are able to be admitted and treated whithin this program after you are arrested you will have a lot of questions.  Give us a call and we can sit down and evealuated your case to see if your case is eligible and wether you would be a good fit to go into this program and help you to not spend this time in jail possibly without the help of this program.  

If after reading this article  you still have questions give us a call at 559 441-1418 and we can help you to get through this.  As somoene that has done both the prosecution and the defense of these type of cases, we have the experience to help you to to get through this process and see if this program fits you and your neeeds. 




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Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418