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If you or a  loved one has been accused of domestic violence it is imperative that you get counsel as soon as possible.  In some of my other blog post I have given the reasons why securing counsel immidiately can help your case.  When accused of domestic violence many people ask what are some of the defenses they may have to the charge.  

I will discuss some of the most common defenses to domestic violence.  

You can disprove the charge at trial or to the Deputy District Attorney handling the case.

Factual Contradiction The accusers facts contradict each other

Self Defense you were defending yourself from attack

Defense of Others you were defending someoen else from attack and were not the initial aggressor.

Accidental injury the injuries sustained by the victim were an accident. 

False Accusation the accusation is not based in truth and the alleged victim made up either all or part of the story

Mistaken identification

If you are accused of Domestic Violence you could be in for a long tough road.  There are many false claims, false restraining orders, and the scales of justice are tipped in the favor of accuser.  I have seen even the most ludicrous claims get past the point of preliminary hearing.  Even to the point of the victim actually admittting that she made the story up.  The prosecution will sometimes attempt to get an expert say that many cases involve recanting and still go forward.  

 

HOWEVER, you must defend yourself in this system and fight back and you need experienced representation for the fight.  You need someone that has tried cases and did prelimary hearings in the domestic violence system.  As stated above the domestic violence system is vastly different than the non domestic violence system.  In fact, if you as a citzen were to complain of a battery using the facts that are present in most domestic violence cases, the case would not be filed by the court.  

There could be several reasons whey the accuser is making a false accusation. 

the accuser likes playing the victim role

revenge

a divorce settlement

the accuser wants custody of the kids.

I have seen all of these play out in court and they can all be very scary processes.  If you have been acccused of domestic violence you need to uncover these possible motives and have the case properly investigated for possible defenses.  Just hoping the accuser will calm down is not legal advice and will not improve your situation in most instances. 

If you are in this situation please give us a call and we can help you.  559441-1418.

California courts have been trhying to keep up with the changing dynamics of society including social media in the courtroom and its admissibility.  In the Digital Age where technology continues to advance rapidly sharing photos, videos etc, some people go as far as to revealing the most intimate parts of there lives including, believe it or not there possible involvement in criminal activity. 

THE ADMISISBILITY OF SOCIAL MEDIA EVIDENCE

Social Media evidence faces all of the same hurdles as so called more traditional evidence.  The evidence must be relavent to some issue in the case.  The evidence must be able to be authenticated which means that it must be able to be shown to be what is purports to be. And it must be able to get past any Hearsay objections.  And the evidence cannot be unfairly prejudicial. 

You or your Attorney should probably seek a 402 hearing which is a hearing to determine the admissibility of evidence 

The key question is who authored the social media post.  This must be shown before any social media evidence may be admitted.  Once this is established this may simultaneouosly establish an exception to the hearsay rule.  

And the person seeking to admit the post must be able to prove that the social media post is accurate.  

The person offering the evidence will often seek to introduce the evidence that for example the person was in the place where the social media post was made it is him in the picutre and he did not try to have the account blocked after being hacked for example. This would be circumstantial evidence.  Or the proponent can just ask the person on the stand if the account is there account.  Another form of circumstantial evidence is that someone saw him put  the post up and was with him when it was made.

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

If you are facing a conviction of a misdemeanor crime in California The California Penal Code regualates that a Judge must conduct a sentencing hearing.  Misdemeanor Sentencing Hearings must be pronounced not less than six hours no more than five days after a guilty plea, no contest plea, or conviction unless the defendant waives that timeframe.  

Many times in Misdemeanor cases the defendant will waive time for sentencing which means that the sentence will be pronounced immediately after the plea.  Many times there will not be complex issues in sentencing which will require a full blown statement in mitigation, as there would be in a Felony sentencing.  

A Statement in Mitigating circumstances is a hearing usually accompanied by a written motion as to the mitigating circumstances as to why the punishment should be minimized. The prosecution will offer there own reasoning as to why the punishment should be more severe. 

In Misdemeanor cases, most of the time, but not all of the time there will be oral arguments wihtout the need for a full blown senencing hearing. 

If you have been charged with a misdemeanor case you should consult with an Attorney to get the personalized attention your case deserved give us a call for a case evaluation. 559441-1418.

 

If you or a loved one has been arrested and is being charged under the provisions of 10 20 life or 186.22 d 12022.53 of the California Penal Code you should call our office immediately to for a case evaluation.  

 

HOW DOES THE 10 TWENTY LIFE PROVISION OF THE PENAL CODE WORK? 

Penal Code section 12022.53 is a sentencing enhancement it adds time to Felony offenses as follows:

An additional 10 years for "using" a gun,

20 years for firing a gun, or

25 years to life for killing or seriously injurying a person with a gun.  

So in other words you commit an independent Felony and you use a gun the provision above go into affect.  

In Addition, the enhancement is in addition to to and consecutive to the sentence for the underlying Felony conviction.  

This means that rather than your time running at the same time "concurent" the time would run "consecutive" meaning you have to serve the amount of time for both seperately. First, the time for the underlyiing felony and then the enhancement.  

When I stated above independent Felony meaning the 10 20 life provision of the Penal Code attaches to certain Felonies.

Murder

Kidnapping

Robbery

Carjacking

Rape

This provision of the law is very confusing and I have seen and heard it be missaplied by Attorneys especicially when they are inexperienced.

First, a note, if you are charged with certain gang crimes then this provision could be especially daunting for you.  

the 10 20 life provision mandates that  you must personally use a gun.  However, this is not true if  you are a convicted under a gang statute with specific intent to promote further or assist in criminal conduct by gang members under, penal code section 186.22 you can be vicariously armed under the 10 20 life provision and be held accountable and sent to prison for life even if you never fired a gun, and even if you were not a gang member.  

This a a very difficult thing for most people to understand and many attorneys that do not practice in this area will not get right.

For example if you are a lookout during a Robbery and someone is killed by a gun.  And that person was a gang member and you were only a lookout you could be looking at 25 to life in prison.

This is because the provision makes an exception to the personal arming requirement if you are acting with specific intent to promote, further, or assist in criminal conduct by gang member even if you are not a gang member.

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

 

In California  ater proposition ab 109 there was a so called realignment of certain crimes.  These are mostly non-violent offenses or offenses that are specifically assigned to what is commonly referred to as local time.

 

FELONIES SENTENCED TO COUNTY JAIL

Section 1170H requires the following crimes be punished in the county jai.  

crimes where the statute specifically states the crime is punishable under 1170 h.  the length of the term is 16 months 2 or 3 years in the local jail.  

or any offense that is non serious non non violent and non sex related. 

 

example 459 commerical burglary

vc 2800.4 aggravated evading a police officer 

possession of Marijuana

this is certainly not a complete list.

 

WHAT FELONIES ARE NOT COVERED BY REALIGNMENT

Certain categories of crimes that are considered violent or serious.  The purpose behind ab 109 was to deal with low level and low-risk offenders.  not people considered to be dangerous to the community.  

for example

Violent Felonies under Penal Code section 667.5 c and offenses where the defendant has a prior conviction for one of these type of crimes. 

 

SERIOUS FELONIES UNDER 1192.7 

And offenses where the defendant has a prior conviction for one of the seious felonies under 1192.7

Certain Sex Crimes 

Certain aggravated white collar crimes pusuant to Penal Code section 186.11

This is not an exhaustive list and there are approximately 60 other crimes that the legislature has decided to exclude for a more complete list see the California Department of Corrections and Rehabilitation Final Crime Exclusion List. 

If you have any further questions call us at 559 -441-1418.

 

When you have been arrested for a crime you must either post bond or be realeased on pretrial release or your own recognizance.  I will go over the pretrial release and or release in other blog post.  In previous blog post I went over how to bail someoene out of jail and in this post  I will address briefly address what the court considers as to whether to release someone on bail or reduce bail, and how a strike affects that process and what lawyers refer to as 654 issues.

 

WHAT FACTORS DOES THE COURT CONSIDER AS TO REDUCING AND OR GRANTING BAIL.

The court will mainly consider two factors as to wheter to grant or reduce bail.

1. FLIGHT RISK

The court will conisider what the persons ties are to the community, how long has the person resided in this particular community.  And what ties does he have is he deeply entrenched in the community so that he is less likely to bail the jurisdiction if released on bond.  Do you coach soccer? have you worked a job for a long period of time?  etc.

2. WHAT IS THE DANGER TO SOCIETY IF YOU ARE RELEASED. ?

Are there allegations of violence or guns? was someone injured? are you a member of a gang.  All of these things are taken into consideration when the Judge makes a decision as to your bail.  The Judge must take into consideration what is in the police reports and take them as the truth.  However,  I have had this work to my advantage people, even lawyers often assume that everything that is in the police report will be detrimental to there client.  This is not true. We had officers willing to testify under sub at a bond hearing based upon favorable facts in the police reports indicating self defense etc. 

WHAT IS PENAL CODE SECTION 654 AND HOW DOES 654 AFFECT BAIL?

654 is the penal code that states in part that you can be convicted of the same crime but you cannot be sentenced for the same crime.  An easy example of this is the driving under the influence statutes.  You can be convicted of both the a and b count under vehicle code section 23152 however, you cannot be punished for both crimes only one.

Now how this affects bail is that if you are charged with a bunch of crimes that are jacking your bail way up.  The court can take into consideration the fact you are charged with duplicate crimes which are driving your bail way up.  This is believe it or not, not a requirement but may be taken into consideration.

HOW DOES A STRIKE AFFECT MY BAIL AND AMOUNTS.?

Every strike on your record amounts to an increase of $100,000. so even if you are charged with an underlying crime of only a five thousand dollar bail amount the amount will be increased by the 100 thousand amount per strike. 

You must be aware that when you go to a bail bondsman the amount of your original bond may be wrong for several reasons.

bail bondsman will not count the enhancments such as strikes gang enhancements etc,  before making your bond, therefore, you may have a bond that is much lower than what the Judge will accept because the bondsman did not propertly calculate the amount.

The District Attorneys office may charge different charges than what you were arrested on.

For example you hit someone with a bat, they are in a coma you are charged with battery and bail out. The person later dies.  You will have to bail out on the Murder not the Batter.  This is just one example.

You should see an Attorney before you bail somoene out or rely on bail schedules.  If you have any questions don't hesitate to call.  559-441-1418

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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