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In this article I will be taking a break from some of my earlier articles on Homicide and Homicide Defenses.  I will discuss the various ways in which a Criminal Attorney can asist you and when you should immediately seek the services of a Criminal Attorney. 


If you are being investigated for a crime it is imperative that you get an Attorney to help explain to you your legal rights.  Many people think that if they are not yet charged with a crime they are fine and do not need legal asistance, I have even heard Attorneys say this.  That advice should be discarded.

When the District Attorney reviews a case they have a very limited amount of information on which to base there decision regardin whether or not to file charges.  Almost all of that information comes from Law Enforcement.  It would help if you could start your own investigation and get that information to the police and to the District Attorneys office as soon as possible.  

If you make statements to any Law Enforcement officers those statements can and will be used against you.  I have heard clients ask me if it is ok to talk to the police before they are charged with a crime.  Many think that talking to the police at this stage is harmless.  This is very wrong.  The police will usually interview you in a out of custody environment, this means they do not have to read you your rights and they will tape the converstion.   You are now stuck with that statement and you cannot change it. 

The only time the police must give you Miranda warnings is when you are under

1. police dominated 

2. custodial 

3. interrogation

Therefore, these statements usually taken in a non custodial setting will be used against you. And almost never have I ever seen a statement help a person accused of a crime.  I say almost never because ther are as with anything exceptions to this rule.  


This should seem obvious but sometimes is not.  The police will attempt to interrogate you immediately after you arrest.  You should immediately invoke your rights.  You should do this in an unequivacal manner so that there is no doubt as to exactly what you are doing.  In other words say I am not talking to you without an Attorney and then get an Attorney. At this point nothing you say will un arrest you.  

You shold then call an Attorney and explain your legal problem and make a choice as to the Attorney that you want.  

As a former probation officer, deputy district attorney, adunct criminology instructor and defense attorney for more than 14 years with acquitals in more than 5 different counties I know the ins and outs of they system. 

If you have any further questions do not hesitate to call 559 441 1418.





If you or a loved one has been charged with a Homicide crime wether first degree murder, second degree murder, or manslaughter or any of the other crimes of Homicide you need experienced counsel as soon as possible.

As a former probation officer, deputy district attorney, adjunct criminology instructor, and an experienced trial attorney with more than 50 felony trials and 14 years of trial attorney experience, and having handles close to 50 Homicide cases I have the experience to get you or your loved one through this.

Look in the in the news portion of my website for some of the cases that have been handled here locally and all over the state.  Many with good results including not guilyt of first degre murder and lesser charges or not being held as an adult.

Homicde is a complex area of the law that I have been handling in several different blogs over the last several weeks. 

In its most basic form Homicide is the unlawful killing of a human being with Malice of forethought.

Again, I have gone through these elements at lengthy in other articles you can read those to catch up on some of the specifics and what the defenses are to Homicide cases. 

So before you answer questionf from Law Enforcement you should seek legal counsel.   This is even before charges are brought against you and before you are charged. 

The Detective will be working from the beggining to establish your means motive and oppurtunity to have committed the crime. Anything you say can and will be used against you. Therefore, you should get an experienced Attorney and get and evaluation of your specific rights before making any statements.

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




If you have been arrested or charged with Felony Domestic Violence you should call our office immediately. You may have defenses to the crime and defenitely need the assistance of an experienced Attorney to help you throgh this time. 

As a Former Probation Officer, Deputy District Attorney, And Adjunct Criminology Instructor, and a Criminal Defense Attorney with more than 14 years experience I can get you through this.  I will go through some of the elements of Felony Domestic Violence below and then in some other blogs I have discussed the defense to this crime and the crime of Misdemeanor domestic violence.


1. Defendant willfully inflicted coporal injury on victim,

2. Victim was either,

Defendant's spouse or a former spouse,

Person she was cohabitating with

fiance or someone with whom the offender has or previously had an engagement or dating relationship

the mother or father of his child

3. Corporal injury resulted in a traumatic condition.

As you can see from above this an extensive definition meant to encompass as many people as possible for all the different arrangements that people have today. These are the elements of Domestic Violence as you can tell they are extensive and can be complicated.

That is why you need to get experienced counsel as soon as possible.  After domestic violence arrest the police and prosecutors will often try everything from pretext phone calls ie phone calls meant to get you to say things that are incriminating to looking over any text messages etc. So it is imperative that you seek legal counsel and protect your rights as soon as possible.

In this blog I will take a break from my series on Homicide cases to discuss the defense of Domestic Violence cases.  If you or a loved one has been accused of Domestic Violence you can give us a call as soon as possible.  We can help you get through this as I have for many hundreds of other clients over more than 14 years of Criminal Law work.  As a former probation officer, deputy district attorney, and adjunct criminology instructor I have the know how to help you through this.



The crime of domestic violence can be charged either as a Misdemeanor or a Felony. 

The Misdemeanor crime has the following elements.

1. The defendant committed a Battery upon the Victim

2. At the time of the Battery, Victim was the defendant's spouse or fiance, or an individual with whom defendant currently has, or has had a dating relationship.



The following are not meant to be an exhaustive list only a brief overview of some of the defenses to domestic violence.


We have seen sadly many times where the accusation is simply made up where the police are called in the middle of a heated discussion something is said and someone goes to jail believe it or not with no evidence other than an accusation.

One thing you have to do at the beggining of a case is get any witness statements other calls for service, etc. to show what has really happened. 


Many times we have found that the person arrested was defending themselves when they are arrested.  Sometimes they will even have wounds on themselves much worse than the person who was not arrested we once had a case where the husband was arrested with obvious defense wounds on his hands.  We had to  have a medical doctor look over the wounds which he indicated were very obvioulsy defensive wounds.



1. Defendant willfully inflicted corporal injury upon a spouse.

2. Victim was either

Defendant's spouse or former spouse

person with whom he or she is or was cohabitating with

fiance or or someone with whome offender has or had a previous dating relationship with

the mother of his or her child

3. corporal injury resulted in a traumatic condition.


The defenses to Felony Domestic Violence are much the same as the defenses to Misdemeanor Domestic Violence.  There could be a false accusation, there could be a self defense situation, or just plain lack of evidence.

Many times in these instances there will be no independant witnesses

no prior instances of violence between the parties

an alleged victim that does not want to testify and

no 911 call.

The District Attorney will evaluate the case in between the arrest and the filing of charges to look at the above mentionend factors looking at body cam evidence from the officer that responded looking at the 911 call photos, extent of injuries, priors, willingness of the victim, etc.

If there is a victim that is not cooperative and there is not a 911 call, or a body cam, then there could be problems with the prosecution bringing the case altough I have seen instances where even under these circumstances charges were still brought and cases filed.  Sometimes the cases will be dismissed at a later time sometimes they are not depending on a lot of circumstances.  All cases are individual and if you have questions about your particular set of circumstances you should call.





In continuing with my series of blogs related to the crime of Homicide I will be discusssing the crime of Second Degree Murder.  I will briefly discusss the defenses to second degree murder; however, I will be doing a more extensive discussion of the defenses in a different blog post. 

Penal code section 189 states: All Murders which are not first degree murders are second degree murders. 


Second Degree Murder is  the unlawful killing of a human being without the additional elements necessary for first degree murder.  Such as deliberation and premediitation or one of the statutory provions for first degree murder such as torture, etc.  







First intentional killing with no premeditation or deliberation.  

Malice is express when there is a deliberate intention to take away a life. 

once intent if proven malice is established. 


Malice is implied when no significant provocation occurs or when the circumstances attending the killing show an abondoned and malignent heart.  

You can think of this as a two part analysis.

1. Did the person do an act inherently dangerous to human life ( the physical act)

2. And the person acted with knowlege of the of its danger and acted with conscious disregard for that danger. 

The conduct committed by the person must be sufficiently dangerous to human life.  


This is a continuation of some of my earlier articles regarding Murder, Homicide, and Manslaughter.  If you or a loved is a suspect or is charged with Murder it is imperative that you get an experienced Attorney to handle your defense.  

I will discuss below first degree Murder.  and briefly some of the defenses to First Degree Murder.  I have handled more than twenty murder cases.  And had at least six first degree murder trials go to verdict.  


First degree murder consist of various types of premeditated killings, and specific circumstances, (use of an explosive device, armor pierccing ammunition, torture, etc.) which are deemed the equivelant of premiditation.  

There are three types of malice aforethought murders which are first degree pursuant to Penal Code section 189.  

a) willful deliberate and premiditated murder (express malice)

b) statutory first degree murders (express or implied malice)

c) Murder perpetrated by discharging a firearm intentionally at another person outside of a vehicle with the intent to inflice death.  (express malice)


There is another categorry of first degree murder which establishes felony murders which are perpetrated during felonies or attempted felonies that are during the commission or attempted commissiono of certain felonies. 

such as arson rape carjacking torture.  penal code section 206 etc.  the felony murder rule dispenses with premiditation and deliberation and malice as elements. 


There are several defenses to First Degree Murder depending upon the circumstances. 

1. False Identification someone else has falsely identifiied you as the person that committed the crime. 

2. Lack of Premiditation.  There is a Jury Instruction  that states that if the person acted under a rash impulse then they did not act with the requisite premiditation and deliberation necessary for First Degree Murder.  

3. Lack of Evidence There could be two reasoanble conclusion drawn frofm the circumstantial evidence.  If the jury can draw two reasonable conclusions from the circumstantial evidence than they must accept the conclusion that points toward not guilty. 

4. Self Defense, many times prosecutors will not believe the self defense claims brought forth by people when they are first arrested; however, after the case has gone on for a while many times we can produce our own investigation which shows that the person that who was killed was the original aggressor.  This can come in many forms and we have had people come forward as well as videos, electronic surveillance etc. which shows the police have the wrong a person in custody that should not be.  Self Defense must be reasonable.  After all of my blogs on homicide I will go over the defenses in much more lenght. 

5. Imperfect Self Defense is when someone actully believes in need to use deadly force but that belief is unreasonable.  This means that even though they honestly belives that he or she needed to use deadly force he was unreasonable in that belief.

As stated above this is not meant to be exhaustive and there are many different defenses to crimes that are specific to Homicide and are particular to Homicide.  Homicide cases are complex and the most serious crimes in the Penal Code.  I have had both experience and success defending people of this serious crimes.  And sometimes the best end result is a plea bargain depending on the complexities of the case and the availiable defense.  

The final decision about whether to go to trial or not is up to the person being defended and is not the final decision of the Attorney.  However, many times agains depending on the evidence we will make strong recommendations as to whether someone should or should not go to trial.  

Homicide trials can be long and unpredictable. 


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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