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If you have been convicted of a Felony or certain misdemeanors such as assualt with a firearm result in a lifetime ban on your owning a firearm.  If you are in this position there is several things that can be done.  But you must be very careful there is bad information that is out on the internet.  Such as get an expungement it gets your right to firearm back. That is not true and could result in your imprisonment.

Many people are baned from owning or possessing a firearm.

Felons

Certain people convicted of firearm related misdemeanors or domestic violence

people with terms of probation that require they not posses a firearm.

Also certain misdemeanors cause a 10 year ban on firearm owning, buying, possessing.

assualt battery

domestic violence

brandishing a weapon and several others.

and there are others such as narcotic addicts so forth this list  in not meant to be exhaustive.  If you are in doubt you should seek immediate legal advice before you even attempt to buy a firearm.  There is a such a thing as the Personal Firearms Eligibility Check Application that could enable you to check with the California Department of Justice to see if you are eligible to own a firearm. 

FEDERAL LAW

The federal law is enforced in the states.  What can be very confusing is that the Federal Government has there own set of laws as to firearms. When there is a conflict the Federal Law prevails.

RESTORATION OF RIGHTS

However there are some ways to get back your gun rights under Penal Code section 17 if you are a convicted Felon you could ask the court for a reduction to a misdemeanor.  This could restore your legal rights.

You must be careful here many times felons will have there cases reduced per 17b of the penal code, and they think they automatically have there rights back. However, the misdemeanor the Felony was reduced to has a 10 year ban. YOU MUST WAIT OUT THE 10 YEAR BAN.

MISDEMEANOR

If you have a 10 year ban on your gun rights you must wait out the 10 years. In California the expungement process will not restore your gun rights I know there has been some bad information put out there by people on the internet but it is not accurate when people tell you that your gun rights will be restored after an expungment.

OFF PRBATION

Sometimes there will not be a statutory gun ban  but a ban put on by the court that during the time of your probation you will not own a firearm.  You must wait until you are off probation If you are taken off probation early then  you rights can be restored do not confuse this with an expungement.

FULL AND UNCONDITIONAL PARDON

Also if you get a full and unconditional pardon you can have your gun rights restored it must be a full and unconditional pardon.  Nothing else will do.

 

Usually this is a two step proces of getting a certificate of rehabilitation and then you ask as part of that process for a full and uncoditional pardon.  Or a governors pardon there is such a thing as directly asking for a pardon from the governor. 

If you need help with this process we suggest you call us and set up an appointment.  Unfortunately there is a lot of confusion regarding this area of the law and it can cause you big problems for your future if you were  to get it wrong so call us up for a case evaluation and we can help you figure out how to get started on getting your second amendment rights restored.

 

 

 

 

 

 

 

 

If you or a loved one have been charged or arrested with Involuntary Manslaugther, give us a call and we can help you get through this in your life.  The reason I do this job is to help people get through the most difficult time in there lives.

If Convicted of Involuntary Manslaughter to, you could spend 2-4 years in prison and pay up to $10,000.00 in fines.  According to California Law Involuntary Manslaughter is a Felony. 

HOW LONG CAN I GET FOR VOLUNTARY MANSLAUGHTER IN CALIFORNIA

The sentencing range for Voluntary Manslaughter is three, six or eleven  years in state prison.  This range could be enhanced by certain enhancements such as using a gun and other enhancement such as prison priors, prior strikes etc.

If you or a loved on or friend has been charged with Homicide commonly referred to as Murder you need to seek legal assistance right away.  the area of Homicide is a very complex area.  You need EXPERIENCED representation.  This is not an area where the local DUI guy should be called to handle this matter.  I have handled more than 30 homicide cases in 5 different counties.  I have taken more than 8 to trial, including 5 first degree murder trials. 

I have recieved at least partial aquitalls in half of those cases, not counting the cases where our own investigation led the prosecution offering lesser charges saving my clients many  decades in prison. Of course all cases are different and stand on there merits alone, however, before you hire someone that has zero experience trying homicide cases give us a call. 559-441-1418.

 

SPECIAL CIRCUMSTANCES MURDER

Special circumstances Homicides are the most serious of Homicide cases.  These require some special circumstance and make a person eligible for the Death Penalty in the state of California.  Some of the special circumstances include Homicide with a previous homicide, or other listed special circumstances.  Some Attorneys have stated that 1st Degree Murder is the highest degree of Murder this is innacurate.

 

1st DEGREE MURDER 

1ST Degree Murder is Homicide with Malice aforethought.  And the added element of premiditation and deliberation. 

DEFENSES TO FIRST DEGREE MURDER

That the Homicide was committed under a rash impulsive act if someoen acted rashly and impullively then they did not act with premiditation and deliberation.

There are other defenses to first degree murder that apply to all other Homicide cases.  Such as Self Defense, Defense of Others and other defenses that I touched on in other blogs.

SECOND DEGREE MURDER

Second Degree Murder is a Homicide committed with Malice of forethought.  And the Homicide was not committed with premiditation and deliberation. 

many commentators wrongly blog that a defense to second degree murder is Manslaughter.  That is not correct.

MANSLAUGHTER

If there is manslaughter or if the person acted out of a sudden quarrel or in the heat of passion after adequate provocation, then the crime the person had committed is Manslaughter not Homicide.  This is because if the person acted out of heat of passion or in a sudden quarel or in the heat of passion then the person did not act with Malice a requirement for Homicide. 

Another way to get to Manslaughter is Imperfect Self Defense, which I went into in another blog post.  However, in short, imperfect self defense is an honest but unreasonable belief in the need to use deadly force. 

INVOLUNTARY MANSLAUGHTER

Causing a death without malice, without due caution and circumspection. 

So if you have any questions give us a call at 559 441-1418. 

 

If you have been arrested for vehiclular manslaughter you need to get experienced representation.  This is a serious charge that will most likely lead to prison sentence.  You can prove extenuating circumstances to avoid prison.  I will be going through a case study of a recent case that I handled where the young lady was convicted of vehicular manslaughter and was given probation.

All cases are different and I cannot guarantee results as to particular cases.  However, in the case I will be discussing below you can see how the process works and what the court looks for in order to grant probation.   I will be discussing vehicular manslaughter without gross negligence.  I will discuss the gross negligence element in a seperate blog.

 

FIRST LETS GO THROUGH THE DEFINITION OF VEHICULAR MANSLAUGHTER WITHOUT GROSS NEGLIGENCE

1. The defendant drove a vehicle in violation of Vehilce Code section 23140, 23152, or 23153,

2. Defendant drove the  vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence

or

Defendant drove a vehicle in the commission of a lawful act which might produce death, in an unlawful manner but without gross negligence.

3. That unlawful act or negligent act was a cuase of the death of a human being. 

 

in sum, this means in order to be convicted of this crime the prosecution must prove that the underlying crime of driving under the influence was present .08 or above or they could have at least proven that they could convict you of what is commonly referred to as "wet reckless"

and the prosecution must be able to show that you committed a negligent act the proximate cause of which directly led to the death of another person, including a passenger.

PUNISHMENT IF CONVICTED

If convicted you will recieve either probation usually with 365 days in jail, or you can recieve either 1, 2, or 4 years in the state prison depending on the mitigating factors related to both the defendant and the circumstances of the case. 

90 DAY OP

Many times before a Judge will alow probation in such a case is after a person is sent to prison on a 90 day diagnostic.  Just because it says 90 days does not mean that is how long you will spend in prison that is just what the statute allows for. What happens in the 90 day diagnostic is a peron will be observed in the prison setting and a report will be done by two counselors and the warden to determine if the person is a good candidate for probation or if the person should be in prison.  The counselors and warden then send a report to the Judge.  The Judge will make a final determination as to probation or to send the person to prison for a commitment.

CASE STUDY

in looiking at all these factors I will tell you about a case we handles and how these factors came into play.

First our client was above the legal limit and an accident occurred where one passenger lost his life and another passenger was seriously injured. Usually this would result in  a prison sentence.  However, we were able to show the passenger did not want the driver going to prison.  And that the driver was not grossly negligent, she simply missed a turn caused the one car accident, and a death resulted.  She was negligent but only slightly I.E. no gross negligence.  Further she had no prior record, had people that were willing to stand up in court for her and she was willing to do a 90 diagnostic evaluation at state prison. 

The evaluation came back from state prision with both the counselors and the warden agreeing that she could be rehabilitated through local probation.  She was given probation. 

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

If you have been arrested for a domestic violence offense it is imperative that you get legal counsel as soon as possible.  Even as a misdemeanor domestic violence charge or conviction can have serious consequeces on your life. 

As a former military policeman, probation officer, deputy district attorney, and criminal defense attorney, and adjunct criminology instructor, I know the system and the way to get you the very best outcome for your case.  If you have me as your attorney you are in the right place.  I have handles hundreds of these type of cases including high profile cases and cases involving complex facts and situations. 

There are five areas you need to pay attention to in a misdemeanor domestic violence case.

1. The charge itself and the penalties for domestic violence as a misdemeanor.

2. The possible violations of a restraining order which will definitely be in place upon arrest for domestic violence

3. The loss of your gun rights for 10 years if you are convicted of

4. The fact that you will have to complet a 52 domestic violence class as well as complete other terms and coniditions of probation. 

5. And as stated in other blog posts the dreaded pretext phone call where law enforcement will have your wife or girlfriend call and attempt to get you to make incriminating statements via the phone.  Yes these are believe it or not legal.

Let me digress for a minute and explain what the elements of a misdemeanor domestic violence case are:

1. Defendant committed battery upon Victim

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

PC 243 e 1

If convicted you could revieve between 0-364 days in custody. 

But as stated above a conviction even for a misdemeanor has the consequence of loss of firearm rights.

the statute states: Any person who has been convicted of a misdemanor violation of Section 243 e 1 and who within 10 years of the conviction, owns or possesses under his control any firearm is guilty of a public offense.  PC 29805.

This punishment means that you cannot have a firearm in your possession or custody for a 10 year period.

There could also under some circumstances immigration consequences which must be explained to you.

usually included in your punishment will be fines and aowp time.  What aowp stands for is alternative work program.  Usually depending upon several factors for first time offenders the aowp time will not be substantial however, you will have to do some aowp time.

WHAT IF MY WIFE NO LONGER WANTS TO TESTIFY AGAINST ME?

This is a difficult and tricky situation.  Unfortunately it is not as easy as your wife saying I no longer want to go forward.  This is often the case and the district attorney makes final determinations on cases not the wife. Sometimes there will be enough evidence outside the wifes statement to where the district attorney will go forward without her.  This could be in the form of witnesses, 911 calls, medical evidence, admissions by you, pictures etc.  And the district attorney will take all of those factors into consideration before decidiing whether or not to pursue charges.   

regardless of the situation it is important that  you seek out experienced legal advice for the situation.  give us a call and we can help you through this.  The reason that I do this job is to help people that have been put in bad situations and help them through this time in there lives.

give us a call at 559 441-1418. and we will give you a case evaluation for free.

As a former probation officer deputy district attorney, and and criminal defense attorney for more than 14 years  I have the knowlege and expertise to help you through your case. 

In criminal cases what you plead to is just as important as to whether or not you take a plea deal.

For example in a recent case we had a young lady was charged with resisting arrest 148 As a Misdemanor. 

This charge consists of three elements

1. Defendant willfully resisted, delayed or obstructed a peace officer or emegency technician.

2. At the time of offense, peace officer, public officer or emt was in engaged or attempted to engage in the performance of there duties. 

3. Defendant who willfully resisted delayed or  obstructed knew or should have reasonably known that a. victim was a peace officerr, b. victim was engaged in iin the performanceo there duites as public officer.

 

As you can tell a conviction for this offense for a young lady like our client would be devasting to her future. She was a promising student with a bright future, no trouble in her past and doing well in life. She unfortunately had to much to drink and for brief time ran from the police and was easily caught.

because she did not hurt the officer we were able to work certain things out.

 ROLE OF A PROSECUTOR IN THE MISDEMEANOR COURTS

The prosecutor and the prosecutor alone decides what charges to file in a criminal case.  Not even a Judge can tell a prosecutor what to charge. That means the district attorneys office has sole discretion on how to charge a case and what the charges will be.  However, a defense attorney can negotiate as to what those charges will be.

EXAMPLE

Going back to our earlier hypothetical with our girl above,

We negotiated to get the charge changed to disturbing the peace under penal code section 415.  This was a charge that looks way better to her future than fighting with the police or resisting arrest.

second once the district attorney has decided the case is a 415 he will be more likely to offer an infraction because there is an infraction offense to a 415 there is not an infraction offense to a 148.  This is key an infraction is the equivelant of a traffic ticket, I.E. less than a misdemeanor. 

PENAL CODE SECTION 19.8 a

Under penal code section 19.8 A person charged with certain misdemeanors may request the Judge without the persmission of the district attorney to reclassify the charge to an infraction. So in our case above based upon the facts of the case the Judge could reduce all the way down to an infraction.  There are other crimes where this could occur.

1. Petty Theft less than $50.00

2. Tresspass P.C. 555 602N

3. Failure to appear 853.7

4. Driving wihtout a license 12500

5. Engaging in an exhibition of speed

6. Driving on a suspended license usually if you obtain a license the court will reduce to an infraction.

7. Underage drinking business and professions code 25658b 25658.5

There are several other crimes that are listed in the penal code section.  They are less common crimes such as gambling

The reduction can be significant on a background investigation, and for other reasons including you cannot go to jail for a violation of an infraction offense. 

If you have been charged with any misdemeanor you should contact an attorney right away to find out what your rights are and if you can reduce to an infraction under this penal code section.   

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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