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If you are being charged with a crime and will be having a preliminary there are many laws and regulations which deal with preliminary hearings.  Many times people are concerned with only the timing issues of a preliminary hearing.  In other words will I get my preliminary hearing within 10 court days or 60 calendar days of my arraignment, plea of not guilty or reinstatement of ciminal proceedings after competency finding.  We will adrress those issues later but lets start with what a preliminary hearing is, what evidence is allowed and the timing issues.  

 

INTRODUCTION

The primary purpose of the preliminary hearing is governed by Penal Code section 859 B.  and this section effectively provides the defendant with the right to a speedy preliminary hearing.  

PRELIMINARY HEARING BASICS

Usually a Felony case begins with a prosecutor filing a criminal compaint or a grand jury indictment,.  If a complaint is filed, a preliminary hearing is to determine if there is a sufficient or probable cause to hold the defendant to answer for trial.  If the Judge does not find sufficient or probable cause then the complaint should be dismissed.  The court may also reduce the Felony to a Misdemeanor per Penal Code section 17b.  

There is also a right to  a continious in one session preliminary hearing the preliminary hearing is in one continious hearing.  With no substantial breaks in between this can be waived by the defendant.  

The preliminary hearing is an evidentiary hearing. And the prosecution has the burden of showing of facts sufficient that would lead a reasonable person of ordinary caution to have a strong suspicion of the persons guilt. 

WHAT EVIDENCE IS ALLOWED AT A PRELIMARY HEARING

Unique to a preliminary hearing is the fact that hearsay from a qualified police offcer with five years of experience or who testifies to his training at the police academy can be allowed.  This type of hearsay would not be allowed at a trial.  This is what is commonly referred to as prop 115 evidene, referring to the propposition passed by voters in 1990. 

WHAT EVIDENCE MAY THE DEFENSE PRESENT AT THE PRELIMINARY HEARING

The defense has a right to call witnesses to establish an affrimative defense such as self defense. 

Negate an element of a crime such as an accident defense in an specific intent crime. 

Impeach testimony of a prosecutorial witness

or bring in there own law enforcement witness who can then bring in exculpatory hearsay. 

TIME LIMITATIONS 10 COURT DAY AND 60 COURT DAY RULES

10 DAY RULE

Under Penal Code section the defendant has a right to a preliminary hearing within 10 Court days of arraignment or plea of not guilt whichever occurs later.  

IN CUSTODY RULE

There must be a preliminary hearing within 10 court day or the complaint dismissed the prosecution may refile once.  And if the defendant is in custody on other cases than it is not applicable and the complaint will not be dismissed. The prosecution can establish good cause a necessary witness is unavailable or sickness so forth. 

60 DAY RULE

A  good way to think of the 60 day rule is apart and seperate from the 10 day rule.  The 60 day rule is not limited to in custody defendants.  The 60 day rule also utulizes calendar days rather than court days and again applies to both in custody and out of custody accused.  The only exception to the 60 day rule is if the defendant personally waives the 60 day rule with a time waiver.  The 60 day rule prevents postponing the preliminary hearing  even if the magistrate finds good cause for the delay.  

If you or a a loved one needs help we can get you through this.  call 559441-1418. 

 

 

 

 

If you have been accused of Domestic Violence you should get legal representation as soon as possible.  I have been representing clients in domestic violence cases for more than 15 years.

As a former probation officer and deputy district attorney I know the ins and outs of the system I have also been a criminal defense attorney for more than 15 years and can get you through this time if you have been accused of Domestic violence.

Below I will outline the offense of Domestic Violence and some of the defenses.  These defense are not meant to be exhausitve  and if you have been accused of a crime you should seek legal counsel as soon as possible.  

the following elements are of 273.5 And can be charged as either a Felony or a Misdemeanor. 

1. Defendant willfully inflicted corporeal injury on a spouse

2. Victim was either defendants spouse or former spouse

or a person who they were cohabiltating with

fiance or somoene whom the offender has or previously had a a dating relationship with 

the mother of his or her child

corporeal injury resulted in a traumatic condition

DEFENSES

Self defense or defense of another person- that when you committed battery you were defending yourself

Wrongful accustion that the accusation was made up or wrong

That there was not traumatic condition

It was mutual combat - a very misunderstood terms and usually both parties agree to fight. 

This is again not a exhaustive list and meant to be only a partial list.  

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

 

As a former probation officer, deputy district attorney, and somoene that has been practicing criminal defense for more than 15 years and having tried more than 50 cases, I have the know how to help you through you through this. 

The reason I do this job is to help people facing the most difficult times of there lives.

If you or a loved one has been arrested for a Misdemeanor offense you should call our office immediately.  You need experienced representation to help you through this and we can help you. 

WHAT ARE MISDEMEANOR CASES

Misdemeanor cases are cases where you cannot go to state prison.  This means you could still serve local time of up to 364 days.  Also you coulb be placed on probation for a period of up to five years in addition to whatever punishment you recieve. 

VIOLATIONS OF MISDEMEANOR PROBATION

For every violation of misdemeanor probation that you get you could recieve additional jail time up to the maximum of 364 days.  Also you could have your probation time extended and restarted.  

Any jail time that you served would be local jail time.  Meaning in the local county jail rather than the state prison system.  

Things could get complicated if you are accused of several different Misdemeanor or crimes the sentences can be run consecutively rahter than concurrently. 

WHAT IS THE DIFFERENCE BETWEEN CONSECUTIVE RATHER THAN CONCURRENT TIME?

Concurrent sentence means at the same time.  how this would play out is that you are convicted of several different misdemeanors.  The judge could say that all convictions will run concurrent at the same time, which means you would not be subject to 364 on each conviction.  

CONSECUTIVE TIME?

This means that the convictions will be run after you finish the first sentence.  This means that the terms could be stacked upon each other.  This means the terms would be 364 followed by another 364.  And this could go on.  This is a legal sentence. 

POST CONVICTION RELIEF

After you have served your probation period, and sometimes even before that time you can ask the Judge to expunge your conviction from your record.  For a more full blog on that subject please see our blogs on expungement. 

There are different types of probation for different types of crimes and they vary as much as the crimes vary. For example a case in domestic violence, will have 52 week anger management classes and formal probation, and you will have severe firearm limiations. 

For DUI cases you will have to attend clases and pay more fines than usual for other misdemeanor cases.  

If you have questions do not hesitate to give us a call although many people think that misdemeanor cases are completely minor and they do not need an Attorney this is not the case.  There could be sever consequences for you and your family for even misdemeanor cases. 

You need to have an Attorney go over your rights and obligations before you speak to law enforcement.  Also, you should get help in conducting your investigation from an Attorney.  

give us a call at 559441-1418 if you have any questions we represent people not cases and we can help you through this. 

 

 

 

 

If you have been charged with a domestic violence offense than you should give us a call right away.   The effect on your rights can be very serious even for a Misdemeanor domestic violence charge.  

Below I will go through some of the effects that a domestic violence offense can have on you and your life.  Including the difference between Felony and Misdemeanor domestic violence and the effect that a conviction will have on your gun rights as either a Felony or Misdemeanor. 

First if you are arrested on a domestic violence charge it will be as usually as a Penal Code section 273.5 as either a Felony or as a Misdemeanor.  Lets look at the elements and defenses and then the consequences of either a plea or a conviction.  

PENAL CODE SECTION 273.5 DOMESTIC VIOLENCE FELONY ELEMENTS

1. Defendant willfully inflicted corpereal injury on a victim

2. Victim was either 

Defendant's spouse or former spouse 

Person who her or she was cohibitating with 

Fiance or Fiance or someone with whom the offender had previously had, and engagement or dating relationship with 

The mother or father of his or her child

3. Corporeal injury resulted in a traumatic condition. 

MISDEMEANOR ELEMENTS

The Misdemeanor elements are the same elements.

WOBBLER OFFENSE

This offense is a wobbler meaning it can be chaged as either a Felony or a Misdemeanor offense.

DEFENSES TO A 273.5 OFFENSE

FALSE ACCUSATION

NO TRAUMATIC CONDITION

SELF DEFENSE

DEFENSE OF OTHERS

MUTUAL COMBAT

I go through these defenses in much more detail in other blogs. 

CONSEQUENCES OF A PLEA OR CONVICTION

Before there is even a conviction you may be subject to a restraining order.  If you are subject to a restraining order you will have to turn over your weapons.  You must show proof of this and law enforcement may check for your weapons so you must definitely abide by this edict to not have weapons. 

GUN RIGHTS

After a conviction for a domestic violence offense you will not be able to have weapons.   The reason for this is the federal government prohibits somoene from buying a firearm after they have been convicted of a domestic violence offense. 

MISDEMEANOR CONVICTION AND JAIL TIME

You are subject to jail time of up to one year; however, in Fresno County at least, you will probably get one what is referred to as AOWP time. which is alternative work program time.  usually first offense can be eight days up to a total of 90 days depending on several factors including prior record, and other factors.  

52 WEEK BATTERERS TREATMENT PROGRAM

You will be ordered to attend a 52 week batterers treatment program if you do not complete the program you will have violated your probation.  

FELONY CONVICTION CONSEQUENCES

The felony consequences are the same as above; however, they are more severe.  In that you will be placed on Felony probation.  Any violations of that probation you could be sent to prison for a term of 2,3 or 4 years.  the term will be chosen by the court.  Also, most likely you will get local jail time in addition to felony probation.  Sometimes the court will alow only aowp time, if it is a first offense.  If it is a second offense there could be additional penalties.  

RESTRAINING ORDERS

The restraining order can be up to five years and if you violate the restraining order you can be held on that additional charge in addition to the violation of probation.  There are other consequences of a plea and this is not meant to be an exhaustive list.  And if you have been charged with a domestic violence charge you should seek legal counsel give us a call 559 441-1418.

 

 

 

If your son or daughter has been arrested or is otherwise facing Juvenile Court you should hire someone experienced in the Juvenile Justice system.  As a former juvenile corrections officer, Juvenile Probation Officer, and someone that has practiced for more than 15 years in Juvenile Law I have the experience to make sure your childs case is handled correctly. 

Here I will go over the three different ways a case that is minor in nature can be handled through the Juvenile system.  The case I will be talking about is something we see in the Juvenile Justice system many times a fight. In later blogs I will go through more serious cases that are handled much differently such as Homicide cases, and transfer to adult court.

Lets say your child is a first time offender or as they say in Juvenile Court a first time petition for example battery on a school ground. 

There are several ways to handle the case have the case expunged and in some cases even have the records destroyed.  

In some other blogs I went over what happens at detention hearings and what are the factors the court takes into consideration in deciding wether to detain a minor.  Those issues are discussed in that blog. 

The three main ways a case can lead to a dismissal are two before admission and one after admission.  It should be noted here that under new law even if the case is not referred for one of the programs below under statutory changes such as penal code section 786 you may still be eligible for sealing and destruction of records after one year.  

(CJC) or Collaberative Justice program.  Here both parties have to agree to participate and the parents must agree to help.  After the programs is completed then the case is dimissed. This means there is never a plea to any of the charges in the petition and the case will never be brought.  

INFORMAL PROBATION

With informal probation the minor is not placed on formal probation  instead before he enteres a plea to any parts of the petition the minor is given an oppurtunity to handle the matter informally.  What this usually means is that the minor will complete certain orders of the court and then the matter will be dismissed.  The records will also eventually be destroyed.  The cases that are elibible for this programs are usually misdmemeanor cases.  Although a Felony case can be handled through the informal route if there are unusual circumstances, or the interest of Justice would be served.  If the minor is under 14 unusual circumstances do not have to be found. 

DEJ PROGRAM

The DEJ program is usually for first time offenders. Allthough most of these cases are more serious and Felonies if the minor gets through the court orders the case will still be dismissed.  The procedure for destroying the records is different and it could be  a much longer time to have the records destroyed.  

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

 

If you or a loved one has been charged with a sex crime give us a call at 559 441-1418.  Sex crimes are a complex area of law and you need an experienced Attorney for your defense.  It is not enough to call the local DUI guy to represent you on this charge.

 sex crimes charges can be everything from Spousal Rape

Date Rape 

Statutory Rape 

Oral Copulation by force

The punishment penalties and stigma from any type of sex charge conviction can be harsh and severe. 

The punishment can include lifetime registration

Loss of firearm rights

Social stigma

and inability to live in certain areas of town.

you could also be sent to prison.

I will go over some of the law below on some of the offenses listed above. 

RAPE LAW

Penal Code section 261.5 defines "Rape" law

Rape occurs when an individual engages in sexual intercourse wiht another person and that sexual act is accomplished against that persons will or against that person consent. 

usually through force or fear

the sexual intercourse can also be accomplished through duress a direct or implied threat 

WHAT IS DURESS?

Duress is a direct or implied threat sufficient to 1. coerce a reasonable person to perform or act in a way that they would otherwise not have peformed in.  for example telling someone they will be arrested deported etc if they do not engage in a sex act.  

MENACE?

A threat or declaration or act that shows an intention to inflict injury upon another.  

dear of bodily harm to yourself or somoene else.  

the alleged victims fear must be actual and reasonable under the circumstances, or if unreasoanble the accused must know of the victims the accused must knowe the victims fear under the circumstances or if unreasonable the accuse dmust know the victims fear and take advantage of it. 

fear of retaliation a  threat to kidnap falsely imprison or inflict pain injury or death upon the alleged victim or another person.  

FRAUD?

Fraudelently convincing the other person that the sexual act serves a professional purpose.  even though it does not.  Such as a therapist who convinces there client that having sex with them will help there sexual dysfunction issues. 

If someone has sex with someone else under these circumstances than yes they can be charged with a violation of Penal Code section 261. Under the Rape law.  

PENALTIES AND PUNISHMENTS

Rape is Felony and not a wobbler offense that can be charged as a misdemeanor or a Felony. 

You can get probation but only if the allegations does not include force or violence. 

3, 6 or eight years.  

 if there is a great bodily injury than an additional three to five years

If you have any other questions give us a call at 559 441-1418.  As an Attorney with more than 15 years of experience I know the ins and outs of the system, having worked as a  probation offcier, deputy district attorney, probation officer, and taught future police officers at Fresno City College I can help you with your criminal defense needs. 

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
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Fresno, CA 93704
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