David M. Boertje

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This is the fifth post in a continuing series about the use of DNA profiling by law enforcement in California. The focus in this segment is the DNA collection of criminal suspects or people arrested and charged for a crime but not found guilty or have not pled guilty to criminal charges. Check back next week for the final segment of the series about overturning wrongful convictions.

California is often at the forefront of criminal law. A place where it is a clear leader is the collection of DNA samples from criminal suspects. The American criminal law system functions with the assumption that an individual is innocent until proven guilty. While the use of DNA evidence for crime solving is one of the most important tools available to law enforcement, requiring the submission of DNA at the arrest stage reverses the assumption of guilty until proven innocent.

What is an Arrest?

Individuals arrested or taken into police custody and charged with a felony crime are subject to DNA collection in California. An arrest in California is the “taking [of] a person into custody, in a case and in the manner authorized by law.” (California Penal Code Section 834). In practical terms, custody means that the individual is not free to leave when he or she wants.

Adults Arrested for Any Felony Offense are Subject to DNA Collection

Prior to November 3, 2004, adults arrested for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes were subject to DNA collection. On January 1, 2009 all that changed. The new law requires all adults arrested for any felony offense to be subject to DNA collection. This also includes any person that is the subject of a “direct file” homicide complaint. The law requires the suspect to submit DNA as part of the criminal case.

When is DNA Collected?

DNA samples of criminal defendants are collected at the booking phase. The booking phase is when identifying information is collected along with fingerprints and photographs and occurs immediately following the arrest and before the person is placed in jail or sees a judge. Continue reading

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This is the third post in a series on the use of DNA profiling by law enforcement in California. The focus here is on the DNA collection of juvenile offenders.


Sometimes referred to as “Section 602 proceedings,” after the California law governing delinquency proceedings, juvenile court is not a part of California’s criminal justice system. Instead, juvenile court is considered a civil proceeding where cases get “adjudicated.” Most juvenile offenders are housed in county facilities close to their home where they can keep in contact with their family and have access to social services. These juvenile offenders, depending on their charges, may be required to submit a DNA sample as part of the resolution of their juvenile delinquency case.


Whose DNA Gets Collected?

Continue reading

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This is a second post in a series on DNA profiling in California.

DNA fingerprinting or DNA profiling is the process of determining an individual’s DNA characteristics. DNA tests can be performed using a sample of a person’s blood, hair, skin, amniotic fluid, or other tissue to create a unique DNA profile that then gets matched to a specific person. DNA fingerprinting is commonly used as a forensic technique in criminal investigations. At crime scenes, evidence is collected and tested. Once a DNA profile is created, law enforcement looks to match it with other people who may or may not have been at the crime scene. The profile or profiles created can include multiple suspects, the victim, or an unknown person. Through a process of elimination, successful DNA investigations are able to identify the perpetrator and support an arrest and then conviction for a crime.

How is a DNA sample collected?

People are mostly familiar with the buccal smear DNA sample collection process. A cotton swab is rubbed on the inside of the mouth and the saliva is tested to create a unique DNA sample. This process is the most widespread because it is easy to administer and non-invasive. Other methods collect a sample of blood, saliva, semen, vaginal lubrication, and other appropriate fluid or tissue from physical personal items like toothbrush or razor.

Whose DNA Gets Collected?

Until January 1, 2009, only adults arrested and convicted for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes, on or after November 3, 2004 were subject to DNA collection. Today, all adults arrested for any felony offense are subject to DNA collection. That includes:

  • All newly convicted felony offenders (adult or juvenile;
  • Persons currently in custody or on probation, parole, or any other supervised release after conviction prior to November 3, 2004; and
  • Anyone currently on probation or any other supervised release for any offense with a prior felony must provide a DNA sample.

(See California Penal Code Sections 295, 296, and 296.1)

When is DNA Collected?

Sample collection is an administrative consequence of a conviction and is the responsibility of law enforcement or the courts to ensure that samples are taken from people in conjunction with their conviction or as soon as possible thereafter. A person must be under the jurisdiction or control of the court, government, or criminal justice system to be subject to the requirement. People in custody, on probation, on parole, or on other release or supervision are affected by this law.

Arsonists and Sexual Offenders

Arsonists and sexual offenders are required to submit their DNA sample as part of the adjudication of their criminal case. DNA samples are collected from arsonists and sexual offenders even if the underlying offense was a misdemeanor.

Check back next week for the next installment of DNA Profiling in California in which we look at how special groups, juveniles, and criminal suspects, are handled. Continue reading

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Back in 1989, DNA fingerprinting, commonly known as DNA profiling, was hailed as the 20th century’s most important breakthrough in forensic science. Law enforcement was eager to use the technology to identify and prosecute people accused of committing crimes. Law enforcement has been less eager, however, to exonerate innocent people who are suspects in criminal cases or who were convicted and jailed falsely.

Private organizations like the Innocence Project exclusively represent people who have been wrongfully convicted through DNA testing. The organization, now in its 25th year, has exonerated 513 people to date who spent a combined total of 7,804 years in prison. District Attorneys, like the Brooklyn, New York District Attorney’s Office have set up a Conviction Review Unit tasked with looking into old, questionable convictions. Since its founding in 2014, 24 people have been exonerated.

This series will examine the use of DNA profiling by law enforcement in California. The first post will explore DNA Sample Collection: The Who and When. The second post will probe DNA collection from special groups like juvenile offenders and criminal suspects. The last post will explore wrongful convictions and address how to seek exoneration following a criminal conviction.

What is DNA?

A google search reveals that “DNA is known as deoxyribonucleic acid, is a self-replicating material which is present in nearly all living organisms as the main constituent of chromosome. [In short], it is the carrier of genetic information.” What?

Let’s try this again. DNA is the material that carries all the information about how a living thing looks and functions. Each piece of information is carried in a different section of the DNA. These sections are called genes. DNA is short for deoxyribonucleic acid. It is in every living thing. Approximately 99.9% of human DNA sequences are the same in every person. The remaining .01% is different for every person.

What is DNA Fingerprinting or DNA Profiling or DNA Testing?

DNA fingerprinting creates a profile or map of the .01% of a human’s DNA that is different to create a unique identifier specific to an actual person. Keep in mind, with the exception of identical twins, no two people have the same DNA. Thus, a DNA fingerprint is the same as a physical print of human fingers because it creates a unique profile or picture of the person to whom that DNA specimen belongs.

Check back next week for a discussion on DNA Sample Collection and how its used by law enforcement when investigating a crime.

Charged With a Felony in California?

Seek advice and legal representation from an experienced San Diego Criminal Defense Attorney when facing felony charges in California. Available 24/7, the Boertje Law Firm represents clients at any stage of their criminal case. We proudly serve San Diego County, including Carlsbad, Chula Vista, Coronado, El Cajon, Encinitas, Escondido, Fallbrook, Imperial Beach, La Jolla, La Mesa, Lemon Grove, National City, Oceanside, Poway, San Diego, San Marcos, Santee, Spring Valley, and Vista. Whether your need for a criminal defense attorney arises during the pre-arrest investigation stage or the night before a court date, San Diego Criminal Defense Attorney David Boertje is available to talk to you. Call us toll free at (888) 476-0901 or contact us on the web to begin your legal representation. Continue reading

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California’s domestic violence laws cover several sections of the Penal Code. At the heart of these laws is a familial or intimate relationship between the parties. The parties can be spouses, former spouses, cohabitants, former cohabitants, or be in an active dating relationship. Many times, the parties share children or one of them has children from a previous relationship.

Domestic Violence Charges

The most common domestic violence charge in California is Penal Code Section 273.5. This criminal offense is charged when an individual inflicts injury on a spouse, cohabitant, parent, or dating partner. When filing charges against a defendant in domestic violence cases, the prosecutor weighs the severity of the conduct and harm to the victim with the other circumstances of the event. The defendant may be charged with assault, if during an argument with his or her partner, he or she throws something at the other and causes an injury. If the object thrown is a mobile telephone that breaks, a charge may be added for domestic violence property damage.

Protective Orders

Victims of domestic violence can apply for emergency protective orders and restraining orders in both civil and criminal court on simple fear of a domestic violence situation. The offending partner may be ordered out of the home and restrained from any communication with the other partner. If there are children, the offending partner’s contact with them may also be prohibited during the pendency of the criminal case. Visitation and custody will be difficult to maintain during the pendency of the criminal action.

Technology and Abuse

New patterns of behavior in domestic violence cases are emerging relating to the use of technology. Many people own smartphones and smart devices at home that enable them to connect to items in the home, even if the person is not in the home. Items like cameras, thermostats, lights, locks, and speakers can be used to harass, monitor, revenge and control a domestic partner. All of these devices create logs of activity and records that are then used to support domestic violence charges.

A PERSON IN A DANGEROUS EMERGENCY SITUATION REQUIRING

IMMEDIATE INTERVENTION SHOULD CALL 911 FOR ASSISTANCE. Continue reading

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In mid-June 2018, in a small town in Maryland, the police used a facial recognition program to identify and track down a robbery suspect. Investigators fed an Instagram photo of the suspect into the state’s vast facial recognition system and a match was made. Within minutes the Instagram photo was matched with the robbery suspect’s drivers’ license photo and the suspect’s drivers’ license popped up, providing law enforcement with the suspect’s name and address within minutes.

Increasingly, police departments across the country are using facial recognition programs to solve crimes. The prevalence of smartphone with video capabilities, the SMART connections in homes, and video cameras in private homes and public streets provide constant surveillance. Since these devices capture all activities, now more than ever, crime scenes are full of digital evidence of conversations and actions recorded.

The image of a suspect alone is not enough to identify him or her. In the past, police department released photo of suspect asking the public to provide tips to identify him or her on the news or on their websites. Now, with the image from the crime scene itself, the police can bypass the public completely, and through something as ubiquitous as an Instagram photo, identify the suspect by matching his photos with the state’s facial recognition program.

31 states, including California, use facial recognition programs to identify suspects by running photo of them against the state’s drivers’ license system photos. The technology is so advanced that not too far down the road will be a way to run the check right from a police officer’s body camera, real time, as a suspect is apprehended and taken into custody. Amazon’s Rekognition program, is one such facial recognition program used in California to assist collection of evidence in law enforcement investigations.

Although the use of these technologies raise all kinds of privacy concerns, the benefit to law enforcement, is difficult to discount if a crime is in progress or the identity of the suspect is unknown to investigators. Continue reading

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Some criminal cases are not resolved at the end of the jury trial or after a plea has been entered. The defense attorney and state prosecutor can ask the court to reconsider a ruling or address a problem with the trial at the end through various oral and written motions. Some items however, can only be addressed on appeal.

Common Reasons for an Appeal

Just because you are not happy with the result of the criminal case does not mean you have a reason, or basis, to appeal. Common reasons people appeal criminal convictions are as follows:

  • Bad ruling by the judge;
  • Prosecutor failed to turn over evidence;
  • Defense lawyer made a mistake; or
  • Jury returned the wrong verdict.

What is an Appeal?

An appeal is not a new trial. Instead, it is a limited review of a problem with the conviction. No new evidence is introduced, no one testifies, and the case is not retried. Misdemeanor appeals are heard before the Appellate Division of the Superior Court; felony appeals are decided before the California Court of Appeals.

Limited Time Window to Appeal

Once you are convicted of a crime, following a bench or jury trial, you have the right to appeal. There is a strict timeline to file an appeal. You have 30 to 60 days after the conviction to file an appeal. The only exception to this rule are cases in which the defendant receives a death sentence. In California, a death sentence automatically triggers an appellate review.

What if I Pled Guilty?

If the criminal conviction is based on a plea before the trial, many times a condition of the plea agreement is that the criminal defendant waive his or her right to appeal as to the plea and sentence. You may have agreed to waive your right to an appeal if your conviction is based on a guilty plea. Review appellate options with your attorney prior to agreeing to a plea and most certainly after a conviction following bench or jury trial.

Do I Have to Pay an Attorney Again?

Keep in mind that appeals are a new case for the criminal defense attorney. Your original retainer or letter of engagement will not cover an appeal. You will need to enter into a new agreement with a criminal defense lawyer to represent you during the appeal. Continue reading

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This is the final installment of a six-part series on what to expect in California if you face felony criminal charges. Take a look at our past posts in the series and get to know the other steps of the felony arrest in California process.

The prior posts are:

The final step of the felony arrest process in California is sentencing. This is by far the most nerve-wracking time for people accused of crimes. By now, you have met the judge and prosecutors on your case, your attorney has kept you informed of the developments and challenges in your case, and you also have a basic understanding of maximum punishments and fines that can be assessed. What is missing, of course, is the judge’s decision.

Step 6: Sentencing

Whether you reach the sentencing phase by plea or after trial, every person charged with a felony in California will be sentenced or have punishment imposed. A sentencing hearing occurs after the trial and before the judge issues his or her sentencing decision. Some judges will provide the accused with a sentencing commitment, which is a preview of the judge’s sentencing decision; others wait until after the sentencing hearing to communicate their decision.

At the sentencing hearing, each side is afforded an opportunity to present and explain what type of sentence or sentence considerations the judge should consider when assessing punishment in the case. From a defense perspective, mitigating circumstances, prior positive community involvement, and lenient treatment are advocated. From the prosecution’s perspective, victim impact statements and harsher penalties are presented for the judge’s consideration.

After hearing both sides, the judge may sentence the criminal defendant to prison for a fixed time-period, a life sentence, or death in capital punishment cases. Other forms of permissible punishment include the assessment of fines, penalties and surcharges, and the assessment of conditions, like parole or mandatory alcohol and drug treatment. Especially in sexual assault matters, the accused person may be required to register in Sexual Offender Registries and have conditions imposed on where they may live after serving time.

Three Strikes Law

For individuals convicted of two or more violent crimes or serious felonies, a third felony conviction will automatically trigger the three strikes law. The three strikes law compels the judge to impose a life sentence, removing all other punishment options at the sentencing phase regardless of any mitigating circumstances.  

Death Penalty

A death sentence is the most severe punishment for someone charged with a felony. According to the Los Angeles Times, the California Supreme Court in August 2017 kept in place a measure passed by voters to speed up executions. Due to delays and legal challenges, the state of California has not executed a prisoner in a decade. Continue reading

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This is part five of a six-part series on what to expect in California if you are arrested and charged with a felony. Prior posts are available at Step One: Pre-Arrest Investigation, Step Two: Arrest, Step Three: Arraignment and Bail, and Step Four: Pretrial Proceedings. What follows is an explanation of a felony trial.

Step Five: Trial

If a criminal case cannot be resolved in a plea negotiation or settlement, the case proceeds to trial for determination of guilt. A defendant can receive a trial by jury or a trial by court also known as a bench trial. At the conclusion of either trial, a verdict is reached and it is communicated to the accused person. The judge or jury tells the defendant that he or she is guilty or not guilty.

In a trial by jury, 12 community members listen to testimony from various people. Among the people who can testify are the victim, eyewitnesses, law enforcement personnel, medical doctors, forensics experts, and the defendant. A defendant may continue exercising his or her right to remain silent and not testify at trial. Ultimately, the decision to testify at trial is one made by the defendant’s attorney and the defendant. In addition to listening to the trial testimony from witnesses, the jury also examines evidence, makes factual determinations, and decides whether the defendant is culpable – guilty or not guilty.

In a bench trial, the judge makes all the decisions of the case. He or she listens to the evidence to decide whether the defendant is guilty or not and makes all decisions regarding the law and criminal procedure at issue during the trial.

Post-Trial Motions

If either side is not satisfied with the results of the trial by jury or bench trial, post-trial motions are available to address trial issues. A motion is a formal request to the court to address an issue that arose at trial. Motions can be made by the defendant or state prosecutor. One common post-trial motion, often filed by the defense, is a motion for a new trial. There are certain permissible reasons to obtain a new trial. There can be jury misconduct, an error of law by the court, or new evidence, to name a few of the permissible reasons. Post-trial motions must be made prior to the sentencing hearing. At sentencing, the trial judge assesses the punishment and penalties the defendant will receive.

Check back next week to read the six and last installment of this series – Step Six: Sentencing. Continue reading

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We continue the series on what to expect following a felony arrest in California. What follows is an explanation of pre-trial proceedings.

Phase 4: Pre-trial Proceedings

Many felony arrests are resolved at the pre-trial phase of criminal prosecution. Although the accused person is required to attend all court conferences unless excused by the Superior Court Judge, a criminal defense attorney has many tools available to resolve the case at this stage. Common tools are court appearances (conferences and hearings), waivers, motions (requesting court to resolve a dispute about the evidence or charges between the defense and prosecution), discovery issues, and plea bargains or negotiations.

Court Appearances: Preliminary Hearing, Readiness Conference, or Felony Disposition Conference

Following the arraignment, the next most important appearance is the preliminary hearing, known as a “prelim” or “probable cause hearing.” During the preliminary hearing, two issues are before the court: Is there probable cause to believe that a crime was committed; and if so, is there probable cause to believe that the defendant is the person who committed the crime. While rare, the Superior Court Judge may dismiss the charges against the accused person at this point and no further action will be required. More commonly, however, if both questions are answered in the affirmative, the Superior Court Judge will rule that the accused person must “answer for the charges.” This means that the criminal case is sent to the trial court for further pretrial proceedings, like the readiness conference or felony disposition conference.

At the readiness conference the prosecution makes an offer to the accused person to resolve the case before any other activity in the case happens. In exchange for pleading guilty, the prosecution usually offers a reduction in charges or lower sentencing recommendations. Usually negotiated in the judge’s chambers, if resolvable, the criminal defendant accepts the plea and pleads guilty to the charges or reduced charges. If not resolved, the criminal matter continues on the pre-trial track and further proceedings like waivers and motion practice occur.

Waiver of Speedy Trial Right

If you choose to fight the charges, California Penal Code states that the prosecution must bring the case to trial within 60 days of your arrest. At the readiness conference, if the offer is not accepted, the criminal defendant often waives the right to a speedy trial because it is advantageous to his or her defense. The result is that a trial takes a long time to schedule and ultimately resolve. When you waive your right to a speedy trial, the timing of the case is no longer important.

Pre-trial Motions

Pre-trial motions are a set of requests made to the trial judge, by either side, to help reduce the issues for trial. The motions include Motion to Suppress Evidence, Motion to Dismiss Information, Motion for Speedy Trial, Motion to Sever Counts or Charges, and Motion to Compel Discovery. Each of these motions have a purpose and must be made at certain times in the process or the ability to make the motion is waived because the motions are time-limited.

From a defense perspective, there are three powerful motions that can be made during the pretrial phase of the case – the motion to set aside information, the pitchless motion, and the motion to suppress. In a motion to set aside the information, the defense askes the court to dismiss one or more of the criminal charges that have been lodged. A pitchless motion asks the court for permission to review the arresting or investigating police officer’s personnel file. Defense attorneys are looking for prior complaints, excessive force, biases, or other police misconduct to taint the arresting or investigating police officer’s credibility. Lastly, a motion to suppress evidence asks the court to exclude from consideration all illegally obtained evidence. If these motions are successful, they are instrumental in resetting plea negotiations and may lead to the dismissal of all charges because of lack of evidence or credibility concerns

Discovery

Discovery in a criminal proceeding is a phase in which the defense and prosecution exchange evidence regarding the criminal case. Neither party may hide or withhold information from the other party and then attempt to present it later at trial. There is an exception for newly discovered evidence. There are strict rules and time-limits for the exchange and presentment of evidence in criminal proceedings. Continue reading