San Diego Criminal Lawyers Blog

July 11, 2025

Malicious Mischief in California

As a way of expressing discontent, some people may choose to engage in malicious mischief, which generally refers to things like graffiti, vandalism, or other forms of damaging or defacing property. But anyone who’s tempted to take this route could face some unpleasant consequences for their actions.

Defining Malicious Mischief

Malicious mischief includes a range of activities, all of which must be performed with malice. In other words, it must occur intentionally, not accidentally. It could be graffiti, damaging mailboxes, throwing rocks through windows, or any other form of damaging public or private property. It could also include damaging or tampering with a vehicle, signs, or other property belonging to someone else.

What Constitutes Graffiti?

Most have seen examples of graffiti as spray paintings across bridges, walls, and so forth. While these are, indeed, graffiti, the legal definition of graffiti is much more expansive, and includes:

Markings of any kind that are made on someone else’s property without their permission;
Markings made with a variety of materials, including paint, markers, chalk, etchings, carvings, and even stickers;
The damage does not have to be permanent in order to be considered graffiti.

Penalties

Violating state law related to malicious mischief could result in up to $1,000 in fines and six months behind bars if the damage done amounts to less than $400. (The penalty for a second offense doubles the time in jail and bumps the fine up to $5,000). If the damage exceeds $400, it could land the offender in jail for a year, along with up to $10,000 in fines. Finally, if the damage amounts to over $10,000, the offender’s fine could jump to $50,000.

The judge could also tack on some additional punishments, including:

Requiring an offender to clean up the graffiti;
Requiring an offender to keep a particular area in the community graffiti-free for up to one year;
Suspending the driver’s license of the offender for a full year for each offense (or delaying the issuance of the license for younger individuals).
Up to 80 hours of community service for minors.

Parents Will Feel the Pain, as Well

In addition to the hassle and expense associated with getting a youth offender into court to address the charges, parents can be held civilly liable for the cost of clean-up and fines, to the tune of $25,000– if the court finds that the minor child engaged in willful, malicious misconduct. Continue reading

July 4, 2025

Battling Charges of Domestic Violence

by David M. Boertje

If you are facing charges of domestic violence (DV), you are looking at a case involving high emotion and the possibility of serious changes to life as you know it. That is why now, more than ever, you need a dedicated criminal defense attorney to protect your rights.

Who are the victims of Domestic Violence?

In years past, domestic violence, or domestic battery, was considered to be only violent crimes against someone with whom a perpetrator formerly or currently shared an intimate relationship. But we now know that DV is a crime centered on intimidation and power—often in the form of violence—used to control another person. In general, DV abusers tend to escalate control over time using threats, deprivation, force, manipulation, and violence. Victims may be intimate partners, children, or even grandparents.

Types of Domestic Violence

Spousal abuse: Violence between intimate couples, whether or not they are married, heterosexual or otherwise, occurring when one partner wields dominance through verbal, financial, or physical abuse. It may include threats related to immigration status, homophobia, or to injure property, pets, or loved ones.
Sexual assault: Pressure or coercion to engage in unwanted sexual activity may occur between couples as a form of control.
Stalking and criminal threats: Stalkers who pursue someone physically or online and harass and/or threaten their victims.
Child abuse: Parents, step-parents, grandparents, or the partners of a parent may abuse children verbally, emotionally, or physically.
Elder abuse: Children or grandchildren who live with or care for grandparents and who attempt to control them using financial, verbal, emotional, or physical abuse.

Penalties

Misdemeanor domestic battery charges in the state of California could land you in jail for up to a full year, set you back $2,000 in fines, and stick you with up to three years of probation, during which you may be ordered to engage in a batterer’s treatment program.

All of these legal penalties are in addition to having to deal with the potential of a restraining order, being kicked out of your house, and even the possibility of losing contact with your children. Continue reading

June 27, 2025

California Self Defense

by David M. Boertje

If you have been involved in a fatal shooting, it is possible you may be charged with manslaughter, or even murder, related to the incident. But was the homicide justified? Is it ever legally acceptable to kill another human being? The fact is, under limited circumstances, such as while defending oneself, other people, or one’s home, lethal force may be legally permissible.

Is Retreat Required in the Face of Aggression?

California’s Stand Your Ground law is clear in stating that you have no obligation to retreat prior to using force if certain conditions are met:

April 25, 2025

Are Confidential and/or Jailhouse Informants Reliable?

by David M. Boertje

Confidential informants (CIs) and jailhouse snitches are used by law enforcement to gather information and tips so suspects can be put behind bars. The practice of using these informants is not uncommon in the least. Unfortunately, there are some real problems with the custom:

There are no reliable mechanisms in place to figure out if an informant (or a police officer) is telling the truth;
When informants are used, they are offered tempting incentives to produce information.
Police raids based on informant tips can be hyper-aggressive.
Innocent people can get caught up in serious legal issues when named by an informant.

Regulation is Non-existent for CIs

Basically, the police have no rules when it comes to using informants. In fact, there have been many court cases that have concluded that law enforcement’s dependence on testimony from informants is not a Constitutional violation. Thus, the use of informants is a prime way to get the information officers are seeking. However, informants generally have pretty good incentives to provide false testimony, especially if providing the right tips could mean receiving a lesser sentence for their own crimes. On top of that, since many law enforcement organizations lack suitable control systems to address the issues associated with confidential informants, it is not far-fetched to imagine that an officer could manufacture a fictional CI to create the evidence needed to obtain a warrant or make an arrest. Sadly, innocent people have been killed in various police raids that were based on nonexistent confidential informants. That led to calls for better controls on the use of CI’s in a Congressional hearing on the matter, but no definitive changes in the law made it into practice.

Jailhouse Informants

Testimony from jailhouse snitches is unregulated as well, and therefore, the information gleaned from them is not necessarily unreliable. Even so, it has been used in myriad situations to put others behind bars. These informants generally get some sort of benefit in exchange for helping law enforcement, including:

Having their own charges reduced or eliminated;
Getting monetary compensation;
Getting special privileges while they are incarcerated.

Unreliable Information

Informants may claim that a confession or details of a crime were shared by a defendant, or that they got second-hand information from other people. This is often true with cases that are high-profile or gang-involved, and police are under extreme pressure to solve the crime. But testimony from jailhouse informants often leads to wrongful convictions. In fact, estimates have the number of convictions that relied heavily on jailhouse snitches was later overturned with DNA evidence at nearly 20%. Unfortunately, this testimony frequently occurs without the defense team or the jury ever hearing about precisely what incentives were offered in exchange for damaging testimony. Since national standards relating to such testimony do not exist and there are no rules relating to the tracking and management of it, innocent people have lost their freedom time and again due to inaccurate and downright dishonest testimony. Continue reading

April 18, 2025

When IPV Survivors Wind Up Behind Bars

by David M. Boertje

It should come as no surprise to learn that many of the women in prison who have been convicted of murder or manslaughter have been victims of intimate partner violence (IPV). In one such California case, after months of stalking by a former boyfriend, a woman stabbed the man. In another case, a woman killed her partner after he repeatedly raped and beat her, despite multiple reports to police. In some situations, women say they have been imprisoned after helping an abuser commit a crime, acting out of fear of his response if they refused. Other women were incarcerated for failing to protect their children from abuse that was ultimately deadly. Some states—including California—punish parents who put children in dangerous situations. Across the nation, at least 100 women have been sent to prisons for accomplice liability or failure to protect after their children experienced harm from an abuser.

The “Forgotten Women”

Andrea Cimino, a Stanford University researcher, calls those who are imprisoned as a result of actions they took to survive IPV the forgotten women. She believes the courts have not addressed the realities of life for these women, and the reasons their victimization might have led to committing violent acts themselves, often in self-defense. About 75% of surveyed imprisoned women report that they had experienced intense violence at the hands of an intimate partner within a year of their own offenses. Stories of women living in fear and suffering emotional, physical, sexual, and financial attacks have long been overlooked or downplayed by prosecutors, courts, and policies.

Senator Cory Booker agrees, pointing out that since most incarcerated women have at some time been victims of sexual violence, society has a responsibility to do more to protect women from the violence, and to do more to assist survivors of violence to find recovery in safety and peace. Rather than intensifying their trauma, prisons and jails need to provide programs to help heal.

Distressing Findings

The Stanford study, which focused on women, describes some truly upsetting findings:

Women who are incarcerated have experienced IPV at roughly ten times the rate of the general population.
About three in ten incarcerated women were choked or strangled repeatedly to the point of dizziness or blacking out. Such violent injuries can result in traumatic brain injuries.
The danger extends to all members of the household when a woman is at imminent risk of being killed.
Higher rates of income and gender bias are perceived by victims of IPV than by women who have not experienced such abuse.

April 11, 2025

Did Participating in a Protest Lead to Legal Woes?

by David M. Boertje

Did you attend a public protest, only to be arrested? You thought you had a First Amendment right to express your views, so why did you wind up behind bars? The laws on the books may seem murky at times, but if you feel you were wrongfully arrested, you need a tough criminal defense attorney fighting for you.

Your Rights

Anyone is allowed to assemble and speak out in any traditional public forum, including streets, sidewalks, and parks, as well as in front of government buildings. However, blocking access to those buildings is a no-no. A permit is not required to march on sidewalks or streets, but pedestrian or vehicular traffic cannot be obstructed. When you choose to engage in a legal gathering in a public location, you may photograph anything you see, including police interactions. (On private property, you must abide by the owner’s rules.)

When a Permit is Obtained

If a permit for the event has been acquired, a march can occur that requires street closures for a few blocks, or just the blocking of traffic. Such protests may use amplification systems, while rallies that don’t have permits cannot. When it comes to private property, everyone must abide by the rules set by the property owner.

Counter-protesters have the same rights you do. While police may try to keep groups apart from one another, they should be allowed to be within earshot and sight of one another,

Can Undocumented Individuals Protest?

Everyone in this country, including undocumented individuals, shares the same rights to free speech. That means undocumented people have the right to protest, gather, or march to express their views. However, it’s important to note that the risk of a police encounter could be substantially more dangerous for undocumented individuals, since it could ultimately lead to deportation, whether or not an arrest occurs. While it is true that the First Amendment also protects people from acts of retaliation from the government, we have seen numerous arrests in recent times of students, immigrant leaders, and activists who speak out against policies they disagree with.

Hope for the Best; Prepare for the Worst

If you choose to participate in a protest of any kind, it’s smart to be prepared for anything to happen. You can increase your chances of escaping problems by taking some cautionary steps:

Identify the route of the march and pinpoint potential escape routes before you start;
Carry an attorney’s phone number with you;
Have a backup plan for childcare or other necessities just in case you do not make it home as planned;
If police stop you, ask if you are under arrest or if you are free to go;
Legal residents must carry a green card;
Exercise your right to be silent;
Avoid resisting arrest;
Never consent to a search;
Either leave your phone at home or turn off the fingerprint and facial recognition system so law enforcement cannot access your phone against your will;
Try to get contact information of potential witnesses;
Photograph officers’ badge numbers, patrol cars, injuries, and other details that may help later.

April 4, 2025

Immunity in Lieu of Criminal Charges

by David M. Boertje

If you are familiar with the Fifth Amendment of the Constitution, you know that it provides protection against self-incrimination. That means you cannot be forced to disclose information that is directly incriminating or that could lead police or prosecutors to discover incriminating evidence against you in the future. It is pretty important for anyone who has been arrested. There is a reason that you are believed to have been involved in criminal activity, being that you have been placed under arrest. But sometimes prosecutors are looking to catch a bigger fish, and really are not too concerned with you, even if they suspect or have strong evidence that you are responsible for a crime. That could mean an opportunity for you to trade information and testimony for your own immunity. But this can be tricky; you always want an experienced criminal lawyer by your side as you make decisions related to immunity.

Transactional Immunity

Transactional immunity, sometimes called Total immunity, protects you from all future charges related to your testimony. While total immunity is not offered in federal cases, many states, including California, do allow it at the state level.

Use and Derivative Immunity

This type of immunity protects you from having what you say, or any evidence discovered as a result of your testimony, from being used against you. It is basically the protection provided by the Fifth Amendment. Although you could eventually be tried for crimes that you testify about, any charges must rely on evidence that is completely independent of your testimony or evidence related to your testimony. In other words, the more details you testify to, the wider the protections against future prosecution.

Why Offer Immunity?

As mentioned earlier, prosecutors tend to offer immunity to people whom they believe are responsible for minor crimes in the hopes that their testimony will lead to enough evidence to convict someone guilty of more serious crimes. It is not uncommon for these deals to be made in cases related to gang or organized crime activity. The low man on the totem pole is offered a deal to get immunity if they agree to testify against a ringleader. If you change your mind and back out of testifying, you will likely wind up in jail.

If Prosecutors Try to Prosecute You Anyway

What if you do your part and testify as requested by the prosecutor, and later the prosecutor comes after you despite your promised immunity? You can use your immunity deal as your defense. The prosecution will have to provide specific evidence that is in no way linked to your testimony in order to proceed. Anything they have that is related to the immunized testimony will be excluded from consideration. If they cannot prove they obtained new evidence from another source, it will be the end of their case. Continue reading

March 28, 2025

The Alien Enemies Act

by David M. Boertje

Immigration is a touchy subject these days, as the administration has begun aggressively seeking out and deporting individuals suspected of criminal activity. Recently, that has involved warrantless arrests and no due process to allow suspects to defend themselves against charges. It’s all based on an 18th-century law called the Alien Enemies Act. Newark, New Jersey, was one of the first workplace raids of the new administration. Immigration and Customs Enforcement (ICE) detained multiple individuals—citizens as well as undocumented individuals—even though they did not have a warrant. The city’s mayor claimed it to be a clear violation of the Fourth Amendment to the Constitution, which guarantees the right to be free of unreasonable searches and seizures. And, to be clear, the U.S. Constitution applies to anyone living in the country, whether they are documented or not, whether they are sterling citizens or the most hardened criminals. So what was it that seemingly gave ICE the ability to make arrests?

The Alien Enemies Act

According to the Alien Enemies Act, citizens of an alien nation may be held, and even deported, without a hearing. Historically, it is the legal authority behind German, Japanese, Italian, and other detentions and expulsions during the World Wars. Infamously, it played a major role in arresting and detaining individuals of Japanese descent during WWII.

In 1798 the Alien Enemies Act was intended to be a deterrent to foreign sabotage and/or espionage in wartime. Today, the law is being used to target immigrants who reside in the U.S., both lawfully with Green Cards or Visas and illegally, with no documentation at all. In some case,s individuals have broken no laws or even indicated a disloyalty to the United States. Because these people are being arrested and sent out of the country without hearings to determine the legitimacy of charges against them, we simply do not know what they may or may not be guilty of. Notably, the Alien Enemies Act may be invoked only in times of war. Equally important, the Constitution gives Congress, not a president, the power to declare a war. On the other hand, however, a president may invoke the law based on the threat of a predatory incursion or invasion. In modern times, the administration sees the infiltration of drugs and/or gangs as exactly that.

A Balancing Act

So how do we weigh the Constitutional rights of citizens and immigrants of all stripes against the Alien Enemies Act, which allows for the arrest, detention, and deportation of individuals, even with no specific charges? While some argue that there is no place for the Alien Enemies Act, even during a war, others believe it is an essential tool to protect America. Continue reading

March 21, 2025

Substance Abuse and Crime

by David M. Boertje

Drugs and alcohol abuse impact a person’s life—from their family, co-workers, and friends to the community in general—and the repercussions can be devastating. The weight of addiction reaches far and wide, from schools to prisons and everything in between. In fact, one of the greatest impacts is the connection between addiction and criminal activity.

Statistics

It may come as a surprise to learn that the lion’s share of people in prison are there in part due to substance abuse. Four out of five offenders have abused alcohol or drugs, and about half of all inmates experience a clinical addiction. At the time of their arrest, more than 50% of arrestees are under the influence of drugs or alcohol.

Drugs

While there are certainly criminals who do not abuse drugs, and drug users who do not commit crimes, when it comes to the most severe levels of drug use, the correlation between crime and drug use is real. Undoubtedly, significant drug use intensifies and prolongs any preexisting criminal activity in which a person may be involved. There are four basic types of impacts drugs may have on crime:

Crimes related to drug use, when a person’s thoughts and activities are influenced by the drug;
Crimes related to drug attainment, when crimes are committed in order to pay for a drug habit;
Crimes related to procedures, when individuals produce, transport, or sell drugs;
Crimes related to rivalries, when turf wars or other violence intensifies among those involved in the drug manufacturing world

Alcohol

Individuals with dependence on alcohol commit 40% of all violent crimes.
Of convicts currently jailed in this country, 2 million say they were drinking when they were arrested;
One out of every two assaults and homicides occur after the assailant, victim, or both, have been drinking;
More than 60% of attacks among people who know one another—about half a million– occur while the attacker is using alcohol.

More to Know…

Some seedy segments of the adult world do not have the corner on addiction and criminal activity:
Eight in ten youths in juvenile detention systems were committing a drug or alcohol offense or tested positive for drugs or alcohol at the time of their arrest.
Annually, more than 500,000 college students under the age of 25 are assaulted by a fellow student who has been drinking.
Alcohol is involved in 95% of all violent crimes that occur on college campuses.
90% of sexual assault crimes and cases of date rape that occur on college campuses involve alcohol.

March 14, 2025

Making Motions in Court

by David M. Boertje

Anyone who has seen a courtroom drama on the big screen or on television has heard lawyers make motions. Although you have probably never really thought about them, the truth is they can make an enormous difference in the outcome of a trial.

What are Motions?

Motions are written requests made by prosecutors and defense attorneys in criminal courts for the judge to make certain decisions—judgments– before or during a trial. They are formal appeals for rulings that will boost their odds of success in the trial.

Motions Commonly Made

There are many types of motions that may be requested in a criminal trial. Some of the most common motions include:

A Motion to Dismiss: In some cases, a request is made for the judge to dismiss a case completely before it even starts. The request could be on the grounds that the court does not have jurisdiction on the matter, there is not enough evidence to support the charges, the alleged facts do not amount to a crime, or the statute of limitations has run out, for example.
A Motion for a Change of Venue: In widely publicized trials, pre-trial publicity may threaten the impartiality of any potential jurors, so an attorney may ask that the trial be moved to another county or state in order to protect the right of a defendant to a fair trial.
A Motion to Suppress: This is a request for the judge to exclude particular evidence at trial. There could be multiple reasons for this, such as because one side believes the evidence has been tampered with, it was illegally obtained, there were problems with the chain of custody, or there is some other issue with the evidence in question.
A Motion for Discovery: There are times when the opposing party drags their feet in sharing documents, witness lists, and other information they have uncovered during the discovery process, even though the law requires them to provide such information to opposing counsel. An attorney may file a Motion to Compel, which can force them to produce information, witnesses, and documents they have been withholding.
A Motion for Summary Judgment: One party may ask the judge to decide the case midway through a trial based on what has already been presented. It is based on a belief that the material facts of the case point to an obvious conclusion that is indisputable. If the judge agrees that the facts of the case are not in dispute, a summary judgment can wrap things up quickly and easily.