David M. Boertje

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Anyone who encourages, facilitates, or aids in the commission of a crime can be arrested, charged, convicted, and sentenced with the same crime as the person who actually committed it. Known as aiding and abetting or accomplice liability, this California charge catches all crimes, whether felony or misdemeanor, and any participation, whether the person committed the act constituting the offense or just aided and abetted in the commission of a crime. Aiding and abetting is not a separate crime.

For example, Nathan, Mateo, and Logan plan to rob a jewelry store. Each plays a different role. Nathan draws a diagram of the display case and safes. He gives the drawing to Mateo. Logan drives Mateo to the jewelry store and waits out front in the getaway car. Mateo actually goes inside the store, takes the jewelry, runs out of the store, and jumps in Logan’s car. The two of them drive off.

While only Mateo stole the jewels, all three could be charged with armed robbery because Mateo as the direct perpetrator entered the jewelry store and committed an armed robbery. Nathan and Logan are liable as aiders and abettors even if they did not know Mateo had the gun with him when he robbed the store.

Nathan can not put forth a defense that he was not present during the armed robbery because by drawing the diagram of the display cases and safes, he had more than knowledge of the planned robbery – he was involved in planning it and did nothing to stop it.

A new California law will redefine accomplice liability in felony murder cases. Check back next week for an in-depth look at Senate Bill 1437.

Charged Under California’s Aiding and Abetting Laws?

Under California law, if you aid and abet a person who actually committed a crime, you could face the same exact penalties, meaning a prison sentence. Aiding and abetting is not a crime in itself, instead it imposes criminal liability on the action of helpers. If you help someone commit a crime, you will be charged with the same crime as the person who actually committed the crime. Contact a San Diego Criminal Defense Attorney to discuss your defense and mitigating circumstances. Continue reading

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Without a doubt, California has the toughest gun laws in the United States. Earlier this week, Governor Jerry Brown signed several gun control bills into law, making the state’s gun laws even tougher. Effective January 1, 2019, what follows is a summary of the new legislation.

  • Age to buy shotgun or rifle increased to 21: Bill SB100 increased the age for buying a shotgun or rifle in California from 18 to 21. Exceptions are carved out for hunters, police officers, and members of the military.
  • Domestic violence offender lifetime gun ownership ban: Bill AB3129 permanently bans anyone convicted of certain domestic violence misdemeanors from owning a firearm for life.
  • Prior mental illness confinement lifetime gun ownership ban: Bill AB1968 permanently bans anyone who has been hospitalized more than once in a year for mental health issues and found to be dangerous to self or other from owning a firearm for life.
  • Mandatory training: Bill AB2103 requires anyone applying for a concealed gun permit to attend an eight-hour gun safety and handling training course or class. The applicant must pass a test that includes fining a gun at a target.
  • Police initiated restraining orders: Police seeking a gun violence restraining order will be permitted to apply for order verbally when there is no time to make written request.
  • Maintenance of lost firearm database: All California law enforcement agencies will be required to input information on lost or stolen guns into a state database within a week of the agency finding out the firearm was missing.
  • “Bump stock” ban: Bill SB1346 bans “bump stocks” which convert semiautomatic rifles to rapid fire machine guns.
  • Ban on possession of ammunition and gun magazines if guns taken away: Bill SB1200, permits judges to order that mentally unstable people whose guns are taken away also be barred from possessing ammunition and gun magazines.

Charged With a Gun Crime in California?

Illegally carrying a firearm in California is a serious offense. If you have been charged with a gun crime in California, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. If you face gun charges in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate penalties. Continue reading

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The idea that there is some relationship between mental illness and crime is a popular theme when violent crimes are sensationalized in the media. People with mental illness live everywhere. So, it is unsurprising that some individuals accused of committing crimes in California also suffer from mental illness.

Mental Illness and Crime

According to a study conducted by David B. Kopel and Clayton E. Cramer, only a small minority of seriously mentally ill people commit violent crimes. However, close examination of mentally ill patients reveals the following:

  • Mentally ill patients comprise a large fraction of the jail and prison population;
  • Mentally ill people are disproportionately victimized by violent crime;
  • Some forms of mental illness increase the risk that a person will perpetrate a violent crime;
  • Untreated severe mental illness is significant in homicide cases; and
  • On a month to month basis mental illness treatment is more expensive in a hospital rather than prison.

San Diego Mental Health Collaborative Court (MHCC)

Since November 2016, San Diego county has offered a mental health collaborative court program to assist incarcerated people successfully reenter the community at the end of their jail or prison term. Assessments begin while the incarcerated person is still in jail and services start as soon as the individual is released.

A team of court personnel, social workers, nurses, psychiatrists, and counselors work with the incarcerated person between the ages of 18 and 59 who have been involved in or are transitioning out of correctional facilities. The individual receives a personalized treatment plan, medication management, peer support counseling, a housing subsidy, and educational or vocational services and training.

Individuals are referred to the program directly by the California Department of Corrections and Rehabilitation. To be eligible for the program, the incarcerated person must be:

  • 18 or older;
  • Probation eligible
  • A U.S. citizen or contain lawful resident or temporary resident status;
  • Mentally competent;
  • Diagnosed with a serious mental illness;
  • Voluntarily participate in the program; and
  • Non-serious criminal charge.

Charged With a Crime in California?

A criminal case usually starts with a police arrest report. The prosecutor then decides what criminal charges to file. Some cases go to a grand jury for a preliminary indictment, where a jury decides if there is enough evidence to proceed. If you or someone you know is facing criminal charges in California, contact a San Diego Criminal Defense Attorney.

California offers individuals with mental illness programs in court, correction facilities, and post-release. Discuss your case with a San Diego Criminal Defense Attorney today. Continue reading

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The United States is the third most populous country in the world behind India and China. The U.S. has been adding about 1 million immigrants annually since 1990. California is the most populous state in the Union. Not surprisingly, many immigrants make California home. California, New York, and Florida account for 60% of the foreign-born population who have immigrated to the U.S.

According to the FBI, violent and property crime has been steadily declining. In 2014, more offenders were arrested for drug crimes than property crimes and violent crimes. Researchers led by Robert Adelman at the State University of New York at Buffalo compared immigration rates with crime rates for 200 metropolitan areas over the last several decades. In 136 metro areas, including San Diego, almost 70% of the immigration population increased between 1980 and 2016 while crime stayed stable or fell.

Immigration Law

A lawful permanent resident is deportable if he or she is convicted of an aggravated felony or a crime involving moral turpitude.

What crimes make you deportable?

Aggravated felonies include murder, drug trafficking (possession and intent to distribute), money laundering (over $10k), trafficking in firearms or explosives, and crimes of violence with a sentence of at least a year.

What is a crime of moral turpitude?

Any crime that involves an intent to commit fraud, theft, or inflict bodily harm qualifies as a crime of moral turpitude.

Seek Legal Advice From an Immigration and Criminal Law Attorney

Discuss your criminal charges with your criminal attorney and an immigration attorney before pleading guilty to discuss what will happen to your immigration status once you are convicted of a crime. There are two ways criminal convictions can affect immigration status – inadmissibility and removability. Inadmissibility applies to people seeking admission to US – a criminal conviction can be used as a basis to allow the person to enter the U.S. from abroad. Removability applies to individuals in the U.S. legally. The criminal conviction makes the individual deportable or removable after entry.

A guilty plea or conviction after a trial for crime of moral turpitude or felony automatically triggers commencement of removal proceedings and forecloses relief from deportation known as cancellation of removal in many cases. It is really important to discuss the consequences to your immigration status if you plead guilty to a crime in California. Continue reading

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Identity theft is a crime in California. Identity theft relates to the deliberate use of someone else’s name and identifying information to obtain a financial benefit. Criminal identity theft is a separate crime and relates to using another person’s name and identifying information resulting in a criminal conviction record being created in that person’s name. This post will discuss identity theft crimes.

What is Identity Theft?

California Penal Code 530 is the section of the criminal law code that deals with identity theft crimes. San Diego police and the district attorney’s office have specialized units that investigate, arrest, and charge individuals accused of identity theft crimes. A growing state and national issue, identity theft crimes are aggressively prosecuted at both the state and federal level.

Identity theft or fraud describe crimes in which someone wrongfully obtains and uses another person’s personal data in some way that involves fraud or deception, most often for economic gain. Identity theft is a federal and state offense.

Federal identity theft charges are often accompanied by other crimes. They are identification fraud, credit card fraud, computer fraud, mail fraud, wire fraud, or financial institution fraud.

What are the Criminal Penalties for Identity Theft Charges?

In California, identity theft crimes are penalties punishable by up to three years of state prison, restitution to the victim, court costs and fines, and post-release parole supervision.

The federal identity theft crimes listed above are felonies and can result in up to 30 years of imprisonment in a federal detention or correctional center.

Charged Under California’s Identity Theft Laws? Hire a San Diego Criminal Defense Attorney

A criminal case usually starts with a police arrest report. The prosecutor then decides what criminal charges to file. Some cases go to a grand jury for a preliminary indictment, where a jury decides if there is enough evidence to proceed. If you or someone you know is facing identity theft charges in California, contact the San Diego Criminal Defense Attorney.

California offers pretrial diversion programs for first-time offenders as an alternative to prosecution. Eligibility depends on age and prior criminal record. Criminal charges under the pretrial diversion program are dismissed if the person successfully completes court mandated programs and conditions within a specified time frame. Continue reading

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There are endless ways people start intentional and accidental fires. Automobile accidents, playing with matches, handling fireworks without exercising safety precautions, discarding cigarettes, overloading electrical outlets, oven fires, and furnace fires are just some examples.  

What are Arson Charges?

Arson is the deliberate act of setting a fire to property to cause damage or destruction of that property. In California, the district attorney will charge an individual with arson by considering the intent of the accused person and whether the harm caused by the fire was to people, property, or both. An arson charge can be basic or aggravated. The harm can be to any property, structure, or forest land. The main distinction between the two charges is the intent of the accused person.

Basic arson requires the accused person to have acted willfully and maliciously, set fire or burned or caused to be burned, any structure, forest land, or property. Aggravated arson requires the same actions by the accused person but also requires:

  • The specific intent to cause the injury or property damage
  • The accused had a prior conviction of arson within the past 10 years
  • The accused caused property damage or losses in excess of 6.5 million dollars.

What are Criminal Penalties for Arson Charges?

Arson is classified as a misdemeanor or felony. A misdemeanor is subject to up to a year in jail; while a felony is subject to over a year in jail. Below is a list of the most serious criminal penalties for arson charges. For information about your arson charge, contact the San Diego Criminal Defense Lawyers.

  • Aggravated arson: Punishable by up to life in prison.
  • Arson causing injury to people called arson causing great bodily injury: Punishable by up to nine years in prison.
  • Arson causing injury to inhabited structures or properties: punishable by up to eight years in prison.
  • Arson causing damage to structures or forest land: punishable by up to six years in prison.
  • Arson of property and attempted: punishable by up to three years in prison.

What are Civil Penalties for Shoplifting Charges?

People convicted of an arson crime can also face up to $50,000 in fines and be required to pay restitution to the owner of the damaged property.

Charged Under California Arson Laws? Hire a San Diego Criminal Defense Attorney

California offers pretrial diversion programs for first-time offenders as an alternative to prosecution. Eligibility depends on age and prior criminal record. Criminal charges under the pretrial diversion program are dismissed if the person successfully completes court mandated programs and conditions within a specified time frame. If you or a loved one is facing felony or misdemeanor arson charges, seek legal advice and legal representation from an experienced San Diego Criminal Defense Attorney. Continue reading

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On Tuesday, California Governor Jerry Brown signed a landmark criminal justice bill into law making California the first state to abolish cash bail in criminal cases. Judges now have the discretion to decide who is released on their own recognizance or who must remain in custody pending trial following an arrest for a criminal offense.

In the past, accused people had to buy their release through a bail bondsman or with cash. Now people will be released with no bail on their own recognizance or under supervised conditions.

Criminal justice reform advocates have long sought an overhaul of the bail process arguing the system was not favorable to the poor and overcrowded jails with defendants accused of minor offenses. Judges must now determine who is a public safety threat or a flight risk when making custody determinations.

Bail Schedule Abolished

Bail in California is set according to a fixed bail schedule. The charge and defendant’s prior criminal record are factors in determining bail amount. The judges were required to set bail according to the schedule. If the accused person could not pay cash bail they hired the services of a bail bonds person who would pay bail for a fee.

New Risk Assessment System to be Established

The new law goes into effect in October 2019. Bail will no longer be determined by schedule; instead judges will use a risk assessment system that is yet to be established. The preliminary framework includes two tracks for determining bail.

The first track is related to people charged with non-violent minor or misdemeanor charges. Considered low to medium risk, these individuals will be released 12 hours after they are arrested and booked and before they see the judge. No cash bail will be imposed. They will be given a future date to appear in court for arraignment and disposition of the case.

The second track is reserved for individuals considered medium to high risk or accused of violent offenses or are repeat offenders. These individuals will remain in custody (jail) until a bail hearing or trial. No bail will be set. Judges will consider the accused person’s criminal history, the nature of the offense (violent or non-violent) charged, and the accused person’s appearance history. If the individual failed to appear in court before, he or she may not receive bail and instead remain in custody until their case is resolved.

The new law, called Senate Bill No. 11 at Chapter 244 can be found here.   Continue reading

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Shoplifting, also known as boosting, is the concealment of a store item on a person, in pockets, under clothes, under handbags or other bags and leaving the store without paying for it. Shoplifting is a crime in California. Criminal penalties include a fine, jail time, and a criminal record. The merchant or retailer also starts civil proceedings against a shoplifter – oftentimes at greater intensity than the criminal case – and requires the shoplifter to pay for the item taken and the merchant or retailer’s attorneys fees and court costs.

What are Shoplifting Charges?

Shoplifting charges depend on the value of the item taken. California Penal Code Section 484 refers to shoplifting as theft – carrying away, or otherwise appropriating someone else’s property, with the intent to deprive the rightful owner of that property. The two possible charges are petty theft and theft.

What are Criminal Shoplifting Penalties?

Petty theft charges are reserved for items taken under $950 in value. If the item itself is valued at less than $50, expect an infraction with a fine of up to $250 to resolve the criminal case. An infraction is not a crime and charged at the discretion of the prosecutor. If the prosecutor wishes, shoplifting items worth less than $950 subjects a person to misdemeanor petty theft charges. Misdemeanor petty theft carries with it mandatory fines between $50 and $1000, and up to six months in jail. The most serious shoplifting crime is called grand theft and is reserved for items valued at over $950 and is applied to theft of a firearm. If the item taken was a firearm, jail time between 16 months and two years can be assessed or up to a year of incarceration for all other items and mandatory fines.

What are Civil Shoplifting Penalties?

Merchants and retailers sue the shoplifter immediately after pressing criminal charges. Merchants can receive between $50 and $500 plus the value of the merchandise if it is not recovered in sellable condition as damages. Many merchants and retailers ban the shoplifter from their store or retail establishment for life.

Charged Under California Petty Theft or Grand Theft Laws? Hire a San Diego Criminal Defense Attorney

California offers pretrial diversion programs for first-time offenders as an alternative to prosecution. Eligibility depends on age and prior criminal record. Criminal charges under the pretrial diversion program are dismissed if the person successfully completes court-mandated programs and conditions within a specified time frame. If you or a loved one is facing felony or misdemeanor petty theft or grand theft, seek legal advice and legal representation from an experienced San Diego Criminal Defense Attorney. Continue reading

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Since 1989, 200 people have had their convictions overturned in California because they were wrong. In a major study conducted by UC Berkeley School of Law, researchers found that:

  • California leads the nation in exonerations as defined by the National Registry of Exonerations with 120, surpassing Illinois (110), Texas (100), and New York (100);
  • Since 1989, courts have exonerated or dismissed convictions against 214 Californians. Reasons include official misconduct, insufficient evidence, findings of innocence, ineffective defense, and legal error;
  • The vast majority of these wrongfully convicted individuals served time in state or federal prison before their convictions were thrown out, collectively losing 1,313 years of their freedom;
  • 40% of individuals in the dataset were initially sentenced to 20 years or more in prison, including many who received life, life without parole, or death sentences before their convictions were overturned;
  • African Americans have been wrongfully convicted at a much higher rate than people of other races and that the majority of wrongful convictions occur in just a few counties.

Rampart Police Scandal

In late 1990 the Los Angeles Police Department was involved in widespread police corruption scandal in the Communities Resources Against Street Hoodlums (CRASH) anti-gang unit. More than 70 police officers were charged with misconduct. The misconduct included unprovoked shootings and beatings, planting of false evidence, stealing and dealing narcotics, perjury, and obstruction of justice, among other crimes. The UC Berkeley School of Law study also found that:

  • Individuals framed in the Los Angeles Rampart police scandal of the late 1990s account for 25% of the wrongful convictions in the dataset (53 people thus far; news reports estimate the total number of exonerated individuals at greater than 100;)
  • Excluding the Rampart cases, all of which were due to official misconduct, major factors contributing to these wrongful convictions include:
    • perjury or false accusation (42% of the cases);
    • official misconduct by police or prosecutors (39% of cases);
    • mistaken eyewitness ID (26% of cases);
    • inadequate or ineffective defense counsel (19% of cases); and
    • DNA evidence (fewer than 6% of the cases).

This was the final installment of the series DNA Profiling by Law Enforcement in California.

Have You Been Arrested in San Diego, California?

There is no greater injustice than being convicted of a crime you did not commit. If you or someone you know was wrongfully convicted, contact San Diego Criminal Defense Lawyer David Boertje to understand your legal rights. Continue reading

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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