David M. Boertje

by

Entering a guilty plea in a criminal case goes beyond the pronouncement of the word, “guilty.” What follows is a discussion of the different types of plea options in California examining the implications of invoking each option.

The California Penal Code provides for six possible pleas to an indictment for information. The three most common pleas are “not guilty,” “guilty,” or “no contest.” Less common are a former judgment of a conviction or acquittal of the offense charged, once in jeopardy, and not guilty by reason of insanity. CPC Section 1016. This post will focus on the first three, or the most common pleas.

How Should I Plead?

To determine which plea option is appropriate for your case, carefully consider the recommendation of your criminal defense attorney. Not only does the criminal defense attorney know the court and its practices in your jurisdiction, but he or she will also be able to share insights on how similar cases were resolved.

“Not Guilty” vs. “Guilty”

When you enter a plea of “not guilty” and a plea deal is not accepted or offered, your case goes to trial before the judge or a jury of no more than 12 people. All other plea options, like “guilty” and “no contest” skip the trial and proceed to sentencing.

“Guilty”’

The accused person admits to committing the crime and allows the judge to determine the sentence. The jury trial is skipped when an accused person enters a guilty plea.

“No Contest”

The accused person neither admits or denies guilt, but acknowledges that the evidence is sufficient to convict should the case go to trial. The jury trial is skipped when an accused person enters a “nolo contendere” plea.

The Role of the Criminal Defense Attorney

The criminal defense attorney is often able to obtain a more favorable deal if you decide to accept a plea. A criminal defense attorney is also able to make sure that everything is done properly, and the correct process is utilized to dispose of your case. Lastly, the criminal defense attorney will help you understand the full consequences of a guilty plea in your particular case.

What to do if You are Charged With a Crime in San Diego

Guilty pleas have an impact outside of the courtroom. It is important for accused persons to discuss the benefits of settling a criminal case and understand the impact of a conviction on their employment options, housing opportunities, gun possession licenses, and voting rights. Continue reading

by

Encounters with police or other law enforcement officials can be scary. Some individuals are treated fairly when questioned or detained by the police, while others are not, and remember their experiences quite negatively. The following will provide some practical information regarding your rights when you interact with the police.

If You are Stopped by a Police Officer

First, understand what a police officer’s job is, regardless of whether your stop is fair or unfair. If the police have reasonable suspicion that you have committed a crime or are in the process of committing a crime, then they are required to investigate.

If you are stopped for questioning, DO:

  • Ask the police officer, “Am I free to go?” If the police officer says yes, then you can leave. If the officer says no, ask him or her to explain why he or she is detaining you.
  • Remain silent, as is your right. Say, “I want to remain silent.” Do not start answering questions and then stop. It is best not to answer any questions. You must provide your name, date of birth, and address, but nothing more.
  • Tell the police officer you do not consent to a search. The police officer will search you upon arrest or as part of the investigation into your alleged crime. Nonetheless, you can say, “I do not consent to a search.”

If you are stopped for questioning, DO NOT:

  • Act or speak disrespectfully toward the police officer.
  • Run away or physically resist a “pat-down” or search. Simply say, “I do not consent to a search.” Be aware that you will be searched despite your objection.
  • Lie to the police. When they ask for your name and address, provide your name and address, not your sister’s or cousin’s or made up name. After you provide this basic information, you can remain silent and say, “I want to remain silent.”
  • Discuss your citizenship or immigration status with anyone but your criminal defense lawyer.

Keep in mind that the police are allowed to lie, intimidate, and bluff. Even if you do not strike a police officer while you are being questioned after a stop, spitting on a police officer is an assault and can be charged as resisting arrest, too.

Do Not Go it Alone

Most people with contacts in the criminal justice system are first-time offenders. For many accused people, it may be the first and only criminal case they have in their lifetime. Understanding your rights and the steps involved to resolve a criminal case brings with it peace of mind during a turbulent time for you and your loved ones. Continue reading

by

This time of year, there is an uptick in muggings, when someone is attacked and robbed in public. It can happen as a person enters his or her home, walks out of a restaurant, steps off the bus, or walks through a mall parking lot. Robbery is the taking of property from another person against his or her will by fear or force. The force may involve a weapon, such as a gun or bat, or physical force, like pushing the victim, punching the victim, or kicking the victim. Robbery in California is considered a serious and violent offense. Almost always charged with a felony, the highest crime classification in the state, individuals convicted of robbery face years in state prison.

Robbery Law in California

Under the California Penal Code at Section 211, anyone who purposefully steals someone else’s property by using force or fear will be convicted of robbery. The use of force can be pushing, hitting, slapping, grabbing, or any non-consensual contact. Fear includes any verbal act, such as threats of harm, conditional threats, and non-verbal threats like lifting up a shirt to show a gun.

An individual can be charged with first-degree robbery in California if the victim is a person performing his or her duties as an operator of a bus, taxi, cable car, street car, or any other vehicle used for the transportation of people for hire; the passengers of such vehicles; people in an inhabited residence; or a person using an ATM. A conviction of first-degree robbery can result in up to nine years in state prison.

Second degree robbery charges will follow if the accused person takes something that does not belong to him or her, in the presence of another person, and without the victim’s consent, and the accused person used force or fear and deprived the victim or owner of personal property. A conviction for second-degree robbery can result in up to five years in state prison. Continue reading

by

The unauthorized use, or even possession, of someone else’s personal identifying information can result in charges of identity theft. Identity theft is a crime that occurs when someone uses another person’s personal information to pose as the person in order to obtain goods, services, or something of value, like credit.

According to 2018 Identity Fraud: Fraud Enters a New Era of Complexity from Javelin Strategy & Research, in 2017, there were 16.7 million victims of identity fraud, a record high that followed a previous record the year before.

A common identity theft scenario might involve calling someone and claiming to be a representative from the bank or IRS. During the call, a person is asked to verify his or her financial and identifying information, like a mailing address, date of birth, bank account number, or social security number. That information is used then, to make unlawful withdrawals from the person’s bank account.

Identity Theft in California

In California, the law against identity theft is found in Penal Code Section 530.5. Under the Penal Code, identity theft is obtaining and using another person’s personal information for an unlawful or fraudulent purpose, as follows:

  • Obtaining and using another person’s information without their consent for an unlawful purpose;
  • Obtaining and using another person’s information without their consent to commit fraud;
  • Selling, transferring or conveying another’s personal information without their consent with the intent to commit fraud, and
  • Selling, transferring or conveying another’s personal information without their consent knowing that the information will be used to commit fraud,

Identity Theft Penalties

Identity theft is a wobbler offense in California. This means that it can be charged as a felony or a misdemeanor depending on the facts of the offense and the accused person’s criminal history. A misdemeanor conviction will result in up to one year in county jail, a fine of up to $1,000, or both. A felony conviction will result in up to three years in state prison, a fine of up to $10,000 or both.

Examples of Identity Theft

Examples of identity theft include:

  • Stolen checks;
  • Stolen ATM cards;
  • Fraudulent change of address;
  • Social security number misuse;
  • Passport misuse;
  • Driver license number misuse; and
  • False civil and criminal judgment.

Continue reading

by

This week, Senate Majority Leader Mitch McConnell announced he would bring the First Step Act, a bipartisan criminal justice reform bill, to a vote. The proposed bill would bring criminal justice reform to individuals facing current charges and potentially cut the sentence of individuals currently serving time in federal prison.

Giving Federal Judges Sentencing Discretion

The bill proposes to give federal judges more discretion during the sentencing phase. Nonviolent crimes, particularly drug offenses, would receive shorter prison sentences. Some federal inmates would be placed in prisons closer to their homes – no more than 500 miles – making it easier for families to visit their loved ones.

Offering Rehabilitation Programs to Inmates

The bill seeks to expand prison employment programs so inmates could earn wages while they serve their federal prison sentence. Home confinement would be available for lower-level offenders, reducing the cost of housing non-violent offenders in federal prisons. Some minimum or low-risk offenders would be eligible for early release if they participate in education and rehabilitation programs aimed at reducing recidivism (returning to prison for a new offense once original sentence is served). Lastly, the bill would bar the use of restraints on pregnant inmates during labor.

Introducing Controversial Risk-Assessment System

The bill would set up a risk-assessment system to determine whether an inmate is likely to commit more crimes when released. This measure is controversial because of the high potential for bias, especially against minority communities.

Addressing Sentencing Disparities

The Fair Sentencing Act of 2010 reduced the sentencing disparity between crack and powder cocaine sentences for individuals convicted of possession after 2010. The newly proposed bill seeks to apply the same rule to any individuals convicted of crack offenses retroactively, or before the 2010 Act became effective.

Text – S.3649 – 115th Congress (2017-2018): First Step Act

Hire a San Diego Criminal Defense Attorney to Petition Court for Early Release

If a loved one is serving time in federal prison for a non-violent drug related offense, contact a San Diego Criminal Defense Attorney to petition the court for early release. Petitions need to be filed in court with participation with the U.S. District Attorney’s office after your loved one completes some rehabilitation programs, or outright if his or her conviction stems from possession of crack prior to 2010. If you currently face drug possession charges, contact a San Diego Criminal Defense Attorney to help reduce your sentence. Continue reading

by

One of the most shocking revelations when a person is arrested for a crime and is being booked in jail is that they do not have a right to make that one phone call. It seems wrong on many levels because for years you may have seen and heard on television shows and movies that a person can make a call from jail to a family member or friend.

The reality is that there is no constitutional right to use a phone when you are booked into jail. Police departments that permit telephone calls do so as a courtesy. Most if not all of the police departments that permit calls record them.

Nothing is Private

Jails or detention facilities that permit telephone calls record the inmates’ calls. In fact, before an inmate is connected to whomever he or she may be calling, a preliminary recorded message informs both ends of the conversation that the telephone call will be recorded. Despite the clear warning, many inmates still talk about criminal acts, actions, knowledge, or involvement.  

Who is Listening?

Everyone involved in your criminal prosecution has access to and can listen to all of your jailhouse conversations. Whatever information collected that can help the prosecutor convict you will be used against you and shared with the presiding judge in your case. This affects culpability and sentencing. Many times, your attorney, the only person in the equation interested in defending you, will be the last to know you made an incriminating statement to someone else complicating your defense and ability to mitigate any penalties.

Individuals charged with domestic violence, for example, often speak to family members or the complaining partner or spouse, in violation of the no contact order of protection in an effort to pressure the partner or spouse to drop the charges or not appear in court. These activities, if recorded, are most certainly used against the charged individual in the existing case and to support charges of witness tampering or violation of a protective order.

If you are able to make a call from jail, do not discuss your case with anyone but your lawyer.

Hire a San Diego Criminal Defense Lawyer

If you have been charged with a crime in California, you can face misdemeanor or felony charges along with heavy fines and years of imprisonment. Contact a qualified and experienced  San Diego criminal defense lawyer who can help you mitigate potential penalties and put a difficult chapter of your life behind you. Continue reading

by

Prostitution is illegal in the majority of states in America, including California. Often referred to as the “world’s oldest profession,” at its most simple definition, prostitution is the exchange of sex for money. People are divided as to whether prostitution is a victimless crime, as sex workers often endure serious physical, financial, drug, and sexual abuse. Others, especially in states that permit prostitution, like Nevada, argue that it is a job like any other.

California’s Prostitution Laws

Prostitution is the exchange of sex for money or other form of payment. California laws define prostitution as a lewd act requiring physical contact of a sexual nature, sexual conduct, or sexual intercourse between two people. The sex worker is often the person charged with prostitution crimes.

California’s Solicitation Laws

Solicitation is an offer to pay money for sex. The john or client is often the person charged with solicitation crimes.

California’s Pandering Laws

Pandering is the act of arranging a sex act between a sex worker and client for a fee or cut of the amount charged. The panderer is called a pimp or madame and is often charged with pandering crimes.

Defenses to Prostitution Charges

Law enforcement agencies throughout the country set up sting operations to round up prostitutes and their clients. Every couple of months numerous arrests for prostitution and solicitation charges make the media, with over a dozen people arrested in a sting. Individuals charged with prostitution often rely on the defense of entrapment by an undercover police officer if their arrests were part of a sting operation by law enforcement officials.

Minors can no longer be charged with prostitution crimes with the passage of SB 1322, which decriminalized prostitution for individuals under 18. These individuals are instead referred to child welfare services.

Charged With a Prostitution Crime in California?

Prostitution and solicitation crimes are considered nuisance crimes, that lower the standards of a community. They make a big splash because prominent people often get arrested for solicitation. While jail sentences tend to be short, many times the sex workers themselves are repeat offenders, and their penalties increase with each arrest. Pandering charges tend to be felonies and carry long jail terms. If you face prostitution, solicitation, or pandering charges in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate the penalties. Continue reading

by

For the third year in a row, the rate of hate crimes increased in California. According to a report released by the California Attorney General’s office, there were 1,093 reported hate crimes in California in 2017, a 17.4% increase. This statistic follows an uptick in hate crimes since 2014: The amount of reported incidents jumped 44% in that three-year span.

What is a Hate Crime?

Hate crimes target people based on their race, sexual orientation, religion, or other protected class. More than half of the hate crimes reported in California last year involved racial basis, Black people, in particular, represented 27% of such reported incidents.

Hate Speech or Hate Crime?

Hate Speech is behavior motivated by hate but legally protected by the First Amendment right to freedom of expression. Examples include name-calling, insults, distributing hate material in public places, and displaying hate material on a person’s own property. Hate speech is permitted by the U.S. Constitution so long as it does not interfere with the civil rights of others.

A hate crime is a crime against a person, group, or property motivated by the victim’s real or perceived protected social group.

California Hate Crime Laws

Intent or motive to commit a crime is at the heart of most criminal offenses. Under the law, if one of the motivators for committing the crime is hate, the accused person will be subject to enhanced penalties, like a longer prison sentence or steeper fines.

California considers a person’s disability, gender, nationality, race or ethnicity, religion, or sexual orientation protected characteristics. If a person is harmed, threatened, or harassed because of the person’s protected characteristics, then the law imposes severe additional punishment for the criminal offender.

How to Spot a Hate Crime

A hate crime occurs when a victim or property is targeted because they belong to a protected group, like race or religion. During the commission of the crime, the perpetrator often makes verbal comments showing prejudice.

Have You Been Charged With a Hate Crime in California?

Committing a violent crime against an individual from a protected class California is a serious offense. If you have been charged with a hate crime in California, you can face heavy fines and years of imprisonment. Consult a qualified San Diego Criminal Defense Attorney who can help mitigate your penalties. Continue reading

by

Many employers conduct criminal background checks when individuals apply for a job. If you have been arrested or convicted of a crime, getting a job can become a stressful undertaking because some employers do not hire individuals with arrest or conviction records. Depending on the job, some classes of convicted people may be prohibited by law from getting hired.

Problems with Criminal Background Check Reports

It is not uncommon for an applicant to have incorrect or missing information in their criminal background check report. Reports can be mismatched, contain inaccurate information, include someone else’s information, or misclassify the criminal offense.

Expunging or Sealing Criminal Conviction Records

People who committed crimes when they were minors or people who have old criminal convictions can seek that their arrest and criminal conviction records be expunged, meaning they are hidden or sealed from public disclosure. This helps individuals put past behavior away and keep it from affecting their future employment or housing prospects.

Federal Laws that Protect Individuals with Arrest and Conviction Records

There are two main laws, the Fair Credit Reporting Act (FCRA) and Title VII that protect individuals from discrimination in employment because of prior arrest and conviction records. Under the FCRA, background checks that look into an individual’s criminal records, may not include arrest records that are more than seven years old, unless the position pays more than $75,000 a year. Conviction records however, have no such time limit. Title VII prohibits discrimination including in job screening and hiring practices in employment and frowns upon employment practices that issue blanket prohibitions against employment people with prior arrests or convictions.

Charged with a Misdemeanor Crime in California?

It is important that a person accused of a crime talk with his or her criminal defense attorney to understand the impact of a criminal conviction on his or her employment options. Current jobs may be lost after a person pleads guilty to a crime and future job opportunities may be curtailed because of an arrest or criminal conviction.

For example, if you are employed in commercial driving and you are arrested for driving while intoxicated, you may lose your commercial drivers’ license immediately. No drivers’ license means you can not work while your case is pending.

If you have been charged with a crime in California, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. Contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Continue reading

by

For a long time, hot weather has been associated with crime, particularly in cities throughout the U.S. Temperatures have been on the rise in American cities and around the world, with the last two years registering some of the warmest temperatures on record. For example, for decades the trend has been that in colder months fewer people are murdered.

The weather does not cause crime. Crime is caused by people’s actions. The rising temperature affects people differently. Hot weather either sends people out to cool down or in to cool off. Minor inconveniences can quickly escalate to an argument and then to violence because heat tends to make people physically uncomfortable. Feelings of irritability and anger are higher when the temperature is higher.

2017 Crime Rates in the United States

Every year, the Federal Bureau of Investigations (FBI) releases statistics of crime rates in America. The violent crime rate seems to have peaked in 2016. 1,250,162 violent crimes were reported in 2016. In 2017, the number decreased to 1,247,321 violent crimes. Violent crimes are against people and include murder and manslaughter, rape, robbery, and aggravated assault.

San Diego Violent Crime Rates are Down

San Diego is a city with approximately 1.42 million inhabitants and ranks as one of the top 10 most populous cities in the country. Of all the most populous cities in America, San Diego ranks as one of the safest cities when it comes to violent crime. In 2017, according to the FBI, the police investigated 5,221 violent crimes. Ahead of San Diego are San Jose, New York, San Antonio, Phoenix, Los Angeles, Dallas, Philadelphia, Houston, and Chicago. The most violent crimes occurred in the cities of Chicago, Houston, and Philadelphia.With respect to property crimes, San Diego had the second lowest rate with 18.4 crimes reported per 1,000 residents.

Have You Been Charged with a Felony Crime in California?

Felony crimes are the most serious criminal offenses in California. The penalties include long prison terms, and repeat offenders may face life imprisonment for future crimes. If you have been charged with a felony crime in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate penalties and prison sentences. Continue reading