Criminal Defense

July 20, 2016

California Bill Allows Window Smashing to Save Dogs from Hot Cars

Last month, California lawmakers proposed a new law that would allow people who spot a dog (and presumably any animal) left in a hot car to legally smash the window out to rescue it. Assembly Bill 797, “The Right to Rescue Act,” was drafted by Assemblymembers Marc Steinorth of Rancho Cucamonga, Ling Ling Chang of Diamond Bar, and Kristin Olsen of Riverbank. As of June 6, it was amended in the state Senate, and it is making its way through the legislature. The state Assembly members made a video of themselves sitting in a hot car for 21 minutes to illustrate the dangers of leaving a dog in a hot vehicle could pose.

It is summer. California is known for its heat waves and wildfires during the season. Just this week, as temperatures reached 91 degrees in Sacramento last week, it was reported by the Dodo that a small dog had been left in a hot car. When firefighters arrived on the scene, after being called by a concerned passerby, they found the temperature inside the car had reached 160 degrees. The dog was on the dash, appearing to be panting. When the owners returned back to the car, they were cited and their dog was surrendered to animal control.

Leaving an Unattended Animal in a Car

While the proposed bill would allow bystanders to legally break your window to rescue a dog, it is already a crime in California to leave a pet unattended in a motor vehicle. See CA Penal Code § 597.7. Whether leaving a pet alone is a crime depends on the circumstances. You are guilty of this offense if you leave an animal unattended when:

It is too hot;
It is too cold;
There is no adequate ventilation, food or water;
Or there are other circumstances that could reasonably be expected to cause suffering, disability, or death.

Leaving an animal in a hot car is considered animal abuse. Cars have the greenhouse effect due to the glass, so temperatures surge inside cars by as much as 30 degrees. It is not recommended to leave an animal unattended in a hot vehicle unless the engine is on and the AC is running. It is simply not enough to just leave the window open a crack.

A first time conviction for leaving a pet unattended in a vehicle is an infraction that carries a $100 fine, as long as the animal did not suffer harm. However, well-intentioned people often accuse others of animal abuse when it is not the case. Leaving a husky in a car that has the windows open when the weather is 40 degrees for example, is unlikely to cause harm to the dog. However, a tiny, hairless chihuahua could be a different story. Continue reading

July 13, 2016

The First ‘Blue Lives Matter’ Law Enacted in the US

by David M. Boertje

As a reaction to the “Black Lives Matter” movement, the state of Louisiana has just enacted a controversial “Blue Lives Matter” law (HB 953), which would make police officers and other ‘public safety’ workers a special protected class under hate-crime law. In other words, it is now a ‘hate crime’ to target police officers. The state is the first to enact such a law, and likely will not be the last. As of June 7th, the state of Tennessee is already wanting to jump on the bandwagon of enacting its own ‘Blue Lives Matter’ law. Congress has already proposed a bill along similar grounds.

Traditionally, hate-crime statutes provide for additional criminal penalties for those convicted of crimes who targeted victims on the basis of race, ethnicity, or religion. The new law moves away from the traditional legal principles of focusing on immutable characteristics and into occupations, which are a choice.

The law has come under much criticism. Critics say that those who argue that it is actually police who are under assault are furthering animosity towards police. The New Orleans chapter of activist group Black Youth Project 100 stated that “Including ‘police’ as a protected class in hate crime legislation would serve to provide more protection to an institution that is statistically proven to be racist in action, policy, and impact.”

July 8, 2016

Lawyers for the Bundys Worry Fear Partial Jury

by David M. Boertje

In the ongoing saga of the Malheur wildlife refuge occupation in Oregon, defense lawyers for Ammon Bundy and his crew are generally concerned that the jury will not be impartial. Prior to this, they have also accused federal judge Jennifer Navarro in Nevada of being biased and have tried to disqualify her from overseeing the case.

Andrew Kohlmetz, an attorney who represents defendant Jason Patrick, one of the refuge’s occupiers, had requested a change of venue for the September 2016 trial and asked a federal judge Wednesday to approve funding for an analysis of the media attention the case received and, possibly, a survey of community attitudes. The two requests would total almost $130,000. Kohlmetz states that the media attention this case has garnered may have biased potential jury members.

U.S. District Court Judge Anna Brown in Oregon seemed inclined to request the funding request until a thorough jury selection process is done to provide more information. She does not believe that jury members from Portland will be too “liberal.” It is reported she would like a jury comprised of residents from all over Oregon to represent diverse mindsets.

California Juries and the Jury Selection Process

In our criminal justice system, being judged by a ‘jury’ of our “peers” is amongst one of the most heralded constitutional rights. Juries are mentioned in the fifth, sixth, and seventh amendments in our Constitution. The theory was that an impartial jury would lead to the most just results in every case.

Who is Eligible?

In the U.S., any citizen over the age of 18 is eligible to serve on a jury. However, they must understand and speak English. They must live in the Court’s jurisdiction with a valid government issued ID, but cannot be on active military duty. Juries are randomly selected from various lists including voter registries. An individual cannot be summoned more than once a year.

In California, trial juries are generally made up of 12 jurors. But in civil trials and in criminal cases involving a misdemeanor, there can be fewer than 12 jurors if both sides agree to it.

Rooting out Bias

An important part of jury selection involves asking the court to dismiss certain candidates. After a potential juror is asked a series of screening questions, the attorney can request to dismiss him/ or her “for cause,” meaning he or she expressed some bias. These requests are unlimited. Alternatively, an attorney can also exercises a “peremptory challenge,” to a candidate meaning he or she does not have to state a reason for striking the person. There are only 6-20 requests allowed.

Lawyers are not allowed to veto prospective jurors based on their race, religion, or ethnicity. If they are suspected of doing so, the opposing party will likely file what is known as a “Wheeler motion,” meaning the entire jury will be dismissed and a new panel will be ordered. Continue reading

July 6, 2016

Woman in Florida Uses Fake California ID to Cheat System

by David M. Boertje

According to police, a woman in North Miami Beach, Florida was arrested at a nightclub and was using someone else’s Driver’s license to cheat the system. On the night of April 17th, the suspect was allegedly being disruptive and even pushed bouncers at the G5ive club. She also allegedly pushed an officer when police arrive at the scene. When she was taken into custody, she gave a fake driver’s license with the name and address of a woman who lives in Los Angeles, California. She was fingerprinted, but the fingerprints would only confirm her identity if she had a prior criminal history.

As a result, this woman has since paid bail and left the area under the California woman’s name. She also did not show up on her court date, which resulted in a letter being sent to the California address. The true victim in this case called the police and stated she has never even been to Miami.

Prosecutors said she fooled everyone with the fake driver’s license. In this case, officials are asking for the public’s help in identifying her. Unless this is cleared up, the victim of the identity theft will now have to carry a letter with her at all times in case she is ever stopped by authorities to prove that she has never in fact committed a crime.

It is a Crime to Use a Fake Driver’s License or ID

Under California Penal Code § 470(b), it is a crime (either a misdemeanor or felony) to display or possess any fake ID with the intent to commit a forgery or fraud. The legal definition of displaying a fake ID also consists of the following elements:

You possessed/displayed a government issued ID card such as driver’s license, social security card, or passport;
That ID card was altered, counterfeited, reproduced, or forged;
Your knew it was a fake ID.

Specifically, teenage minors under the age of 18 who are caught with a fake ID face a fine of $250 and 24-32 hours of community service and a one-year suspension of their driver’s license. Continue reading

July 1, 2016

Three Men Found Guilty of Conspiring to Join ISIS

by David M. Boertje

In a story that made national news, a federal jury has found three men guilty of plotting to join the terrorist group ISIS and commit murder overseas. Guled Omar, 21, and Mohamed Farah, 22, were found guilty on all charges, while the third man, Abdirahman Daud, 22, was only found guilty on all terror counts, but not of lying to a grand jury. They face life imprisonment.

Back in 2014, it was reported that at least 15 Somali-American men have traveled to Syria from Minnesota to join the Islamic State of Iraq and Syria (ISIS). These three men were amongst nine Minnesota men arrested since 2014 for allegedly plotting with the terrorist group. Six have already pleaded guilty to conspiring to travel to Syria to join ISIS. The family members of the three suspects in this case insist that they are innocent. None of the men have prior criminal convictions, and the Somali community in Minnesota claim that they were just young, impressionable teenagers who were trying to talk ‘tough.’

What Exactly are You Charged With if You Join ISIS?

June 29, 2016

Tutor Facing Sex Crimes is Victim of Antiquated Law?

by David M. Boertje

A tutor at Mar Vista High School is now facing criminal charges for having a sexual relationship with a 16 year old student at the school. Alejandro Rodriguez, 20, is accused of having a relationship with a student that lasted about a week. The victim in this case, has only been identified as “John Doe.” Evidently, he had told his cousin about the relationship, who then told the victim’s father. His father immediately contacted the police.

Rodriguez has been charged with four felony counts of oral copulation and one count of sodomy of a person under 18 years of age. If convicted, he faces up to five years in prison. It is reported that the DA’s office is prosecuting the relationship as a non-forcible sex crime. According to Rodriguez’s defense attorney, claims that if his client had been a woman, and not involved in a same-sex relationship, there would be a less restrictive charge available. It is because his client can only be charged with sodomy, the ‘crime’ of anal sex, with both parties being men.

California Statutory Rape Laws

June 24, 2016

The Bundys Argue Their Rights are Being Violated

by David M. Boertje

Ammon and Ryan Bundy have filed for an administrative hearing over what they claim are ‘deplorable and unconstitutional’ conditions. According to the document filed by their attorneys, the Bundys argue that their first amendment rights are being violated because they are not free to assemble nor practice their mormon religion by engaging in religious activities or wear religious garments. They further allege that they are “being denied access to materials and resources reasonably required to defend their respective cases.” Perhaps more surprisingly, the Bundys are also alleging a violation of the second amendment rights because guns are not allowed in jails for prisoners. According to Oregon Public Broadcasting, they are considering suing the Multnomah County Sheriff’s Office to get possession of their weapons.

Rights of Prisoners

It is obvious that prisoners have fewer rights and freedoms while incarcerated. Some rights, however, are still guaranteed by the U.S. Constitution. The eighth amendment prohibits conditions for prisoners that would be considered “cruel and unusual” punishment, although that term was not clearly defined at the time of the Constitution’s signing. Generally, any type of treatment that would reasonably be considered inhumane and in violation of basic human dignity would violate constitutional law.

Prisoners are also supposed to enjoy certain first amendment protections, such as the freedom of religion. However, they do not have the same level of rights as free citizens. Rights such as ‘protesting’ or ‘assembling’ may be restricted under Rational Basis Review. This just means that there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forward to justify it. Such regulations are not considered unconstitutional as long as the regulations apply to all inmates in a neutral fashion.

Lastly, all inmates at the state and federal level have the right to:

Be free from sexual harassment and assault;
Be free from racial segregation (unless deemed necessary for the safety of prisoners); and
Receive adequate medical care.

Unfortunately many of these freedoms are violated regularly. Continue reading

June 22, 2016

Life Under Curfew for American Teens: ‘It’s Insane, No Other Country Does This’

by David M. Boertje

The Guardian came out with an interesting piece on the enforcement of local curfew ordinances and their effect on youth. In the city of San Diego, it is illegal for anyone under the age of 18 to be out past 10pm. The city, using its police department, runs sweeps looking for minors out past curfew in all nine districts. Sometimes the SDPD makes dozens of arrests a night.

Conceived as a crime-reduction tactic, curfews were promoted during the “tough on crime” era of the 1990s. They were motivated by the reasoning that parents should know where their minor children are. In California, the city of Monrovia was the first in the state to enact a curfew ordinance. They touted its successes and from there, curfew ordinances spread like wildfire. These ordinances remain in place decades later.

The strictness of curfews varies by city and state. Baltimore, Maryland, for example, has one of the strictest curfews in the country, while the city of Denver, Colorado only enforces curfew during the summer while school is out. According to available FBI data, there were 2.6 million curfew arrests in the US between 1994 and 2012.

Studies by the American Civil Liberties Union have shown that curfews, while well-intended, are racially biased and only enforced in poorer, minority-filled areas.

Legal Details of San Diego’s Curfew Ordinance

San Diego’s curfew ordinance is specifically found in San Diego Munic. Code § 58.0102. Under its regulations, a minor under the age of 18 cannot be out without being accompanied by a parent or guardian during the week. Those in violation are cited and subsequently sent to a youth diversion program. Parents can also be cited if they knowingly permit their minor child to be out in public during curfew hours. Additionally, curfew hours differ by jurisdiction. In east San Diego, curfew hours are between 10pm and 6am. In Del Mar, Solana Beach, Poway, Escondido, Chula Vista and Coronado they are from 11pm to 5am.

The statute specifies 10 legal exemptions, such as coming home from a game/school activity or job, being involved in an emergency, or running an errand at the direction of your parent. Continue reading

June 17, 2016

Texas Police Say Criminals Often Use Imitation Weapons

by David M. Boertje

In the state of Texas, like many other states, police are saying that more crimes are being committed with imitation weapons like BB guns because they are made so realistically, are cheaper, and easier to obtain. Fake weapons like BB guns can be bought for as little as $25 and require no background check. Criminals also mistakenly believe that they will avoid harsher sentences if they are caught possessing a fake weapon instead of a real one.

In the county of Arlington, Texas, police have reportedly seen at least half a dozen crimes committed with a BB gun, imitation gun, or airsoft gun instead of a real one. In the most recent case, Arlington PD caught a teenager robbing someone with a fake gun, and the Houston PD says that the use of these fake weapons has risen over the years.

In states like Texas, New Jersey, and even California, if the victim of a crime believes the weapon is real, that is enough to warrant a felony charge as if the weapon were real.

June 15, 2016

Prop 47 to Blame for the Crime Surge in California and Las Vegas

by David M. Boertje

It is reported that crime rates in the state of California more than doubled in California’s major cities in the first half of 2015, violent crime rose by double digits, and property crimes also spiked. According to the FBI data, California’s crime rate is now on the rise after decades of decline.

In the neighboring city of Las Vegas, there has been a reported 66 homicides just this year– up from the 29 homicides in 2015. In Las Vegas specifically, Metro Police Sheriff Joseph Lombardo has stated that there has been an influx of people arrested– mostly with gang ties from California. Robberies, home invasions, and sexual assaults have risen by 22% in the city.

While there are no hard statistics linking the crime to Prop 47, both metro police in Las Vegas and law enforcement in California are blaming Prop 47, which was signed into law in late 2014. Most murder suspects in California also have ties to Las Vegas, so it is not surprising that they would flee to Sin City. Due to the efforts of a joint operation between LAPD and Nevada authorities, 27 parolees who have fled to Las Vegas have been arrested and also returned to California.

What Prop 47 Did

Last year the California Supreme Court also held that Prop 47 applied to minors. Proponents of the criminal reform law say that Prop 37 was intended to reduce sentences and increase investments in drug treatment for low-level offenders, particularly those with drug addiction. By doing so, they were also increasing the space in prisons for the truly violent criminals. The law had also reduced sentences for gun thefts and possession of date-rape drugs and changed a number of property crimes from felony to misdemeanors.

Not Going as Planned?

Opponents have claimed that the effects of Prop 47, which were supposed to increase social services for people, have not had the intended effect. The law does not take into account one’s criminal record, so dangerous people with violent records have been let out early to commit more crimes. For example, under the current law one cannot be charged with a felony as long as he or she steals property worth less than $1,000. This is the case no matter how many times he or she commits the crime.

That being said, it is likely that the legislature may amend the law in the near future to account for some of these things that opponents are claiming to be the cause in the increase in crime rates. Continue reading