Criminal Defense

April 22, 2016

Unpaid Traffic Tickets in California: Can I Go to Jail?

Last year, U.S. Attorney General Loretta Lynch went on record as in a speech at the White House, actively opposing judges imposing traffic fines, calling such “the criminalization of poverty.” She cited the case study of Ferguson, in which citizens who have attempted to pay the ever-increasing fines of their traffic tickets and were subsequently arrested for not being able to come up with the money associated with late fees.

Fines Increase With Time

If you have received a parking or traffic ticket, you can bet that the fine will increase if it is not paid within the time specified on the ticket (usually 30 days). State and local governments fundraise through driving and parking tickets and they have no incentive to keep the prices down in the interests of fairness.

April 20, 2016

Law Enforcement Investigators Seek out Private DNA Databases

by David M. Boertje

While the allure of exploring one’s family tree and lineage has meant big business for some companies, two major that research family lineage (for a fee) claim that over the last two years, they have received law enforcement demands for genetic information stored in their DNA databases. Ancestry.com and their competitor 23andme, hold the genetic information of hundreds of thousands of people. They have received five requests from law enforcement agencies for the DNA of six people.

Ancestry.com did turn over one person’s data for an investigation into the murder and rape of an 18-year-old woman in Idaho Falls, Idaho. 23andme has received four other court orders but have been successful in persuading investigators to withdraw the requests.

Privacy advocates and experts are concerned that genetic information turned over for medical, family history research or other highly personal reasons will be misused by investigators, and that this new trend could start a slippery slope.

April 8, 2016

Lincoln High School Fight Leads to Dispute Over Discipline

by David M. Boertje

As the result of a fight at Lincoln High School in San Diego, the 16-year-old son of local rap artist Brandon “Tiny Doo” Duncan faces four felony juvenile charges: assault on a police officer, assault with force likely to cause great bodily injury, violent resisting of a police officer and assault on a school officer. Another student faces a felony assault charge against a police officer. A third one faces an additional misdemeanor theft charge for allegedly taking the officer’s police radio and keys during the scuffle. The fight was started when the boys started play fighting during lunch period. That led to a real fight.

Bashir Abdi of El Cerrito, the cop on campus was reported to be ‘seriously injured.‘ He tased and pepper sprayed the students, and is now suing the students for over $25,000 in damages in medical expenses, property damage, and other losses.

None of the students will be expelled, and the judge allowed all the students to go home instead of staying in ‘juvie.’ They will have electronic monitoring for the time being. While some have called the punishment against the students fair because it was not as strict as it could have been, some in the community, including the NAACP, have called for the District Attorney’s Office to drop all charges and stop over-policing Lincoln High.

Juvenile Felonies

Juvenile delinquency court is a court dedicated to adjudicating felony and misdemeanor crimes allegedly committed by minors, and it ranges from small charges like truancy to more serious ones like felony charges. The goal is to rehabilitate children and not to imprison them.

Under certain circumstances however, minors alleged to have committed one of 30 crimes listed in California Code § 707(b) also can be tried in adult court. These include: murder, arson causing great bodily injury, assault with great bodily injury, rape, robbery, kidnapping for ransom, etc.

Prosecutors have the sole discretion as to how to prosecute 707(b) offenses. They can either file directly in adult court, file in juvenile court, or they can initiate a “fitness hearing” and have a judge decide the issue.

In these situations, prosecutors tend to file charges as adults if the minor has both allegedly committed a 707(b) crime and previously committed another felony or used a firearm during the crime. Continue reading

March 23, 2016

Navy Offering Reward for Information on Bomb Threats

by David M. Boertje

Earlier this week, the Naval base in San Diego received a phone call that specifically threatened one of the buildings on the base. Around 9:15am, someone called in and threatened to bomb Building 36. Around 9:15am, the base posted on its Facebook page that the area had been secured, meaning they did not find evidence of bomb(s). There was a perimeter set up between Pier 3 and Pier 5.

This is the second threat at Naval Base San Diego within two weeks. Previously, a hand-written note sparked an investigation and the evacuation of the pier at 32nd Street and Harbor Drive.

The base is currently not on lockdown. Now the Navy is offering a $5,000 reward for any information leading to the arrest of the person who made the fake bomb threat. A spokesperson for the Navy stated that since last November, 11 fake bomb threats have been made.

March 18, 2016

1998 Molestation Conviction Expected to be Thrown Out Due to False Testimony

by David M. Boertje

Up in Lakeport, California, a 71 year old man named Luther Jones Jr. is expected to be released from state prison within the next few weeks because it has come to light that the key testimony used to convict him was fabricated. Jones was sent to prison 18 years ago for a 27-year sentence, for allegedly molesting a 10-year-old girl who belonged to his ex-girlfriend. He had a criminal record of felonies and theft cases, and the physical evidence had shown signs of sexual trauma on the child.

In this bizarre case, the child victim, now 30, has come forward to say that Jones never molested her. Evidently the child had been told to lie by her mother. She was indeed molested back in 1998, but by her mother’s then-boyfriend. District Attorney Don Anderson said he will file a writ of habeas corpus this week. He even canceled his vacation plans to begin the process of freeing Jones.

Currently, Jones is in very poor health but was previously denied for medical parole. He has filed several lawsuits complaining about the inadequate healthcare he has received from prison officials, which include diabetes, issues with his liver and kidneys, hepatitis C, and spinal deterioration. It is unknown whether legal action may be brought against the victim’s mother for her terrible behavior 18 years ago.

California Writ of Habeas Corpus

“Habeas corpus” literally means “you have the body,” and is a constitutional right. In the U.S. criminal justice system, a writ of habeas corpus is used to bring a prisoner or other detainee before a court to determine whether the imprisonment is unlawful. It is filed as a civil action (lawsuit) against the State agent (usually a warden) who is currently holding the defendant in custody when one has a showing that s/he has been wrongfully imprisoned. Today, the writ is mostly used for prisoners who want to challenge their detention if something went wrong in his/her trial (ie. prosecutor misconduct). It may also be used to examine a bail amount, the conditions of imprisonment, and jurisdiction of a specific court.

In California, the right to file a writ of habeas corpus petition is guaranteed by the California constitution, if you fulfill these legal requirements:

You are actually in custody (including out on parole/bail);
You have exhausted all your legal remedies, meaning you have tried everything to free yourself (ie. appeals);
Your issue is not already resolved on appeal.

March 4, 2016

“He Said, San Diego Unified Said”

by David M. Boertje

Back in July of 2015, a man named Mike Gurrieri filed a lawsuit against the San Diego Unified School District’s superintendent for allegedly ordering edits to his criminal investigation to cover up for the accused principal. Mr. Gurrieri was assigned by the San Diego Unified School District as an internal investigator to investigate a sexual assault that allegedly occurred at Green Elementary School in San Carlos, California. Parents had filed a claim that the school’s principal, Bruce Ferguson, took little to no action and did not even report it to the police. Mr. Gurrieri claims he spent months digging to find that several allegations by different students have been mishandled. Mr. Gurrieri was then allegedly fired for not complying with the cover-up.

Court documents filed by district attorneys state that Gurrieri was incapable of conducting an adequate investigation and had asked school-district officials to fire him because the job was too difficult for him. The San Diego School District hired attorneys to defend their case against Gurrieri’s lawsuit back in September. The district claims that Gurrieri’s report was based on “hearsay,” rumors, and gossip. The differing stories mean that there is a long legal battle ahead, as both parties engage in a dance of “he said, she said.”

What is Hearsay?

Hearsay is a relevant issue in criminal trials. It may be generally defined as an out-of-court statement offered to prove the truth of whatever it asserts. As a result, hearsay evidence is often inadmissible at trial. See the California Rules of Evidence. Thus, the original speaker, or eyewitness, must be present at the trial and giving the statement under oath (ie. “I saw him pull out the gun”). The reasoning behind this rule is that hearsay is generally not reliable, unless the speaker is available to be cross-examined by the opposing side.

Hearsay must be a statement, meaning it must be an oral assertion, written statement, or nonverbal conduct.

The Exceptions

While there is a general prohibition to allowing hearsay into the evidence of a trial (or lawsuit), the California Evidence Code sets forth a long list of exceptions to the hearsay rule. Some include:

A declarant’s spontaneous or excited utterances. Startling statements are considered reliable because they were made stress before s/he had a chance to fabricate;
The Declarant’s existing mental state or physical condition;
Business and public records;
Former testimony given under oath;
A witness’s past recorded (written) recollection which may be read into evidence;
Dying declarations;
Certain statements by children (particularly in sexual assault cases).

March 2, 2016

The Basics of a Plea Bargain: Pros and Cons

by David M. Boertje

More than 90% of all criminal cases do not make it to jury trial. Instead, they end in plea bargains – sometimes to the benefit, and sometimes to the detriment of criminal defense clients.

What is a Plea Bargain?

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or no contest (nolo contendere) in exchange for the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence (which is usually a more lenient sentence). As our court system becomes more crowded, prosecutors and judges alike feel increased pressure to move cases quickly through the system, and trial is a time-consuming and expensive endeavor. As a result, both criminal defense attorneys and prosecutors typically strike up a deal to avoid the headache.

Plea bargains may occur any time after the arrest and before the trial.

Negotiating plea bargains is a relatively simply strategy that most attorneys will initially attempt on behalf of their clients. Over time, prosecutors and police have taken up a few tricks which will affect a defendant’s ability to negotiate a favorable plea bargain, especially without the assistance of an attorney. For one, they typically over-charge defendants in order to set the bar high prior to entering into plea negotiations and to get a higher rate of ‘guilty’ pleas or conviction rates. Additionally, to deal with a large influx of similar cases, prosecutor’s offices may offer defendants a standard deal, which is offered to all defendants charged with the same crime. As a result, sometimes it is relatively easy to get a lesser charge, but sometimes defendants are also faced with feeling ‘pushed’ into pleading guilty for something, in a plea deal because of overzealous prosecution.

Plea Deals in DUIs

Plea deals are regularly sought for California DUI cases because the penalties are so severe. The most frequently reduced DUI charges are a “wet” reckless and a “dry” reckless under the CA Vehicle Code 23103.

A wet reckless is typically the first level of DUI reduction that the prosecution will consider. It just refers to a crime where alcohol was involved). If you are convicted with a “wet reckless” instead of a DUI, you will face less jail time, reduced fines, and not mandatory license suspension. A skilled attorney may even get a potential DUI conviction down to a “dry” reckless, which means you will be charged with misdemeanor reckless driving where alcohol was not involved. Continue reading

February 26, 2016

San Diego Court Waiver Allows Police to Search Cellphones Without a Warrant

by David M. Boertje

In response to the passing and enactment of SB 178 (the Electronic Communications Privacy Act) for the new year, San Diego Superior Court judges have started using waiver days after the new state law took effect. SB 178 would require police and probation officers to get a warrant signed by a judge before searching through a suspect’s electronic communications, cell phones, emails, etc.

To the surprise of many criminal defense lawyers in the area, their clients were being asked to sign a newly drafted waiver which would allow police to search cell phones, computers, and other types of electronics without first obtaining a warrant. The one-page waiver spells out the types of items that would be subject to search: call logs, emails, text messages, and social media accounts accessed through a variety of devices — everything from an iPhone to an Xbox. Perhaps more concerning is the fact that some attorneys claim their clients were being required to sign these waivers at their arraignments.

Criminal defendants who have signed the waiver have essentially signed away their rights. By the terms of the agreement, they have agreed to disclose any and all passwords used to access those devices or accounts, including fingerprint that unlocks an electronic device. Do not sign these types of waivers if you are asked. It is recommended you consult with a criminal defense attorney right away.

February 24, 2016

Legal Experts Say Governor Brown’s Parole Plan Would Lessen Plea-Bargain Power

by David M. Boertje

This past year, California has been no stranger to criminal justice reforms as a means to lower the state’s prison population. In addition to the 807 bills signed into law set to take place in 2016, Governor Jerry Brown (D- CA) has introduced another state ballot initiative which aims to free certain felons earlier and have fewer juveniles tried as adults. Under Brown’s new proposal, those who have been convicted of nonviolent crimes, including non-violent felons, would be allowed to seek a parole hearing if they have completed their base enhancements, even for those with gang enhancements or firearms possessions.

Additionally, the proposal requires that judges instead of prosecutors, would have to decide whether juveniles can be tried as adults. Currently, California is one of 15 states which allow prosecutors to make the decision.

Legal experts say that the current proposal as it stands would weaken prosecutor’s plea-bargain power. Specifically, by permitting early release for someone with consecutive sentences or enhancements, prosecutors would lose some power in the negotiation of pleas with defendant. Approximately 95% of criminal cases in California are resolved by plea bargains.

Currently, it is estimated that 20,000 out of California’s 127,000 inmates are currently serving time for drug or property crimes would be candidates for earlier release under this new proposal. The proposal is expected to make about 7,000 inmates immediately eligible for parole hearings, though officials said about 5,700 of those are already eligible under an existing federal court order. Brown said the proposals build on federal court orders requiring California to reduce its prison population. If California voters approve it in November, this new proposal will be signed into law.

The Parole Process in California

In California, parole only applies to felony cases where one is sent to state prison. Those who have served a certain percentage of their sentence and have a good record in prison will become eligible for a parole hearing. Once eligible, you must make your case to the California parole board, which is comprised of at least one commissioner deputy commissioner from the Board of Parole Hearings. At the hearing, they will examine your prior history, offenses, disciplinary record in prison, and applicable rehabilitation programs you have committed, to and psychological/risk assessments. The California Penal Code requires the Board to set a release date for an inmate unless s/he currently poses an unreasonable risk of danger to the public. The governor is allowed to override a parole board and block early release. Continue reading

February 19, 2016

Uber Driver Sues Ex-Taco Bell Exec, and Vice Versa

by David M. Boertje

A former Taco Bell executive by the name of Benjamin Golden who was fired after a video of him went viral assaulting an Uber driver, has now filed a lawsuit for $5 million against the transportation company. This bizarre case was a response to the $25,000 lawsuit filed by the Uber driver, Edward Caban, who is shown in a dashcam video being slapped and hit by Golden, last year.

Last October, Mr. Golden allegedly got into an Uber driven by Mr. Caban, in Costa Mesa, California. He was ordered out of Caban’s vehicle for being too inebriated to give directions. The dashcam video from Caban’s car shows Mr. Golden getting angry, and then beginning to strike Caban from the back seat and slamming his head against a window. Mr. Caban used pepper spray to fend Mr. Golden off, and subsequently posted the footage online. It later went viral, and Mr. Golden was terminated by Taco Bell.

Golden has been charged with assault and battery by the Orange County District Attorney. Golden has pleaded not guilty, and decided to file a counter-suit, claiming that he “fear[ed] for his safety and well-being” after being ejected from the vehicle and has “suffered severe emotional distress, humiliation, anxiety, fear, pain and suffering and the loss of his job.” Mr. Golden claims that Mr. Caban did not have a right to record him, and he is claiming “invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, assault and battery.”