Criminal Defense

November 18, 2015

Update on Body Cameras Worn by SDPD

As I have written before, Police agencies across the country have begun outfitting officers with cameras as an attempt to regain the public’s trust. It has been shown that the San Diego Police Department’s (SDPD) use of body cameras on officers has resulted in fewer complaints from the public. However, while complaints against officers fell 23% between July 2014 and June 2015 instances of force increased 10% in the same time period, according to an SDPD report. It is not known why. Currently, 871 officers across the department wear cameras. However, the report only analyzed data from the Southeastern, Central, and Mid-City division (the only departments that have used body cameras for a full year).

Recently, the California Western School of Law in downtown San Diego held a forum with San Diego police Chief Shelley Zimmerman, the ACLU, law students, and members of the general public on whether body camera footage should be publicly available. The SDPD takes the position that privacy issues outweigh expectations that a police agency would release footage of a controversial event, such as use of force by an officer. SDPD’s 15-page body camera policy requires officers to hit “record” when they are about to encounter a member of the public. Public access to police body-worn camera videos continues to be part of the national discussion over police use of force.

Public Records Requests

With body camera video more common either voluntarily or mandated by law, criminal defense attorneys will be able utilize the more-accessible footage to gain evidence to aid in your case. Whether or not body camera footage will be publicly available, the California Public Records Act § 6250 et seq allows for members of the public to request records from a state agency such as a police department.

Public records in the California Public Records Act are defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Specifically, while individual’s ‘rap sheets or arrest records are exempt from disclosure due to privacy, information in the “police blotter” (e.g. time and circumstances of calls to police; name and details of arrests, warrants, charges, hearing dates, etc.) must be disclosed. While identifying data in police personnel files and misconduct complaints are exempt, disclosure may be obtained using special procedures under Evidence Code section 1043. Continue reading

November 13, 2015

Green Beret Facing Charges for Beating Molester

by David M. Boertje

During the last Afghan civil war, the warlords that ruled their territory later became U.S. allies in our fight against the Taliban in Iraq. Now, an American Green Beret, Sgt. 1st Class Charles Martland, who refused to ignore the child molestations he witnessed overseas, is fighting for his career. Mr. Martland beat an Afghan militiaman who kidnapped a 12-year-old boy and chained him to his bed as a sex slave whilst stationed in Afghanistan. He was formally reprimanded for assaulting an Afghan police officer, and he is not the only one (Sgt. Dan Quinn was punished for freeing a child back in September). Soldiers who are sent overseas are often instructed to ignore the corruption and violence committed upon the local populace.

While this sad story occurred overseas, it is a stark reminder that Americans face criminal charges or legal consequences every day for defending themselves or others in need from danger.

Self Defense as a Legal Defense

November 6, 2015

Four California Students Arrested in High School Shooting Plot

by David M. Boertje

Last week, four students were arrested after police discovered a “detailed” plan to “shoot and kill as many people as possible” at Summerville High School in Tuolumne, California. Other students at the school heard the suspects discussing the shooting last week, so they told school staff, who then contacted the sheriff’s office. According to the Tuolumne County Sheriff’s office, the plan was so detailed that it included the names of the would-be victims. The four suspects were in the process of securing weapons. The suspects have not been identified since they are minors. Those four students had a court hearing Oct. 13th to determine whether they will be released from custody. They will be getting mental health evaluations.

Criminal Conspiracy (CA Penal Code 182)

Criminal conspiracy exists when two or more people agree to commit almost any unlawful act and then take some action toward its completion. The action taken does not need to be a crime in itself, but must indicate that those involved in the conspiracy knew of the plan and intended to break the law.

CA Penal Code 182 defines criminal conspiracy as taking place when:

You agree with one or more other people to commit a crime at some time in the future, and
One of them commits an overt act in furtherance of that agreement.

In this instance, prosecutors would have a good case for conspiracy because the four students allegedly plotted to plan a school shooting and had already commenced the ‘overt act’ of securing guns.

Conspiracy to Commit Murder (CA Penal Code 189)

The type of conspiracy you are convicted of will determine your punishment. Some conspiracies are wobblers – they can be prosecuted as a misdemeanor or a felony. A conspiracy to commit murder has all the same elements as conspiracy, expect one possesses the specific intent to kill another person unlawfully and commits an act in furtherance of that act. If convicted, you will face punishment that is equivalent to first-degree murder. It is punishable by death or 25 years to life imprisonment without the possibility of parole.

Withdrawal from the Conspiracy

One may withdraw from his or her role in a conspiracy before someone in the group takes an overt act to further the crime in order to be absolved of criminal liability. If you wait until after someone commits an overt act to affirm your withdrawal, you will still be charged with the conspiracy but will not be held liable for any crimes that are committed after you communicated your withdrawal. Continue reading

November 4, 2015

California Weighs Banning Concealed Handguns on Campuses

by David M. Boertje

I was recently reported in the news that California is once again considering legislation that would completely ban concealed carry guns at colleges and schools in the state. Senate Bill 707, was introduced by Senator Lois Wolk (D-Davis). The idea for the bill came from university and college police, who say school officials should have more control over campus safety. Democrats were in support and Republicans opposed it, but lawmakers approved the measure in early September. The Bill is now headed to Gov. Jerry Brown’s desk. If he signs it, it will become law.

California’s “Gun-Free School Zone Act” (California Penal Code 626.9)

California already has some of the strictest gun laws in the country that cover gang-related activities, weapons one is not allowed to own (ie. assault rifles), and who may or may not purchase a gun. What you may not realize, however, is that current California law makes it illegal to possess a firearm within 1,000 feet of a school or college campus without permission from administrators. See CA Penal Code 626.9 (enacted in 1995). The law does include exemptions for retired law enforcement officers and those with concealed carry permits.

Penalties for violation include a two to five year imprisonment. Discharging a firearm in a school zone raises that sentence to five to seven years.

Senate Bill 707 would basically expand this law and prohibit those who do have a conceal and carry permit from bringing a gun within 1000 feet from schools and universities.

California Concealed Firearm Permits (California Penal Code 26150 & 26155)

It is normally a crime to carry a loaded or unloaded gun in public in California unless you have a permit. You may be able to apply for a permit with the state if:

You are determined to have good moral character (ie. no prior convictions);
Good cause exists because you can demonstrate you and your family are in immediate danger;
You meet legal residency requirements;
You have completed an acceptable gun safety course.

A concealed gun must still be a legal gun. California bans the possession of assault weapons and rifles. See California Penal Code 30600. Additionally, a permit for conceal and carry may not necessarily carry over to other states if you are traveling. Some states have reciprocity with others. California in particular, does not recognize out-of-state conceal and carry permits. Continue reading

October 30, 2015

Fraud Case Alleges Hundreds of Surgeries By Non-Doctor

by David M. Boertje

An orthopedic surgeon, his lawyer, another doctor, and 12 other defendants (15 in total) have been charged in a California health-care fraud conspiracy in Los Angeles. This past Thursday, Los Angeles county prosecutors handed down indictments for Dr. Munir Uwaydah and the associates who helped cover his illicit activity. The conspiracy ring is alleged to have prescribed unnecessary expensive medications, billed two-minute doctor’s appointments as hour-long examinations, and doctored MRI results and medical records to justify unnecessary operations. It is also alleged that Dr. Uwaydah allowed his physician’s assistant, Peter Nelson, to perform surgeries at an Orange County hospital in 2005. Dr. Uwaydah’s medical license was revoked two years ago after several earlier allegations.

The conspiracy ring is estimated to have cheated insurance companies out of $150 million. It is described as one of the largest health-care schemes in state history. Uwaydah and Nelson are charged with 21 counts of aggravated mayhem — each for a different patient. The District Attorney stated that this is a vast underestimation of the hundreds of procedures that Nelson performed. Nelson is being held on a $21 million bail. The office manager, Kelly Soo Park, 49, is also being held on $18.5 million bail in the fraud case for her involvement in hiding Uwaydah’s money from investigators.

Health Care Fraud in California

October 28, 2015

Two Parents Arrested After Child Found in ‘Deplorable Conditions’

by David M. Boertje

The parents of two children allegedly found in ‘deplorable conditions’ were arrested in San Jacinto, according to the Riverside County Sheriff’s Department. Deputies and Child Protective Services (CPS) arrived at the 1600 block of Santa Fe Avenue after receiving a report about child abuse. The report to CPS came from an employee of the children’s school district. Authorities said they found two children “deliberately confined” to a room under “deplorable conditions” without access to a restroom or basic necessities. Deputies believe the children lived in that condition for more than one year. It was determined that this confinement occurred only during night time.

The children’s parents, Emily Tardy, 29, and Steven Crane, 38, were arrested for alleged child abuse. The Riverside County District Attorney’s Office decided not to charge the couple with felony child abuse and instead charge them with misdemeanor child endangerment. Both are being held on $35,000 bail. They each pleaded not guilty to all counts and are scheduled to be back in court on Oct. 9.

California Penal Code 273(a) – Child Endangerment

October 23, 2015

Two Missing Boys Believed to be Abducted by Mother after Visit to California

by David M. Boertje

A search is underway for two missing boys who detectives believe were abducted by their mother at the end of August. Sage, 14 and Isaac Cook, 9, reportedly visited their mother Faye Ku in California. The boys live in Washington State with their father, who has had full custody since the couple divorced in 2009. Ku allegedly gave her ex-husband a “supervised visit” court order to force him to allow the boys to visit her. She left a written letter at her home blaming her ex-husband for trying to control her and her children. The boys were last seen at Los Angeles International Airport on August 28.

According to court documents, this is not the first time Ku has tried to take her boys. Back in June, she was arrested and charged with custodial interference for trying to board a flight with her boys to Taiwan.

What is Custodial Interference?

October 20, 2015

SANDAG Report: Crime Rate is Steady but Robberies Spike in La Jolla

by David M. Boertje

According to a San Diego Association of Governments (SANDAG) report, the San Diego region’s overall crime rate, violent-crime rate, and property-crime rate has remained relatively stable, and is even down 1 percent. While some categories of violent crime showed a few upticks, it is telling that the crime rate in the region has remained stable given the legislative changes enacted in the recent years that have allowed ex-offenders returning to local communities. A total of 5,335 violent crimes (those involving homicide, rape, robbery, and aggravated assault) were reported to local police in the region between January and June of 2015; an average of 29 per day. Domestic violence incidents are also up 4% from 2014.

While property crimes such as burglaries are reported to have dropped by approximately 13% throughout the San Diego region, the La Jolla area has seen an increase in crime. Reported robberies in La Jolla have doubled from five to 10, and rapes have increased from zero to eight incidents the first half of the year. Thefts over $400 and motor vehicle thefts have also increased from 49 to 54 incidents.

What is Robbery?

In California, Penal Code 211 defines the crime of robbery as taking personal property that belongs to someone else from the victim’s person or immediate presence, and against the victim’s will, through the use of force or fear.

Robbery is different from theft in that it must occur when the victim/property owner is present during the crime. The crime of robbery can also occur during a burglary of a home if the residents happen to be inside at the time. Robbery is always a felony under California law.

Robbery is considered a first degree felony if:

It is committed against any driver or passenger of a vehicle
It takes place in an inhabited structure
It takes place at an ATM after someone has just used it

It is punishable by up to six years imprisonment, a fine of $10,000, or felony formal probation.

Robbery in the second degree is committed whenever it does not meet the definition of first degree robbery. It is punishable by up to five years imprisonment, felony probation, and a $10,000 fine. Continue reading

October 16, 2015

Salinas Councilman Charged With Kidnapping, False Imprisonment, and Felony Domestic Violence

by David M. Boertje

Earlier this month, the news reported Salinas Councilman Jose Castaneda’s new slew of legal problems, and this time they go beyond whether or not he is legally holding two elected offices. Salinas police announced that Castaneda was arrested and charged with kidnapping, false imprisonment, and felony domestic violence. According to reports, Castaneda was waiting for his ex-girlfriend when she arrived at her home on Friday night. He allegedly forced the woman into a van, drove away to another location, and held her hostage for several hours. During that time, police believe he assaulted her, leaving her with the bruises that led to the felony charge of domestic violence. Castaneda allegedly eventually released the woman and allowed her to walk home.

Castaneda and his attorney, Anthony Prince, eventually contacted police and said he would turn himself in to police. They asked police if it could wait until after a press conference Castaneda had scheduled for Thursday morning. Police took him into custody at the press conference. If convicted of the felony charges, California law would disallow Castaneda from holding any state office, and he would also face the legal ramifications associated with those charges. His bail is currently set for $100,000.

California False Imprisonment Law

October 9, 2015

Three Deputies Face Criminal Charges for the Beating of Francis Pusok

by David M. Boertje

Back in April, we discussed the beating of Francis Pusok as he was trying to escape from police on horseback in the Southern California desert. Now, the three California deputies from San Bernardino County, Nicholas Downey, Michael Phelps, and Charles Foster will face criminal charges in the beating of Pusok. Each were charged with one count of assault by a public officer, and all three deputies are scheduled to appear in court for arraignment on Sept. 8. If convicted, each deputy faces between 16 months to three years in prison. They all remain on paid administrative leave pending the outcome.

Pusok’s attorney James Terrell believes eight of the 10 deputies should have been charged (not just the three involved in the incident). The other seven deputies who responded are not being criminally charged because of what was said on the voice recorders that the deputies carry on their belts. The helicopter footage that caught the incident indicated that Pusok appeared to have been kicked 17 times, punched 37 times, and struck with batons four times, a review of the video showed, and 13 blows appeared to be to the head. Mr. Pusok did file a lawsuit in response to the beating and settled it with San Bernardino County for $650,000. There has also been an internal probe of 10 deputies, along with an FBI civil rights probe.

Help for Police Misconduct