Criminal Defense

June 25, 2015

California Attorney General Has Blocked Public Access to Data on Wiretapping

In the government’s latest assault on civil rights, California Attorney General Kamala Harris has announced a new policy last month that the California Department of Justice (“CADOJ”) will only be issuing its annual reports on wiretaps as locked pdfs– which would significantly limit the public’s ability to view the information.

Every year, the CADOJ is required to compile the details on each state-level wiretap order filed by local prosecutors. The report that is released yearly is mandated by the state legislature as a means to facilitate transparency. See the 2014 California Electronic Interceptions Report (released last month) here. The report for 2014 shows a massive spike (an increase of 44%) in California’s wiretaps, mostly in Riverside County as compared in 2013. Further, on a national level, the U.S. Drug Enforcement Administration has also showed an exponential increase in the use of wiretaps, increasing from 3,394 in 2000, to 11,681 electronic intercepts last year. DEA agents have also taken to making requests directly to state prosecutors instead of making federal requests, meaning most of the requests were never even reviewed by a federal judge.

Both the DEA and CADOJ offer little explanation regarding the massive expansion of wiretaps; they merely vaguely refer to the need to fight drug crimes.

June 12, 2015

Teen Who Set Cocos Fire Sentenced To Community Service

by David M. Boertje

The 14-year-old teenage girl who set the Cocos fire in San Diego last May was sentenced recently by Judge Howard Shore in a two-week non-jury trial. The minor, whose identity has not been revealed, was sentenced to 400 hours of community service and must pay $40,000 in restitution in fines. She must also report back to the judge every 60 days and write ‘apology’ letters to the victims of the fire who lost their homes. She will serve no jail time.

The teen was convicted of three arson counts one misdemeanor count of allowing a fire to get out of control. Originally, she (13 at the time) set a fire in her backyard which was extinguished by San Diego firefighters. She then set another one the next day, and another one in a neighbor’s backyard, which set the ember that traveled nearly half a mile to spark the Cocos fire. The Cocos fire then spread to more than a dozen brush fires due to the hot, dry, windy conditions and burnt over 2,000 acres and destroyed three dozen homes. The judge ruled that the teen acted “willfully and maliciously in setting the fires,” but said there was no evidence to suggest she intended to harm anyone or burn homes.

June 10, 2015

The Reduced Penalties for Some Crimes Initiative

by David M. Boertje

As mentioned in my previous post, Prop 47 (“the Reduced Penalties for Some Crimes Initiative”), which was approved by California voters via a ballot initiative last November 2014, would reduce the classification of most nonviolent and non-serious property and drug crimes from a felony down to a misdemeanor.

Since then, the California Legislature in its 2015 legislative session has introduced bills to amend Proposition 47 to weaken it. If any of these bill are passed and signed by the governor, the changes must go on a 2016 ballot for constituents to vote on. Some of the proposed changes include:

Senate Bill 333 and Assembly Bill 46 would allow felony charges to be filed against suspects accused of having certain date-rape drugs (Proposition 47 reduced the personal use of most illegal drugs to misdemeanors).
Assembly Bill 390 would require persons convicted of specified misdemeanors to provide DNA samples (California law currently only requires individuals convicted of felonies to provide DNA samples).
Assembly Bill 150 would make stealing a gun a felony crime (Proposition 47 made stealing an item that is valued at less than $950 a misdemeanor). Therefore, the proposed change would make stealing a gun valued at less than $950 a misdemeanor.
Assembly Bill 1104 would allow the issuance of search warrants for misdemeanor crimes that were previously classified as felonies before Proposition 47’s passage.

June 3, 2015

San Diego Lawmakers Attempt to Address School Threats in Legislation

by David M. Boertje

Last month, District Attorney Bonnie Dumanis came out in public support of the new bill authored by State Sen. Marty Block (D- San Diego), SB 456, which would distinctly make it a misdemeanor crime for someone to threaten to fire a firearm on private and public school campuses. The bill was originally introduced in February. In the last two years alone, Dumanis states that the number of students suspended and expelled for making a terrorist threat in San Diego County has risen 35 percent, from 62 in 2011-12 to 84 students in 2013-14, according to data from the state Department of Education. More than 130 threats to schools in the San Diego Unified School District were made over the past three years. Statewide figures also show an increase, but at a slower rate than the San Diego School District.

Under current law, those types of crimes are charged under Penal Code 422, a generic charge for someone making a criminal threat. Specifically, the current Penal Code requires that one caused a “reasonable fear” within the person(s) threatened. If the bill becomes law, a school firearm threat, for example, would become a specific crime subject to a fine of up to $1,000 and up to a year in county jail. The new law would remove the fear requirement and require those convicted to pay for any reasonable emergency response costs incurred by the public agency responding to the threat.

June 1, 2015

California Lawmakers and SDPD Try to Address the 20 Bills Aimed at SDPD

by David M. Boertje

Police agencies across the country have begun outfitting officers with the cameras as an attempt to regain the public’s trust back, and the SDPD is no exemption. However this is not enough. Last month, on April 30th SDPD was involved in yet another fatal shooting of an unarmed man, Fridoon Zalbeg Rawshannehad. The officer’s body cam was shut off prior to the shooting for unexplained reasons, and the incident is still being investigated by SDPD’s homicide unit. In the interim, the SDPD is still struggling to explain the shooting of an unarmed citizen, Victor Ortega, three years ago. In that case, Judge Burn’s denied SDPD’s motion to dismiss the lawsuit due to the inconsistencies of officer testimony.

Meanwhile, at least 20 proposals to regulate body cameras worn by cops, revamp the prosecution of deadly force cases, and impose other measures were made in the wake of national high-profile killings by police, and have been debated by California lawmakers. In Sacramento alone, legislators have introduced at least five measures pertaining to body cameras, including one that would establish grant funding to pay for the equipment, another proposing guidelines for data storage and one that would address how footage would be subject to public records laws.

May 27, 2015

Senate Bill 603 Introduced to Prevent Defendants from Cross-Examining their Victims

by David M. Boertje

The Senate Committee on Public Safety recently held a hearing at the end of April on Sen. Ben Hueso (D- San Diego) and the San Diego County District Attorney’s Office’s proposed bill. Senate Bill 603, which is currently making its rounds through the California legislative process in Sacramento, would require a court to conduct a hearing in cases in which the defendant is acting as his own attorney to determine whether someone else, most likely a standby lawyer, should be appointed to question the victims. Under SB 603, a judge would have to determine whether the victim would be traumatized further by being cross examined by the defendant. That kind of finding would be allowed only in certain kinds of cases, such as rape and sexual assault, as well as in felony charges of stalking, domestic violence, elder abuse or child abuse.

The sponsored bill was prompted by a San Diego woman named Jessica. Jessica says she was traumatized for the second time when the man who sexually assaulted her questioned her in court. The attack happened near the Old Town bus station back in March 2013. Jessica said a man dragged her behind a cafe and assaulted her. He chose to represent himself (pro se) during his trial.

May 25, 2015

Evading a Police Officer: The Double Standard Created by the Supreme Court

by David M. Boertje

It has been a busy year for criminal law development. With the seemingly unending current events surrounding police and citizen relations, the topic of when it is legal to run from police has resurfaced. It is already established by now that Freddie Gray was not doing anything wrong when he ran from police that tragic April 12. Police would later find out he had a switchblade in his pocket but that was not the reason why he ran. According to the police report, the patrol officer made eye contact with Gray, which prompted him to run. It was later discovered that in communities such as Gray’s, the mere presence of police make people nervous; that was the reason Gray ran. He was nervous since he has a past record of petty crime. It would also be discovered that Gray hailed from a neighborhood from Baltimore that had a poverty and unemployment rate of double that of the nation.

May 20, 2015

U.S. Sentencing Commission Adjusts Penalties for White Collar Crimes

by David M. Boertje

Recently, the U.S. Sentencing Commission voted to adopt changes in the guidelines that judges use in sentencing white collar crimes – to be effective this coming November. The decision came in part as a reaction to the overpopulation crisis in the prison population, and increasing costs of incarceration. The current state of sentencing for economic crimes reflects public outcry that followed the Enron case and other crises in the early 2000s. This resulted in steady increases in the length of prison sentences for white collar crimes, where federal courts routinely hand out sentences of 10 or 20 years – and sometimes significantly more – in a wide variety of fraud cases.

The purpose of the commission is to serve as an independent agency to establish sentencing practices in federal court and to help congress develop efficient crime policy.

May 18, 2015

Protester Rights and the Bail Process

by David M. Boertje

On April 12, 2015, a man by the name of Freddie Gray was chased down and arrested for “possession of a switchblade” by Baltimore PD. Eyewitnesses report Gray screaming and asking for medical attention. By April 19, a week later, Gray had slipped into a coma and died while in police custody. Autopsy reports indicate that Gray’s neck was broken and his spinal cord was nearly severed. His death set off yet another wave of daily protests decrying police racism and brutality in west Baltimore that boiled over into riots throughout the last week of April. By April 27, Maryland Governor Larry Hogan declared a state of emergency and even imposed a 10pm curfew.

Meanwhile, a wave of national protests sprung up in support of Baltimore, including San Diego. In San Diego, hundreds marched once again in the neighborhood of City Heights, known in the area for being one of the historically poorest neighborhoods in this tourist town, as well as downtown San Diego. The City Heights area has also held a number of “BlackLivesMatter” protests in the past several months following the deaths of Michael Brown and Eric Garner. While many of these protests have not led to any arrests, that has not always been the case. Meanwhile, in Baltimore, there are reports of frightening instances of medical volunteers and legal observers being arrested without charges. In addition, a video of a Freddie Gray protester being pepper sprayed and slammed to the ground has also made its rounds to the internet.

May 13, 2015

Freddie Gray Tragedy a Lesson in Constitutional Rights

by David M. Boertje

As Baltimore becomes the latest casualty of events transpiring from police brutality, another Justice Department investigation is underway for the multitude of constitutional rights Freddie Gray may have suffered at the hands of police. Most people don’t think of criminal law as being fundamentally intertwined with our basic constitutional rights, or even as a ‘subsect’ of constitutional law. The purpose of this post is to break down which fundamental constitutional rights have significant implications for the rights of criminal defendants.

The Constitution

Most of the constitutional principles cited by criminal defense attorneys come from the first 10 amendments in the Constitution (aka the Bill of rights). Because the Constitution only applies to government actors, only those acting on behalf of the government (ie. police) can be liable for violating constitutional rights.

The 1st Amendment guarantees the free exercise of religion, speech, press, the right to peaceably assemble (ie. protest) or the petitioning for a governmental redress of grievances. This amendment has made its way into the spotlight again because more and more people are being arrested for civil disobedience, filming police, or participating in protests- all protected 1st Amendment activities. Violations of 1st Amendment give a right of action to sue the state actor for civil damages.
The 4th Amendment prohibits “unreasonable search and seizures” and “government intrusion into their persons,” whether through police stops of citizens on the street, arrests, or searches of cars during traffic stops. The right applies any time you are stopped, pulled over, arrested, detained, or in the safety of your home. Evidence seized in violation of the 4th Amendment is unlawful, and cannot be used against you in court.
The 5th Amendment protects you against self-incrimination, which is where the Miranda right, or right to remain silent stems from. This means that whenever you are taken into custody, you do not have to say anything to the police, and can ask for a lawyer. Voluntary statements are statements that will be used against you, so it is best to not say anything. Statements that have been taken in violation of the 5th Amendment (ie. a coerced confession) are also inadmissible against you in court. The 5th Amendment also protects you from “double jeopardy,” meaning you may not be put on trial more than once for the same offense.
The 6th Amendment gives you multiple rights: the right to confront a witness (meaning you may confront the person accusing you of a crime), the right to be notified of the charges against you, the right to a public trial in a criminal case, the right to be evaluated by a jury of your peers, and the right to a ‘speedy’ trial. However, it does not specify exact time limits. Thus, judges decide on a case-by-case basis whether a defendant’s trial has been so delayed that the case should be thrown out. The 6th Amendment also gives you one of the most famous rights: the right to be issued an attorney in a criminal trial, if you cannot afford one.
The 14th Amendment prohibits states from violating an individual’s rights of due process and equal protection. This means that legal proceedings must be fair, following the formal processes, and that defendants are not treated differently based on race, gender, or religion. This is the most heavily litigated portion of criminal law, as racial profiling has been shown to be rampant amongst most police forces, including San Diego.