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Carjacking is a crime in the state of California. It is defined, essentially, as one party using force or threats to take another’s automobile. The penalties for a carjacking conviction can be quite serious. As a felony offense, carjacking can come with many years behind bars. One’s sentence could be as high as nine years. This is why it is critical that when you are arrested for carjacking, you have an experienced and tactical attorney on your side protecting your rights and interests.

David M. Boertje is a San Diego theft crime defense lawyer who has extensive experience providing effective criminal legal defense services to individuals charged with various crimes, including carjacking. The outcome of your case will be heavily impacted by the quality of your legal representation. At the Law Offices of David M. Boertje, building persuasive and compelling legal defenses and providing the highest quality legal counsel for individuals who find themselves facing criminal charges is our focus and objective.

Implications of Carjacking in California

When one party uses force or fear to take a motor vehicle that does not belong to them from another party, against the will of that other party, this is considered the criminal act of carjacking. The party attempting to forcefully steal a car from another party does not even have to be successful to face criminal charges. Even an attempt to engage in such conduct can result in an arrest.

Let’s say you open a car door with someone inside. You try to get them out of the car but they are quick enough to put their foot on the gas and evade you. Should an officer see this scenario, you will be arrested for attempted carjacking. Attempted carjacking has its own penalties with respect to the amount of jail time you could face.

Should you be successful with your carjacking attempt and you take off in another party’s car but there is a passenger in that car, you may also be looking at kidnapping charges. The penalties here are even more severe. Under California’s kidnapping laws individuals who are convicted of this crime are looking at a life sentence in state prison with the possibility of parole.

Ultimately, the extent of the punishment will come down to the details of the crime and the judge’s discretion. The best approach in these situations is to work with an attorney who knows the law, how to protect your rights, and the best way to put together a believable defense that can convince a jury to have doubt about your guilt. If your attorney can accomplish this, that is, put uncertainty into the minds of the jury hearing your case, then you may be able to avoid a conviction. Continue reading

Being arrested for a crime is a distressing situation for anyone. This is particularly true if the crime you have been arrested for is one you did not commit and you were the victim of mistaken identity. There are several examples of innocent people who have been arrested and convicted of crimes that they did not carry out. According to the Innocence Project, of all the wrongful convictions that happen across the country, mistaken identity is the leading cause of these injustices taking place.

After an arrest, it is recommended to get in touch with an experienced and seasoned attorney to have your rights protected. In San Diego, David M. Boertje is a San Diego criminal defense attorney who has your best interests in mind and can provide effective legal representation to help you secure the most favorable outcome for your case.

How Can You Fight Mistaken Identity?

Mistaken identity is responsible for approximately 70% of wrongful convictions. There are several ways that mistaken identity situations can arise.

Errors Made by Police

If the police suspect you are responsible for committing a crime they are going to question you. In doing so, they may employ various tactics to get you to say things that are self-incriminating. Or, the police may use similar methods when they speak to witnesses that motivate those individuals to make false testimony against you.

Errors Made by Eyewitnesses

In the absence of provocation by law enforcement, a person who was a witness to a crime can still make mistakes. This could happen from personal bias or from other issues with memory related to the event.

If you have been wrongly identified as the individual that committed a crime, it is important to get to work on building your defense and finding evidence that shows you were uninvolved with the incident in question. The good news is that there are a couple of things that your San Diego criminal defense attorney can look into to help you overcome your charges.

Once the 1990s began the technology available to forensic investigators made identification much more accurate. DNA testing can be a powerful tool to help those who are wrongly accused prove their innocence. This is one approach to fighting against mistaken identity. 

Another useful defense is if you have a solid alibi, meaning that if you can prove you were somewhere other than the location of the crime scene when the incident took place, this can show that you were not the perpetrator of the crime. Continue reading

Scott Peterson became a well-known name when he was convicted of murdering his pregnant wife Laci in 2002. He was facing the death penalty for the murder. Recently, the California Supreme Court overturned his death penalty sentence. According to Justice Leondra Kruger, the trial judge dismissed jurors who were opposed to capital punishment. Discharging prospective jurors was not the right course of action. What should have happened is that these individuals should have been questioned further on their views.

 

The highest court in the state still maintained the guilty verdict of Peterson’s trial and indicated that prosecutors retained the ability to retry him for the death penalty. Not only did Peterson bring up the unfair removal of some jurors, but he also said that the immense amount of publicity that was put on his case before he went to trial precluded fairness. His trial was actually moved to San Mateo County because a judge said that there was no way he could see a fair trial if it took place in Modesto. Peterson’s lawyer said that there still was no fairness in San Mateo County, where a substantial number of jurors interviewed said that they believed he was guilty. For this reason, his trial should have been moved again to an area where there was not such rampant bias.

 

Despite the arguments surrounding the trial’s publicity, the court said that it would be difficult to find an area that had not already heard about the case so continually moving it would not have made a difference. The amount of attention that Peterson’s trial received was on the level of O.J. Simpson and the Manson family. 

 

Prosecutors are determining what course of action to take. They have not come to a decision on whether they will try him again for the death penalty or just allow him to be sentenced to life without the possibility of parole. One of the considerations that is going to factor into their decision will be the opinions of Laci’s family.

 

The Disappearance of Laci Peterson

 

Laci Peterson was 27 and only a month away from her due date when she went missing on Christmas Eve. According to Scott Peterson, he was fishing in Berkeley at the time of her disappearance. A search for her went on for four months, until a portion of her body and that of her unborn son was spotted by a passerby who was out on a walk. They were found on the rocky shore only a few miles from the location Scott Peterson said he was fishing. Laci’s family was supportive of Scott initially, not suspecting him. But when his mistress, Amber Frey came forward and admitted that she was dating him, that changed. Scott appeared to try to flee but authorities found him in San Diego county with bleached hair and $15,000, where they arrested him.

Continue reading

This post is a continuing series on what to expect following a felony arrest in California. The first two posts reviewed the pre-investigation and arrest phases. The next step is the arraignment and bail phase or custody determination.

Step 3: Arraignment and Bail

After arrest and booking, an accused person is brought before a Superior Court Judge for an arraignment. An arraignment is the accused person’s initial appearance in court and must occur within 24 hours of the person’s arrest. During the arraignment, the accused person learns of the charges filed against him or her by the prosecution. The accused person is read his or her rights and enters a plea or answer to the charges levied a by stating the words, “not guilty” or “guilty” when asked to answer.

Once the charges are levied and a plea entered, a custody determination is made. Usually, people are asked to pay bail or post a bond. In California bail amounts are determined annually by a schedule and set by each county. Click here for the 2018 San Diego County Bail Schedule. The purpose of a custody determination hearing is to assess whether the accused person is a flight risk. Bail is insurance to make sure the accused person returns to court on future dates. The amount of bail is determined by the seriousness of the crime, ties to the community, and prior criminal record, among other factors. The accused person will be asked to pay a certain amount of money or be released on his or her own recognizance for no money.

Bond Explained

If the accused person cannot pay the entire bail amount, he or she may seek the services of a bail bondsperson. Bail bondspersons post or pay the entire bail amount for the accused person and typically charge 10% of the bail amount as a fee for providing bond services to the accused person. The charge is also their fee and is generally not refunded, even if the underlying criminal case results in a dismissal. If you fail to appear as directed by the court at any future court date, all of the bail amount may be forfeited and you may be remanded into custody during the pendency of the criminal action.

Bounding Over

Arraignments are handled by any judge in any criminal court. If the accused person is before a lower court judge at time of arraignment and is being charged with a felony or the misdemeanor charge is upgraded to a felony charge, the case will be “bound over” to the Superior Court for a felony arraignment. A plea is entered again and there is an opportunity to review the initial custody determination. The bail amount may be increased or decreased depending on the circumstances of the case or any new developments that come to light after the first arraignment.

If you have not hired a lawyer before your arraignment, the court will provide you with an opportunity to obtain counsel before your next court date. Continue reading

An investigation into voter fraud by the Siskiyou County Sheriff’s Office has caught the attention of the California State Attorney General’s Office for possible voter intimidation.  According to the ABC affiliate KDRV, about a week before the primary, deputies went door-to-door with loaded rifles to the homes of Asian Americans of Hmong descent threatening them with arrest for voter fraud. The county sheriff claimed that 200 voter applications looked questionable, so deputies and state investigators went to the listed addresses on the applications.  Specifically, due to poverty, many Hmong families live in the same dwelling as other families to be able to make ends meet. That makes it look like there may be a conflict in voter registration addresses.

Hmong communities have historically been the most marginalized and impoverished Asian American community in the nation. The Hmong were key allies with the CIA against the North Vietnamese and Vietcong during the Vietnam war. After the fall of Saigon, many of them were evacuated to the states, mainly central California.

Because of the door-to-door threat of arrest, many stayed home and did not vote. Immigrants who were intimidated fear deportation back to a country that wants them dead.

What is Voter Intimidation?

In what could only be described as the most divisive election in American history, voter intimidation of low-income and minority voters has been on the rise. Voter intimidation can generally be described as trying to coerce or scare someone to abstain from voting, or to vote a certain way. For example, in Virginia, it has been reported that armed militia men standing outside voting booths harassing Democratic voters may be voter intimidation. Other more institutional forms of voter intimidation include police threats of arresting people who have unpaid parking tickets, or misleading robocalls in African-American communities telling them they did not need to vote.

Yes, Voter Intimidation is a Felony

Voter intimidation in any state is a felony. Numerous federal laws prohibit voter intimidation by government officials and by private actors and in most states, those laws are reinforced by state laws prohibiting voter intimidation. Federal law prohibits government actors from discriminating against voters based on race, ethnicity, or religion. However, there is no bright line to distinguish between legitimate poll watching activities and outright voter intimidation at the polls.

Other Relevant Laws for the Election

While every person should be able to exercise his or her civic duty to vote, Californians cannot take a ballot selfie on November 8. While Governor Jerry Brown signed a new law last month making it legal, it will not be legal in time for this election. Continue reading

In Orange County, California, it is reported that the traffic light at Katella Avenue and Bloomfield Street in Los Alamitos switched from yellow to red faster than state law allows, likely causing hundreds of camera-generated tickets to be issued incorrectly, at about $500 apiece. This occurred over a 10-month period. It is an issue because the camera at the intersection photographs drivers that do not make the red light. Los Alamitos’ city manager says that about 1,000 tickets were issued at the intersection in question. At least 19 of those tickets have been tossed out of court.

It was reported last year, that the number of red light cameras being used are surprisingly declining across Southern California and most of the country.  In California, 60 cities and counties have ended red-light camera programs. In Orange County, only two cities left are using them – Los Alamitos and Garden Grove. It is cited that declining revenues, a non-supportive court system, and the increasing number of accidents are the main reason many cities have ended their red light camera programs in recent years. Interviewed city traffic engineers claim that photo enforcement is actually causing more rear-end accidents because people are scared when they see a yellow light at an intersection with cameras.

El Cajon and San Diego suspended their red light camera programs back in 2014, and the LAPD in Los Angeles discontinued their program effective July 11, 2011. California hands out harsher penalties than most states for red-light violations – from $490 to $554 when traffic school fees are included – and considers the ticket to be a moving violation.

Last year California became the third state in the country to pass legislation (Assembly Bill 96) making the ivory market there illegal, which is one of the three largest ivory markets in the United States. However, in December of last year, a “nonprofit” called the Ivory Education Institute, swiftly filed suit in California Superior Court claiming that the bill is preempted by federal law, violates the dormant commerce clause, and also constitutes a taking by effectively destroying the market for ivory in California. The case is currently making its way through the court system.

Compliance with Wildlife Laws: It is a Crime to Own, Sell, or Transport Ivory Products in California

While A.B. 96 is a new take on banning a wildlife trafficked product, most people do not realize that ivory is already illegal to purchase or own in California. This means that it is a crime to own ivory-based products.

Current California law allows the purchase and sale of ivory imported prior to 1977, but it has been nearly impossible to enforce any bans because most people cannot tell when and where a piece of ivory was procured. In fact, last year, the Natural Resources Defense Council commissioned a study concluding that 90% of the ivory for sale in California was probably illegal under existing law. Many ivory dealers have been falsely aging their ivory to make it appear to look old.  

AB. 96 closes the ‘1977’ loophole by banning the “sale, offer for sale, possession with intent to sell, and importation with intent to sell “[any’] ivory of elephant, mammoth, narwhal, whale, walrus, and hippo.” It also includes rhinoceros horn products. Fish and Game Code §2022. This has the effect of banning nearly all ivory going in and out of California. The law also increases penalties to up to $50,000 or twice the value of the goods, “whichever is greater,” and up to one year imprisonment. The law contains limited exceptions for antique musical instruments that have proper documentation showing they’re old and antique objects comprised of less than 5% ivory.

While A.B. 96 is one of the most monumental laws to protect endangered species, California also has some pretty strong anti-poaching laws. Poaching is defined as “the illegal take of fish and wildlife” which can occur during or out of hunting season, or fishing. For example, the penalty for poaching deer in California is a maximum of six months in county jail and a $1,000 fine. Continue reading

A federal judge, Irene Berger, sentenced former Massey Energy CEO, Don Blankenship, to one year in prison and a fine of $250,000 for his role in one of the deadliest mine explosions our nation has ever witnessed. The judge said Blankenship was part of a “dangerous conspiracy,” and it is the maximum penalty she could have doled out for a misdemeanor conspiracy to violate mine safety standards charge. The judge had already ruled that Mr. Blankenship would not have to pay $28 million in restitution to Alpha Natural Resources for cleanup costs.

The explosion at Upper Big Branch Mine (owned by Massey Energy) occurred six years ago on April 5, 2011. It killed 29 men, and Massey Coal was found responsible for the explosion by a state-funded independent investigation. The Mine Safety and Health Administration (MSHA) in its final report concluded that immense safety violations contributed to the disaster, and handed out 369 citations, assessing $10.8 million in penalties. The disaster was the worst we have seen in four decades.

Mr. Blankenship was convicted last December by a federal jury on one misdemeanor count of conspiring to violate federal mine safety laws, while being acquitted of more serious counts of lying to investors and regulators. Blankenship had maintained no culpability throughout the trial and investigation process, while his attorneys contended he should receive probation and a fine, at most. While it was the maximum sentence available, victims of those who were killed contend that the punishment still does not fit the crime.

Mr. Blankenship is the first chief executive of a major U.S. corporation to be convicted of workplace safety related charges following an industrial accident.

Criminal Penalties for Workplace Safety Violations

The example above is just one illustration of how one disaster can touch upon the criminal law, wrongful death, and employment law fields. Under both federal and state law, employers are required to provide a safe working environment for employees. There are strict penalties for violations.

California specifically allows for criminal prosecutions arising out of workplace deaths.  Specifically, Section 6425 of the California Labor Code authorizes penalties for supervisors who have responsibility for the “direction, management, control or custody of others” to be fined up to $100,000 and imprisoned for a year when there is willful violation of any occupational safety or health which results in the death of any employee. See CA Labor Code §  6425. The California Occupational Safety and Health Administration maintains a list of significant violations that have been cited on their website. Additionally, the California Occupational Safety and Health Act is stronger than the federal OSHA law and also provides for steep penalties. Continue reading

In an unprecedented case, Apple, the ever-popular electronics company, has argued that the FBI is violating its constitutional First amendment rights. In a 36-page legal brief submitted in the District Court: Central District of California, Apple made its first formal rebuttal to a court order ordering Apple to code a software that would make it easier for the government to crack open the phone of the San Bernardino gunman, Syed Farook.

Apple’s legal team, led by George W. Bush’s former solicitor general, Theodore Olson, claims that computer code is speech, which cannot be compelled. Compelling Apple to write a code it does not want to violates the first amendment. Moreover, Apple has accused the federal government of being indifferent to privacy concerns and being dishonest in how legally valid the request was.

Lastly, Apple has claimed that the order violates its fifth amendment due process protections by leaning too heavily on the archaic 1789 All Writs Act. Essentially, the Act allows courts to issue whatever legal orders they need to issue in order to do their jobs. See 28 USC §1651.  Essentially, the company claims that forcing them to write a special code for the FBI is burdensome, illegal, and unfair.

As if this year’s race to the White House could not get any more dramatic or contentious, Kansas City police in Missouri pepper sprayed a group of protestors outside Donald Trump’s rally.  According to the Kansas City police, they did it to break up two large groups of people who were ready to fight. They also claimed that they arrested two people for failing to follow the law.  Meanwhile, inside the event, Trump was continually interrupted by protesters, who were quickly escorted out by police. The move by police marks yet another moment of conflict at a Trump rally. Chaos ensued earlier in the same week when he canceled his campaign stop at the University of Illinois in Chicago after protesters flooded the pavilion.

Pepper spraying protestors is a rare occurrence when it come to presidential campaign events, but it is becoming more and more common in this election cycle. This week, the NYPD pepper sprayed a crowd of protestors that were marching towards the Trump International Tower. There were thousands of protesters walking from Central Park to the Trump tower.

Trump has said during his Kansas rally that he wants charges filed against all the people protesting him. In addition to police force, his rallies bore witness to violence in Arizona and Ohio, and his campaign is notorious for violent and racially charged rhetoric.

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