San Diego Criminal Lawyers Blog

May 17, 2024

What is a Wobbler in Criminal Law?

When looking at the potential penalties related to criminal charges you are facing, it can be more than a little unnerving. That is one reason it is so important to have an experienced attorney on your side. The fact is that there are many details in criminal law, one of which relates to the wobbler. Yes, the term sounds a bit trivial and flip, but wobblers are very serious business in the criminal justice system. Successfully addressing a wobbler in a court of law can have an enormous impact on the penalties you face, from incarceration to fines and beyond. What, then, is a wobbler?

Wobblers

Wobblers are an exclusive class of crimes that vary in their level of seriousness. Plenty of offenses are wobblers, including property defacement, domestic violence, vehicular manslaughter, and assault with a deadly weapon. Some of the most common wobbler cases include certain drug charges, sexual battery, and forgery. Notably, these crimes may be charged as either a misdemeanor or a felony, meaning the penalties can be fairly mild or very, very serious. A guilty verdict could land an offender with a simple fine, in the county jail, or with a lengthy prison sentence.

Misdemeanor or Felony?

A judge considers the specifics of cases involving wobblers to determine whether the crimes should be charged as misdemeanors or felonies. Some factors to be weighed include the severity of the crime, as well as any previous charges and convictions the defendant may have amassed.

Felony Charges Have Long-Term Implications

Certainly, being charged with a misdemeanor, even a gross misdemeanor, has far better outcomes for defendants than felony charges. Besides having much lighter penalties, the social shame associated with felony charges is much tougher than is it for misdemeanors. And there are more:

Felons may be denied housing;
Felons cannot vote while in prison or on parole;
Felons may not serve on a jury while imprisoned;
Felons may have professional licenses revoked, suspended, or disqualified permanently;
Felons may be barred from working with labor unions, banks, federal defense contractors or subcontractors, and more;
Felons may be denied other employment opportunities based on employer preference;
Felons cannot serve in the armed forces;
Felons cannot purchase or possess firearms, and could be charged with another felony if they violate this rule for anywhere from 10 years to life;
Certain felons may not hold public office;
Felons may not be eligible for student loans;
Felons may not be eligible for public assistance;
A felony record may be more difficult to expunge.

May 10, 2024

Cross-Examination Can Be Tricky

by David M. Boertje

If criminal charges have you headed for a trial and you are determined to testify in your own defense, be prepared for a rough cross-examination experience. Prosecutors know how to paint people in a negative light, and they will undoubtedly be prepared to try to overwhelm you with a variety of questions and techniques

Prosecutors’ Goals

A prosecutor is single-mindedly trying to undercut your story by attempting to catch you in discrepancies and inconsistencies. They will try to get you to confirm the facts that they have presented while simultaneously dinging your credibility, all in pursuit of a guilty verdict. You can anticipate a premeditated and planned-out attack.

May 3, 2024

Deadly Force: How are Police Doing in California?

by David M. Boertje

Since 2020 this country has seen thousands of protestors standing up to excessive police use of force. The aim was to bring awareness to a serious issue affecting countless communities across the United States and to get the police to rein in tactics that historically resulted in serious injury or death during police encounters. Have the protests made a difference?

Racial Statistics

Police killings of civilians topped out in 2022 with 1,176 deaths. But that number exploded to over 1,200 in 2023, making it the deadliest year for deadly law enforcement actions in the last decade. It is likely no surprise to many that Black people fared the worst:

They are the most likely demographic to be killed by police in numbers disproportionate to their population;
The rate at which they are killed is triple the rate for white people;
They are more likely to be unarmed than white people;
The biggest group of unarmed people who were killed were people of color;
Most killings by police occur as a result of non-violent offenses, mental health checks, or relating to traffic stops.

Other Facts

While killings are on the decline in urban areas, they are on the rise in rural areas. The numbers remain steady in suburban zip codes. More incidents are occurring involving county sheriff’s offices. Over 30% of victims were killed while fleeing from police on foot or in a vehicle. 98.1% of deaths related to law enforcement interactions have not resulted in criminal charges for any officers involved in the incident.

California’s Numbers

The statistics here in California are nothing to shout about. Of 1,478 killings by police, Black people were nearly four times as likely to be killed, and Latinx people were 1.5 times more likely to be killed than white people. However, not all police misconduct results in death. Of more than 60,000 complaints of police misconduct over a five-year period, just nine percent of cases were ruled in civilians’ favor. In terms of use-of-force complaints, only 3% of the more than 4,500 complaints ruled for civilians. Overall, the state of California earned a score of 35% by the Police Scorecard based on data from both local and state law enforcement. The lower the score, the more spent on policing, the more arrests for low-level offenses, the more use of force, and the less likely errant officers are held accountable for their actions. On a bright note, the racial disparity in police killings is below the national rate—though still high enough to be of serious concern. Continue reading

April 26, 2024

What do Jury Consultants Do?

by David M. Boertje

What is more terrifying than being charged with a crime that could land you behind bars for an extensive period of time? Going to trial means that a judge and up to a dozen strangers hold your future in their hands. How will they judge you? How will their life experiences play into their view of the case against you? These are critical questions—questions that are often studied by jury consultants.

Who are Jury Consultants?

People with backgrounds in communication, law, social sciences, and linguistics may choose to enter the world of jury consulting. These individuals hold degrees ranging from bachelor’s to Juris Doctor. Their job is to focus on a range of issues related to jury selection. Consultants can play a key role in guiding research, detecting suitable prospective jurors, preparing witnesses for the stand, and responding to the unavoidable changes that occur throughout any major criminal trial.

They Conduct Research

Often, a consultant spends a chunk of their time on research. They may run mock trials, conduct online research related to potential jurors, and consult with clients to develop themes and examine potential issues with evidence.

The Help With Jury Selection

Many consultants spend substantial time in the courtroom and contribute to the process of jury selection. Prior to jury selection, or Voir Dire, consultants may guide attorneys on ways to make a positive first impression on potential jurors. They may even assist in developing questions that help to determine which jurors might be most receptive to their case.

They Help Prepare Witnesses for the Stand

Many consultants’ chief job is assisting in preparing witnesses. This is especially helpful because the average person has never seen the inside of a courtroom, let alone been expected to testify and be cross-examined. In addition to preparing witnesses for the expectations and procedures in court, consultants might assist with things like what to wear, how to present themselves, and how to communicate effectively.

The Monitor

Throughout the trial, consultants often continue to monitor witnesses. Which ones lack credibility? Who is not very likable? These things can influence the approach and course of the defense team.

Are Jury Consultants Necessary?

Naturally, there is a legal team in place to take care of all of this. Even so, some clients may wish to have a jury consultant available to assist. Over time consultants have been involved in a number of high-profile cases, including the trials of O.J. Simpson, Scott Peterson, Bill Cosby, and Kyle Rittenhouse. And in the current criminal proceedings against Donald Trump, a well-known jury consultant has been employed. Continue reading

April 19, 2024

When Medical Professionals are Accused of Healthcare Fraud

by David M. Boertje

This country faces a serious problem in terms of healthcare fraud, and authorities have not hesitated to impose serious consequences. As the most expensive white-collar crime in the country—racking up nearly $100 billion in lost funds — the state of California is more than willing to prosecute fraudsters. Both state and federal prosecutors, in fact, are going after individuals and organized groups who engage in this type of fraud on a daily basis.

Examples of Fraud

Fraud might occur involving individuals who work in hospitals, nursing homes, dentist offices, and more. Professionals and staff who try to cheat health insurance companies are a serious concern because there are multiple ways to engage in a swindle, and a successful fraudster can essentially steal big dollars and impact patient outcomes. Deliberately providing incorrect or false information to an insurance company is the bottom line of many fraud cases.

Double billing insurance companies for a single procedure;
Coding procedures in a way that makes billing more expensive;
Charging for procedures and/or care to increase profits;
Prescribing unnecessary medications and/or procedures in order to get kickbacks from pharmaceutical companies.

Legal Penalties

When the fraud involves under $950, offenders in California may face misdemeanor charges with up to six months in jail and fines of $1,000. Felony health care fraud, however, could mean up to five years behind bars and as much as $50,000 in penalties, or double the amount of the fraud. In the case of medical professionals being convicted, they could lose their professional license. Federal penalties are dependent on the degree of injury that occurs to a patient. Even with no injuries, perpetrators could wind up serving 10 years behind bars. That doubles when serious injury results from the fraud and becomes a life sentence if the fraud results in a fatality.

Federal False Claims Act

Any person or entity who knowingly submits a sham claim for Medicare, Medicaid, or other federally funded programs or who intentionally retains an overpayment for 60+ days is in violation of the federal False Claims Act. In addition to having to pay triple the damages suffered by the Government, perpetrators may have to pay nearly $22,000 per falsified claim.

Defending Fraud Claims

One of the strongest defenses against claims of healthcare fraud is to demonstrate that any perceived billing irregularities were the result of misunderstandings and/or unintentional mistakes. Demonstrating that patients received legitimate care consistent with billing will be important, as will establishing a pattern of providing high-quality care aimed at patient well-being. Continue reading

April 12, 2024

What are the Chances a Judge Issues a Gag Order for Your Trial?

by David M. Boertje

The First Amendment guarantees the right to free speech in this country. Nonetheless, we hear about judges issuing gag orders in high-profile cases, clearly restricting the speech of individuals connected to both civil and/or criminal trials. What gives?

The Point of Gag Orders

Judges typically issue gag orders—sometimes called non-dissemination orders– to restrict people from talking about a case publicly. They can apply to witnesses, attorneys, plaintiffs, and defendants. Protecting the integrity of the court system is the goal of these orders, as judges strive to keep potential jurists from hearing about the case outside of the courtroom. Even so, they are quite controversial because limiting speech is contrary to the First Amendment.

April 5, 2024

Self-Defense in California

by David M. Boertje

If, while defending yourself, someone else, or property, you caused harm to another individual, it’s possible you could be charged with a crime like assault, battery, or even, in the most extreme situation, murder. But you were only defending yourself, so how is this possible? Sometimes it takes a court of law to sort things out and come to an equitable and just conclusion. And when self-defense is a factor, having a good attorney to represent your interests is important.

Legal Requirements for Self-Defense

In California, there are three key elements that must be proven when self-defense is claimed:

You were in imminent danger of being harmed, touched illegally, or killed: This means that the danger was right in front of you, and you had to react to prevent it.
You had a reasonable belief that you needed to react with force in order to address the harm headed your way: Even if you were mistaken in your perception of danger, if you had reason to believe you were in a precarious situation, your violent response may be considered reasonable by a jury.
You used just enough force to eliminate the threat: If your use of force was not proportionate to the threat, it is not a viable defense, meaning if someone slaps you and you beat them to death, you have probably exceeded the force necessary to protect yourself.

Stand Your Ground

Under California law, you are not required to back down or try to run away when facing a threat. You have every right to protect yourself and others when necessary. When it comes to property, it is legally permitted to protect yours and others’ too.

Deadly Force

Deadly force is allowable if that’s what it takes to provide a proper defense. Additionally, as per the Castle Doctrine, you are always allowed to use deadly force when protecting against a home invasion. Even if you do not know the intent or the types of weapons an intruder may have, you are fully within your rights to use deadly force. That’s because when someone forcibly enters your home, it can be assumed they are up to no good, and it is reasonable to believe they will cause harm to you, your family, and/or your property. Continue reading

March 29, 2024

Have You Been Charged With Hazing?

by David M. Boertje

Hazing occurs in high schools and colleges across the country, notwithstanding extensive publicity detailing the dangers associated with it, in concert with laws on the books penalizing those who perpetuate it. Here in California, we have seen our fair share of hazing resulting in horrendous outcomes:

A high school football player in Rancho Cucamonga pleaded with teammates to stop while held in a chokehold and beaten with a belt in the locker room of the school.
A student attending a Riverside college died of heart failure in the course of five weeks of physical abuse.

March 22, 2024

Dangers of Spit Hoods During Arrest

by David M. Boertje

Here in California and across the nation, police use spit hoods to protect officers from being spit on or bitten when individuals engage in this behavior or threaten to, during arrests, transfers, or otherwise, as necessary. It is understandable that police want to avoid such attacks—but there are real concerns about the safety of these hoods.

More About Spit Hoods

These hoods are really just mesh sacks that are placed over an offender’s head, sometimes made with material like what is used in medical masks on the bottom. They have an elastic ring around the opening. The mesh is made to allow wearers to breathe and see while containing any fluids that may be ejected.

These masks are viewed as a restraint, like cuffs or leg irons, and not a use of force. However, it seems that the use of hoods in conjunction with takedowns, strikes, pressure points and other uses of force can result in serious consequences.

Other factors that might make hoods more dangerous for wearers include having drugs in their system or suffering a mental health crisis that may have elevated a person’s heart rate and/or impacted breathing.

Study Conclusions

There is a fair amount of research showing that even the most heavyweight spit hoods out there are easier to breathe in than N95 masks. People who tested the masks say they could breathe even when artificial saliva was sprayed on the hoods to copy what a realistic situation might be like.

But the studies were very different from real life in another way: they lacked the chaos and stress that go hand in hand with a typical arrest. Subjects in the study were not upset; they had not recently tried to escape by running from officers; they had not resisted arrest; and had not suffered tactical maneuvers at the hands of police to get them under control. In other words, they were likely not experiencing a rise in blood pressure, breathing, heart rate, and emotion.

In the Real World

What do people who have had to wear spit hoods outside of a controlled environment have to say about them? It is scary and makes one feel as though they could lose consciousness if things went too far. They also point out that saliva is thicker than the artificial material used in studies, and because arrestees in hoods may bleed or vomit, it makes breathing much tougher than studies imply.

Death Connected to the Use of Hoods

Over the course of ten years, more than thirty in-custody deaths occurred involving individuals who were wearing spit hoods. The hoods were used along with tactical moves or weapons, including stun guns, pepper spray, and hogties, aggravating breathing and heart issues. These facts bring to light the seriousness of decisions made by law enforcement as they arrest and restrain Americans every day. Continue reading

March 15, 2024

Should You Testify in Your Own Criminal Trial?

by David M. Boertje

It is a decision that must be weighed very carefully: should you testify in your own defense? About half of all defendants decide to take the stand to proclaim their innocence. Defendants with prior felony convictions are less likely to testify, often concerned that juries will discover they have had past problems with the law. Likewise, those accused of charges related to gang activity seem to believe juries will be biased against them and are usually reluctant to take the stand. What about you? Will you be able to make the case for yourself that no one else could?

Possible Benefits

Every defendant has the right to testify. Some reasons it may be a good idea include:

The obvious plus side of testifying in your own defense is that you get to set the narrative. You can directly challenge the testimony of other witnesses, clarify misunderstandings, and demonstrate your innocence by directly confronting the charges against you.
If you present as a sincere and credible person, the jury will have the opportunity to see you as a human being deserving of fair consideration and empathy.
The jury will be instructed not to infer guilt if you choose not to testify. Even so, the fact that you are willing to testify demonstrates your confidence in yourself, taking away juror questions about what you may be hiding by refusing to take the stand.

Potential Risks

Although it is your right to defend yourself by taking the stand, doing so is not without potential pitfalls:

Prosecutors will take the opportunity to aggressively question you in the hopes of unnerving you, discrediting you, and generally undermining you.
While you may have a clear understanding of your own perspective, you likely do not understand the legal nuances related to the case.
Anything you say can be used by the prosecution to weaken your case. They will set traps, hoping you open the door to further inquiries along new lines. They can also call additional rebuttal witnesses to contradict your version of events.

If You Do Testify

If testifying is definitely something you want to pursue, keep these tips in mind:

Understand the allegations and thoroughly prepare your testimony, with plenty of rehearsal.
Be calm, respectful, and attentive.
Particularly during cross-examination, maintain eye contact, and answer only as much as you are asked.
If questions are misleading or unclear, rephrase them to get the information out that you want out.
Maintain positive body language.