David M. Boertje

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San Diego’s crime rate has continued its two-year decline, leading the city to the lowest crime rate in almost 50 years, according to The San Diego Union-Tribune. Overall, the newspaper reported a 7% decline in crime between 2016 and 2017. This followed a 2.3% decline between 2015 and 2016. According to San Diego Mayor Kevin Faulconer, the drop in crime rates was the result of increased trust between the community and the police officers along with an increased use of crime data and technology, which enabled the city to allocate its resources more efficiently.

The largest drop in crime rates in the city was among some of the most violent crimes, to the delight of San Diego residents. Murder rates fell a full 32% between 2016 and 2017, with only 34 homicides reported in the last year. The other two crimes with the largest drop include burglary, dropping 20%, and vehicle theft, with 12% fewer in the same time period. Overall, violent crime fell 2% and property crime fell 8% between 2016 and 2017.

According to the Mayor and the police department, the sharp reduction in homicides, including murder and manslaughter, may be attributable to “Shotspotter,” a new technology that “automatically informs police officers when shootings occur,” according to the San Diego Union-Tribune. After crime data revealed that the southeastern communities of San Diego, including Lincoln Park, O’Farrell, Skyline, and Valencia Park, were most likely to experience gun violence, the “Shotspotter” system was set up in the area. Since 2016, there have not been any deaths by gun violence in those areas. The Chief of San Diego Police attributed the drop in property crime to an undercover operation lasting eight months last year, leading to the indictment of 60 San Diego residents.

San Diego is not the only city in the area, or in the state of California, to see a reduction in crime rates. Escondido, notably, saw a 21% decline in the overall crime rate during the first half of 2017, the time period with the most recent data available according to the newspaper. According to Escondido Lt. Ed Varso, most of that reduction consists of a 24.2% reduction in property crimes caused by the police departments “proactive stance” to California’s criminal justice reform initiatives stemming from the passage of Proposition 47, which was approved by California voters in November 2014.

Proposition 47 significantly reduced penalties for non-violent, low-level crimes that occurred in the state of California, including shoplifting, grand theft, receiving stolen property, forgery, fraud, writing a bad check, and personal use of most illegal drugs. The reduction only applied to those crimes of theft below $950. The law, which went into effect in January 2015, allowed over 1 million Californians to change past felony convictions to lower-level misdemeanors.

The other nearby cities of Vista, Carlsbad, Chula Vista, El Cajon, and Oceanside saw a reduction in the crime rate, albeit a smaller one, when comparing the first half of 2016 and the first half of 2017. Continue reading

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Under a “little-noticed provision” on Proposition 64, the voter-approved law legalizing recreational marijuana, California residents with marijuana convictions may be eligible to have those felonies and misdemeanors reduced or, in many cases, fully expunged off their criminal records, according to The San Diego Union-Tribune. According to the San Diego District Attorney’s Office, the city has proactively expunged 700 criminal records since the law came into effect at the beginning of the year and released 55 people incarcerated because of marijuana. The city still has 4,000 cases awaiting action by the courts.

For California residents who have been impacted the most severely by their marijuana convictions, so-called “high priority” convictions, the public defender’s office and district attorney’s office have moved aggressively and quickly to expunge the records. These include California residents who have marijuana convictions preventing them from gaining employment or limiting their access to government benefits or housing.

According to Summer Stephan, interim district attorney for San Diego, “We want to be pro-active. It’s clear to us that the law was written to allow this relief, and it’s important that we give full effect to the will of the people, especially for those who are most immediately affected.”

The problem, according to the San Diego public defender, is that there is no unified system for identifying marijuana-related convictions. The current database only goes back to the early 2000s, therefore, individuals with marijuana convictions in California may need to proactively petition the courts for an expungement. “It won’t happen overnight, but we are committed to seeking relief for everybody who is entitled,” said Angie Bartosik, chief deputy primary public defender. Bartosik noted that for those seeking relief under Proposition 64, there is a form available online at courts.ca.gov and, for most, filling out the form will be sufficient to expunge their records.

Effectively expunging all marijuana convictions is a statewide problem. Only 5,000 Californians have sought to have their marijuana convictions removed from their records, according to the Drug Policy Alliance. Considering the fact that there were more than 500,000 people arrested for marijuana just between 2006 and 2015, this means that hundreds of thousands or more Californians are likely eligible. In San Francisco, where only 20 people have filed petitions for expungement, district attorney George Gascon announced that the city will proactively search and expunge all marijuana convictions dating back to 1975. The San Francisco DA estimates that this would include over 3,000 misdemeanors and almost 5,000 felony convictions. Continue reading

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In a remarkable story reported by the Voice of San Diego, neighbors reportedly called the police on a home in Chula Vista 53 times before Border Patrol and the San Diego County Sheriff’s department stumbled upon a human smuggling ring. The city had been getting reports for over five years and still failed to uncover the ring.

Back in November of last year, police pulled over a vehicle for a taillight infraction, without suspecting that anyone involved was guilty of other crimes. Panicked, the passenger took off. The chase led them directly to a home where police and border patrol responded to a request for backup. They happened upon a human smuggling event taking place right in the driveway.

Police records show that 53 calls have been made on that house. The neighbors have reported everything from grand theft, assault, child abuse, and domestic violence. The Police Department says they did not have any indication a human smuggling ring had been operating throughout that time, which is why nothing was done about it the first 53 times. Both Border Patrol and the Police Department ended up making 12 arrests that day, most of which were undocumented immigrants. Nine were taken by Border Patrol. Three of them face alien smuggling charges, while the other six are being held in federal custody as material witnesses in the smuggling case.

However not everyone is convinced that it was sheer chance. Ginger Jacobs, an immigration attorney, said she is not familiar with this incident but has seen other cases in which immigration officials used traffic violations to stop and detain undocumented immigrants. Jacobs said it is not uncommon for Border Patrol to look for people as part of an immigration sting by looking for their cars. The two agencies have flatly rejected that they were looking for a reason to pull the suspect over.

Immigration Pretext Traffic Stops

Traffic stops motivated by immigration status seemed to have surge since Trump took office, all the way from California to states like Georgia. In fact, the Supreme Court has already partially upheld an Arizona law requiring police to make reasonable attempts to determine an individual’s immigration status if there was reasonable suspicion s/he was unlawfully present in the U.S. See Arizona v. U.S. 132 S. Ct. 2492 (2012). The police can currently pull you over for almost anything they deem legitimate (ie. tinted windows, texting while driving, etc.). While local police do not have jurisdiction to enforce immigration status, they can detain you long enough to call ICE or border patrol over to investigate you further. Continue reading

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In 2017 alone, the California legislature passed nearly 900 bills that Gov. Jerry Brown then signed into law. Most of them take effect in January 2018. Here is a summary of the key criminal law changes that will take effect this year:  

  • No California school employee can carry a concealed weapon onto campus. Before, school officials had discretion over the issue.
  • Anyone who “willfully records a video” of a violent attack as an attacker or accomplice and streams it online on sites such as Facebook could receive tougher punishment.  See A.B. 1542.  The new law does not require a judge to hand down the tougher sentence, and applies only to the 23 existing crimes in California identified as “violent” felonies.
  • No juvenile offenders will have to serve life without parole and those already behind bars would become eligible for release after 25 years. This reform is intended to ease punishment and fines for young people.
  • Counties may no longer charge fees to a family for everything from detention to monitoring of juveniles. This old policy was criticized for disproportionately affecting low-income communities of color.
  • It is now a misdemeanor to openly carry an unloaded long gun in public unincorporated areas outside of incorporated cities that are deemed by counties as not appropriate for such firearms. This law was requested by the Los Angeles County Sheriff’s Department to expand state law that already bans openly carrying handguns in areas outside cities.
  • Californians convicted of crimes that require them to get rid of their firearms must now prove they have done so before their court cases can be closed. This change is due to Proposition 63, a ballot measure that passed last November. The measure was obviously opposed by the NRA.
  • Assembly Bill 41 would require law enforcement agencies to report to the state how many sexual assault kits they collected and have examined, and how many they have not. Agencies also have to explain why a rape kit was not tested. This law was opposed by the Sheriffs Association that claims testing every single rape kit will be a financial and resource burden to the state.

Continue reading

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As Jeff Sessions creates chaos in the marijuana community with his rescission of the Obama policy of non-interference with marijuana-friendly state laws, U.S. Attorney Adam Braverman issued a statement backing Session’s new policy. He stated that the change “returns trust and local control to federal prosecutors” to enforce the Controlled Substance Act. Other U.S. Attorney Generals in states like Colorado have said their offices will not change their lenient approach to marijuana crimes.

What Exactly did Jeff Sessions do?

While marijuana currently remains illegal under federal law (the Controlled Substances Act), eight states including California, Oregon, and Colorado have legalized the drug, as has Washington, D.C, creating a conflict of law situation. 28 states currently permit some form of medical marijuana use.

President Obama’s Justice Department issued a policy in 2013 which generally barred federal law enforcement officials from interfering with marijuana sales in states where the drug is legal.  Sessions issued a memo in his capacity as Attorney General that will instead let federal prosecutors where marijuana is legal decide how aggressively to enforce longstanding federal law prohibiting it. The one-page memo states: “In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions,” by considering the seriousness of the crime and its impact on the community.

These changes come just after the New Year, as legal weed shops opened in California.  California is expected to become the world’s largest market for legal recreational marijuana, and is overwhelmingly supported by American voters.

While Sessions’ Justice Department had been largely carrying out Trump’s top priorities until now, this marijuana policy strictly reflects his own personal feelings. Sessions has compared marijuana to being as harmful as heroin.

It is unknown yet how this policy will really affect California’s marijuana market and criminal charges.

Pot Has Nothing to do With San Diego’s Violent Crime

A recent survey (titled “The 2017 National Drug Threat Assessment”) of law enforcement and intelligence agencies conducted by the federal Drug Enforcement Agency says marijuana usage has been responsible for 0% of crime increases in San Diego. Rather, the report concluded that meth entering the country through the Southwest border remains the biggest threat to crime rates.  Meth smuggled from Mexico is predicted to increase due to the demand in the U.S. and lack of availability of it, compared to marijuana. Continue reading

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It has been reported that two men, Jon Ritzheimer and Ryane Payne, involved in the occupation of Malheur Wildlife Refuge in Oregon, haveviolated their release conditions by visiting the Bundy ranch in Nevada without permission. Evidently, the evidence was in Facebook photos and discovered by a federal pretrial services officer in Oregon who notified Brown. As a result, U.S. District Judge Anna Brown has moved up Jon Ritzheimer’s date to surrender to prison from Feb. 15 to Jan. 12. Ryan Payne was ordered to return to home detention in Las Vegas. Both men have been forbidden from having contact with any defendant from either the Oregon or Nevada standoff cases before their prison sentences begin.

Originally, Mr. Ritzheimer’s release condition had specified a no-travel restriction that only allowed him to travel from Arizona to Oregon for court proceedings. Mr. Payne was given permission to go from Las Vegas to Montana for Christmas after a mistrial was declared last month for the Bundy-affiliated defendants involved in the Nevada armed standoff in 2014. Neither of the men was allowed to go to the ranch. Judge Brown decided to deal with the allegations informally instead of through formal proceedings.

Violating Release Conditions in California

There are several ways a court can conditionally release you from prison or jail. You can be released on bail before your trial proceedings start, released on your own recognizance (which does not require paying bail), or you can be released on parole after you have already served some jail time.

If you have been released on your own recognizance, it means you have simply promised to attend all court dates and proceedings. See CA Penal Code § 1318. This option is saved for those who are a low flight-risk and are not accused of serious crimes. Failure to appear in court then, results in another misdemeanor if you were charged with a misdemeanor, and a felony, if you faced a felony charge.

If you have been released on bail, that can come with certain conditions from the judge, such as staying away from certain people. A violation of a bail release can result in either a warning, arrest, a revocation of bail (going back to jail), an increased amount of bail, more restrictive bail conditions, and even a contempt of court charge. Continue reading

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In San Diego, criminal charges were filed against a a La Jolla couple accused of maintaining dangerous, substandard living conditions at a Mid- City apartment complex they own. This was announced by the City Attorney’s Office earlier this week. John and Mahin Nobe, who currently face 10 criminal charges, are repeat offenders who have been previously prosecuted for similar violations and for leasing to illegal marijuana dispensaries. Amongst the charges are misdemeanor charges of providing inadequate heating and improper wiring as well as permitting an infestation of vermin and visible mold growth on their property.

Prosecutors allege that the couple’s Rex Avenue apartment complex in Mid-City was leased in July, August, and September to seven Congolese refugee families with young children. The apartments were rented for up to $2,250 a month. The families complained about the substandard conditions, but their requests were ignored. A city inspector with the Code Enforcement Division of the Development Services Department found numerous violations, including mold, rodent and roach infestation, inadequate heating, inadequate sanitation, improper electrical connections and a lack of proper fire exits and fire extinguishers. It is also reported that the inspector found junk outside the building. The apartments were also illegally converted from two-bedroom apartments into three or four-bedroom units.

The City Attorney’s Office, Administrative Law Judge Michael Scarlett ruled in an administrative ruling that the property was substandard under city and state codes and considered a public nuisance earlier this month. The judge ordered the couple to reimburse the city of San Diego $34,278 in relocation benefit payments advanced by the city to the seven families. They were also assessed a civil liability of $10,000 for their failure to pay relocation benefit payments directly to their tenants. They were also ordered to reimburse the city for the $6,845 in investigation costs.

Criminal Liability on Landlords

California Law requires landords to ensure that certain conditions are met to make the living space habitable and safe for tenants. These conditions ensure proper electric, gas, and plumbing utilities as well as getting rid of fire hazards. Landlords are also legally obligated to secure the premises in order to prevent foreseeable criminal acts in the area, such as robberies or thefts.  This means locks and appropriate security.

Lastly, S.B. 655, which was signed into law by Governor Jerry Brown in 2015, makes it a misdemeanor for a landlord to fail to provide things such as inadequate heating or failing to remediate a mold problem. Continue reading

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A San Diego sheriff’s deputy is under criminal investigation, as three additional women now have come forward with legal claims alleging that he improperly groped them under his color of authority. Deputy Richard Fischer has been placed on administrative leave while Sheriff Bill Gore and investigators conduct separate internal and criminal probes of the accusations. It is reported that 10 women have accused Fischer of sexual misconduct.

The county of San Diego now faces one filed lawsuit and two legal claims, which are required to be filed in advance of civil litigation as a result of the allegations. The accusations, one of which dates back two years, could cost the county millions of dollars in legal settlements. All three women are being represented by San Diego attorney Dan Gilleon. According to Gilleon, the three victims spoke out after being inspired by each other.

The latest allegation comes from a San Marcos woman, whose claim was filed on behalf of her by attorney Gilleon. According to this claim, the deputy hugged her without consent and grabbed her buttocks. According to the claim, Dep. Fischer tried to kiss her. The claim seeks more than $6 million, plus “punitive damages against Dep. Fischer in an amount sufficient to punish him and his evil conduct, and to deter others from doing what he did.” It also references another lawsuit filed earlier this month, resulting from a groping incident in 2015.

Three of the women said in a joint interview Wednesday that they are angry and frustrated that Fischer has yet to be arrested, and in addition, is not even facing charges. There is the underlying concern that the officer is being protected by the sheriff and District Attorney Summer Stephan.   Defendant Fisher has not responded to requests for comment.

Claims Against San Diego County

Before a lawsuit is filed against the county, claims against the county must be completed in accordance with the California Government Code, sections 900-915.4.  The county then has 45 days to process and investigate your claim. The result of the claim may result in a settlement offer or a formal denial.

If the settlement or claim does not give the victim what he or she wants, the victim has a right to file a civil lawsuit against the county. Most of the time, that is the only way to obtain justice against police misconduct. Continue reading

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At the end of 2017, Governor Jerry Brown announced pardons or sentence reductions for about 150 convicted criminals, including eight cases whose crimes were committed in San Diego County. In total, the governor pardoned 132 people and commuted the sentences of 19 people.  This included pardons for about 60 people convicted of making, selling, or possessing drugs, including marijuana. Only one of the cases from San Diego county was a commutation.

Amongst the cases of pardons, was that of Jeremy Stewart, who was convicted in 2010 for burglarizing two homes and stealing thousands of dollars worth of property. Under the three strikes law, he was sentenced to 70 years to life in prison. His prior convictions included other burglaries, petty theft, receipt of stolen property, and being a felon in possession of a firearm.

According to Brown’s commutation, Stewart acknowledged his criminal history and a drug addiction. He has been a model prisoner and during his incarceration received a degree in social and behavioral science from Coastline Community College. As a result, he will be released on parole, with the support of the Board of Parole Hearings.

What is the Difference Between a Sentence Commutation or Pardon?

Most governors in all 50 states have the power to grant pardons or reprieves for criminal offenses under state law. A pardon wipes out the conviction and makes it so the crime effectively never happened, while a commuting of a sentence merely reduces the sentence.

How to Apply for a Pardon

Instructions on how to apply for a pardon can be found on the state of California website. To be considered, an applicant must have been discharged from probation or parole for at least 10 years without further criminal activity during that period. There is no fee for applying for a pardon.

Additionally to qualify for a pardon, you must be a resident of California, and the conviction must be from the state of California. The Governor of California cannot grant a pardon for a conviction from another jurisdiction, such as another state or a federal proceeding. The first step in applying for a pardon is to obtain a Certificate of Rehabilitation from the Superior Court in the county where the applicant currently lives. If the Court issues a Certificate of Rehabilitation, the certificate is forwarded to the Governor’s Office where it automatically becomes an application for a pardon. Once an application is submitted, the review process must take place. If the governor decides to take action, the applicant will be notified. Continue reading

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It has been reported that Governor Jerry Brown signed into a law that would make it a crime to “willfully and repeatedly” decline to use a senior transgender patient’s “preferred name or pronouns.”  SB 179 (“Gender Recognition Act”) was signed into law back in October. The law will allow individuals to update state-issued identification documents (including birth certificates, state identification cards, and driver’s licenses) to select “nonbinary” as their gender.

Specifically, S.B. 179 states: “It shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status.” Among the unlawful actions are “willfully and repeatedly” failing to use a transgender person’s “preferred name or pronouns” after he or she is “clearly informed of the preferred name or pronouns.”

However, there has been some confusion about the consequences of the law. The sponsor, Democratic state Sen. Scott Wiener, has claimed that nobody is going to be criminally prosecuted for using the wrong pronoun. Rather, Wiener says that the bill is aimed at at protecting transgender and other LGBT individuals in hospitals, retirement homes, and assisted living facilities. It is intended to ensure that those medical facilities accommodate transgender people and their needs, including letting them decide which gender-specific bathroom they prefer to use.

This law may also affect employment law, as employers should also allow both nonbinary and transgender employees to indicate their preferred name and choice of pronoun while updating their staff health records.

It is reported that a healthcare worker who is found guilty of repeatedly breaching the law would be facing a maximum fine of $1,000, a year in prison, or both. The proposed legislation has met fierce opposition from conservative groups, criticizing the law’s overreaching authority and the threat to freedom of speech.

Up until now, crimes of discrimination, were covered under California’s hate crime laws, which are covered under California Penal Code § 422. Continue reading

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