David M. Boertje

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Earlier this month, Superior Court Judge Tamila E. Ipema issued a court order that the San Diego County District Attorney, Bonnie Dumanis, must return $100,000 of seized assets back to a medical marijuana businessman and his family. Over a year ago, DEA agents raided James Slatic’s business, but did not charge anyone with a crime. They used sledgehammers to break open the front door of Med-West Distribution, Slatic’s business that supplied a collective of medical pot shops with cannabis oils used for vaping as well as marijuana-laced edibles, topical creams, and other products. The agents seized all of the inventory, business records, and just over $324,000 in cash (a separate forfeiture proceeding for those funds is ongoing).

A few days after the raid, the District Attorney’s office also froze Slatic’s personal bank account, along with the accounts of his wife and two stepdaughters, alleging that the money was illegal drug profits. They took $55,000 from Slatic’s account, $34,000 from his wife’s account and more than $5,000 each from the couple’s two daughters. The money was not formally seized until months later. Dumanis has used state and federal civil asset-forfeiture rules for years to confiscate millions of dollars from drug suspects.

Lawyers for Mr. Slatic argued that that money should be returned because it was not part of Med-West’s funds. Mr. Slatic wrote in a statement: “It’s about time. We did nothing wrong. My business operated openly and legally for more than two years; we paid taxes and had a retirement program for our 35 employees.” The District Attorney’s office has argued that they do not have to return the money until 12 months after money is formally seized, not 12 months after it is actually seized.

Formal Procedures of Civil Asset Forfeiture

Civil asset forfeiture occurs when the government (ie. police) literally seizes someone’s property without compensating them, based on the suspicion that the property was used in connection with criminal activity. The government has to follow certain procedures before it can declare forfeited property.

Schedule I substances (drugs) can be seized by policy without any formal petition of forfeiture. See CA Health and Safety Code § 11475.  

When police seize personal property worth less than $25,00 they must give notice of formal forfeiture proceedings to all property owners. See CA Health and Safety Code § 11488.4(j). You must be given an opportunity to file a claim if you recieve this notice, which must be filed within 30 days of the received notice.

California law prohibits police from keeping seized cash and property valued at less than $40,000 in federal cases without obtaining a criminal conviction. Continue reading

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A young man named Juan Manuel Montes Bojorquez, 23, who may be the first “dreamer” to be deported under the Trump administration, has filed what could be the first “dreamer” lawsuit against the administration in San Diego federal court. The lawsuit demands the government release information about his case under the Freedom of Information Act (FOIA), to find out why he was deported.

Mr. Montes was deported back to Mexico after being stopped by a border officer on a bike in Calexico on February 17th. He did not have any ID on him when he was detained. It is reported that Montes was not given an opportunity to see an immigration judge or attorney, and that he was escorted across the border in Mexicali without the copies of the papers that he signed. After he was removed to Mexico, the lawsuit claims that Montes was robbed in Mexicali at knifepoint of a suitcase of clothing. He snuck back in to the U.S. the next day with his wallet, and then turned himself to CBP. He was detained once again and deported back to Mexico. Montes has been living with family in Mexico since.

According to his attorneys, Mr. Montes came to the U.S. when he was 9 years old and since 2014 has been able to legally live and work in the country under the Deferred Action for Childhood Arrivals (DACA) program. According to the Department of Homeland Security, his DACA status had expired, and an illegal entry into the U.S. and a prior conviction for theft put his status in question. Montes has a minor traffic offense and one misdemeanor offense.

Continue reading

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It is reported that California is easing back into executions for convicted criminals on death row, after not having executed anyone in over a decade. California has a sordid history with the death penalty. The process is extremely delayed, with inmates waiting on death row for decades before dying of natural causes instead of being executed. The state has held no executions since 2006, and only 13 since the death penalty was reinstated in 1978. However, the list of death row inmates is twice as many as any other states, up to 749.

California voters voted for Proposition 66 last November, which would keep the death penalty intact and also reform the state’s capital punishment system by speeding up executions. In 2012, voters also rejected Proposition 34 and Proposition 62 in 2016, which would have permanently repealed the state’s death penalty. Voters in a few Southern California counties are also electing district attorneys who put more people on death row. The people of California have definitely spoken: They want to speed up death row, not eliminate it, despite the data that shows it is racially discriminatory. However, it would take an execution a day, every day, for the next two years in order to empty the state’s death row backlog.

Crimes Eligible for Capital Punishment in California

There are several statutes that touch on capital punishment in the California Penal Code. CA Penal Code § 187 addresses “special circumstances murder” which includes:

  • More than one murder conviction;
  • Murder by bomb or poison;
  • Murder of a cop;
  • Murder involving torture;
  • Murder involving gang activity; and
  • Murder involving another serious felony (ie. rape).

California law also provides for the death penalty if you are convicted of:

  • Treason against the state;
  • Perjury causing the execution of another innocent person;
  • Intentionally interfering with preparations of war.

Lastly, CA Penal Code § 190.3 sets out a list of aggravating factors that allow a jury to determine whether a defendant should get the death penalty. For example, juries may consider the circumstances of a crime, such as if the acts were particularly egregious. They can also consider other past violent criminal activity that is not connected with the crime at hand (ie. domestic violence).     Continue reading

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David R. Daleiden, 28, and Sandra S. Merritt, 63, the anti-abortion activists behind the infamous Planned Parenthood video were charged earlier this month in San Francisco Superior Court for 14 felony counts of eavesdropping and secretly recording conversations, and one additional count of felony conspiracy (amounting to 15 felony counts total). California Attorney Gen. Xavier Becerra unveiled a 15-count felony complaint against the activists, alleging that they video-recorded 14 people without their consent at meetings with women’s healthcare providers in Los Angeles, Pasadena, San Francisco and El Dorado. The complaint can be found here.

Back in 2015, the Orange County-based Center for American released a video featuring high-ranking Planned Parenthood employees haggling over prices for fetal specimens as well as describing altering abortion procedures to obtain more intact fetal body parts. That video has largely also been debunked as fake.

In a related development, the 9th U.S. Circuit Court of Appeals also held the same week, that the Planned Parenthood video showed no evidence of criminal activity, and upheld the preliminary injunction barring Daleiden and his fake company from further dissemination of the material. The 9th Circuit rejected the Defendant’s claim that their activity was protected by the First Amendment. Investigations have also cleared Planned Parenthood of criminal charges, but threats and violence against the healthcare provider have still continued.

Legal Ramifications

It is reported that the state of California has the evidence it needs to win the convictions against these anti-abortion activists. California has stronger privacy protections than most states. In fact, the right to privacy is even mentioned in the state’s constitution:

” All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” See California Constitution, Article 1, Section 1.

Prosecutions involving hidden recordings tend to be fact specific. Using a hidden recording device almost already admits the other person assumed the conversation was private and therefore is a violation of Cal. Penal Code § 632, which is at the heart of the California Attorney General’s complaint.

Even citizen journalists have to comply with criminal statutes. The Penal Code only has some narrow exceptions for exposing certain crimes, such as bribery and extortion, and to protect public safety. Continue reading

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Recently, the state Fair Employment and Housing Council (FEHC) finalized new regulations that would further limit a California employer’s ability to use criminal history when making employment decisions. Specifically, the new regulations, which are based on the FEHC’s 2012 Equal Opportunity Commission Guidance, would prohibit an employer from considering a job applicant’s or employee’s criminal history if doing so would result in an adverse impact on individuals within a protected class, such as gender, race, and national origin. This means a job applicant must first prove that an employer’s background screening policy actually has an adverse impact on a protected class. This includes proving that the screening policy disproportionately affects certain groups more than others, such as African Americans.

If an adverse impact is shown, the employer must demonstrate that the policy is job-related and consistent with business necessity. The employer in deciding these two factors must consider the nature and gravity of the criminal offense, the amount of time elapsed since the offense, and the nature of the job held/sought by the employee. Under FEHC regulations, employers must specifically assess people on a case by case basis while considering criminal history. Employers must be able to justify why they rejected a specific candidate. In other words, blanket policies that preclude any criminal record will now be illegal.

It should be further noted that even when the employer implements job-related screening processes, an applicant or employee can still prevail on an adverse impact claim if s/he can demonstrate the employer could use a less discriminatory policy without increasing significant costs.   

Lastly, the new regulations also contain employee notice requirements. This means that before an employer can adverse action against someone based on their record, he or she must give this person notice to refute his or her criminal history.

The regulations will become effective July 1, 2017.

Other Criminal Disclosure Changes

Earlier this year, Assembly Bill (A.B.) No. 1843, which amended Section 432.7 of the California Labor Code, was signed into law to prohibit employers from asking about or considering one’s juvenile records or involvement in the juvenile system if it did not result in a conviction.

Between these new regulations and last year’s law, employers should be careful when considering one’s criminal record. These policies must be narrowly tailored and exclude any blanket prohibitions. Continue reading

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It has been reported by Rolling Stone Magazine that Immigration and Customs Enforcement (ICE) has virtually stopped granting detained immigrants bond or parole, keeping them incarcerated throughout their cases unless they successfully appeal to an immigration judge.  Nationwide, there has been a noticeable drop in bond issuances by ICE. This shift has already been attributed to Trump’s January immigration enforcement executive order, which called for ICE “to ensure the detention of aliens apprehended for violations of immigration law” and to grant parole on a “case-by-case basis.”

However, immigration attorneys say ICE has clamped down even more extremely than called for in Trump’s order.  Many immigration officials are not releasing detainees at all, and punting them straight to the immigration court.  This enforcement strategy has been confirmed by attorneys in 11 states in different regions of the country.

Previously, immigrant asylum-seekers could leave detention after demonstrating fear of persecution as the initial step of their case.  ICE would then offer a bond or a release on recognizance to those who had been apprehended by immigration agents, and would grant parole to those who had requested refugee status at an official port of entry. The agency has instead begun blanket rejections of those types of cases. Immigration lawyers are now rushing to file bond requests for dozens of detainees in immigration court. However, immigrants who present themselves at the border are lawfully ineligible to appeal to a judge if ICE denies them parole.

Many worry that the bond and parole denials could be the beginning of even more widespread detention. Trump has asked Congress for the funds to open up 20,000 beds to expand immigrant detention facilities.

Immigration Bonds

Currently, only in the states of Arizona, California, Nevada, Idaho, Oregon, Washington, Montana, Alaska, and Hawaii can immigrants denied parole request bond from a judge after six months in detention. See Rodriguez et al. v. Los Angeles ICE.

Immigration Bonds

Immigration bonds refer to money paid to secure a detained foreign national’s release that serves as a guarantee to the government that, once out of detention, the bonded individual will attend all immigration court hearings. When ICE detains someone, it also sets a bond amount if the person is eligible. This eligibility is based on a risk assessment. If the immigrant can afford to pay the bond, then he or she will be released upon payment. He or she can also request an immigration judge lower the amount. The immigrant must go back to court on the date of his or her immigration hearing. Continue reading

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It was recently reported that Rep. Duncan Hunter (R-Alpine) is currently under criminal investigation by the federal Department of Justice for allegedly misspending tens of thousands in campaign funds. According to a report by the Office of Congressional Ethics, Rep. Hunter may have appropriated the money from his congressional campaign committee for personal use to pay for family travel, tuition, jewelry, groceries, and other personal expenses. The Committee on Ethics then deferred its investigation at the request of the Justice Department.

At a town hall in Ramona, California, Hunter was asked about his alleged personal use of campaign funds. In response, the congressman said his campaign had made a “mistake” and that the funds had been paid back. He has reimbursed his campaign fund approximately $62,000.

As of March 23rd, Hunter has been under criminal investigation by the Department of Justice/ Federal Bureau of Investigation for the misspending. Federal election officials and the San Diego Union-Tribune have repeatedly raised questions over the last year about his unusual spending.  These spending issues reach back over a year, when the Federal Election Commission (FEC) first questioned Hunter for using campaign funds to pay for video games on 68 occasions.

The Citizens for Responsibility and Ethics in Washington, the group that filed the original ethics complaint against Hunter, said in a statement that “Hunter has shown a blatant disregard for the rules.” The FBI has looked at the financial dealings of more than a half dozen House members in the last decade.

Federal Campaign Rules

Political action committees or campaign committees are organized for the purpose of raising and spending money to elect and defeat candidates. They must register with the FEC within 10 days of formation and abide by disclosure rules and federal limits on contributions. Candidates are not allowed use the funds in these committees for personal use.

California Campaign Rules

California’s Political Reform Act was adopted as a statewide initiative (Proposition 9) by an overwhelming vote in 1974. The state has been a leader in promoting transparency in elections since. The law requires candidates and committees to file campaign statements disclosing contributions received and expenditures made. These documents are public and can be audited by the Fair Political Practices Commission  and Franchise Tax Board. However, the law only applies to state and local elections, and not federal (ie. Congressional ones).

Additionally many cities have adopted local ordinances on the city level that may also have additional regulations and restrictions. Continue reading

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Earlier this year, San Diego police arrested dozens of people believed to be amongst North County San Diego’s biggest criminal gun and drug dealers in a massive takedown. In total, 55 men and women were charged in 10 federal indictments that allege heroin and methamphetamine trafficking, along with illegal gun possession, money laundering, robbery, theft, assault, and burglary. By March 1st, 46 out of the 55 suspects were in custody.

The arrest was part of a year-long investigation involving wiretaps, surveillance, and 150 cops.  Acting U.S. Attorney Alana Robinson says many of the defendants are connected to drug traffickers in Tijuana (most likely the Sinaloa cartel). Mexican drug cartels then used San Diego gang member as distributors of their heroin.

It is reported that eight defendants currently remain at large, two of which are believed to have fled to Mexico. One of them is Yadira “Pini” Villalvazo, who prosecutors identified as the leader Tijuana operation, and imported and distributed heroin in North County to send tens of thousands of dollars back to Mexico. Authorities said the investigation also targeted meth traffickers.

Heroin Laws in California

The possession and sale of heroin is still a crime in California even though there have been a couple reforms that would steer the penalties for first-time offenders towards rehabilitation instead of jail. In 2001, California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act (SACPA). SACPA mandates that those arrested for non-violent drug offenses be offered the opportunity for treatment instead of jail time. Prop 47, passed in 2015, made possession of heroin a misdemeanor for first time offenders and many other cases. Penalties can include a year in jail and a $1,000 fine.

However, it is a felony if you have a prior conviction for possession or if you also have a record for other serious felonies such as manslaughter or a sex crime. See CA Health and Safety Code § 11350. Possession for the sale of heroin remains a felony no matter what, and it is punishable by three to five years of imprisonment and a fine up to $20,000. See CA Health and Safety Code § 11351. You are not eligible for the drug diversion program if you have this conviction.

Selling or transporting heroin is probably the most serious of drug crimes, punishable by up to 25 years in prison. The number of years you face depends on the amount you are convicted of selling or transporting. Continue reading

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Saturday, March 7th marked the seventh anniversary of the Balboa Park “Chelsea’s Run” to commemorate the 17-year-old Poway High School student who was sexually assaulted and killed in 2010 by convicted sex offender John Gardner. Chelsea King was abducted while running in a Rancho Bernardo park by Gardner, the same man who admitted to killing Amber Dubois of Escondido. Garner pled guilty and was sentenced to life without parole.

Six months later, “Chelsea’s Law” was passed after being signed by Gov. Arnold Schwarzenegger. The law sharply increased penalties for those convicted of sexual assaults on minors (including the sentencing of life without parole). It also included reforms to increase outreach to paroled sex offenders most likely to re-offend, and made GPS monitoring mandatory for child sex offenders. It also barred sex offender parolees from being near where children congregate.

A report released five years after the enactment of Chelsea’s Law concluded that at least 332 defendants were charged statewide under various aspects of the Law. In San Diego County, 22 people were charged under the law between September 2014 and August 2015, including two who received terms of 25 years to life.

Aggravated Sexual Assault of a Child

Aggravated sexual assault of a child is an extremely serious crime. It is a felony punishable by 15 years imprisonment to life, along with a fine of up to $50,000. The sentence will increase if there is multiple victims. See CA Penal Code § 269. Additionally, those convicted will be required to register as a sex offender.

One will be charged under § 269 if s/he allegedly sexually assaults a minor under the age of 14, or if the victim is a minor (under 18 years old) and seven years younger than the defendant.

Aggravated Kidnapping

The crime of aggravated kidnapping occurs when someone:

  • Uses force, fear, or fraud against a minor under age 14; or
  • Demands a ransom;
  • Causes the victim bodily harm or death;
  • Violates California’s carjacking law under Penal Code § 215.

See CA Penal Codes § 207, 208, 209. A conviction of aggravated kidnapping carries a prison sentence of five years to life, depending on the circumstances. Continue reading

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In a big announcement, the Lee County Attorney’s Office dismissed the remaining charges against the protestors arrested last fall while protesting the Dakota Access Pipeline. Over 50 people, ranging from their mid-teens to their late 70s, were arrested on charges including trespassing, interference with official acts, and disorderly conduct. While some pled guilty and agreed to pay their respective fines, the majority of protestors pled not guilty and requested a jury trial.

In more than one instance, journalists covering the protests were arrested along with legal observers and protestors. Assistant Lee County Attorney Clinton Boddicker dropped the charges against one reporter, Aaron Murphy, along with those against 10 other protestors that only had one charge against them.   

Those with more than one charge were offered a different deal. One woman, Jessica Garraway of Minneapolis, had her trespassing charge dropped if she agreed to plead guilty to a charge of interference with official acts and pay the maximum fine.

One of the reasons the County likely dropped the charges was in the interests of court efficiency.  “‘If they all ended up having a jury trial, I would probably have had a jury trial every week between now and October, and we still probably would not have reached all the cases,” said Boddicker.

For those who did not show up to court, Lee County says it is planning to issue arrest warrants.

The Press is Supposed to have Reporter’s Privilege

Under the First Amendment of the U.S. Constitution, the freedom of speech and press, and therefore the right of newspapers to cover and publish a story are protected rights that should be free from government interference. However, it is more of a legal gray area when reporters have to news-gather, and go to the protest, or step over a police line to get their photos and story.

Assuming the protest is in a public forum, reporters should not need credentials to cover it—they enjoy a right of access along with the public under the umbrella of the First Amendment.  However, the government is allowed to institute time, place, and manner restrictions on free speech activities.

In those instances, it is recommended that a reporter get credentials or a ‘press pass’ from police departments to be able to cover a protest. Credentials will allow a reporter to cover the protest, but not partake in it. It also does not guarantee that he or she can cross police lines. This means that reporters also cannot “commit” crimes while trying to do their job, such as trespassing. In any event, it can be assumed that police and the current Administration will seek to limit press access and increase retaliation against reporters covering a contentious protest. If you are a reporter, it is recommended you have a criminal defense attorney on-hand if you know you are going to covering an event with high arrest rates. Continue reading

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