David M. Boertje

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California governor Jerry Brown just signed into law A.B. 1671, which would punish the dissemination of secret recordings with health care providers. The bill was sponsored and lobbied by Planned Parenthood in response to the videos released by the Orange County-based Center for American Progress last summer. It is reported that the bill was intended to protect them after the scandal involving the organization’s alleged sale of fetal body parts from abortions.

Last year, the Center for American Progress 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 for tissue procurement agencies. The video has been alleged as fake by Planned Parenthood, but spread like wildfire on the internet.

Because it is already illegal in the state of California to record someone without consent, the bill had been opposed by many civil liberties groups. The ACLU of California wrote a letter opposing the bill early in the legislative process, arguing that it was unconstitutional because it was a content-based restriction on speech.

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It recently made national headlines that a creepy clown craze has swept the globe. Across the nation, police have received reports of people in creepy clown costumes trying to lure children or scare people. While the state of California seems to have escaped it the past several months, creepy clowns have official hit Southern California. Through a series of Facebook and social media posts, it was announced that clowns would be visiting Los Angeles County schools, including Pasadena and Whittier.

In Fontana, California, a 14-year-old high school student was arrested on suspicion of making criminal threats against students on social media. The teen had taken “a scary clown picture” under the name of “FontanaKillerClown” and posted it on Instagram. He was arrested at school and booked into a juvenile detention center. In Glendora, California, police also arrested a 19-year-old man on suspicion of making threats against his old high school through social media accounts dedicated to clowns. The Temecula Valley Unified School District also suffered threats through social media that the schools in the region were going to be shot up by clowns. Lastly, the LAPD has reported that there have been pranksters that have threatened the general public with violence by dressing up as clowns and following/chasing them with kitchen knives.   

While some think dressing up as a scary clown and scaring people is a funny prank, law enforcement certainly does not think so. The wave of clown terror is affecting actual clowns who depend on their profession to pay the bills, and also has the potential to affect the way the nation celebrates Halloween. It is not recommended that you dress up as a clown or any other objectively scary character to threaten or scare people.

Laws that Pertain to Halloween Pranks

  • Criminal threats: You may not realize it, but even dressing up and chasing someone with a knife can constitute a criminal threat. All that is required is that the victim feared for his or her life or safety. See CA Penal Code § 422.
  • Vandalism: Vandalism does not have to involve breaking something or graffiti. Toilet papering and egging your neighbor’s house can still result in criminal charges. See CA Penal Code § 594.
  • Trespassing: If you enter someone else’s property with intent to damage that property (ie. throw eggs), you may also face criminal trespass charges. See CA Penal Code § 602.
  • Restrictions on Sex Offenders: Some states have restricted registered sex offenders from passing out candy, etc. on Halloween. California allows police to do checks to make sure some registered offenders are inside their homes with the lights out.

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This November, California voters will choose whether they want to legalize marijuana. California Proposition 64, the California Marijuana Legalization Initiative (also referred to as the Adult Use of Marijuana Act), will be on the state’s November 8, 2016, ballot as an initiated state statute.  

However, it is reported by the San Diego Union Tribune, that non-citizens, immigrants, legal and undocumented alike, and green-card holders may still face legal consequences for using marijuana. This includes having their citizenship blocked or getting deported and not being allowed back into the country. This is because despite potential state law being enacted, using marijuana is still illegal under federal law. This affects immigrants who are trying to attain citizenship through the federal process.

Currently, almost 13% of San Diego county residents are not U.S. citizens. This is much higher than the national average, which is 7%.    

Current California Marijuana Law

Currently, possession of marijuana for personal use only carries a maximum of six months in jail. See Ca. Health and Safety Code 11357.  Often defendants will plead down to that charge instead of pleading guilty to a charge of ‘marijuana possession for the purpose of sale,’ which carries a three-year prison sentence. See Ca. Health and Safety Code 11359. However, pleading guilty to either crime is still a deportable offense if you are a non-US citizen.

Under federal law, the federal Immigration and Nationality Act (“INA”) allows for the deportation of non-U.S. citizens if they have violated the Controlled Substances Act.  See INA § 237(a)(2)(B)(i); 8 USC 1227(a)(2)(B)(i). This is why it is extremely important for all non-citizens facing criminal charges to hire an attorney who can strategize the best defenses for his or her specific situation.

Back in 2015, Assemblywoman Susan Eggman proposed Assembly Bill (A.B.) 1351, which would allow immigrants facing minor drug offenses to enter a drug diversion program in lieu of the standard criminal process. It would have made it so that immigrant defendants with no previous history of drug crimes would be allowed to enter a drug treatment program and undergo drug counseling before they enter a plea. If they successfully finish the program, drug charges are dismissed, leaving no criminal record to taint their immigration process. However, the bill has not yet been passed into law. Continue reading

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Last week, Divergent actress and activist Shailene Woodley was arrested for criminal trespassing while peacefully protesting the controversial Dakota Access Pipeline. This was confirmed by the Morton County Sheriff’s Department and also posted on the actresses’ Instagram feed.

Woodley had tried to film and live-stream her incident on Facebook, which has been viewed by over two million viewers on social media. At one point, an unidentified officer could be seen telling Woodley, “We can’t talk right here, but you’re going to be placed under arrest for criminal trespassing.” The actress claims that even though she was “trespassing” like every other protestor, she was the only one being arrested because she is “well known.” The Morton County Sheriff’s Department told Us that Woodley, however, was among 27 people arrested “for the same infraction” at the protest on Monday, October 10, 2016. There were reportedly 125-150 people protesting, and Woodley was arrested at about 12 pm.

The contentious Dakota Access Pipeline has faced hundreds of protesters, a Native American camp-in, and legal action. A federal judge on Sunday rejected the Standing Rock Sioux Tribe’s request for a permanent injunction to block the planned pipeline, which disturbs the tribe’s burial grounds and tribal lands. The 1,170-mile, $3.7 million pipeline would be responsible for transporting 470,000 barrels of oil a day.

Criminal Trespass in California

The crime of criminal trespass is codified in CA Penal Code § 602. Criminal trespass is generally defined as entering or remaining on someone else’s property without permission or right to do so.  The statute sets out dozens of situations in which you may face a criminal trespass charge.

Forms of criminal trespass include:

  • Unlawfully entering property with intent to interfere with a business (See § 602(k));
  • Entering farm areas with animals (See § 602(h));
  • Showing up at an ex-partner’s workplace after threatening him or her;
  • Entering closed and restricted land (See § 602(o));
  • Refusing to pay and leave a motel See § 602(s));

Prosecution of a criminal trespass means that beyond a reasonable doubt, a prosecutor has proved you willfully entered or occupied someone else’s property without the consent of the property owner, with the specific intent to interfere with a business or property. You must have interfered with one’s property rights.

It does not matter if you were exercising your First amendment rights in protesting. You will still face the charge if your actions interfered with a business or obstructed the property. Under state law, the crime is a misdemeanor punishable by up to six months in jail and a $1,000 base fine. Continue reading

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In the latest controversy surrounding Republican presidential nominee Donald Trump, the New York Times reportedly published Trump’s tax documents without his permission. The story that ran concluded that Trump declared $916 million in losses in 1995. This amount is large enough to wipe out more than $50 million a year in taxable income over a span of 18 years.

While Trump has obviously threatened legal action against the media outlet, legal experts are saying that there isno clear-cut criminal case against the newspaper. For one, it is not clear who leaked the information. The Times claims it received the documents anonymously in the mail. If this source was accurate, the Times should be protected on First Amendment grounds, since they did nothing illegal to obtain the information. Being a media outlet, the Times has a defense in that its job is to report on matters of public concern.

Trump has so far been the only presidential candidate that has refused to turn over his tax records. His opponent, Hillary Clinton, has stated that Trump refuses to turn over his taxes because he has paid none. It is reported that he has stated “That just makes me smart.”  The Times presented the leaked documents to Jack Mitnick, who was Trump’s accountant for over 30 years. Now retired, he has verified that the documents appear to be authentic copies of portions of Trump’s returns.

Consequences of Tax Evasion in California

Tax evasion is considered a white collar crime, even if it seems as though many corporate conglomerates seem to get away with it. Tax evasion in California is a serious crime subject to serious penalties.

Under California Revenue and Taxation Code §19706, it is illegal for any person or employee of a corporation to: knowingly fail to file any tax return or falsify information to evade taxes, or to willfully and intentionally make false statements on a tax return. Underpaying taxes, which is still considered tax evasion also includes but is not limited to:

  • Not reporting all income earned;
  • Failing to file a tax return;
  • Lying or making false statements on a return;
  • Claiming to be a resident of another state to avoid California taxes.

Violation of the California tax code is punishable by up to one year in jail and a fine up to $20,000. Continue reading

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While Prop. 47 has been in the headlines with all the reforms in California criminal law, Governor Jerry Brown has quietly signed yet another group of criminal reform laws effective in 2017.

Last week, Brown signed into law:

  • S.B. 1134: sponsored by Sens. Mark Leno (D-San Francisco) and Joel Anderson (R-San Diego), would allow prisoners to challenge their convictions with new evidence that would have likely have changed the outcome of their trials, easing the current standard of proof that requires near-certain proof of innocence.
  • A.B. 813: sponsored by Assemblywoman Lorena Gonzalez (D-San Diego), would allow immigrants facing deportation for criminal convictions to offer newly discovered evidence that they were wrongfully convicted. Those eligible are those who have served his or her sentence.
  • S.B. 1139: sponsored by Sens. Steve Glazer (D-Orinda) and Ed Hernandez (D-West Covina) will require police to record all interrogations of murder suspects. These recordings can be used by jurors can to decide whether confessions were voluntary or coerced. The bill has been supported by the California Police Chiefs Association, and effectively expands the current law that applies to juvenile murder suspects.
  • AB 1909: sponsored by Assemblywoman Patty Lopez, will make it a felony for prosecutors to falsify or withhold evidence. The crime would be punishable by up to three years in prison, depending of the severity of the crime. Falsifying or withholding evidence was previously a misdemeanor for the general public and a felony for law enforcement officers in the state. The law is a response to the jailhouse informant scandal that continues to plague Orange County, California, where Assistant Public Defender Scott Sanders has accused county prosecutors and police of violating defendants’ rights for years through illegally obtaining and withholding, evidence taken from jail informants.

The changes do not end there. This November, California voters will actually consider a repeal of California’s death penalty. A similar one was proposed in 2012 and narrowly defeated. Voters will also consider another ballot initiative backed by Governor Brown that would overhaul state sentencing laws and allow thousands of prisoners to apply for early parole. Continue reading

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This September, the notoriously liberal state of California just made it harder for cops to take cash from innocent people. Governor Jerry Brown just signed into law SB 443, which limits the amount of civil forfeiture that is allowed to take place in the state by police and law enforcement agencies.

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. For example, you can be stopped during a routine traffic stop, and police who suspect you of drug dealing may take cash that was in your car based on that premise. They do not need a warrant or criminal conviction in order to do so.

It is well known that corrupt police agencies throughout California have been using civil asset forfeiture as an excuse to pad their budgets. An investigation by the Washington Post identified almost $10,000 in cash seizures that took place without any warrants or indictments.

The Lay of the Land

Compared to other states, California  was already more protective than others.  The state already required a criminal conviction before real estate, vehicles, boats and cash under  the value of $25,000 could be forfeited over to the government.  The standard of proof in the civil forfeiture proceeding has always been “beyond a reasonable doubt,” meaning the state had to establish clear and convincing evidence that the property was connected to illegal activity.

However, California’s state requirements are different from those under federal law.  Under a federal forfeiture, state, local, and federal law enforcement agencies may collaborate (called “equitable sharing”) and forfeit seized property under federal law, even if that would preempt California’s more stringent protections for property owners. This means that traditionally, federal agency such as ICE or the DEA just has to get involved in order for the forfeiture to become federal. Once state departments transfer the seized assets to a federal agencies, they get back 80% of those proceeds.

SB 443 changed that. Starting in 2017, police will first need to obtain any criminal conviction before they could receive equitable-sharing payments from forfeited real estate, vehicles, boats, and cash worth under $40,000. This is intended to prohibit police departments from sidestepping the state conviction requirements by transferring the money to federal agencies. In addition, the law also increased the threshold for forfeiting  cash with criminal conviction to $40,000. Continue reading

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According to an Associated Press investigation, police officers across the country misuse confidential law enforcement databases to get information on romantic partners, business associates, neighbors, journalists, and others for reasons that have nothing to do with their police work. Through multiple public records requests to state agencies and major-city police departments, AP found that officers were fired, suspended, or resigned over 325 times between 2013 and 2015 for misuse of confidential databases for personal gain. Unspecified discipline was also imposed in over 90 instances.

It was reported last year that in California, specifically, there is also rampant misuse and lack of oversight in the state’s Law Enforcement Telecommunications System (CLETS) network.  Confirmed cases of misuse in the state’s unified law enforcement information network have doubled over the last five years, according to public records requests obtained by the Electronic Frontier Foundation pursuant to the California Public Records Act. There are 389 cases between 2010 and 2014 in which an investigation concluded an officer broke the rules for accessing CLETS. And these figures only represent what was self-reported by the government agencies to the California Attorney General, so they are likely underestimated.

No single agency tracks how often the abuse happens nationwide, and record-keeping inconsistencies make it impossible to know how many violations occur.

These Actions Can Lead to Criminal Charges

In 2010, an officer had been sending his ex-wife abusive text messages and using CLETS to obtain information on her new boyfriends. He ultimately pled no contest to a misdemeanor harassment charge, but the charges for violating CLETS were dropped. It is against police department policy and state law to access CLETS for personal reasons. Currently, the CLETS Advisory Committee (CAC) has sole jurisdiction to investigate misuse investigations.

Other Penalties: Violations of State Ethics and Corruption Laws

All too often, misuse of confidential databases and information is connected to other behavior that can lead to criminal charges for corruption. For example, if one obtains confidential information about another state employee, juror, arbitrator, judge, or investigator for the purposes of bribing them, that is a felony that can be punishable by two to four years.     Continue reading

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In the latest fatal civilian shooting to make national headlines, Charlotte, North Carolina police have shot a man named Keith Scott. Scott, like many victims of police shootings, was a black man whom his family claims was unarmed and not a threat. While protesters have filled the streets in the last few weeks, a new North Carolina law took effect on October 1 that will make it much harder for the public to see the footage of what happened to Keith Scott.  

The law passed by the state’s Republican-controlled Legislature runs counter to a nationwide trend in which some cities are actually trying to push transparency to earn back the public’s trust.  It would make any video footage by body cam and dashboard cam not a matter of public record. This would mean that only a judge can release it, and the footage would be exempt from public information act requests.

Calls for the release of the video have become the crux of the protests that ensued after the news of Scott’s death broke. The Charlotte police department refused to release the video to the public.  As of September 24, Keith Scott’s family released the first and only publicly available video which was recorded by cell phone by Scott’s wife.

All Police Body Camera Bills Have Failed in California This Year

For the second straight year, California’s legislature has failed to pass any major legislation regulating police body cams. Multiple bills, both to boost transparency and restrict access, have failed to garner support from lawmakers.

Police departments may adopt their own voluntary policies on police cams. The LAPD became the largest agency in the country to adopt body cameras with an announcement earlier this year, after four years of study and a pilot funded by donations. All 7,000 LAPD officers will wear body cams by the end of 2016, at the cost of $1.5 million.

Police Cam Footage Exempt

Standards for the release and storage of footage vary across departments across the country. As criminal evidence, police body cam footage is also currently exempt from California’s state law concerning public records. Currently, three Northern California counties have adopted guidelines for how long the video footage should be kept, but individual departments are not obligated to follow them. Attorneys who represent law enforcement recommend that departments keep their footage for two years.

In San Diego Specifically, public release of footage is prohibited unless approved by a Police chief or designee. Continue reading

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A new proposed bill in the state of California, A.B. 2466 now sits on Governor Jerry Brown’s desk for his approval. The bill would redefine who is entitled to register to vote, with the intent of restoring voting rights for the many ex-offenders within the state.

Today, racial minorities remain disproportionately excluded from voting as a result of the documented bias in drug law enforcement and sentencing. The “war on drugs” and subsequent decades of mass incarceration have blocked millions of people out of the electoral process. In California prisons, three out of every four men are either African American, Latino, or Asian American. African Americans, who comprise less than 7% of California’s voting-age population, currently represent 28% of those who cannot vote because of felon disenfranchisement.

Voting rights in the rest of the country depends on the state law. For example, two states, Maine and Vermont, allows felons to vote while behind bars. Fourteen states restore voting rights after a prisoner has been released from prison.

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