San Diego Criminal Lawyers Blog

October 5, 2016

Could 1,000 Traffic Tickets be Tossed Out Because of Red Light Camera Error?

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

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

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

September 30, 2016

California Wants to Make it Easier to Prosecute Old Rape Cases; Passes Minimum Sentencing Law on Rape

by David M. Boertje

In the ongoing saga of rape allegations against comedian Bill Cosby, California has become one of two states that has proposed a law that would extend the statute of limitations in the prosecution of rape cases. The proposed bill, which passed both houses of the Legislature, follows a new law in Nevada that increases the legal deadline for rape prosecution from four to 20 years. In California, the statute of limitations to prosecute a rape case is currently 10 years. Almost three dozen states, including the District of Columbia, have statute of limitations on filing sexual assault charges or lawsuits.

The state’s governor, Jerry Brown, who has had a history of vetoing bills extending legal deadlines for filing lawsuits over child sex abuse, must approve or sign into law the bill by the end of the month.

This bill however, is not the only one Governor Jerry Brown must decide to veto or approve. The California legislature, in response to the outrage over the six-month jail sentence for Stanford University swimmer Brock Turner also passed a bill that would mandate a minimum three-year sentence for those convicted of rape or sexual assault. The proposed bill would eliminate a judge’s discretion to sentence defendants convicted of such crimes to probation. Brock Turner was released from jail earlier this month for ‘good behavior,’ after serving three months (half) of his sentence. Had this proposed law been in place, he would still be in jail.

What are Statutes of Limitations?

Every state has something called a statute of limitations, which is generally defined as the time limit for a criminal or civil action. In other words, once a statute of limitations has passed, one may no longer be prosecuted or sued for his or her crimes. A statute of limitations typically begins to run from the date the injury or crime was discovered.

In California, the state’s code has specific time limits for specific crimes, such as fraud, injury to personal property, and malpractice. The current California statute of limitations on prosecuting felony rape and sexual assault cases is 10 years after the crime occurs, or for incidents involving minors, until they reach the age of 26. Continue reading

September 28, 2016

Animal Activist Goes to Trial for Giving Thirsty Pigs Water

by David M. Boertje

An animal rights activist by the name of Anita Krajnc, 48, is being tried in Canada for criminal mischief because she gave water to thirsty pigs at a traffic stop.

Back in November 2015, Krajnc was charged with criminal mischief after clashing with the driver of a tractor-trailer transporting pigs to the slaughterhouse. She and her fellow protestors tried to give the thirsty pigs water as they were stopped at a traffic light on the way to the Fearmans Pork processing plant. The Ontario based hog farmer, Eric Van Boekel, who owned the pigs, filed a police complaint the next day. He claimed he was concerned for the safety of his product the animal rights protesters, who sometimes crowd near the large transport vehicles when they are stopped in traffic. Krajnc is the founder of an animal rights group called Toronto Pig Save. The video that went viral online shows her approaching the driver first to ask him to give the pigs water, since it was such a hot day.

Several online petitions numbering in the hundreds of thousands of signatures have already sprung up in Krajnc’s defense. Krajnc faces a maximum of six months in jail or a $5,000 fine if convicted, and she has pleaded not guilty.

Difference Between Criminal Mischief and Disorderly Conduct

Under California law, CA Penal Code § 594(a), criminal mischief, or malicious mischief, refers to the act of intentionally damaging, graffiti-ing or defacing property. You will be charged with criminal mischief/malicious mischief if you intentionally deface or destroy another person’s property without his or her permission. It does not involve taking another’s property, which is considered theft. A key element of the crime is intentional behavior, and not accidental behavior.

The majority of malicious mischief cases are prosecuted as misdemeanors punishable by a fine up to $10,000 and one year in jail if the amount of property damage is under $10,000. If property damage is under $400, the crime is punishable by up to $5,000 in fines.

Disorderly conduct in almost every jurisdiction, is like a catch-all charge for those crimes that do not have a specific statute covering it. While disorderly conduct laws significantly differ amongst states, the crime is mainly known as “disturbing the peace.” This encompasses any behavior that causes other people alarm, anger, annoyance, or causes them to engage in unlawful activity. California categorizes disorderly conduct offenses into five categories:

General disorderly conduct which includes public intoxication,
Fighting, noise, and offensive words,
Rioting,
Disturbing the peace on a school campus, and
Refusing to disburse such as during a protest.

September 23, 2016

The Difficulty of Enforcing Laws Against Driving While High

by David M. Boertje

NPR just published a relatively detailed story on how difficult it is to enforce DUI (driving under the influence) laws for those under the influence of marijuana. Like the rest of the nation, the state of Colorado has seen a sharp increase in marijuana DUI arrests. So far, State Patrol data illustrates that the number of citations rose from 316 in 2015 to 398 this year.

Colorado’s marijuana DUI law is modeled on the one for alcohol, which sets a number for blood-alcohol levels to determine when someone is too intoxicated to drive. For pot, that number is five nanograms of THC per milliliter of blood. That means it is illegal to drive if you have anything over that level. However, according to the Center for Medicinal Cannabis Research at the University of California, San Diego, measuring a person’s THC is actually a poor indicator of intoxication. This is because unlike alcohol, THC gets stored in your fat cells, and is not water-soluble like alcohol. As a result, one can still test positive for THC even a week after consumption. This is something defense attorneys all too easily point out.

As far as policy implications, scientists at UCSD say that what cops really need is a simple roadside sobriety test.

Driving Under the Influence of Marijuana in California

Aside from normal DUIs, California is one of the many states that have a specific statute that addresses driving while under the influence of marijuana. See CA Vehicle Code 23152(e). One is considered “under the influence” of marijuana if, as a result of consumption, his or her mental and physical abilities are impaired so that he or she cannot drive like a sober person.

The tricky thing with driving while under the influence of marijuana is that there is no “per se” amount of THC in the bloodstream that can easily establish impairment unlike alcohol (.08%). Chemical tests still cannot accurately reveal how much THC one has consumed, or how recently. As a result, police will have to look to other factors, such as: your driving pattern, physical appearance, statements to police, and your performance on field sobriety tests.

If convicted of a marijuana DUI, one may face probation for three to five years, and six months in jail. You will also face extensive fines and a suspension of your driver’s license. If someone is injured or killed as a result of the impaired driving, then one may be facing a felony charge punishable by state imprisonment and a suspension of a driver’s licenses for a year. Continue reading

September 21, 2016

Accused Charleston Shooter Dylan Roof Beaten in Jail

by David M. Boertje

Last month, it was reported by CNN that the unsympathetic Dylann Roof, the accused shooter in Charleston, was attacked and beaten on his way to the shower in Charleston County Detention Center. Roof made headlines last year when he was arrested for his racially motivated massacre of nine black churchgoers at Charleston’s Emanuel AME Church in North Carolina.

Although he is currently in protective custody, Roof, 22, was vulnerable because only one guard was in the area and he was fetching toilet tissue for another inmate. That allowed another inmate, 25-year-old Dwayne Stafford, to run down the stairs from his cell into the protective custody unit and sucker punch Roof. It is reported the detention officer quickly responded and separated the two. There were no weapons involved, and the injuries Roof faced were minor – bruising on the face and back.

It is not surprising that the nature of his crimes make Roof vulnerable to attacks, and that is why he is under protective custody in the prison where he awaits trial. His murder trial is set to start at the end of January, and there are already three federal courtrooms dedicated to it. Roof currently faces nine counts of murder, three counts of attempted murder, and gun charges.

What is Protective Custody?

Protective custody in prison is a type of imprisonment intended to protect an inmate from harm, either from outside sources or other prisoners. Inmates have the right to request protective custody if they believe that the environment they are living in is harmful to their well-being. They can make this request at any time if they feel their physical safety threatened. Corrections officers then keep the inmate making the request locked up and unable to leave until the request is granted. The request may be granted if officials decide that the inmate is truly at risk. Once ‘protected,’ an inmate is typically segregated from the rest of the prison population.

Ideally, inmates under protective custody are housed in a stand-alone unit, with their own eating facilities, shower areas, recreation yards, and visiting rooms. Doctors and staffers visit the unit so the prisoner does not have to travel. Protective custody units have numerous cameras and guards, and can have anywhere from 10 to 100 inmates. Continue reading

September 16, 2016

Yolo County: Motion to Suppress Evidence of Controlled Substance and Paraphernalia Confiscated During Illegal Stop

by David M. Boertje

On July 5, 2016, defendant David Ramirez of Yolo County, California filed a motion to suppress evidence pursuant to CA Penal Code § 1538.5 through his attorney. Mr. Ramirez is charged with possessing a controlled substance and drug paraphernalia, both of which he has claimed was discovered during an illegal traffic stop. Back in January of 2016, Mr. Ramirez was a passenger in a car that was stopped for a cracked rear taillight. The deputies allegedly questioned all the passengers including Mr. Ramirez, and they were asked to be detained for a pat-down (frisk) search. The driver and front seat passenger consented and were searched, and nothing was found.

Mr. Ramirez however, did not consent to the search (and was well within his rights not to consent). The police further pushed and allegedly stated they were only looking for weapons. After Mr. Ramirez consented, the police then reportedly found a meth pipe, which was seized. Mr. Ramirez has argued that his search was unlawful, and the evidence resulting from the search must be suppressed under the “fruit of the poisonous tree” doctrine, as detailed in People v. Williams (1988).

When Does the Exclusionary Rule Apply?

September 14, 2016

White Supremacist Stabs Interracial Couple After Seeing Them Kiss at Bar, Police Say

by David M. Boertje

In the nearby state of Washington, a 32 year old white supremacist named David Rowe was apparently enraged at the at the sight of a black man and a white woman kissing at a bar in Olympia. Police say Mr. Rowe was recently released from the Washington State Penitentiary in Walla Walla, about 300 miles away. He was convicted in 208 for second-degree robbery. It is reported that he may be amongst the state’s homeless, who flock to Olympia for help on their way to Portland or Seattle.

Police report that he had been watching the couple, and walked up to them and without warning, yelled a racial slur and lunged at them with his knife. According to a press release from the Olympia police department, the knife went into the man’s hip, and grazed the woman. The male victim, 47, ended up chasing Rowe and knocking him unconscious on the ground when he tried to run away. After being arrested he was reported to rant about Donald Trump rallies.

Rowe was arrested and booked into the Thurston County Jail on two charges of first-degree assault and possible malicious harassment, which is the charge for hate crime in Washington state. The FBI reported 5,479 hate crimes across the United States in 2014, a 14.6% decrease from 2013.

September 9, 2016

Jail Let Mentally Disabled Man Starve to Death, Lawsuit Says

by David M. Boertje

Arrested for stealing $5.05 worth of candy and soda, a 24-year-old man from Portsmouth, Virginia, Jamycheal Mitchell, has allegedly been starved to death by prison guards. Mitchell has been repeatedly diagnosed with psychotic and delusional disorders, has allegedly been left to starve in squalid prison conditions. His aunt, Roxanne Adams, has filed a lawsuit against the prison.

It is reported that his medical records show that he died of a “heart condition “accompanying wasting syndrome of unknown etiology.” The lawsuit alleges that “jail staff had allegedly denied him many meals, cut off the water to his cell and left him naked with no bedding or shoes as he smeared feces on the window of his urine-covered cell.” He had lost 40 pounds in his time in Hampton Roads Regional Jail, and was “nearly cachetic.” The lawsuit also alleges that inmates pleaded with guards to help Mitchell, to no avail.

The 112 page complaint identifies 39 defendants, including the Hampton Roads Regional Jail, the state Department of Behavioral Health & Developmental Services and the private prison health care firm, NaphCare. Adams is demanding a jury trial and $60 million in damages for wrongful death. The prison is not commenting on the suit.

September 7, 2016

Stolen Guns Fuel Underground Market for Criminals in California

by David M. Boertje

According to Graham Barlowe, the Special Agent in Charge of the Sacramento office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, guns are considered just as valuable as cash or jewelry in a home break in. While referring to a recent string of robberies in our state’s capital Barlow stated, “Cash is extremely valuable because it can get you a number of things, but of the commodities that we find that people that are involved in criminal activity are looking for, guns are very high on the list.” At least seven gun stores have been targeted for burglaries in that area this summer.

It is reported that over 34 guns are reported lost or stolen in California every day, adding up to more than 12,000 guns a year. These stolen guns are likely used for future robberies, homicides, or gang activity. In fact, most of the guns being sold in the streets illegally are probably stolen guns that were legally purchased.

Click on this data analysis to see how many guns were reported lost or stolen to California law enforcement agencies from 2010-2015.

September 2, 2016

The ‘Slender Man’ Trial

by David M. Boertje

A Wisconsin Appeals Court recently released two decisions to try the two 12-year-old girls, Morgan Geyser and Anissa Weier, in the “Slender Man” case as adults. For those of you who have not heard of this case, two girls in 2014 admitted to leading their friend into the woods along Interstate 94 and stabbing her 19 times as a means to please the “Slender Man,” an Internet horror meme. Amazingly enough, the two girls have stated that they believed in the existence of this fictional horror character.

The origins of Slender, as Weier called him in interviews with police, can be traced back to a photoshop contest on the Something Awful forums in 2009. A graphic artist inspired by the authors H.P. Lovecrqaft and Stephen King and horror video games like Silent Hill, manipulated an image to show a tall, thin humanoid lurking behind children. The internet then crowd-sourced the story behind Slender Man, making him a legend or ghost story for impressionable minds to believe.

Rolling Stone has come out with an article on how absurd it is to try two 12-year-olds as adults when it is clear there may have been underlying mental illness causing them to believe this story. Morgan Geyser believed she would get to go live at Slender Man’s mansion if she killed her friend, and that he would harm her family if she did not go through with it. She had also been diagnosed with early onset schizophrenia.

Incompetency and Adolescents in Trial

Juvenile courts exist because it has long been understood that children are less culpable for their actions than adults. Research shows their brains are not finished developing, and they are immature.

In California, A.B. 2212 was signed into law on September 22, 2012. It added §709 in the CA Welfare and Institutions Code. It sets forth basic procedures to follow when a minor’s counsel or the court expresses concerns over a child’s competency to stand trial.

A minor is incompetent to proceed if s/he:

“lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding; or
lacks a rational as well as factual understanding, of the nature of the charges or proceedings against him or her. See Protocol for Competence in CA Juvenile Justice Proceedings.

Incompetency is not an affirmative legal defense. It does not speak to one’s mental state during the crime, it only speaks to whether they can understand their proceedings. It is common practice to treat a defendant until s/he is competent enough to prosecute. Continue reading