San Diego Criminal Lawyers Blog

March 16, 2016

S.F. Officials Warn of Chinese New Year ‘Blessing’ Scam

Chinese New Year may have just passed, but San Francisco District Attorney George Gascón is warning residents in Chinatown about a scam that has popped up every year. The “blessing scam,” which is a scam committed by fortune tellers of all cultures, involves a “psychic” who claims s/he will un-curse someone if the victim is willing to pay up large sums of money or gold.

This world has no shortage of pain, hardships, and heartache. It is fairly easy for these “psychics” to convince their victims that they are cursed. Overall, incidents of the blessing scam, carried out mostly in San Francisco’s Chinatown, have decreased dramatically from 2012, when 47 cases were reported and 10 people were charged with crimes. City officials and law enforcement attribute this decrease to the community outreach and education they have been doing in senior centers in Chinatown. They have been warning people not to fall for scammers asking them for their family heirlooms, valuables, or money.

Fraudulent Fortune Telling vs. ‘Free Speech’

Under California’s Penal Code § 332, fraudulently taking someone’s money or property through: card game tricks (ie. the “three card monte”), betting or gambling, or fraudulent fortune telling is a crime. It is considered a type of theft.

However, the crime of fraudulent fortune telling is difficult to prosecute. Nearly three decades ago in 1985, the California Supreme Court struck down an ordinance banning fortune-telling. As such, ‘genuine’ fortune-telling is protected under the First Amendment of free speech. Since then, a handful other courts in several states (New York included) have since followed suit in response to claims brought by fortune-tellers and the American Civil Liberties Union (ACLU).

What does this mean? This means that only fortune telling fraud may be considered a crime. Generally, the fortune-teller must not legitimately believe in his or her services, and must have the intent to defraud victims of large sums of money/property. In other words, you must have knowingly lied.

Penalties

A violation of CA Penal Code § 332 is the same as with California theft. If you defraud someone of property worth more than $950, it is up to the prosecutor to charge you with either a misdemeanor or felony. A misdemeanor is punishable by up to 6 months imprisonment and $1,000. If you defraud someone worth more than $5,000, it is a felony punishable by up to three years imprisonment and a $10,000 fine. Continue reading

March 11, 2016

Testing Porn Stars is Not Stopping HIV

by David M. Boertje

The Centers for Disease Control recently released a report about an adult film actor in California who infected two sexual partners with HIV in the weeks after he contracted the virus, but before it was detected by lab tests. The unnamed actor was apparently infected by a partner outside of work six days before his negative lab results, according to a report by the CDC published on February 11.

The topic of whether sex without a condom constitutes free speech is a long contested one in California. As a state home to a booming porn industry, it has witnessed several attempts to mandate condom use. This November, Californians will be able to vote on a ballot measure that would require condom use for the pornographic movies and allow any state resident to sue to enforce the law.

About 50,000 Americans are newly infected with HIV each year, and the numbers seem to be increasing. More importantly, it is widely known that once infected, the virus does not show up in test results right away.

March 9, 2016

The Latest in the Armed Oregon Standoff: Nine Others Charged

by David M. Boertje

As the drama unfolded in our neighboring state of Oregon in the course of two months, one cannot help but wonder what laws were and were not violated by the leaders of armed militia occupying the Malheur National Wildlife Refuge in Eastern Oregon. In case you missed it, a man named Ammon Bundy, the son of Cliven Bundy (from the Nevada BLM standoff in 2014) led a group of 30+ armed occupiers to take over a bird refuge in Harney County, Oregon. They refused to leave the Malheur national wildlife refuge since they took over the refuge’s headquarters on January 2, 2016. The militia had taken the stance that they were reclaiming public lands to protest the federal government’s regulations on private cattle grazing (the Bundy family is notorious for grazing their cows on public lands without paying the grazing fees).

Since then, a total of 25 people have been charged with the standoff. The most recent six arrested include: Blaine Cooper of Arizona; Wesley Kjar of Utah; Corey Lequieu of Nevada; Neil Wampler of California, Jason Blomgren of North Carolina, and Darryl Thorn and Eric Flores, both of Washington state. They surrendered to the FBI without incident. Two unnamed occupiers are currently on the run, and being sought. Ammon Bundy was arrested at a traffic stop on January 26, and his father Cliven, was arrested on Thursday. The occupiers themselves all face the same felony count under 18 U.S.C. § 372 – conspiracy to impede with federal workers. It is a felony punishable by six years imprisonment.

Regardless, legal experts say that the armed occupiers would have hefty fines and more than 10 years in jail, if the Department of Justice had decided prosecute them to the fullest extent of the law. Some of the federal charges they potentially faced include:

March 4, 2016

“He Said, San Diego Unified Said”

by David M. Boertje

Back in July of 2015, a man named Mike Gurrieri filed a lawsuit against the San Diego Unified School District’s superintendent for allegedly ordering edits to his criminal investigation to cover up for the accused principal. Mr. Gurrieri was assigned by the San Diego Unified School District as an internal investigator to investigate a sexual assault that allegedly occurred at Green Elementary School in San Carlos, California. Parents had filed a claim that the school’s principal, Bruce Ferguson, took little to no action and did not even report it to the police. Mr. Gurrieri claims he spent months digging to find that several allegations by different students have been mishandled. Mr. Gurrieri was then allegedly fired for not complying with the cover-up.

Court documents filed by district attorneys state that Gurrieri was incapable of conducting an adequate investigation and had asked school-district officials to fire him because the job was too difficult for him. The San Diego School District hired attorneys to defend their case against Gurrieri’s lawsuit back in September. The district claims that Gurrieri’s report was based on “hearsay,” rumors, and gossip. The differing stories mean that there is a long legal battle ahead, as both parties engage in a dance of “he said, she said.”

What is Hearsay?

Hearsay is a relevant issue in criminal trials. It may be generally defined as an out-of-court statement offered to prove the truth of whatever it asserts. As a result, hearsay evidence is often inadmissible at trial. See the California Rules of Evidence. Thus, the original speaker, or eyewitness, must be present at the trial and giving the statement under oath (ie. “I saw him pull out the gun”). The reasoning behind this rule is that hearsay is generally not reliable, unless the speaker is available to be cross-examined by the opposing side.

Hearsay must be a statement, meaning it must be an oral assertion, written statement, or nonverbal conduct.

The Exceptions

While there is a general prohibition to allowing hearsay into the evidence of a trial (or lawsuit), the California Evidence Code sets forth a long list of exceptions to the hearsay rule. Some include:

A declarant’s spontaneous or excited utterances. Startling statements are considered reliable because they were made stress before s/he had a chance to fabricate;
The Declarant’s existing mental state or physical condition;
Business and public records;
Former testimony given under oath;
A witness’s past recorded (written) recollection which may be read into evidence;
Dying declarations;
Certain statements by children (particularly in sexual assault cases).

March 2, 2016

The Basics of a Plea Bargain: Pros and Cons

by David M. Boertje

More than 90% of all criminal cases do not make it to jury trial. Instead, they end in plea bargains – sometimes to the benefit, and sometimes to the detriment of criminal defense clients.

What is a Plea Bargain?

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or no contest (nolo contendere) in exchange for the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence (which is usually a more lenient sentence). As our court system becomes more crowded, prosecutors and judges alike feel increased pressure to move cases quickly through the system, and trial is a time-consuming and expensive endeavor. As a result, both criminal defense attorneys and prosecutors typically strike up a deal to avoid the headache.

Plea bargains may occur any time after the arrest and before the trial.

Negotiating plea bargains is a relatively simply strategy that most attorneys will initially attempt on behalf of their clients. Over time, prosecutors and police have taken up a few tricks which will affect a defendant’s ability to negotiate a favorable plea bargain, especially without the assistance of an attorney. For one, they typically over-charge defendants in order to set the bar high prior to entering into plea negotiations and to get a higher rate of ‘guilty’ pleas or conviction rates. Additionally, to deal with a large influx of similar cases, prosecutor’s offices may offer defendants a standard deal, which is offered to all defendants charged with the same crime. As a result, sometimes it is relatively easy to get a lesser charge, but sometimes defendants are also faced with feeling ‘pushed’ into pleading guilty for something, in a plea deal because of overzealous prosecution.

Plea Deals in DUIs

Plea deals are regularly sought for California DUI cases because the penalties are so severe. The most frequently reduced DUI charges are a “wet” reckless and a “dry” reckless under the CA Vehicle Code 23103.

A wet reckless is typically the first level of DUI reduction that the prosecution will consider. It just refers to a crime where alcohol was involved). If you are convicted with a “wet reckless” instead of a DUI, you will face less jail time, reduced fines, and not mandatory license suspension. A skilled attorney may even get a potential DUI conviction down to a “dry” reckless, which means you will be charged with misdemeanor reckless driving where alcohol was not involved. Continue reading

February 26, 2016

San Diego Court Waiver Allows Police to Search Cellphones Without a Warrant

by David M. Boertje

In response to the passing and enactment of SB 178 (the Electronic Communications Privacy Act) for the new year, San Diego Superior Court judges have started using waiver days after the new state law took effect. SB 178 would require police and probation officers to get a warrant signed by a judge before searching through a suspect’s electronic communications, cell phones, emails, etc.

To the surprise of many criminal defense lawyers in the area, their clients were being asked to sign a newly drafted waiver which would allow police to search cell phones, computers, and other types of electronics without first obtaining a warrant. The one-page waiver spells out the types of items that would be subject to search: call logs, emails, text messages, and social media accounts accessed through a variety of devices — everything from an iPhone to an Xbox. Perhaps more concerning is the fact that some attorneys claim their clients were being required to sign these waivers at their arraignments.

Criminal defendants who have signed the waiver have essentially signed away their rights. By the terms of the agreement, they have agreed to disclose any and all passwords used to access those devices or accounts, including fingerprint that unlocks an electronic device. Do not sign these types of waivers if you are asked. It is recommended you consult with a criminal defense attorney right away.

February 24, 2016

Legal Experts Say Governor Brown’s Parole Plan Would Lessen Plea-Bargain Power

by David M. Boertje

This past year, California has been no stranger to criminal justice reforms as a means to lower the state’s prison population. In addition to the 807 bills signed into law set to take place in 2016, Governor Jerry Brown (D- CA) has introduced another state ballot initiative which aims to free certain felons earlier and have fewer juveniles tried as adults. Under Brown’s new proposal, those who have been convicted of nonviolent crimes, including non-violent felons, would be allowed to seek a parole hearing if they have completed their base enhancements, even for those with gang enhancements or firearms possessions.

Additionally, the proposal requires that judges instead of prosecutors, would have to decide whether juveniles can be tried as adults. Currently, California is one of 15 states which allow prosecutors to make the decision.

Legal experts say that the current proposal as it stands would weaken prosecutor’s plea-bargain power. Specifically, by permitting early release for someone with consecutive sentences or enhancements, prosecutors would lose some power in the negotiation of pleas with defendant. Approximately 95% of criminal cases in California are resolved by plea bargains.

Currently, it is estimated that 20,000 out of California’s 127,000 inmates are currently serving time for drug or property crimes would be candidates for earlier release under this new proposal. The proposal is expected to make about 7,000 inmates immediately eligible for parole hearings, though officials said about 5,700 of those are already eligible under an existing federal court order. Brown said the proposals build on federal court orders requiring California to reduce its prison population. If California voters approve it in November, this new proposal will be signed into law.

The Parole Process in California

In California, parole only applies to felony cases where one is sent to state prison. Those who have served a certain percentage of their sentence and have a good record in prison will become eligible for a parole hearing. Once eligible, you must make your case to the California parole board, which is comprised of at least one commissioner deputy commissioner from the Board of Parole Hearings. At the hearing, they will examine your prior history, offenses, disciplinary record in prison, and applicable rehabilitation programs you have committed, to and psychological/risk assessments. The California Penal Code requires the Board to set a release date for an inmate unless s/he currently poses an unreasonable risk of danger to the public. The governor is allowed to override a parole board and block early release. Continue reading

February 19, 2016

Uber Driver Sues Ex-Taco Bell Exec, and Vice Versa

by David M. Boertje

A former Taco Bell executive by the name of Benjamin Golden who was fired after a video of him went viral assaulting an Uber driver, has now filed a lawsuit for $5 million against the transportation company. This bizarre case was a response to the $25,000 lawsuit filed by the Uber driver, Edward Caban, who is shown in a dashcam video being slapped and hit by Golden, last year.

Last October, Mr. Golden allegedly got into an Uber driven by Mr. Caban, in Costa Mesa, California. He was ordered out of Caban’s vehicle for being too inebriated to give directions. The dashcam video from Caban’s car shows Mr. Golden getting angry, and then beginning to strike Caban from the back seat and slamming his head against a window. Mr. Caban used pepper spray to fend Mr. Golden off, and subsequently posted the footage online. It later went viral, and Mr. Golden was terminated by Taco Bell.

Golden has been charged with assault and battery by the Orange County District Attorney. Golden has pleaded not guilty, and decided to file a counter-suit, claiming that he “fear[ed] for his safety and well-being” after being ejected from the vehicle and has “suffered severe emotional distress, humiliation, anxiety, fear, pain and suffering and the loss of his job.” Mr. Golden claims that Mr. Caban did not have a right to record him, and he is claiming “invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, assault and battery.”

February 17, 2016

San Deigo Police Slow to Post ‘Stingray’ Policies

by David M. Boertje

A new state law taking effect this new year will require any California city or county that uses the Stingray technology or any other cell-site simulator technology to approve and publish a usage and privacy policy. The policies would be required amongst other things, to say who is using the equipment, how the data is retained, how the program is monitored, whether information is shared, etc. The new law also requires this policy to be publicly available, and posted on the city or county website.

However, San Diego has not done so yet. The only thing that has been released, is a one page policy, which privacy groups say falls short of the state’s law. For example, according to the Electronic Frontier Foundation, a San Francisco nonprofit group, one of the things missing from SDPD’s policy are details on their data retention plans, and clarifications on whether the SDPD plan to share their data with other departments.

What is Stingray and What Does the Law Say?

Stingray, also known as cell-site simulators, is a technology which locates a cell phone and intercepts calls and text messages. It is a hand held device that acts as a makeshift cell-phone tower. The device(s) essentially trick cellphones into bouncing their information off the devices instead of cell towers, allowing police to rake in all of the nearby phone numbers and locations. They also relay contact numbers.

Back in October of 2015, Governor Jerry Brown signed a bill into law that requires police get a warrant to use a stingray during criminal investigations. The law, known as the California Electronic Communications Privacy Act, would require a search warrant for the police to wiretap or access your cell phones or any digital data. The language of the statute itself is broad, and does not apply to specific technologies. This gives the law the ability to stay relevant as technology also changes.

It should be noted that California is not the first state to legislate such a requirement. Others states that already have similar laws include Washington, Virginia, Minnesota, and Utah.

Probable Cause

Under the fourth amendment of the constitution, probable cause is required for any warrant to be issued, in order to avoid a search and seizure violation. Probable cause means that there is sufficient reason based upon the facts, that a crime has been committed. Continue reading

February 12, 2016

Chipotle is Subpoenaed in Criminal Inquiry Over Norovirus Outbreak

by David M. Boertje

A Chipotle restaurant chain in California has been served with a grand jury subpoena as part of a criminal investigation of a norovirus outbreak. The subpoena was granted by the U.S. attorney’s office for the Central District of California in an inquiry the office is conducting with the Food and Drug Administration’s Office of Criminal Investigations. It seeks a broad range of documents which has not been specified to the public.

Back in August 2015, two hundred and seven people, including 18 Chipotle employees, reported falling ill after eating at one of Chipotle’s restaurants in Simi Valley, California. Restaurants in that area typically contact the Ventura County Environmental Health Division as soon as they become aware of food-borne illnesses, but in this case Chipotle did not notify the agency until the restaurant had been closed down, cleaned, and re-opened. While it does not appear that the California outbreak spread beyond one restaurant, it is unusual for federal enforcement to occur for localized outbreaks.

In recent months, the burrito chain has suffered a series of food-related illnesses amongst customers and employees. Chipotle voluntarily closed 43 restaurants in Washington State and Oregon due to an E. coli outbreak, and another norovirus outbreak occurred in Boston, Massachusetts in December.