San Diego Criminal Lawyers Blog

April 13, 2016

Police are Now Pepper Spraying Trump Protesters

As if this year’s race to the White House could not get any more dramatic or contentious, Kansas City police in Missouri pepper sprayed a group of protestors outside Donald Trump’s rally. According to the Kansas City police, they did it to break up two large groups of people who were ready to fight. They also claimed that they arrested two people for failing to follow the law. Meanwhile, inside the event, Trump was continually interrupted by protesters, who were quickly escorted out by police. The move by police marks yet another moment of conflict at a Trump rally. Chaos ensued earlier in the same week when he canceled his campaign stop at the University of Illinois in Chicago after protesters flooded the pavilion.

Pepper spraying protestors is a rare occurrence when it come to presidential campaign events, but it is becoming more and more common in this election cycle. This week, the NYPD pepper sprayed a crowd of protestors that were marching towards the Trump International Tower. There were thousands of protesters walking from Central Park to the Trump tower.

Trump has said during his Kansas rally that he wants charges filed against all the people protesting him. In addition to police force, his rallies bore witness to violence in Arizona and Ohio, and his campaign is notorious for violent and racially charged rhetoric.

April 8, 2016

Lincoln High School Fight Leads to Dispute Over Discipline

by David M. Boertje

As the result of a fight at Lincoln High School in San Diego, the 16-year-old son of local rap artist Brandon “Tiny Doo” Duncan faces four felony juvenile charges: assault on a police officer, assault with force likely to cause great bodily injury, violent resisting of a police officer and assault on a school officer. Another student faces a felony assault charge against a police officer. A third one faces an additional misdemeanor theft charge for allegedly taking the officer’s police radio and keys during the scuffle. The fight was started when the boys started play fighting during lunch period. That led to a real fight.

Bashir Abdi of El Cerrito, the cop on campus was reported to be ‘seriously injured.‘ He tased and pepper sprayed the students, and is now suing the students for over $25,000 in damages in medical expenses, property damage, and other losses.

None of the students will be expelled, and the judge allowed all the students to go home instead of staying in ‘juvie.’ They will have electronic monitoring for the time being. While some have called the punishment against the students fair because it was not as strict as it could have been, some in the community, including the NAACP, have called for the District Attorney’s Office to drop all charges and stop over-policing Lincoln High.

Juvenile Felonies

Juvenile delinquency court is a court dedicated to adjudicating felony and misdemeanor crimes allegedly committed by minors, and it ranges from small charges like truancy to more serious ones like felony charges. The goal is to rehabilitate children and not to imprison them.

Under certain circumstances however, minors alleged to have committed one of 30 crimes listed in California Code § 707(b) also can be tried in adult court. These include: murder, arson causing great bodily injury, assault with great bodily injury, rape, robbery, kidnapping for ransom, etc.

Prosecutors have the sole discretion as to how to prosecute 707(b) offenses. They can either file directly in adult court, file in juvenile court, or they can initiate a “fitness hearing” and have a judge decide the issue.

In these situations, prosecutors tend to file charges as adults if the minor has both allegedly committed a 707(b) crime and previously committed another felony or used a firearm during the crime. Continue reading

April 6, 2016

Justice Sought for Robert Branch: Protests Against DA’s Bias Against Minorities

by David M. Boertje

In the latest incident of controversies involving the San Diego Police Department and accusations of bias against minorities, several community leaders protested at the preliminary hearing of Robert Branch at the Hall of Justice Thursday, March 10. Back in May of 2015, 25 year old Robert Branch, a security guard at the time, was accused of assaulting a sheriff’s deputy Paul Ward after an apparent road-rage incident. Ward is described as a “loose cannon,” by his colleagues.

During the incident in question, Ward allegedly swerved to block Branch’s car from passing on an El Cajon onramp, sending Branch’s car into the shoulder lane. Ward then followed Branch for nearly ten miles. When Branch exited near San Diego State University, Ward pulled over Branch’s car in an unmarked and unidentified police vehicle. He was not in uniform, so Ward began recording with his cell phone. That led to Ward trying to restrain Branch, and Branch was charged with resisting arrest. Branch subsequently filed a civil suit for illegal detention.

Protestors with the National Action Network has accused District Attorney Bonnie Dumanis of selective prosecution of minorities intended to further her political ambitions.

Resisting Arrest in California

Under California Penal Code § 148(a)(1), one may not willfully resist, relay, or obstruct an enforcement officer or emergency personnel from doing their job/ performing his or her duties. This is a vague definition which often leads to false allegations. Oftentimes, a cop will charge you simply for being dismissive, uncooperative in their eyes, or rude.

A conviction of resisting arrest is a misdemeanor punishable by up to one year imprisonment and a $1,000 fine.

Legal Defenses

Similar to battery on a peace officer, physically resisting an unlawful search, arrest or detainment or defending yourself against excessive force is does not constitute resisting arrest. Likewise, reasonable self-defense against excessive force does not constitute assault or battery on a police officer. Another legal defense is that it was a false allegation. You will need to prove that you did not intend on obstruct a cop’s duties.

Because these type of cases often turn to ‘he said/she said’ against police, it is always recommended you record your encounters with police (you do not even have to tell them you are recording if you fear retribution) and gather witnesses. Continue reading

April 1, 2016

Oregon Man Who Shot a Radio-Collared Wolf Pleads Guilty

by David M. Boertje

In our neighboring state, a 26 year old Oregon hunter named Brennon D. Witty has plead guilty to illegally shooting a radio-collared gray wolf in Grant county. He was out hunting for coyotes on private property when he shot and killed the radio collared wolf named OR-22. While gray wolves are currently delisted under the state of Oregon’s Endangered Species Act (ESA), gray wolves still remain protected under the federal Endangered Species Act. Additionally, the shooting happened one month before the wolves were delisted under the state ESA. As a result, Mr. Witty has pled guilty to the “taking” of a threatened or endangered species. Because of a plea deal, a companion charge of hunting with a centerfire rifle with no big game tag was dismissed.

Witty was fined $1,000 and ordered to pay $1,000 of restitution to the Oregon Department of Fish and Wildlife. The rifle he used to illegally kill the endangered wolf was confiscated by the state. He faces zero jail time.

It is a Federal and State Criminal Offense to Kill Endangered Species

March 30, 2016

Ku Klux Klan Rally in Anaheim Erupts in Violence

by David M. Boertje

A Ku Klux Klan (KKK) rally in Anaheim erupted in violence at the end of February, when three people were stabbed and 13 people were arrested. The KKK had planned a rally at Peterson Park for the afternoon to protest against immigration and Muslims, when counter-protesters showed up to confront them. Fighting broke out just moments after the KKK members exited their vehicles. According to reports, witnesses saw the counter-protesters kicking and attacking the KKK members. Then one protester collapsed, crying he had been stabbed. Additionally, two other protesters were stabbed during the melee — one with a knife and the other with an unidentified weapon.

There was next to no police presence at the rally when it first started. A KKK member in handcuffs is reportedly claiming that he stabbed the other protester in self defense. Witnesses said they saw the Klansmen using the point of a flagpole as a weapon while fighting with protesters. Another witness who was near the Klansmen reported seeing them swarmed and attacked with two-by-fours and other weapons by the counter protesters.

The Klan members who were determined to be connected to the three stabbings were arrested. All could face charges of assault with a deadly weapon, although some folks could have a self-defense claim.

March 25, 2016

The FBI Can Use Dead Suspects’ Fingerprints to Open iPhones

by David M. Boertje

In this ever-increasing digital age, personal privacy and rights continue to controversial topic. In the midst of San Bernardino shooter Syed Farook’s investigation, the District Court of California, at the formal request of the FBI, issued an All Writs Act 1789 order on Apple asking them to code a special iOS to be installed on Farook’s iPhone. The code would allow the FBI to make unlimited guesses at Farook’s password. As Apple makes their iPhones increasingly secure, the FBI is having trouble hacking into iOS data, which is costly and time-consuming.

As a result, the government has tried to co-opt Apple and used the Writ Act to force Apple to collaborate with them. Apple has currently appealed its case, with its CEO Tim Cook issuing a statement that such a code would threaten the security of iPhone owners, and pledging to uphold people’s privacy. In the interim, they have figured out that Apple’s TouchID can be bypassed with people’s fingerprints and/or copies of their fingerprints.

If Apple loses its appeal, those concerned about their security should disable their TouchID and opt for a strong password.

March 23, 2016

Navy Offering Reward for Information on Bomb Threats

by David M. Boertje

Earlier this week, the Naval base in San Diego received a phone call that specifically threatened one of the buildings on the base. Around 9:15am, someone called in and threatened to bomb Building 36. Around 9:15am, the base posted on its Facebook page that the area had been secured, meaning they did not find evidence of bomb(s). There was a perimeter set up between Pier 3 and Pier 5.

This is the second threat at Naval Base San Diego within two weeks. Previously, a hand-written note sparked an investigation and the evacuation of the pier at 32nd Street and Harbor Drive.

The base is currently not on lockdown. Now the Navy is offering a $5,000 reward for any information leading to the arrest of the person who made the fake bomb threat. A spokesperson for the Navy stated that since last November, 11 fake bomb threats have been made.

March 18, 2016

1998 Molestation Conviction Expected to be Thrown Out Due to False Testimony

by David M. Boertje

Up in Lakeport, California, a 71 year old man named Luther Jones Jr. is expected to be released from state prison within the next few weeks because it has come to light that the key testimony used to convict him was fabricated. Jones was sent to prison 18 years ago for a 27-year sentence, for allegedly molesting a 10-year-old girl who belonged to his ex-girlfriend. He had a criminal record of felonies and theft cases, and the physical evidence had shown signs of sexual trauma on the child.

In this bizarre case, the child victim, now 30, has come forward to say that Jones never molested her. Evidently the child had been told to lie by her mother. She was indeed molested back in 1998, but by her mother’s then-boyfriend. District Attorney Don Anderson said he will file a writ of habeas corpus this week. He even canceled his vacation plans to begin the process of freeing Jones.

Currently, Jones is in very poor health but was previously denied for medical parole. He has filed several lawsuits complaining about the inadequate healthcare he has received from prison officials, which include diabetes, issues with his liver and kidneys, hepatitis C, and spinal deterioration. It is unknown whether legal action may be brought against the victim’s mother for her terrible behavior 18 years ago.

California Writ of Habeas Corpus

“Habeas corpus” literally means “you have the body,” and is a constitutional right. In the U.S. criminal justice system, a writ of habeas corpus is used to bring a prisoner or other detainee before a court to determine whether the imprisonment is unlawful. It is filed as a civil action (lawsuit) against the State agent (usually a warden) who is currently holding the defendant in custody when one has a showing that s/he has been wrongfully imprisoned. Today, the writ is mostly used for prisoners who want to challenge their detention if something went wrong in his/her trial (ie. prosecutor misconduct). It may also be used to examine a bail amount, the conditions of imprisonment, and jurisdiction of a specific court.

In California, the right to file a writ of habeas corpus petition is guaranteed by the California constitution, if you fulfill these legal requirements:

You are actually in custody (including out on parole/bail);
You have exhausted all your legal remedies, meaning you have tried everything to free yourself (ie. appeals);
Your issue is not already resolved on appeal.

March 16, 2016

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

by David M. Boertje

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.