San Diego Criminal Lawyers Blog

March 2, 2016

The Basics of a Plea Bargain: Pros and Cons

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.

February 10, 2016

Gov. Brown Denies Parole For SD Officer’s Killer

by David M. Boertje

Early this New year, Governor Jerry Brown has once again denied parole to a former gang member who was convicted of fatally shooting a San Diego police officer in 1978. Jesus Salvador Cecena, 54, was only 17 when he was convicted of first-degree murder for shooting Officer Archie Buggs four times at a traffic stop, in the Skyline neighborhood. This marks the second year in a row the governor reversed the Board’s decision to recommend Cecena for parole. A two-member panel had announced its decision during an August 2015 hearing, citing that he had met the standards under a new law meant to assist prisoners serving long sentences for crimes committed as juveniles. The local police department there obviously launched a campaign against this decision to allow Cecena for parole.

While Brown acknowledged Cecena’s young age at the time, the Governor said in his statement he still believes Cecena would be a threat to society if he were to be released from prison. He claims that Cecena still has not given a credible explanation for his actions. At the sentencing in the late 1970’s a judge noted the evidence indicated the shooting was calculated and deliberate. Cecena was sentenced to life in prison and has been locked up since 1979.

The new law referred to be the parole board says the parole board must give “great weight to the diminished culpability of juveniles” and also consider the prisoner’s “maturity and rehabilitation in prison.” Cecena’s prison record indicates he has disavowed association with prison gangs and helps mentor younger prisoners.

February 5, 2016

New Year’s Round Up: The Criminal Law Changes That Will Take Place in 2016

by David M. Boertje

With the New year just starting, a lot of new criminal laws will be effective that may affect you. There have been 807 bills signed into law set to take place in the new year, affecting everything from gun ownership, new regulations on medical marijuana, and health insurance. This blog aims to give you the run-down of the most important laws that may affect you.

Medical Marijuana

In August 2015, Governor Jerry Brown signed into law a measure which would allow steep civil fines for marijuana farms that damage the environment by dumping wastewater and chemicals, removing trees, and killing wild animals. It was meant to target illegally operating marijuana farms which are damaging the state’s watershed system in the midst of a historic mega drought.

February 3, 2016

Local Company Owners Indicted in $7M Hotel-Worker Fraud Case

by David M. Boertje

The owners of Good Neighbor Services, an Orange County based janitorial company that provides cleaning services to luxury hotels across Southern California, have been indicted in a $7 million insurance fraud and tax evasion scheme that has allegedly lasted over 10 years.

Hyok “Steven” Kwon and Woo “Stephanie” Kwon, from Irvine California, are accused of working with six accomplices to vastly underreport the number of employees they employ to avoid taxes. It is reported the Kwons underreported their number of employees by 800 people, resulting in the avoidance of $3.6 million in workers’ compensation insurance rates and more than $3.3 million in payroll taxes. San Diego District Attorney Bonnie Dumanis called it the largest ever insurance premium fraud case in San Diego history.

During the course of the investigation, employees said they were paid with checks that carried the names of other businesses, even though they wore uniforms with the Good Neighbor Services logo. The DA’s investigation discovered the Kwons were using 12 different shell companies to defraud insurance providers and the state of California. They also claim they did not receive overtime pay or workers compensation benefits. Additionally, workers who were injured on the job were allegedly threatened with being fired.

January 29, 2016

Russell Taylor, Jared Fogle’s Accomplice, Sentenced to 27 Years

by David M. Boertje

Russell Taylor, the man who was accused of being Jared Fogle’s accomplice in a child pornography ring, was sentenced to 27 years in federal prison by Judge Tanya Walton Pratt, on December 10, 2015. Mr. Taylor is convicted of producing and distributing child pornography, specifically to Jared Fogle, the former Subway spokesperson. He used hidden cameras to photograph children as young as age nine in sexually explicit acts.

Mr. Taylor’s sentence was eight years less than what prosecutors sought for 12 counts of producing child pornography and one count of distributing it. However, it was more than the 15 to 23 years that Taylor’s attorneys requested. The judge rejected Taylor’s argument that he was just Fogle’s pawn, but recognized that he cooperated with authorities in Fogle’s prosecution. She noted that Taylor did not deserve to spend more time in prison than Fogle, who faces up to 50 years. It is reported that 12 victims are involved in the child porn production case, many of whom are Taylor’s own nieces and nephews.

What is a Criminal Accomplice?

A criminal accomplice is generally defined as someone who “knowingly, voluntarily, or intentionally gives assistance to another in (or in some cases fails to prevent another from) the commission of a crime.”

Under California law, criminal accomplice liability is also known as ‘aiding and abetting.’ CA Penal Code § 30-33 allows for the prosecution for anyone who encourages, facilitates, or aids in the commission of a crime, no matter how insignificant his or her role was. Presence at the crime scene is not required, and the involvement can be as simple as drawing the perpetrators a map or supplying the weapons used.

Aiding and abetting during the crime is known as an ‘accessory before the fact.’ There is no legal distinction between being an accessory or an actual perpetrator when it comes to sentencing. The penalties for being a criminal accomplice depend on the crime that was committed.

Legal Defenses

Typical legal defenses for aiding and abetting include:

You were falsely accused;
You withdrew from the participation before the crime in question was committed;
You were merely present at the scene, and did not actually aid or encourage the crime;
You only facilitated the crime after its commission (which allows for lesser penalties).

Mere knowledge about the crime that is about to be commissioned is not enough to warrant a conviction for aiding and abetting. However, you must show you took steps to try to prevent the crime. Continue reading