San Diego Criminal Lawyers Blog

March 30, 2016

Ku Klux Klan Rally in Anaheim Erupts in Violence

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.

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.