San Diego Criminal Lawyers Blog

September 23, 2015

Five in Orange County Arrested in Fraud and Identity Theft Ring

Earlier this month, five suspects from Santa Ana, Orange County were arrested for their suspected connection with a fraud and identity theft ring. Orange County Sheriff’s Deputies arrested Nhan Hoang Pham, 29, of Fountain Valley, Lam Thanh Bui, 30, of Garden Grove, Chieu Bach Nguyen, 29, of Santa Ana, and Keeta Thilauan, 25, for multiple alleged thefts and burglaries in the past several months. A fifth suspect, according to inmate records, is listed under two names.

The SWAT team and Sheriff’s investigators issued search warrants and did a parole and probation check on the suspects. The team raided the home of the five and found weapons, a half pound of methamphetamine, several thousand dollars, and gift cards. They also found fraudulently obtained credit cards, identity theft profiles, computers, cell phones, and data storage devices. Authorities believe the ring is operating throughout California in conjunction with a larger crime ring. They further believe there are hundreds of potential identity theft victims that they are trying to identify through financial information from the searches.

California Identity Theft Laws (CA Penal Code 530.5)

September 17, 2015

California Teen Faces Life in Prison for Allegedly Extorting Nude Photos from Underage Girls

by David M. Boertje

A 19 year old teen in the Los Angeles area recently pleaded “not guilty” to over 150 counts of porn extortion. The District Attorney’s Office said that Cesar Estrada has been charged with felony and misdemeanor counts of extortion, lewd acts upon a child, and possession of child pornography. This is because he allegedly sought out girls on social media claiming to be a modeling agent. After asking them to send him photos of themselves in their underwear, he allegedly threatened to share those photos with their families unless they sent him nude pictures. The victims were all under 18 years old and spanned eight states.

A month ago, investigators served a search warrant at the apartment on Rosemead Boulevard where Estrada-Davila lived with his mother and siblings. He was arrested Wednesday and brought to court Friday, and will be due back in court next month. He remains in jail with a $400,000 bail and faces up to life imprisonment if convicted of all counts.

The Crime of Extortion (aka “blackmail”)

Under CA Penal Code 518, the crime of extortion/blackmail occurs when:

One uses force or threats to compel another person to give them money or other property (ie. photographs);
One uses force or threats to compel another person to force a public officer to perform an official act;
A public official (ie. cop), uses his or her authority to force others to give him or her their money or property

Extortion in most cases is a felony in California, but as shown by this case, it is further complicated when mixed in with other charges involving minors, lewd acts with children, and pornography. Penalties for extortion alone are two to four years imprisonment with up to a $10,000 fine.

It should also be noted that in 2013, Governor Jerry Brown signed S.B. 255, which makes it a misdemeanor to post identifiable nude pictures of someone else online without permission with the intent to cause emotional distress or humiliation.

Legal Defenses to Extortion:

You were falsely accused
You did not actually force anyone to hand over property
There is insufficient evidence to support the conviction (an available defense to every crime)

September 15, 2015

Fraud in California

by David M. Boertje

As shown by this month’s headlines, California seems to be plagued with fraud issues on the government level. Most of the fraud is allegedly being committed by government workers. The California Department of Insurance awarded $34.95 million in grants to district attorney offices across the state to help fight workers’ compensation insurance fraud. The grants were funded by employer fees and will be used to pay enforcement officials to investigate and prosecute fraud workers’ compensation system during fiscal year 2015-2016.

While the Department of Insurance was dealing with its own problems, it was discovered that California DMV workers traded cash for illegal licenses. At least 100 commercial truck drivers bribed DMV workers at $5,000/piece for trucking licenses. From 2011 to 2015, employees allegedly changed computer records to show that truck drivers passed their behind-the-wheel tests when they did not. Officials said up to 23 traffic accidents could be related to the fraud.

Fraud in California

Under the common law, fraud is generally defined as an intentional misrepresentation of existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage.

Generally, you violate California’s criminal fraud statutes whenever you commit an act that results in an unfair or undeserved benefit for yourself, and/or cause harm or loss to another person. The California Penal Code addresses many types of fraud:

Car insurance fraud
Health insurance fraud
Unemployment insurance fraud
Welfare fraud
Worker’s compensation fraud
Check, credit card, and securities fraud (the 3 types of financial fraud)
Forgery and identity theft
Mail fraud
Check fraud (writing bad checks)
Foreclosure and real estate fraud

Penalties

The penalties for each individual type of fraud differ. For example, workers compensation fraud can be punished by two to five years imprisonment and a $150,000 fine. Fraud can be charged as either a misdemeanor or felony. Prosecutors typically decide this based on the amount of money involved and any prior convictions on one’s record. Continue reading

September 11, 2015

Former Oroville Mayor Pleads No Contest to Embezzlement

by David M. Boertje

Earlier this week, former mayor and CPA of Oroville California (north of Sacramento), Dennis Diver, pleaded no contest to two counts of embezzlement. Prosecutors from the Butte County District Attorney’s Office said the politician embezzled 400,000 dollars in the span of less than 2 years. Diver is accused of moving funds around between accounts. The victims were a regional district of several Northstate rotary clubs, three trusts and one estate, all of whom were clients of Diver. A forensic accountant was used by the DA’s office give forensic analysis of how fraudsters were moving money.

Diver will appear in Court on September 30 for sentencing. He faces up to four years in prison although he will likely be granted probation so he can repay back the embezzled funds. He has repaid $186,00 so far.

Embezzlement is a Kind of Theft

September 9, 2015

California Stalking Laws

by David M. Boertje

Each year 7.5 million people are stalked, with 61% of the victims being female. 44% of the victims are stalked by a former intimate partner. In the current digital era, studies indicate that the rates of stalking and harassment have increased, and areas such as Southern California have higher rates than other parts of the nation. Stalking, cyber-stalking, harassment, and bullying are all similar bad acts. Sometimes it can be the result of a misunderstanding or vindictive accuser. Other times, spouses dealing with divorce start accusing each other of stalking or harassment.

What is Stalking?

California Penal Code 646.9 defines stalking as following, harassing, and/or threatening another person to the point where s/he fears for his or her safety, or the safety of his or her family. As with the standard for threats, one must have had a ‘reasonable fear’ in order to fulfill the standard for stalking.

September 4, 2015

Won Battle, Lost War in Cell Phone Search Case

by David M. Boertje

Last year, in a historic ruling, the U.S. Supreme Court ruled in Riley v. California that law enforcement must obtain a warrant to search cell phones. This historic opinion changed police protocol across the nation and set a strong precedent supporting privacy in a technological era.

Many of you must be wondering what happened to David Leon Riley, who had moved to suppress evidence during his criminal trial regarding his gang affiliation, which was acquired via his cell phone. Riley had been convicted for his connection to the 2009 shooting in San Diego’s Skyline neighborhood. Riley’s attorney is once again petitioning the U.S. Supreme Court arguing the lower court reconsider his case because the lower court had ordered Riley to remain in prison to serve out the rest of his 15-year-to-life sentence.

The 4th District Court in California specifically found that while the phone’s photographs were improperly seized and admitted as evidence, the error was not important enough to have affected the final verdict.

September 2, 2015

San Diego Cracks Down on Illegal Marijuana Dispensaries

by David M. Boertje

In the last few months, San Diego city officials have been cracking down on illegal marijuana dispensaries that are operating without permits. Back in March, city officials shut down nearly 20 dispensaries operating without permits. These 20 were all shut down within 60 days of each other. Several months later, city officials claim that these shut-downs have been successful. As of July, there were 15 dispensaries that were in the process of being shut down by the city. This number has decreased from the 69 dispensaries that were shut down in 2014.

Medical Marijuana

Medical marijuana was legalized by California voters via Proposition 215 (aka ” CA Compassionate Use Act” back in 1996 and later codified in the CA Health and Safety code § 11362.5. In 2004, Senate Bill 420 (aka “Medical Marijuana Program Act”) built upon the Compassionate Use Act, allowing for qualifying patients (ie. diagnosed with cancer, anorexia, arthritis, etc) to obtain a medical marijuana card as part of the California Dept. of Public Health’s Medical Marijuana Identification Card (MMIC) program to possess marijuana. This means if you are a MMIC card holder, you are legally entitled to possessing the amount of marijuana that is reasonably related to your prescribed medical use.

August 28, 2015

California Court Holds Proposition 47 Applies to Minors

by David M. Boertje

Late last week, California’s 4th District Court of Appeal ruled that Proposition 47 – the voter-approved measure that reclassifies certain petty crimes from felonies to misdemeanors – applies to minors in the same way it does to adults. It has been found in the past that Prop. 47 caused a noticeable drop in California’s incarceration rate. In light of this ruling, juvenile defendants charged with particular crimes previously classified as felonies should now only face misdemeanor charges, and some juvenile offenders may be able to have their prior felony convictions retroactively changed to misdemeanor convictions.

Background on Proposition 47

Proposition 47, the “Reduced Penalties for Some Crimes Initiative,” was approved by California voters last November. Unless a defendant has prior convictions for particular violent or gun-related crimes, Proposition 47 mandates that he or she be sentenced to a misdemeanor instead of a felony for the following seven petty crimes:

August 27, 2015

Recent Arrest of UFC Fighter Highlights Complexity of Domestic Violence Law

by David M. Boertje

The recent arrest of retired UFC fighter Chris Leben in San Diego in connection with an incident between the fighter and his estranged wife serves as a cautionary tale of the seriousness of domestic violence charges in California.

Mr. Leben was arrested on multiple charges, including the violation of a restraining order. Though Mr. Leben’s recent arrest was not based on charges of assault or domestic violence, the restraining order obtained by his wife makes reference to physical violence. However, Mr. Leben has strongly denied any and all charges of domestic violence and claims that, in fact, he has been the victim of years of domestic violence at the hands of his wife. In a recent interview, Mr. Leben highlighted how charges of domestic violence pose a significant threat to his character and his livelihood.

Domestic Violence in California

August 14, 2015

Driver Falls Asleep at the Wheel and Injures Joggers

by David M. Boertje

Early this past Sunday morning, a woman driving along a northern San Diego County road fell asleep at the wheel and hit two people who were jogging on the side of the road. It is thought that neither drugs nor alcohol were a factor in the crash. Unfortunately, both joggers were injured and had to be taken to a local hospital.

The driver in this incident remained at the scene of the accident until law enforcement from the city of Poway arrived, and was later released. This situation serves as an important reminder that California law requires drivers involved in an accident that results in injuries to others to stop, provide aid, and exchange all necessary contact information. Failure to do so can result in serious criminal charges, including a charge of hit and run.

Watch Out for Hit and Run Charges

If you are involved in an accident that results in injuries, the California Vehicle Code requires you to:

Immediately stop your vehicle at the scene of the accident;
Provide “reasonable assistance” to any individuals injured as a result of the accident;
Exchange contact information with the other individuals, including your name, address, vehicle registration number, and the name/address of the owner of the vehicle; and
Notify local law enforcement or the California Highway Patrol if someone has sustained fatal injuries in the crash.

Providing “reasonable assistance” to anyone injured in a crash – which includes other drivers, passengers, and pedestrians – involves calling 911 to summon medical assistance and transportation for the injured party.

Penalties for Hit and Run

If you fail to perform any of these requirements after a crash, you could be charged under California law with either a felony or misdemeanor hit and run, even if you were not at fault in the accident. These charges carry potentially serious legal consequences, including up to a year in jail, significant monetary fines of up to $10,000, and a permanent entry on your criminal record. Should the accident you were involved in result in the death or permanent, serious injury of another person, the resulting hit and run charges can carry higher consequences of up to four years in state prison, or a fine of up to $10,000, or both.