San Diego Criminal Lawyers Blog

July 6, 2015

How Do Multiple Convictions Affect My Sentence?

Attorneys often hear this question—how do multiple convictions affect a sentence? Being convicted of more than one crime may have a big impact on a criminal defendant’s sentence or “punishment.” This issue comes up in the context of convictions for the same offense such as multiple DUIs, multiple convictions for different things, and multiple convictions for the purposes of qualifying for California’s ‘3 strikes’ law.

Multiple Convictions in Federal Court

The U.S. Sentencing Commission (USSC) is a federal agency within the judicial branch of the government that develops sentencing guidelines for the U.S. federal courts. There are two kinds of courts in this country–federal courts and state courts. Criminal cases involving federal laws can be tried only in federal court (but most criminal cases involve violations of state law and are tried in state court). Examples of federal crimes include bringing illegal drugs into the country or across state lines. If you find yourself in federal court, the judge may consider the U.S. Sentencing Commission’s guidelines. The 2011 Federal Sentencing Manual §5G1.2 basically requires multiple conviction sentences to run consecutively unless the court decides otherwise or the specific law that defendant broke says differently. If the judge wants otherwise, s/he must specify in the sentence.

Consecutive vs. Concurrent Sentences

A consecutive sentence (also called a “cumulative” sentence) is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are served one after the other. For example, if a defendant is convicted of three crimes that carry sentences of five, three, and two years, he’ll serve 10 years in prison. A concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is 5 years.

Multiple Convictions in State Court

In California, like any other state, a judge may also specify whether s/he wants a sentence to run concurrently or consecutively. Moreover, there have been some recent changes in California’s stringent “3 Strikes” laws. Back in 2014, the California Supreme Court ruled that 2 felony convictions stemming from a single act may not be considered separate strikes under the state’s “3 strikes” sentencing law. Rather, it only served as 1 strike for the purposes of that law. In the past, the court has ruled that two felonies may be treated as separate strikes even if they were prosecuted in a single trial. This has affected the sentencing for those with multiple convictions.
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July 3, 2015

Can I Be Charged for the Same Crime Twice in Different States?

by David M. Boertje

This blog seeks to explain two basic concepts in criminal law which tends to lead to significant confusion: double jeopardy, and dual sovereignty.

Double jeopardy is a constitutional principle that comes from the double jeopardy clause in the Constitution’s 5th Amendment. It means that you may not be charged or prosecuted for the same crime twice. For example, if you were charged with the murder of Mr. Smith, went to trial, and were found innocent, you may not later be charged again with the murder of Mr. Smith if new evidence surfaces against you for the crime. You may be charged for other crimes, such as robbing and assaulting Mr. Smith, or conspiring to kill Mr. Smith, but not murdering Mr. Smith.

The Exception: Dual Sovereignty

June 26, 2015

State Legislatures Coming Down on Campus Rapes in California Universities

by David M. Boertje

Although the topic of campus rape has made national headlines, the state of California is no doubt the most aggressive when it comes to addressing sexual assault on campuses. Last month, California Attorney General Kamala Harris and University of California President Janet Napolitano released a Model Memorandum of Understanding on Campus Sexual Assault (“Model MOU”) which serves as a guide for college campuses and law enforcement agencies to facilitate better coordination in dealing with campus sexual assault cases. The Model MOU is intended to help campuses comply with A.B. 1433, which was signed into law last October 2014. A.B. 1433 requires colleges to report certain violent crimes (e.g. sexual assault and hate crimes), occurring on or near campus, to local law enforcement, with the permission of the victim. Prior to A.B. 1433, Governor Jerry Brown also signed into law S.B. 967 (“Yes Means Yes law”) in September 2014. That law requires California universities that receive public funding to require students to get “affirmative, conscious, and voluntary agreement to engage in sexual activity.

Going further, as of present, the state of California also has a “college campus sexual assault assembly package” coming down the pipeline. The package consists of 3 bills aimed at California state schools which receive public funding:

A.B. 967– This bill was introduced by Senate pro tempore Kevin de León (D-Los Angeles) in April and would set a minimum of two years academic suspension for students found responsible for rape and forcible sex acts. The bill passed the assembly 62-4 and is currently headed to the state Senate. It should be noted that while this bill imposes punishments that should be doled out by school disciplinary boards, school boards operate independently of the criminal justice system. You could in theory, be punished under both and receive suspension/expulsion and jail time under California Penal Code 261. Opponents of this bill are concerned that different boards operate differently as well, with school punishments ranging from community service to expulsion.

June 25, 2015

California Attorney General Has Blocked Public Access to Data on Wiretapping

by David M. Boertje

In the government’s latest assault on civil rights, California Attorney General Kamala Harris has announced a new policy last month that the California Department of Justice (“CADOJ”) will only be issuing its annual reports on wiretaps as locked pdfs– which would significantly limit the public’s ability to view the information.

Every year, the CADOJ is required to compile the details on each state-level wiretap order filed by local prosecutors. The report that is released yearly is mandated by the state legislature as a means to facilitate transparency. See the 2014 California Electronic Interceptions Report (released last month) here. The report for 2014 shows a massive spike (an increase of 44%) in California’s wiretaps, mostly in Riverside County as compared in 2013. Further, on a national level, the U.S. Drug Enforcement Administration has also showed an exponential increase in the use of wiretaps, increasing from 3,394 in 2000, to 11,681 electronic intercepts last year. DEA agents have also taken to making requests directly to state prosecutors instead of making federal requests, meaning most of the requests were never even reviewed by a federal judge.

Both the DEA and CADOJ offer little explanation regarding the massive expansion of wiretaps; they merely vaguely refer to the need to fight drug crimes.

June 12, 2015

Teen Who Set Cocos Fire Sentenced To Community Service

by David M. Boertje

The 14-year-old teenage girl who set the Cocos fire in San Diego last May was sentenced recently by Judge Howard Shore in a two-week non-jury trial. The minor, whose identity has not been revealed, was sentenced to 400 hours of community service and must pay $40,000 in restitution in fines. She must also report back to the judge every 60 days and write ‘apology’ letters to the victims of the fire who lost their homes. She will serve no jail time.

The teen was convicted of three arson counts one misdemeanor count of allowing a fire to get out of control. Originally, she (13 at the time) set a fire in her backyard which was extinguished by San Diego firefighters. She then set another one the next day, and another one in a neighbor’s backyard, which set the ember that traveled nearly half a mile to spark the Cocos fire. The Cocos fire then spread to more than a dozen brush fires due to the hot, dry, windy conditions and burnt over 2,000 acres and destroyed three dozen homes. The judge ruled that the teen acted “willfully and maliciously in setting the fires,” but said there was no evidence to suggest she intended to harm anyone or burn homes.

June 10, 2015

The Reduced Penalties for Some Crimes Initiative

by David M. Boertje

As mentioned in my previous post, Prop 47 (“the Reduced Penalties for Some Crimes Initiative”), which was approved by California voters via a ballot initiative last November 2014, would reduce the classification of most nonviolent and non-serious property and drug crimes from a felony down to a misdemeanor.

Since then, the California Legislature in its 2015 legislative session has introduced bills to amend Proposition 47 to weaken it. If any of these bill are passed and signed by the governor, the changes must go on a 2016 ballot for constituents to vote on. Some of the proposed changes include:

Senate Bill 333 and Assembly Bill 46 would allow felony charges to be filed against suspects accused of having certain date-rape drugs (Proposition 47 reduced the personal use of most illegal drugs to misdemeanors).
Assembly Bill 390 would require persons convicted of specified misdemeanors to provide DNA samples (California law currently only requires individuals convicted of felonies to provide DNA samples).
Assembly Bill 150 would make stealing a gun a felony crime (Proposition 47 made stealing an item that is valued at less than $950 a misdemeanor). Therefore, the proposed change would make stealing a gun valued at less than $950 a misdemeanor.
Assembly Bill 1104 would allow the issuance of search warrants for misdemeanor crimes that were previously classified as felonies before Proposition 47’s passage.

June 3, 2015

San Diego Lawmakers Attempt to Address School Threats in Legislation

by David M. Boertje

Last month, District Attorney Bonnie Dumanis came out in public support of the new bill authored by State Sen. Marty Block (D- San Diego), SB 456, which would distinctly make it a misdemeanor crime for someone to threaten to fire a firearm on private and public school campuses. The bill was originally introduced in February. In the last two years alone, Dumanis states that the number of students suspended and expelled for making a terrorist threat in San Diego County has risen 35 percent, from 62 in 2011-12 to 84 students in 2013-14, according to data from the state Department of Education. More than 130 threats to schools in the San Diego Unified School District were made over the past three years. Statewide figures also show an increase, but at a slower rate than the San Diego School District.

Under current law, those types of crimes are charged under Penal Code 422, a generic charge for someone making a criminal threat. Specifically, the current Penal Code requires that one caused a “reasonable fear” within the person(s) threatened. If the bill becomes law, a school firearm threat, for example, would become a specific crime subject to a fine of up to $1,000 and up to a year in county jail. The new law would remove the fear requirement and require those convicted to pay for any reasonable emergency response costs incurred by the public agency responding to the threat.

June 1, 2015

California Lawmakers and SDPD Try to Address the 20 Bills Aimed at SDPD

by David M. Boertje

Police agencies across the country have begun outfitting officers with the cameras as an attempt to regain the public’s trust back, and the SDPD is no exemption. However this is not enough. Last month, on April 30th SDPD was involved in yet another fatal shooting of an unarmed man, Fridoon Zalbeg Rawshannehad. The officer’s body cam was shut off prior to the shooting for unexplained reasons, and the incident is still being investigated by SDPD’s homicide unit. In the interim, the SDPD is still struggling to explain the shooting of an unarmed citizen, Victor Ortega, three years ago. In that case, Judge Burn’s denied SDPD’s motion to dismiss the lawsuit due to the inconsistencies of officer testimony.

Meanwhile, at least 20 proposals to regulate body cameras worn by cops, revamp the prosecution of deadly force cases, and impose other measures were made in the wake of national high-profile killings by police, and have been debated by California lawmakers. In Sacramento alone, legislators have introduced at least five measures pertaining to body cameras, including one that would establish grant funding to pay for the equipment, another proposing guidelines for data storage and one that would address how footage would be subject to public records laws.

May 27, 2015

Senate Bill 603 Introduced to Prevent Defendants from Cross-Examining their Victims

by David M. Boertje

The Senate Committee on Public Safety recently held a hearing at the end of April on Sen. Ben Hueso (D- San Diego) and the San Diego County District Attorney’s Office’s proposed bill. Senate Bill 603, which is currently making its rounds through the California legislative process in Sacramento, would require a court to conduct a hearing in cases in which the defendant is acting as his own attorney to determine whether someone else, most likely a standby lawyer, should be appointed to question the victims. Under SB 603, a judge would have to determine whether the victim would be traumatized further by being cross examined by the defendant. That kind of finding would be allowed only in certain kinds of cases, such as rape and sexual assault, as well as in felony charges of stalking, domestic violence, elder abuse or child abuse.

The sponsored bill was prompted by a San Diego woman named Jessica. Jessica says she was traumatized for the second time when the man who sexually assaulted her questioned her in court. The attack happened near the Old Town bus station back in March 2013. Jessica said a man dragged her behind a cafe and assaulted her. He chose to represent himself (pro se) during his trial.

May 25, 2015

Evading a Police Officer: The Double Standard Created by the Supreme Court

by David M. Boertje

It has been a busy year for criminal law development. With the seemingly unending current events surrounding police and citizen relations, the topic of when it is legal to run from police has resurfaced. It is already established by now that Freddie Gray was not doing anything wrong when he ran from police that tragic April 12. Police would later find out he had a switchblade in his pocket but that was not the reason why he ran. According to the police report, the patrol officer made eye contact with Gray, which prompted him to run. It was later discovered that in communities such as Gray’s, the mere presence of police make people nervous; that was the reason Gray ran. He was nervous since he has a past record of petty crime. It would also be discovered that Gray hailed from a neighborhood from Baltimore that had a poverty and unemployment rate of double that of the nation.