San Diego Criminal Lawyers Blog

October 14, 2015

Bill to Increase Prison Sentences for Sex Offenders on Governor’s Desk

A bill by state Sen. Patricia Bates (R-Laguna Beach) that would increase prison sentences for high-risk sex offenders who tamper with their electronic tracking devices is reported to be headed to Governor Jerry Brown’s desk for approval. The bill was inspired by the Orange County serial killings of four women who disappeared from high-prostitute areas of Santa Ana and Anaheim. The subsequent investigation showed that the two men involved, Steve Gordon and Franc Cano, twice cut off their monitoring devices and fled to Alabama and Las Vegas.

Bates’ bill would make it a felony for the most egregious sexual offenders to remove their GPS monitors, with prison terms for that violation up to three years. Eligible crimes include rape, spousal rape, and rape of a child. The bill was passed by the California Assembly and now awaits Jerry Brown’s signature to become California state law.

Definition of Rape

October 9, 2015

Three Deputies Face Criminal Charges for the Beating of Francis Pusok

by David M. Boertje

Back in April, we discussed the beating of Francis Pusok as he was trying to escape from police on horseback in the Southern California desert. Now, the three California deputies from San Bernardino County, Nicholas Downey, Michael Phelps, and Charles Foster will face criminal charges in the beating of Pusok. Each were charged with one count of assault by a public officer, and all three deputies are scheduled to appear in court for arraignment on Sept. 8. If convicted, each deputy faces between 16 months to three years in prison. They all remain on paid administrative leave pending the outcome.

Pusok’s attorney James Terrell believes eight of the 10 deputies should have been charged (not just the three involved in the incident). The other seven deputies who responded are not being criminally charged because of what was said on the voice recorders that the deputies carry on their belts. The helicopter footage that caught the incident indicated that Pusok appeared to have been kicked 17 times, punched 37 times, and struck with batons four times, a review of the video showed, and 13 blows appeared to be to the head. Mr. Pusok did file a lawsuit in response to the beating and settled it with San Bernardino County for $650,000. There has also been an internal probe of 10 deputies, along with an FBI civil rights probe.

Help for Police Misconduct

October 7, 2015

California Bill Protects Immigrant Victims of Crime from Being Deported

by David M. Boertje

California recently passed a bill to protect undocumented immigrants who are the victims of crimes from being deported. California has the largest population of undocumented immigrants in the country at an estimated 2.45 million. The California Assembly passed the Immigrant Victims of Crime Equity Act, sponsored by Assembly Speaker Toni Atkins of San Diego and Senate President pro Tempore Kevin de León of Los Angeles. The bill is now headed to Governor Jerry Brown for signing. If signed by the governor, it will become state law.

S.B. 674 requires local and state law enforcement agencies to sign certifications for qualified immigrant crime victims when they have been helpful to the investigation of crimes like sexual assault and domestic violence. The certifications are prerequisites to an application for a Victim of Crime “U-Visa,” which is issued by the federal government to prevent deportation of victims of specific crimes who have been helpful to the investigation or prosecution. S.B. 674 also provides relief for victims of domestic violence. The intent of the Bill is to curb crime, since victims of crime tend to not report it or cooperate with law enforcement if they are in the country illegally. The bill is part of the sweeping Immigrants Shape California legislative package.

Under federal law, being in the country illegally is grounds for deportation. If S.B. 674 is passed, it would mean that victims of sexual crimes and domestic violence in California would not face potential deportation for reporting the crime.

October 2, 2015

244 Arrested in Southern California Immigration Sting

by David M. Boertje

As the focus on ‘border security’ has increased in the platforms of presidential candidates for the 2016 election, the federal government has also ramped up its efforts to deport immigrants who have committed crimes or pose a threat to public safety. This September, immigration authorities in Southern California arrested more than 240 people with criminal records during a four-day sting. Los Angeles County accounted for the largest number of arrests with 99, followed by Orange County at 55, San Bernardino County with 43, Riverside County with 24, Santa Barbara County with 20, and San Luis Obispo County with three. U.S. Immigration and Customs Enforcement authorities said over half of those arrested had felony convictions or multiple misdemeanor convictions. Eight out of 10 are from Mexico. Those who are not criminally prosecuted will be placed in deportation proceedings. The sting comes as the federal government butts heads with local state governments that have resisted in cooperating on immigration enforcement.

California Immigration Enforcement

California does not require state or local law enforcement officers to check the immigration status during traffic stops or similar circumstances. Additionally, California allows for in-state tuition for illegal aliens in California-funded state universities, driver’s licenses for those here illegally, and state-funded healthcare for children. Additionally, due to a statewide law passed in 2013, local law enforcement officials are prohibited from detaining immigrants for longer than necessary on minor offenses so that they can be turned over to federal officials for possible deportation. This year a bill has been introduced to allow work permits to farmworkers living in the U.S. illegally.

September 30, 2015

Placer Sheriff’s Office Receives Grant to Help Curb Underage Drinking

by David M. Boertje

In lieu of the start of the school year for many college and school-aged students, the Placer County Sheriff’s Office in Northern California has received a $50,000 grant from the California Department of Alcoholic Beverage Control (“ABC”) for programs to combat underage drinking and alcohol sales to minors. The Roseville Police Department will participate in the grant, assisting the Sheriff’s office in providing training regarding alcohol-related crimes and their effects for school staff members, parents, students, and the community. The Sheriff’s Office plans to target ABC licensed stores that sell alcoholic beverages to minors and obviously intoxicated adult patrons. Minor-decoy and shoulder-tap operations also will be conducted countywide in an effort to reduce minors’ access to alcohol.

Counties throughout the state are cracking down on alcohol sales to minors. Earlier this summer, an undercover operation across the state called Operation “Shoulder Tap” led to the arrest or citation of over 400 people in San Diego for purchasing alcohol for a minor.

Minors in Possession of Alcohol

September 25, 2015

Delays in California Death Penalty to be Decided by Higher Court

by David M. Boertje

As I mentioned last month, the recent Supreme Court ruling upholding the constitutionality of a drug called Midalozam for use in lethal injection has brought the debate about the death penalty in California back into the spotlight. Back in 2006, a district judge stopped all death-row executions in the state (citing the delays in the system as being unconstitutional), and now California has the largest death row backlog in the nation. Now the topic of California’s death penalty has come up again – this time not in the context of the type of drugs that may be used, but to the original debate of wait time that an inmate faces while on death row in the state.

Last year, U.S. District Judge Cormac Carney explicitly ruled that California’s death penalty system was unconstitutional in Jones v. Chappel, smiting the long wait that comes before execution. California Attorney General Kamila Harris appealed this decision and seeks to overturn it. As a result, on August 31, the 9th Circuit Court of Appeals will hear the oral arguments over the constitutionality of the death penalty in Jones v. Davis.

The Delayed Process

September 23, 2015

Five in Orange County Arrested in Fraud and Identity Theft Ring

by David M. Boertje

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