San Diego Criminal Lawyers Blog

July 29, 2015

California Death Penalty Debate Back on the Table

The Los Angeles County district attorney’s office has announced it will seek the death penalty against a mother (Pearl Fernandez) and her boyfriend (Isauro Aguirre), who have been accused of the torturing and death of the woman’s 8-year-old son. This case stems from Gabriel Fernandez’s death in May 2013, where Fernandez and Aguirre were indicted by a grand jury on a charge of murder and a special circumstance of torture.

Grand jury testimony revealed that Pearl Fernandez had called 911 after she and Aguirre allegedly beat Gabriel for not picking up his toys. After the beating, the boy went silent and stopped responding. Paramedics discovered that he had a cracked skull, three broken ribs and BB pellets embedded in his lung and groin.

The Recent U.S. Supreme Court Ruling’s Effect on California Death Row Practices

The CA prosecutor’s announcement coincidentally coincided with the U.S. Supreme Court’s recent ruling that upheld as constitutional the use of the drug midazolam for lethal injection in the state of Oklahoma. See Glossip v. Gross (June 29, 2015). Specifically, the Supreme Court has rejected inmates’ argument that using such a drug violates one’s right to a humane execution. This ruling has shifted the spotlight the capital punishment debate back to California’s dysfunctional death row. California has the largest death row backlog in the nation; 757 prisoners were awaiting their deaths (most convicted of murder) when executions were suspended in the state in 2006.

In 2006, District Judge Jeremy Fogel halted California executions after determining that the delays in the system were unconstitutional. Prisoners used to be executed with a 3-drug cocktail, but lawsuits arose over the excessive pain that cocktail caused. Since then, the state of California has failed to adopt new drug regulations, so families and victims of death row inmates sued the state last November. Under that lawsuit’s settlement with families of murder victims, California prison officials agreed to propose a new single-drug execution method within 120 days of the Supreme Court’s ruling in the Oklahoma legal challenge. With the ruling in hand, that deadline is now Oct. 27. The state has not executed an inmate in nearly a decade.

Now, the state of California’s Department of Corrections and Rehabilitation must find a new drug to use, reactivate the system, and address the financial costs of such an expensive system. California’s death row has cost $4 billion since its inception, with $100 million per year being paid for by taxpayers.

July 24, 2015

Supreme Court Strikes Down Law That Would Keep Violent Offenders in Prison Longer

by David M. Boertje

As a practitioner in the criminal law field, it is part of my job to keep updated on new case law that will affect my clients. This blog will seek to explain to you the latest development in criminal case law—coming from our highest court—the Supreme Court. The Supreme Court has had no shortage of criminal law cases. This year for example, they have already ruled in Rodrigo v. U.S. that police cannot stop motorists longer than necessary at traffic stops. And recently, in Johnson v. U.S., it ruled that catch-all phrase in the Armed Career Criminal Act defining what crimes make a defendant eligible for a longer prison term was “too vague.”

In this case, Samuel Johnson plead guilty to a federal weapons charge in 2012 (firearms possession). He was sentenced to 15 years in prison—5 more than he would have gotten because he had prior convictions. The Armed Career Criminal Act, which is a federal law that has jurisdiction over all states, has a clause that treats past convictions as violent felonies, even if no violence occurred. If an offender has 3 prior convictions, the fourth automatically generates a 15-year prison sentence.

The Act lists burglary, arson, extortion, and use of explosives as specific categories or prior crimes that can lengthen one’s sentence. The Supreme Court, in a 6 to 3 majority, held that specific clause of the law unconstitutional.

How Does This Ruling Affect Me?

One of the reasons Armed Career Criminal Act clause was held unconstitutional was because different states may have different laws on prior offenses. Courts across the country have differed on what crime should be included in sentence lengthening, leading to inconsistent results. Faced with such uncertainty, defendants often take prosecutors’ plea deals rather than risk the federal statute’s 15-year sentence.

Thanks to this ruling, if you have prior federal convictions (depending on what they are), they will no longer make you eligible for a longer, 15-year sentence. However, it should still be noted that California has a very tough “3 strikes” law that has a long list of crimes that will make you eligible for life in prison if you are convicted 3 times of certain violent crimes. In that respect, our state’s 3 strikes law is much tougher than the Armed Career Criminal Act. It applies to state charges instead of federal charges.

July 23, 2015

Field Sobriety Tests in California

by David M. Boertje

With the start of the legislative session, California Senate members were given cards with a number for 24 Hour transportation. As exposed by the Sac Bee, California Senate officials have hired two part-time employees to provide late night rides for members while they are out in Sacramento, following the high-profile drunk driving arrests involving lawmakers in recent years. In particular, Assemblyman Roger Hernandez (D-West Covina) has failed three field sobriety tests, Sen. Ben Hueso (D-San Diego) recently plead guilty to a “wet reckless” charge, and Assemblyman Martin Garrick (R-Solana Beach) and Sen. Roy Ashburn (R-Bakersfield) have both plead no contest to DUI charges.

It is no secret that California has a high rate of DUIs, and police will be cracking down. It seems as if both lawmakers as well as citizens will likely encounter a field sobriety test at one point or another—even if they have not been drinking at all.

What is a Field Sobriety Test?

Field sobriety tests are a series of tests a police officer will request on the side of the road if the officer suspects you have been driving while under the influence of alcohol or drugs. They typically occur on the side of the road after you have been stopped, so law enforcement can make sure you are not too impaired (above the legal limit) to drive.

There are over 12 different tests, but according to the National Highway Traffic and Safety Administration (NHTSA), there are 3 main standard field sobriety tests that are most effective:

The Horizontal Gaze Nystagmus (HGN)- In this test, police will waive a pen in front of your face and telling you to follow it with your eyes.
The divided attention (aka walk and turn)- Police will ask you to take steps down a straight line in a heel-to-toe manner. This will test your concentration in doing two things at once.
One leg stand: You will be asked to stand on one leg and count out loud.

Other tests include balancing on different legs, counting backwards, or reciting the ABC’s.

You May Refuse a Field Sobriety Test

Under California law, you may legally decline to take a field sobriety test; there are no penalties, although prosecutors will notably paint your refusal as a “consciousness of guilt.” Moreover, the police may have already made their judgement when they decided to stop and ask you to volunteer evidence against yourself.

July 16, 2015

6 Young Suspects Arrested in Chula Vista for Crime Spree; 1 Still at Large

by David M. Boertje

The SDPD has arrested 6 young suspects ranging from age 18 to 20 allegedly involved in a crime spree throughout Chula Vista that included an attempted homicide, criminal conspiracy, mayhem, home burglaries and stealing from middle school students on the streets on the weekend of June 20.

A 5th and 6th suspect, both 17-year-old Chula Vista residents, was also taken into custody and booked into juvenile hall for attempted homicide and robbery. However, the San Diego District Attorney’s office is considering charging them as adults as one of them turns 18 this month. What is more bizarre in this story is that the SDPD is looking for a 7th suspect in this group. He is wanted on charges of attempted homicide and robbery and at large. The CVPD believes there are more victims out there who have been assaulted or robbed by this group of suspects.

Robbery Charges in California

This story is bizarre, but here is a basic breakdown of all the potential charges this group faces:

Assault- is defined as the “application of force” that is harmful to someone. It is a misdemeanor punishable by up to 6 months in jail and a fine of $1,000. This charge is typically brought in addition to charges of battery, or assault with a deadly weapon, which is punishable by a felony of up to 4 years in jail.
Robbery- is defined as the act of taking someone else’s property by force or fear. A 1st degree robbery conviction is punishable by 3-6 years in California state prison and a $10,000 fine. If there are multiple victims as there are in this case, you will be charged with a different count of robbery for each victim. Additionally, there are sentencing enhancements in California depending on whether the robbery was committed with a gun, or whether the victim suffered great bodily injury. This crime also qualifies for California’s 3 Strikes Law.
Theft (also called larceny)- is defined as the act of permanently withholding a property owner’s right to property. California distinguishes between petty theft and grand theft.
Mayhem- is defined in the California Penal Code as the act of unlawfully disabling/disfiguring, or cutting off the limbs/body parts of a victim. It is a felony punishable by 2-8 years in prison and a fine of $10,000.
Criminal Conspiracy– exists when two or more people agree to commit almost any unlawful act. It is punishable by up to 16 months to 3 years in state prison.
Attempted murder- is defined as trying to kill someone. It is a felony, but comes with a sentencing enhancement when committed as part of a criminal gang or with a gun. These sentencing enhancements add a minimum of 10-15 years to your sentence.

July 14, 2015

13-Year-Old Boy Crashes into a Senior Center During Joyride

by David M. Boertje

A 13-year-old teen in Chula Vista who took his parents’ car for a wild joyride overnight crashed into a senior service center and then left the scene of the accident. The Chula Vista Police Department (CVPD) said the joyride began with the teen crashing into a parked Dodge Ram truck. He then continued driving down East Palomar Street, making a too wide of a turn. As a result, the car jumped the curb, ran across the sidewalk, and then smashed through a fence and into St. Paul’s Plaza, a senior service center.

The unnamed teen sustained minor injuries, but walked away from the scene. The boy was found a short time later and taken to Rady Children’s Hospital with unspecified injuries. No one else was injured. The incident is under investigation but police said they do not believe alcohol played a role in the crash. It is unclear, at this point, if the teen will be charged in the joyride crash, although he theoretically would still face civil charges of property damage from the senior center even if police choose not to criminally charge him.

The Crime of Joyriding

Joyriding, which is addressed in the California Vehicle Code 10851(a), is defined as driving or taking a vehicle that does not belong to you without the owner’s permission. Vehicles include passenger vehicles, motorcycles, motor scooters, buses, school buses, commercial vehicles, trucks, tractors, trailers and semi-trailers. In order to ‘take’ a vehicle, you must move it; it does not matter how far you took it or how long you had the vehicle. To be convicted of joyriding, it is also not a requirement that you intended to steal the vehicle—unlike a charge of grand theft auto.

In order to convict you of joyriding, the prosecution must prove that:

You drove or took a vehicle;
The vehicle did not belong to you; and
You did not have permission to drive or take the car.

Legal Defense

If you can prove that you own the vehicle, or that you had good reason to believe you did, you cannot be charged with joyriding. For example, one of the reasons you might have believed a car was yours is in the case of divorce– if you shared a car with your spouse, and you were unaware after your separation that the car did not belong to you.

Another legal defense is that the owner of the vehicle gave you permission to borrow his or her car.

July 8, 2015

Reckless Endangerment in California: Enhanced Sentencing for a DUI

by David M. Boertje

In the common law, reckless endangerment (also known as criminal endangerment) is a crime consisting of acts that create a substantial risk of serious physical injury to another person. In essence, it is a crime that covers a wide range of behavior, although the term has mainly come up in the context of a DUI.

In the state of California however, the crime of “reckless endangerment” comes up in the context of committing a DUI when there is a child under the age of 14 in the car with you. Specifically, this crime qualifies you for a sentencing enhancement. Vehicle Code 23572, which addresses DUIs with children present, imposes a punishment of:

48 hours in a county jail for a first DUI conviction;
10 days in jail for a second DUI conviction;
30 days in jail for a third DUI conviction; or
90 days in jail for a fourth or subsequent misdemeanor DUI conviction

In addition to your underlying California DUI sentence, a charge under Vehicle Code 23572 imposes an additional maximum 180 days in jail.

Watch Out for Child Endangerment Charges

In addition to a DUI charge, you may also face another additional charge of “child endangerment” under California Penal Code 273a. Child endangerment is not merely a family law issue; it is a crime. Unlike the crime of child abuse, this charge does not require you actually injure a child—only that you exposed the child to risk of injury. Child endangerment is a misdemeanor punishable by up to one year in county jail. If convicted of felony child endangerment, you face up to 6 years in California State prison.

It is important to note however, that if you are convicted of both a DUI, and child endangerment under PC 273a, the court is prohibited from imposing the additional sentencing enhancement under Vehicle Code 23572.

Criminal Negligence

California defines criminal negligence as a mental state of disregarding known or obvious risks to human life and safety. An example would be leaving a loaded firearm within reach of a small child. This is a different and separate charge from child endangerment, but a charge of criminal negligence may substitute for criminal intent under very specific circumstances. When this happens, it can subject you to more serious charges such as child endangerment or manslaughter even if your actions were unintentional.

July 6, 2015

How Do Multiple Convictions Affect My Sentence?

by David M. Boertje

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.