San Diego Criminal Lawyers Blog

April 9, 2015

Proposition 47 Causes Noticeable Drop in California’s Incarceration Rate

Even though it has only been a few months since Proposition 47 has made its debut, the incarceration rate throughout the state of California has dropped a noticeable degree. As most of you may know, the controversial Proposition 47 (“Reduced Penalties for Some Crimes Initiatives”) made its way onto the ballot via the California ballot initiative process. This means that the proposed law had garnered enough petition signatures to make it onto the ballot. It was then voted on by California voters this past November, and was approved by the majority (59.61%) of the state’s voters. Since it became law, the city of Los Angeles , which houses the country’s largest jail system, saw an inmate population decline from 18,601 to 17,285 by the New Year. As such, studies have shown that it is not jail-time that is actually behind the drop in the nation’s crime rate, but rather factors such as commonsense policy reform.

What This Means for You

Specifically, Proposition 47 will reduce certain felonies into a misdemeanor, including:

April 7, 2015

When does the Miranda right apply?

by David M. Boertje

Your Constitutional Rights

The Miranda warning is a verbal warning that all police officers must give a suspect before s/he is about to be taken into custody, and applies the whole time s/he is in custody. Custody means a formal arrest or the deprivation of freedom where a reasonable person does not feel like s/he can leave. It is the result of the famous 1996 Supreme Court case of Miranda v. Arizona, and has become part of established criminal procedure law to ensure that every American’s Fifth Amendment right against compelled self-incrimination is not violated.

In that specific case, Defendant Ernesto Miranda was arrested by the Phoenix Police Department on March 13, 1963, on suspect of kidnapping and rape. After two hours of police interrogation, he signed a confession, and was subsequently convicted. Miranda’s lawyer appealed his conviction on the grounds his confession was never fully voluntary and should have been excluded from his prosecution. The Supreme Court held that due to the coercive nature of police interrogations, no confession nor statement could be admissible in court under the Fifth and Sixth Amendment right to a lawyer, unless a suspect knowingly and voluntarily waives his or her rights.

April 4, 2015

Are there circumstances where Miranda rights don’t have to be read?

by David M. Boertje

As reviewed in the previous blog, Miranda rights protects one from compelled self-incrimination, but this right is not absolute. There are certain exceptions to the Miranda rule where police do not have to read you your rights. This means in any of these situations, police will use what you say against you in the courts processes without reading you your rights:

It does not apply to basic questions.

Police are still allowed to ask you basic questions not related to a suspected crime such as your name, address, etc. When asked these basic questions, it is best to just answer them but provide no more information than the police ask. If police start asking more substantive questions about your involvement in a crime, etc. respectfully decline and request a lawyer to be present.

April 3, 2015

Complaint Alleges SFPD Officer Broke City Law While Investigating With FBI

by David M. Boertje

Recently, two civil rights groups (the San Francisco branch of the Council on American-Islamic Relations and the Asian Law Caucus) filed a federal lawsuit against the San Francisco Police Department alleging that a police inspector not only violated department rules and city law whilst working with the FBI’s Joint Terrorism Task Force, but the SFPD also failed to report it. The two groups, which represent Arab, Middle Eastern, Muslim and South Asian communities, specifically claim that Sgt. Inspector Gavin McEachern violated software engineer Sarmad Gilani’s civil rights back in July 2014. In that instance, the FBI’s Counterterrorism unit approached the plaintiff’s workplace at Google and asked him a handful of questions regarding his travel plans, personal blog, and political expressions on social media. None of those questions actually had anything to do with a criminal investigation, because Sarmad Gilani had not committed a crime.

The groups are specifically concerned over the violations of Gilani’s privacy guaranteed by Article 1, Section 1 of the California Constitution, as well as the laws and policies of the City and County of San Francisco and, as applicable to the police department, that department’s policies and procedures. They also filed a federal Freedom of Information Act request on Gilani’s behalf to obtain discovery over the subsequent travel issues Gilani had due to the investigation(s) on him.

The Use of the Federal Freedom of Information Act (FOIA) for Criminal Cases

March 25, 2015

Teen Suspected of Making Online Threats Through the Burnbook App

by David M. Boertje

Early in March, San Diego Police investigated two threats of violence to high school campuses using social media. On March 5, they investigated a threat made to to Del Norte High School through the Burnbook app. On March 11, another threat on the Burnbook app was made against Mission Hills High School in San Marcos, Ca, indicating that the poster was building a firearm. The Burnbook app allows users to post pictures and texts anonymously, modeled after the “Burn Book” made famous by the notorious movie “Mean Girls.” Students in other schools also claim that the app is being used for cyberbullying. In these two instances, parents and the school principal contacted the SDPD immediately after discovery, but in both instances, it was found the threats were not “credible” because they were not specific enough.

This is just one of the many times the legal question of when “free speech” becomes an illegal threat not protected by the First Amendment has come up, given current events. Just recently, a Seattle man was sentenced for making Facebook threats against Officer Darren Wilson, though the judge believed he was merely expressing a strong reaction.

When Does “Free Speech” Rise to the Level of a Criminal Threat?

March 23, 2015

Gang Conspiracy Case Defendant Says ‘They’ve Got the Wrong Guy’

by David M. Boertje

In the beginning of this month, a group of 15 young people from Lincoln Park, San Diego, who were alleged to be part of the notorious Lincoln Park gang, were charged with criminal conspiracy related to two dozen local shootings within San Diego County. The San Diego County District Attorney’s Office (“DA”) charged the group for nine different gang-related shootings under CA Penal Code 182.5. One of the defendants, Aaron Harvey, 26, was arrested for murder, but maintains that he is innocent. Specifically, he was not involved in the shootings, but in this case the DA’s office claims that Harvey promoted the crimes by posting gang-related affiliations and threats on social media pages, and benefited from the ‘crime’ by gaining “street credibility.” Another defendant, local rapper “Tiny Doo,” whose lyrics reflect gang activity, is headed to trial.

As of now, five of the 15 defendants had their charges dropped at a hearing. There is still some confusion as to why the charges were dismissed for some defendants but not others and whether the judge can still dismiss charges for the remaining defendants. Harvey, who has no prior criminal conviction, now faces life in prison. He still maintains he is not part of a gang.

What is Criminal Conspiracy?

March 18, 2015

A Quick Explanation of California’s DUI Law and Other Alcohol-Related Crimes

by David M. Boertje

As another Saint Patrick’s Day kicks off in sunny San Diego, the SDPD will certainly be out in full force looking out for drunk drivers. According from the most recent California DUI statistics from 2007, there were nearly 1,500 alcohol-involved fatalities and more than 200,000 DUI arrests.

In California, there are 2 ways to get a DUI (“driving under the influence”)/ DWI (“driving while intoxicated”). The first occurs when one’s blood alcohol content is:

0.08% or higher (21 years old).

March 16, 2015

The Police Want Me to Voluntarily Go Down to the Station to “Answer Some Questions.” What Do I Do?

by David M. Boertje

Imagine that you are about to sit down with your family for dinner, and somebody knocks on the door. It is the police, and they were hoping you would go down to the station to “answer” some questions about a homicide next door. You think nothing of it, because you are just trying to be a good member of the community by giving as much information as you can, as to any noise or suspicious activity you may have seen. Scenarios like this play out daily. Sometimes there is a genuine need for help in a case, and sometimes it is a ploy to coerce a confession. Police often ask people for voluntary statements for various matters- sometimes one is a “person of interest” in a crime, or simply an eyewitness to an event or a crime.

In the case of ‘persons of interest,’ one should never voluntarily go down to the police station, because anything you say may be used against you, or to charge you. While you may think that because you are innocent and that you should go down to the station to ‘clear your name,’ keep in mind that the reason police ask persons of interests or people they suspect to voluntarily go to the station is because they do not have enough information to arrest them, take them into custody, or to charge them, and they are trying to get more information in order to do so. In order for the police to charge you with a crime, they must have probable cause, which is defined as the reasonable belief based on the facts articulated, that you have committed the crime. Do not give them this probable cause. If you are requested to go down to the station, respectfully decline and inform them that you want to speak to an attorney first.

At the Station

March 12, 2015

California’s Proposed Marijuana Legislation

by David M. Boertje

Keeping up with the momentum of Oregon, Alaska, Washington D.C. and Florida this past election year, Assemblyman Ken Cooley (D Rancho Cordova) recently proposed Assembly Bill 266, which would legalize recreational marijuana in California. The bill would set up a statewide regulatory scheme on marijuana while allowing local jurisdictions to regulate the licensing of medical marijuana growers and dispensaries. Marijuana policy reform in California has been attempted multiple times throughout the years. This bill was backed by the California Police Chiefs Association last year, and will be the second time it will be proposed.

Criminal Laws on Marijuana

While the proposed bill, if passed, would legalize marijuana to an extent, the possession of marijuana is currently decriminalized in California to some degree, with possession of up to 28.5 grams considered an infraction with a fine of $100. Possession of over 28.5 grams is a misdemeanor punishable by up to 6 months imprisonment and a maximum fine of $500. See California Health & Safety Code § 11357. However, possession with intent to distribute any amount of marijuana is a felony punishable by 16-36 months imprisonment. See California Health & Safety Code § 11359 and § 1170(h). The actual sale or delivery of any amount of marijuana is a felony punishable by 2-4 years imprisonment. See California Health & Safety Code § 1136.

March 6, 2015

Motions to Seal Vs. Motions To Expunge: What’s The Difference?

by David M. Boertje

Because criminal records are public records, those with prior convictions need to know that there are certain circumstances which may qualify them to get their records “wiped.” These vessels by which one’s records can be cleaned vary depending on the type of crime and state law involved.

Expungements

Expungements are defined as the legal process of cleaning up one’s criminal record. They are a good option to put your prior conviction behind, as it involves the court reopening your case, withdrawing your plea or guilty verdict, dismissing the charges, and re-closing the case without a conviction. Legally speaking, a successful motion for expungement has the effect of dismissing a prior criminal conviction, and you can therefore claim in future job interviews, housing applications, etc. that you do not have a conviction on your record. California Penal Code Section 1203.4 authorizes the most common kind of expungement relief that exists in California (ie. cases in which probation was part of the sentence, cases in which there was no probation, felonies in which you only served time in county jail, and cases where a felony conviction was reduced down to a conviction). In order for an expungement to take place, your lawyer will have to file a formal document in court requesting that they take a specific action (the expungement motion). This motion must be filed at the court where you received your sentencing and given to the prosecutor that handled your case, and must claim in good faith that you are now living an upright and honest life.