San Diego Criminal Lawyers Blog

March 25, 2015

Teen Suspected of Making Online Threats Through the Burnbook App

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.

March 4, 2015

The Prosecutor Wants me to Take a Polygraph Test! What Do I Do?

by David M. Boertje

What Exactly is a Polygraph Test?

In tv shows and movies, polygraphs (or “lie detector tests”) are often painted as mechanisms by which a defendant “gets off” or proves his or her innocence. Polygraphs are machines that hook up to a person to measure their physiological indicators such as perspiration and heart rate. It was once thought that when a person tells a lie, their heart rate and blood pressure change to indicate so. However, what many people do not know, is that polygraph tests are generally unreliable (ie. there are “false positives” or negatives), and their use has decreased. For example, if a person is nervous simply by virtue of taking a lie detector test, their heart rate will increase regardless and their test results will be inconclusive, rather than “passing.” Polygraphs may also be fooled if one is just able to control their physiological responses.

Rules on Polygraphs

March 2, 2015

California Supreme Court Says Sex Offender Residency Law is Unconstitutional

by David M. Boertje

Earlier this Week, the California Supreme Court decided unanimously that blanket, statewide bans on where sex offenders may not live (“Jessica’s Law”) violate the constitutional rights of parolees in San Diego County. Jessica’s Law (aka Proposition 83), named after a 9-year-old girl who fell victim to a sex offender who failed to report his whereabouts, was proposed via a ballot initiative in 2006. Due to Megan’s Law, those who have been convicted of a sex crime must register with their local law enforcement agency.

Jessica’s Law therefore barred registered sex offenders from living within 2,000 feet of a school or park where children gather, regardless of whether the crimes actually involved children. Sex offenders subsequently challenged the law in court, claiming that it made it impossible for them to find a place to live. The court recognized that the law made over 97% of rental housing in San Diego unavailable, and ruled that the consequences of the law were so severe, it hampered rehabilitation and caused homelessness. Although the unanimous ruling immediately affects only San Diego County, it will certainly pave the way for the same policies in major metropolitan areas, including San Francisco.

What to Do If You Are Charged With a Sex Crime