California criminal attorney

March 3, 2023

Defending a Criminal Prosecution

Anyone who has ever been charged with a crime knows that, more often than not, the case is settled long before it goes to trial. According to Pew Research, only two out of every 100 federal criminal cases make it that far. In 90% of these cases, people pleaded guilty, likely in exchange for lesser charges, and the charges are dropped in the remaining eight percent of federal cases. State cases are tried with more frequency, though still only at a rate of about 5% to 10%. All these statistics are the reality for the majority of people charged with a crime. But what about those who do go to trial? What can be expected?

The Narrative

For starters, defendants can expect the prosecution to present a narrative with a particular theme highlighting the character flaws of the alleged criminal. Greed, indifference, callousness, negligence — these are all characteristics that could be nailed onto the defendant to win the jury over to the prosecution’s way of seeing the evidence.

January 6, 2023

Police Use of Force a Problem in California

by David M. Boertje

For anyone who thought that police use of force would wane after the riotous year of BLM protests in the recent past, the discouraging news is that these incidents are on the rise. Across the country in general, and in California specifically, documented cases of police use of force are on the rise. According to the Centers for Disease Control and Prevention (CDC), emergency room visits following police interactions have exceeded 400,000 throughout the United States in the past. Lethal force is particularly worrisome—with over 1,000 fatal police shootings in California in 2020 alone. Another unsurprising fact: these kinds of things happen most frequently in Black and brown communities, according to research.

California Law on Lethal Force

According to recent California law, lethal force is justifiable only in cases where human life is being protected. This is in contrast to the previous law allowing lethal force whenever an officer deemed it reasonable. Even so, case after case of police shootings continue to destroy families and neighborhoods. However, in some cases, officers are not getting off scot-free. A deputy in San Diego recently faced charges of second-degree murder, while an officer from San Leandro was looking at manslaughter charges, both a result of excessive use of force.

So, it seems our strict use-of-force laws are making a difference—though not eliminating the problem. Perhaps that is because officer training is very inconsistent across California. While some departments require that officers take a two-hour course, others have condensed the training down to 14 minutes in front of a video and being handed a memo. And many officers have received no training at all on the new law yet—and San Diego officers are sorely behind in the training.

A San Diego Story

One San Diego story is a tragic one. A 36-year-old who loved the environment and animals suffered from a mental illness that made him easily frustrated. To escape the pressure of difficult situations, he started running away as a toddler, and the pattern of behavior continued throughout his school years and into adulthood. In multiple situations, he ran from the police. When confronted by a park ranger for having his dog off-leash one afternoon, he fled. Ultimately the ranger and a backup officer found him, and he was tased and put under arrest due to his resistance and because he held a golf club that appeared to be held as a weapon. Cuffed and in the back of the squad car, the man managed to free one of his hands, open the door, and run. Though several officers on the scene believed he was not a threat, one officer shot the fugitive four times, resulting in his death later in the hospital.

When it Comes to Race…

Who is most likely to suffer police use of force? Black individuals are on the receiving end of such tactics in four of ten cases, despite the fact they make up only about one-tenth of the population. Conversely, whites experience police use of force in less than one-third of incidents, despite making up over 40% of the population. Continue reading

December 9, 2022

How Much Faith Should Juries Put in Forensic Evidence?

by David M. Boertje

If you watch any crime drama on television, you know the scoop: the case could be up in the air with no way to nab the culprit—until miraculously, a fingerprint or a wayward strand of hair is discovered by a fervent detective. Instantaneously, it seems, the evidence is analyzed in the lab, proving without question who is guilty of the crime. The perpetrator goes to jail, and justice is served. But how accurate is this depiction of the criminal justice system at work? If you are being charged with criminal activity and there is forensic evidence that puts you at the crime scene, there are several things you should know.

Justice is Slow

For starters, unlike on TV, it takes a lot of time — weeks, months, and sometimes years — after a crime is reported until it goes to trial. Moreover, forensic evidence is not quite as cut and dried as it appears on the screen.

Hair analysis: The forensic analysis of hair has been under scrutiny of late—in fact, it is sometimes referred to as pseudoscience. That is because so many of the characteristics of hair are extremely common, so the likelihood of an accurate match is slim to none. According to The Guardian, one expert in the field stated that microscopic examinations are essentially without value except as a method to exclude a suspect.
Fingerprints: Examiners — the majority of whom have never been required to pass any sort of accreditation or testing standards — are taught to report their findings with certainty. Unbelievably, however, training standards for fingerprint analysts vary from state to state, and many of the conclusions reached by these fingerprint “experts” should be viewed as less than airtight, to say the least. The problems with fingerprint identifications are becoming more and more well-known, leading many courts across the country to exclude fingerprint evidence altogether! That is because the accuracy of fingerprint identifications has not ever really been tested.

Challenging “Expert” Testimony

When your defense team encounters what they consider dubious conclusions made by a supposed expert, Daubert Motions can challenge the testimony based on any of three key areas:

The qualifications of the “specialist”;
The methodology used to arrive at specific conclusions;
The accuracy of the science itself.

These are precisely the types of challenges that give a judge reason to doubt the legitimacy of “expert” testimony. Such challenges could benefit defendants by prompting a judge to instruct a jury to give less weight to such testimony, to strike the testimony related to that evidence altogether, or even to dismiss the case outright. Continue reading

September 30, 2022

Mental Health Issues and the Criminal Justice System

by David M. Boertje

Across the United States, prisons and jails are brimming with people who suffer from mental health issues. It is true: more than half of the prison population and more than two-thirds of those in jails suffer from mental health problems. If you or a loved one has such issues and is arrested, you know that jail is simply not the best place to wind up. Are there other options in California?

The Cycle Continues

According to the Bureau of Justice Statistics (BJS) people behind bars who suffer from mental health issues often have previous convictions and tend to serve longer sentences than the average offender. Any health issues — and mental health conditions in particular — tend to get worse without treatment, which can result in further problems with the criminal justice system. It is a vicious cycle that needs solutions.

Crisis Intervention Teams

Since police are usually the first on the scene of an altercation involving someone who suffers from mental health issues, states across the country are developing Crisis Intervention Teams (CIT’s) to assist with evaluation and de-escalation in crisis situations. The result is fewer arrests, access to diversion programs and services, and fewer injuries to offenders, police and others. Police and CIT members work together to impact communities by reducing severe outcomes involving the mentally ill. With teams of mental health workers, better trained police know how to interview, negotiate, and identify the effects of drugs, which means criminally involved or suicidal individuals get lifesaving help instead of simply being arrested.

Diversion Opportunities

In addition to pre-arrest interventions, many states direct arrestees to diversion courts instead of incarceration, giving people the chance to take responsibility for their actions, get the help they need, and have their records cleared in time. Studies show this can result in shorter sentences and fewer re-arrests.

Hope in California

The future looks bright for mental health intervention in California. Crisis Intervention Teams are embedded in police departments across the state, providing training for officers and redirecting offenders to support programs that can help instead of simply punish. The state has budgeted tens of millions of dollars to address the increasing challenges associated with the homeless population, substance use disorders, and mental illness, all of which may interact and lead to criminal activities. The state is committed to improving outreach and mental health diversion programs, while minimizing involvement with the criminal justice system. Another thing California is doing to improve outcomes for those with mental health issues is suspending Medicaid coverage during incarceration, rather than canceling it altogether. This can be important for those looking for treatment options and can reduce the chances of re-arrest. Continue reading

July 29, 2022

Strategies Prosecutors Use to Secure A Guilty Verdict in Domestic Abuse Cases

by David M. Boertje

No criminal conviction looks good on your record or reflects well on you in the eyes of others. Some convictions carry a serious stigma that affects the way others perceive you. As a result, when you are done serving your sentence, you may have a difficult time doing all of the things that others with a clean record can do. Certain charges can make life after prison extremely difficult. Domestic violence charges are one example of this.

Just the accusation of domestic abuse can impact your reputation. When you are convicted on criminal domestic abuse charges, it can be devastating to your future. If you have been arrested for domestic abuse in California, trust the experienced and resourceful legal counsel of the San Diego domestic violence defense attorney David M. Boertje. We are standing by to help.

Prosecution Strategies Against Domestic Violence Offenders in California

The prosecution will look at every aspect of your case to mount a strategy against you that secures a conviction. The tactics they use are stealthy, so it is best to understand what you could potentially encounter. The following tactics are commonly used by aggressive prosecutors:

A prosecutor may advocate for a plaintiff to secure a protective order even when both the defendant and the plaintiff are on track to work things out cooperatively and safely. With a protective order in place, there can be no communication between these parties, which inhibits the amicable resolution of important issues.
When domestic abuse accusations are made, the “always believe the victim” mentality kicks in. As the alleged perpetrator, it is your credibility that the prosecutor will scrutinize and aim to tarnish.
If you even try to speak to potential witnesses or if you try to connect with the party who has brought the abuse charges against you, a prosecutor will frame this as you trying to intimidate these individuals.
Recordings of phone calls you make while incarcerated may be used against you. Think carefully about what you say and to whom you reach out.
Your entire life will be put on the line as evidence that you are capable of domestic abuse. So, even if you have made a mistake in the past that is completely unrelated to your current situation, if it can benefit the prosecution’s argument, they are going to use it as a means to harm you and persuade a judge and jury that you should be found guilty.

June 24, 2022

Can Anyone be Eligible for Release From Jail Without Bail in California?

by David M. Boertje

After your arrest and detainment, a judge will typically set your bail. Bail is an amount of money that you post to be released from detention in jail. Once bail is set, you or your loved ones can pay it in the form of bail bonds, cash, or property. When you are bailed out of jail, you are expected to return for your scheduled court date. If you do not attend court, then you will lose the rights to the bail that was posted for you. If you attend your hearing, then you will be reimbursed.

If a judge decides that you should be released on what is called ‘your own recognizance,’ then you will not have to post any type of bail to be released from prison. If you or a loved one has been arrested and you are confused about the bail bond process, reach out to a San Diego criminal defense lawyer right away.

Who Can be Released on Their Own Recognizance in California?

Being released on your own recognizance (O.R.) means that the judge believes that you are trustworthy enough to come back for your court date without having to put up collateral, or bail. For the majority of the state of California, O.R. release does not just automatically happen, and while many criminal defendants may be eligible, not everyone is.

Those individuals seeking O.R. release cannot have any of the following be true:

The charges are so substantial that a conviction can lead to a death sentence.
The defendant’s release may put public safety in jeopardy.
There is no belief that the defendant will actually come to their court date.

Being released on O.R. is the best possible outcome after an arrest, but getting to this point is not an easy task. This is one of the many reasons why having an experienced legal defense attorney on your side after you are arrested can be so invaluable. An attorney who knows the criminal justice system in California and understands exactly what is necessary to argue for O.R. release on a defendant’s behalf is a critical tool in preserving your freedom.

The San Diego criminal defense attorney David M. Boertje has a track record of success helping clients tangled up with the criminal justice system achieve O.R. release. If it is possible to get released on one’s own recognizance, attorney David M. Boertje can argue effectively on a defendant’s behalf to secure this ideal situation. Continue reading

May 6, 2022

What are the Penalties for Forgery in California?

by David M. Boertje

Under the law, you cannot pretend to be someone that you are not. If you try to falsely represent yourself as another person, this could lead to significant criminal penalties. California forgery charges are strict, and depending on the details of the crimes, you could be charged with either a misdemeanor or a felony. Time behind bars and steep fines could result. And, if you did not have a criminal history in the past, a forgery conviction will change that quickly. As a result, the rest of your life could be negatively impacted by that criminal record that will follow you around wherever you go, tainting your reputation.

David M. Boertje is a San Diego felony defense attorney who can help you when you have been arrested for a criminal act like forgery. While there are clear examples of forgery, such as taking another person’s check and trying to cash it as if the check were yours, there are also other examples of forgery that may not at first seem like a crime at all.

What is Forgery in California?

California describes forgery as the falsification of documents. Some examples include:

Falsely trying to cash another person’s check.
Rewriting or making adjustments to another person’s will without their consent.
Signature tampering.
Taking another person’s plane ticket and posing as that person to get on a flight.
Trying to claim lottery winnings that are not your own.
Signing a contract with another person’s name.
Filing for a license in another person’s name.
Trying to withdraw more money from your account than you have by cashing a check.
Making fake money and trying to use it to procure goods and services.

California forgery and counterfeiting laws are serious and when you misrepresent yourself and it harms another party, you could be held criminally liable. Your charges may rise to the level of a misdemeanor charge, but they could also be charged as high as a felony offense. The difference between the two has to do with how much money was involved in a forgery event. Should forgery result in costs over $950, then a felony would be applied. If the forgery was less than $950, a misdemeanor would result.

Misdemeanor forgery charges come with penalties including fines and a year in county jail. While a felony charge could mean up to 16 months in state prison or up to three years in county jail. Restitution payments and pricey fines as costly as $10,000 may also be part of a sentence. Continue reading

December 17, 2021

What Does the Presumption of Innocence Mean in a Criminal Case?

by David M. Boertje

The United States has an ethos that favors fairness, especially when it comes to the criminal justice system. While the criminal justice system is imperfect, it is based on the idea that a person who is charged with a crime is essentially innocent until it can be proven they are guilty. Known as the “presumption of innocence,” such an attitude aims to minimize the risk that people will be given unfair trials for their alleged crimes.

People in the United States have certain fundamental rights, such as the presumption of innocence. If you were arrested and charged for a crime in San Diego or the surrounding areas, it is essential to get in touch with a criminal defense lawyer who can safeguard your rights and work diligently to secure the best possible outcome for your case. David M. Boertje is a San Diego criminal defense attorney that is dedicated to helping aggrieved people charged with crimes secure justice.

Interjecting Fairness Into Criminal Law

In the absence of the presumption of innocence, obtaining a fair and true outcome in a criminal case becomes much more of a challenge. The legal principle of the presumption of innocence makes it so that the state has the responsibility to prove the charges are correct and that the person is guilty of the criminal acts for which they are being tried.

In a civil case, the bar for showing that a person is liable for paying another for their damages is not as high as proving guilt is in a criminal case. To be convicted of a crime, it must be shown that a person is believed to have committed their crime beyond a reasonable doubt. If there is any doubt whatsoever, then thwarting a conviction is what should take place.

Because the burden of proof is the job of the state, a defendant’s criminal defense counsel will try to combat any claims and evidence produced to instill doubt in a judge and jury. If the legal defense is strategic, detailed, and focused, this can be so. Simply being charged with a crime does not mean that there has been a conviction. The only time that a person will have a pronouncement of guilt is if the state successfully shows that culpability exists.

Another right that defendants have is that they do not have to produce information that could hurt their case. Defendants do not have to self-incriminate.

Defendants also can answer questions or talk if they choose, but if they decide not to then that is well within their rights, too. Should a defendant refrain from speaking and remain silent, this is lawful. Additionally, staying silent is not an action that is supposed to mean that a person must be guilty. Many defendants are advised to stay silent and end up walking away from the court with a verdict of their innocence. Continue reading

November 5, 2021

Can Your Child Lawfully Act in Self-Defense in California?

by David M. Boertje

You teach your child to avoid danger and to protect themselves when appropriate. You also teach them not to start fights or try to hurt other people. It can be quite confusing for kids. Across the country, fights and other violent acts are taking place in schools. The causes of these incidents can vary, but it is nonetheless a serious problem for all of us.

In some situations, a person may engage in violence as a result of trying to defend themselves against physical harm by another party. If self-defense can be shown, the legal criminal implications will be much less than if the aggressive actions were intentional and unprovoked.

If your child was involved in a physical altercation in which law enforcement had to intercede, it is best to connect with an experienced criminal defense lawyer as soon as possible. If you believe that your child was the victim of an attack and acted in self-defense, it will take a proficient and knowledgeable legal professional to help make the case. David M. Boertje is a San Diego criminal defense attorney who can help your family should your child find themselves facing criminal charges.

Can Minors Plead Self-Defense?

When it comes to physical violence, there is assault and then there is the battery. California’s assault and battery definitions are not the same. The two are quite different. Assault happens when a person has the ability to inflict harm and attempts to inflict harm on another person. For example, if a person tries to push another party but no harm was inflicted, it can still be considered assault.

By contrast, battery takes place when someone attempts to harm another party and succeeds. So if the damage inflicted on another party did cause injuries and harm, then the crime would no longer be assault but rather elevated to battery.

When an adult is facing an assault and/or battery charge, they will be processed in the criminal justice system. The result is likely going to be some severity of punishment in the form of prison time and potentially a costly fine. Not to mention, the blemish on the person’s record will reflect poorly on them when they try to get a job, apply for a loan, or take part in other life opportunities.

For juveniles, though, the case is likely to be adjudicated in the juvenile court system. The main difference between the criminal justice system and the juvenile court system is that the former relies on punitive actions while the latter emphasizes rehabilitation.

As long as a young person under the age of 18 did not commit an egregious act that warrants the adult criminal justice system, they can get a second chance in the juvenile system. Though, if your child is convicted of assault or battery, their school may take action such as expulsion due to zero-tolerance rules. This is why having a skilled criminal defense lawyer advocating for your child is so critically important. Continue reading

September 24, 2021

Is it Possible to Get a New District Attorney for Your California Criminal Case?

by David M. Boertje

Going to court can be scary and distressing. Knowing that there will be a district attorney set to ensure you are convicted of your charges does not make things any better.

When it comes to criminal cases, the defendant, or the person who is accused of the crimes, is not given the opportunity to choose who the prosecutor is. Also, the defendant will not be able to ask for a different prosecutor than the one who is assigned to their case. The only thing that a defendant can do is preclude some prosecutors from being considered.

If there is a real and clear conflict of interest, then there is a chance for a new prosecutor. A conflict of interest happens when one party has something to gain from the fall of another. For example, if the defendant is alleged to have harmed a particular victim who is related to the prosecutor, it could be argued that the prosecutor has a bias and therefore should be ruled out as an option.