Articles Tagged with California criminal defense attorney

Are you facing domestic violence charges even though you are the real victim of abuse? If so, you are looking at some serious legal penalties. If prosecutors have it backward, and the violence in your relationship is directed at you, proving otherwise could be a tough job. But oftentimes, when heterosexual couples have violent relationships, men are often assumed to be the aggressor. But is that always accurate? The truth is that men do wind up on the receiving end of family violence more often than some people realize. 

DV Charges

Spousal abuse is a crime, and if you have been wrongly accused, you should absolutely fight the charges. Otherwise, the consequences could be life-changing, including:

  • Impacting your ability to secure employment;
  • Destroying your right to own a gun;
  • Paying substantial fines (as much as $6000 for a first offense);
  • Going to jail (up to four years, depending on charges).

Bias Against Men in DV Cases

When we hear about domestic violence, women are usually thought of as the victims, which is accurate in many instances—but not always. As unlikely as it may sound, men are victims of DV, too. They often fear they will not be believed if they report it or try to get help. Unlike women, men know many people will think of them as pathetic and feeble, if not as a liar.  Especially when a man is physically larger and stronger than his intimate partner, some will find it difficult to believe he is being abused. Even so, men do experience violence from domestic partners with alarming frequency, and they often cannot get the help they need because of societal bias:

  • There are hundreds of studies substantiating that when relationships are violent, women are equally likely to be the aggressors. Studies reveal that roughly 40% of reports of serious violence involving former or current partners are filed by men, usually involving an attack by women. 
  • In spite of these facts, when police are called to intervene in a domestic dispute, they are more likely to arrest both individuals only if it involves same-sex couples. When police are called to cases involving heterosexual couples results in men being arrested.
  • Women are much more successful than men in securing protective orders.
  • Mock juries who witness DV scenarios are more likely to assign blame to men than to women when presented with violent scenarios, regardless of which partner is the perpetrator of that violence in the scenario.

Violence Against Men is Real

Any violence in a relationship is very serious. The Centers for Disease Control reports that between 10% and 15% of males surveyed say they have experienced serious violence at the hands of an intimate partner. What kind of violence are we talking about?

  • Hair pulling;
  • Punches and/or kicks;
  • Being burned;
  • Being slammed against a hard surface;
  • Being struck with a heavy object;
  • Suffocation and choking;
  • Being beaten;
  • Being threatened with a knife or gun.

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We see in movies, and even in the news, stories of suspects “flipping” on one another.  What does it really mean? Generally speaking, it is a matter of sharing evidence that a prosecutor values in exchange for benefits to one’s own legal situation. The prosecutor may have bigger fish to fry and be content with reducing or eliminating charges against someone lower on the totem pole in order to get to a  bigger fish. This is more formally referred to as turning state’s evidence. What could that mean for the typical defendant? 

Plea Bargaining Federal Rules

There are federal rules that must be followed when a defendant utilizes their constitutional right to turn state’s evidence. In exchange for the defendant pleading either guilty or nolo contendere, or making a plea conditional on a review by an appellate court, the plea deal process would move forward. It would ensure that the defendant is advised and questioned under oath in open court, and several issues must be clarified:

  • The defendant does have the right to plead not guilty;
  • A defendant has the right to counsel and to have that counsel appointed by the court if needed;
  • The defendant’s right to have counsel present throughout all proceedings and the trial;
  • The government has the right to use information provided under oath if prosecuting false statements or perjury;
  • The defendant may choose to plead guilty but must understand the potential consequences of such a plea;
  • Maximum penalties associated with such charges, including possible incarceration, fines, probation, and parole must be spelled out to the defendant;
  • Mandatory minimum penalties for each of the charges must be clear;
  • There may be court-ordered restitution assigned to the defendant;
  • The court has the right to order a special assessment;
  • A judge must adhere to sentencing guidelines ;
  • A defendant’s right to testify at trial, to refrain from incriminating themselves, to confront accusatorial witnesses, and compel witness testimony;
  • A defendant waives the above rights in the event a plea deal is accepted;
  • There is no ability to appeal if a plea deal is accepted;
  • There is a likelihood of deportation for non-citizens.

Other Requirements

The court must ensure that the defendant was not forced, coerced, or threatened to make a plea and that it was entered into voluntarily. In open court an exchange between the judge and the defendant must establish that the agreement was arrived at fairly and that there was a factual basis for the plea, meaning evidence that the defendant really is guilty of the crimes listed in the plea agreement. 

Changing One’s Mind

A defendant may withdraw from such an agreement for any reason prior to the court’s accepting it, or with a reasonable explanation if the court has accepted the plea but not yet imposed a sentence. Otherwise, it may be too late for a defendant to change one’s mind. Continue reading

Working closely with a defendant to develop the best defense possible requires skill, creativity, and a depth of knowledge found among the defense lawyers at Boertje & Associates. If you are facing criminal charges, we can provide the services of an experienced criminal defense attorney who understands the many options available to defendants. Some of the possibilities that could benefit you include the following: 

Showing a Jury That You are Innocent

The law states that every defendant is innocent until proven otherwise. Prosecutors must prove every element of the case to get a conviction. A good defense attorney will use testimony, documents, and other materials to try to convince a jury of your innocence.

Putting Forth an Affirmative Defense

Constructing an affirmative defense is one way to reduce legal consequences associated with your charges. That means we do not claim that you are innocent; instead, we show that there were mitigating circumstances—maybe self-defense, intoxication, or other factors that could decrease or even eliminate your criminal liability. 

Negotiating a Plea Bargain

This strategy — pleading to lesser charges in exchange for a lighter sentence — might be available depending on your history of arrests/convictions, the confidence a prosecutor has in their case, and the value of information you have to trade.  

 Challenging of Evidence

Strict rules around evidence mean that any deviations from standard protocols can be quite beneficial to a defendant. Your attorney may be able to point out glitches with the chain of custody, challenge the reliability or interpretation of forensics, or focus on contradictions related to witness testimony.

Using Expert Testimony

When we provide our own expert witnesses, it is a potent way to show a jury a different explanation of the evidence that might be presented by the prosecution. This can be fundamental to establishing a fresh narrative to explain events relative to the event in question.

Looking at Mitigated Sentences

Defendants who express remorse, accept responsibility for their situation, and show a clear desire to turn their lives around may be able to take advantage of sentencing options delivered by sympathetic judges. Judges generally have some leeway when it comes to sentencing. There are multiple alternatives to jail that might be considered, including one’s desire to rehabilitate through mental health or drug rehabilitation, for example.  

Citing the Statute of Limitations

Many crimes have very specific time frames during which they may be prosecuted. Once that window closes, the prosecution may be barred from moving forward with charges.  Continue reading

Because defendants are presumed innocent until proven otherwise, it makes sense that the Founders believed in giving the accused their day in court as quickly as possible. The  6th Amendment of the Constitution guarantees the right to a speedy trial. It is important for many reasons, not the least of which is that it quickly clears the names of innocent people in a court of law. But what constitutes a speedy trial? 

Defining Speedy

Under California law, a misdemeanor criminal case must be tried within 45 days of charges for individuals who are not being incarcerated and just 30 days for anyone in custody. Felony charges must be tried within 60 days. More specifically, formal charges are required within 15 days of an arrest, and misdemeanors are tried within 45 days of arraignment.  Felonies must be tried within 60 days of arraignment. If that fails to occur because the state’s case is not ready yet and they have failed to demonstrate good cause for a delay, the case may be dismissed with a Serna motion, the claim that a speedy trial was denied.

Benefits of a Speedy Trial

 The benefits of having a speedy trial are many:

  • Defendants who have been wrongly accused are able to move on with their lives rather than be indeterminately burdened with unresolved charges.
  • Locating witnesses to the event in question will be less challenging if the trial occurs soon after an alleged crime.
  • Witnesses will likely remember their experiences more clearly.
  • A speedy trial can reduce the time behind bars since the accused is often jailed while awaiting trial. 
  • A speedy trial will reduce the stress and trauma for defendants.

Trial Delays

There are numerous reasons that any trial might be delayed, some legitimate, and others not so much:

  • Information may be passed along to the prosecution from law enforcement slowly.
  • The prosecution may be slow to disclose information to the defense.
  • State labs may be slow due to backlogs, leading to delays in essential forensic testing.
  • Complicated cases have a great deal of evidence that takes an extraordinary amount of time to review.
  • The prosecution may be short-handed, and therefore need more time to prepare.
  • Backlogged court dockets may make scheduling a timely court date a challenge. 
  • In some situations, the prosecution may intentionally delay the case for their own reasons.

The Fight for a Speedy Trial

If a person’s right to a speedy trial is violated, an aggressive defense attorney might charge that the prosecution was sloppy and disordered, leading to unnecessary delays.  It may be possible to find evidence of intentional delays by the prosecution in an attempt to provide gain time to ferret out additional evidence against the defendant. Since the right to a speedy trial was largely intended to safeguard the presumption of innocence, any uncommon or problematic delays might be a reason to fight for a case dismissal. Continue reading

As an unsuspecting woman prepared her two daughters for school one February morning, she was shocked to find six armed police officers at her door. They requested she step outside and promptly arrested her for carjacking. The woman, compliant, was stunned.   

Is This for Real?

The woman had no idea what was happening or why they thought she was connected to a carjacking. At eight months pregnant, she was in no condition to pull off a carjacking and would never be compelled to participate in that kind of activity anyway. Even so, police handcuffed her and took her to jail. She spent 11 hours detained, locked in a holding cell, and being questioned relating to a crime she knew nothing about. Finally, she was released on a $100,000 bond. Then she went to a local hospital, where she was treated for dehydration. One long month later, the charges against her were dropped.

Why Was This Woman a Suspect?

The evidence leading to the woman’s arrest began with facial recognition technology (FRT). Videotape from the crime scene was run against a criminal mugshot database, which came up with the innocent suspect. Her face was there due to a 2015 arrest for driving under an expired driver’s license. Police included the woman’s photo in a photo lineup that was shown to the victim, who identified her as his assailant. And therein lies the problem: When a person appears similar to the perpetrator, facial recognition technology and humans can both make the same identification mistakes.

Can FRT Be Trusted?

There is general agreement that facial recognition technology is extremely accurate under model conditions. However, in most cases captured in video surveillance from things like convenience store security cameras or traffic cameras, conditions are appreciably less than ideal. Indirect angles, shadows, and aging have adverse effects on the reliability of FRT. One study found that the technology’s accuracy rate at sporting venues was between 36% and 87%. That is a substantially lower rate than in, for example, an airport, where security cameras are placed at boarding gates in well-lit, eye-level conditions. It brings into question how law enforcement can be so confident in FRT results.

Race and FRT

Another serious problem with this technology is the problem related to race and FRT. Research is clear: The rate of error is over a third higher for dark-skinned people than for light-skinned people, with black women experiencing the highest error rates when attempts to identify them were tested. It makes one wonder why law enforcement would rely on FRT at all. Continue reading

We have all heard the stereotype about all people who are charged with a crime claiming to be innocent. But the truth is, plenty of them are. Nonetheless, they are prosecuted, even though, in some cases, the motivation behind the charges is the pursuit of something other than justice; they are interested in getting even or getting out of trouble themselves. Prosecution under these circumstances is legally called malicious prosecution. It means that either the plaintiff or someone on the prosecution team is literally out to get you. Sound like a conspiracy theory? Maybe so, but it happens more often than you might think.

Malicious Prosecution Comes in Many Forms

Malicious prosecution is pretty much what it sounds like — the spiteful arrest or prosecution of a person who is innocent or the prosecution of someone for which any reasonable person would acknowledge there were no legal grounds.

These cases frequently involve a plaintiff who is jealous, angry, or afraid, or who is aggressively seeking revenge. Some examples might include:

  • An amorous relationship is toppled by an affair, and the scorned partner accuses the cheater of battery to exact revenge.
  • A law enforcement officer is put off by a disrespectful youth, then trumps up charges to teach them a lesson.
  • A nasty custody battle is heated up when one person falsely accuses their former spouse of child abuse in order to strengthen their bid for custody.
  • When an amicable business split is impossible, and one partner accuses the other of fraud in an attempt to destroy their reputation and the company.
  • An unplanned pregnancy leads to a rape accusation as a way to protect a young woman’s reputation.
  • A newspaper sheds a negative light on a subject of journalistic investigation and is then sued for libel as a way to disparage the organization.
  • A person sells their spouse’s expensive jewelry, then accuses someone else of stealing it to avoid blame.

Defending Malicious Charges

Defending these kinds of charges is much like defending any other case. That means developing a strategy of:

  • Providing a strong alibi;
  • Finding evidence of lies or embellishments;
  • Presenting the defendant’s explanation of events in a credible fashion;
  • Exposing motives for bringing charges;
  • Checking police reports and procedures for errors;
  • Looking at the plaintiff’s previous behavior that demonstrates malicious prosecution;
  • Using physical evidence and additional provable facts to develop a compelling narrative;
  • Seeking out third-party experts to testify;
  • Demonstrating that the prosecution has not proven all elements of the crime.

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Criminal charges are serious business, requiring a serious response. At the Law Offices of David M. Boertje, a skilled defense attorney is committed to fighting for your best interests. Part of that means we strive to keep clients informed every step of the way. Although every case is different, here is generally what you can expect: 

  • A straightforward, no-nonsense appraisal of your situation: We will assess the facts in hand and give you the best advice we can based on California law.
  • 100% effort on your behalf: That means responding to concerns, tracking down leads, and following through with commitments.

Preparing for a Trial

We always fight for the best possible outcomes. From beginning to end, we strive to achieve the results that have the least harmful impacts. While getting charges dropped or reduced is often ideal, sometimes a plea bargain to reduce sentencing, commuting sentencing, or an attempt to participate in alternative programming is a good outcome. If the case goes to trial, a vigorous effort toward a verdict of innocence is always the goal. You can count on a strong courtroom presence through preparation and critical thinking, and the effective development of a counternarrative to the prosecution’s story. All in all, we have a no-holds-barred approach:

  • Understanding the approach of the particular judge overseeing the trial;
  • Respecting the system and working effectively within it;
  • Organizing materials, plans, and strategies in a way that makes sense;
  • Communicating effectively with all parties;
  • Getting the facts by interviewing witnesses and clients;
  • Finding expert witnesses to address evidence;
  • Conducting extensive research to develop a theory of the case and find precedents to support our theory;
  • Filing motions on behalf of the client in order to strengthen our position;
  • Participating in discovery sharing according to the law;
  • Preparing a believable story to counter what the prosecution presents;
  • Subpoenaing witnesses, documents, and other evidence to support our case;
  • Crafting a strong, sincere opening argument to present to the jury;
  • Preparing you and other witnesses to testify on your behalf;
  • Acquiring photos, records, and other documents relevant to the case;
  • Producing exhibits related to the incident in question;
  • Considering specific objectives during jury selection;
  • Challenging testimony and evidence provided by the prosecution;
  • Anticipating the potential moves of the prosecution and being prepared for them;
  • Thinking on our feet and addressing issues as they arise;
  • Delivering strong, forceful closing arguments;
  • Submitting jury instructions to the judge;
  • Keeping accurate records in the event an appeal is appropriate.

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If you have been charged with criminal activity, the police and the district attorney have concluded that you are the most likely suspect connected to a crime. Your arrest has you frightened and worried about your future. What is next for you? 

The Arrest

Unless they caught you in the act, they have likely already collected evidence against you, including witness statements, physical evidence, photos, and more. A warrant that has been approved by the prosecutor says they have probable cause to believe you are guilty, and that gives them the right to put you behind bars until you are arraigned. 

The Arraignment

Whether you have been charged with a misdemeanor or a felony, this will be the first time you appear in court on the charges. There, you are formally informed of the charges and told of your rights according to the constitution, such as the right to a trial before a jury of your peers, the fact that you are presumed innocent until proven otherwise, and so forth. You are given the opportunity to plead guilty, not guilty, or no contest.  Bail and other conditions are decided.

The Pretrial Proceedings

Before the trial even starts, there may be motions by either side for the judge to make decisions related to the trial. Perhaps the defense will ask the judge to exclude certain evidence or will ask the judge to consider reasons that they believe you should not have to stand trial. Sometimes a plea deal is offered that the judge will have to weigh in on.

The Trial

If the case goes to trial (meaning charges were not dropped or a plea deal did not work out), the prosecutor has the burden of proving your guilt beyond a reasonable doubt. The trial can be held before the judge alone or before a jury. If you are found to be not guilty, you are free and clear and cannot be retried on the same charges. If the final verdict is guilty, a new date will be set for sentencing.

Pre-Sentencing Report

If found guilty, the probation department is tasked with putting together a final sentencing report detailing the crime, your criminal history, the victim’s statements, and a sentencing recommendation.


The judge approves the final sentencing based on guidelines in California law.  Continue reading

We all know that various kinds of evidence is important to the outcome of a criminal trial. Whether you are talking about witness testimony, documents, or physical evidence, it all adds up to a verdict in the end. But what if there are legal issues with the way the evidence was obtained? That is when your attorney can ask the judge to exclude it, meaning the jury will never know about it.

 A Motion to Suppress

Before a trial even begins, a criminal defense attorney can ask for particular evidence to be excluded. There are plenty of reasons that could justify such a request: 

  • If the evidence was obtained from an unlawful traffic stop or arrest;
  • If someone’s Miranda rights were violated and that led to the police getting their hands on the evidence;
  • If police conducted an illegal search or seizure;
  • If an unreasonable search occurred without a search warrant;
  • If a search warrant was issued, but was in some way defective (no probable cause);
  • If evidence other than what was in the warrant was seized;
  • If constitutional rights of a suspect were violated in order to get the evidence;
  • If there was a problem with the chain of custody related to the evidence;
  • If police ignored standard procedures while handling the evidence.

What Kinds of Evidence Could be Excluded?

All kinds of evidence may be subject for exclusion, including:

  • Testimony from witnesses;
  • Financial records;
  • Written statements;
  • Confessions;
  • Pictures and videos;
  • Audio recordings;
  • Blood, breathalyzer, or urine tests;
  • Forensic evidence.

What is the Process?

A suppression motion, sometimes called a 1538.5 motion, is generally filed as part of a preliminary hearing or a pretrial hearing that is held specifically for this purpose, called a suppression hearing. The burden of proof is on the party bringing the motion, (the defense team) and they will need to demonstrate with a preponderance of evidence that there is a legal justification to exclude the evidence. If you have ever watched a crime-drama on television, you have probably heard of “fruit of the poisonous tree,” the idea that anything that is learned by the prosecution as a result of unlawful means should not be able to be used against a suspect. The prosecution will likely contend that they’d have discovered the evidence anyway or that they had other means to learn of it. It will be up to your skilled legal defense team to squash those kinds of claims in order to successfully get such evidence suppressed. Continue reading

When facing criminal charges, people are often consumed with anxiety about the future. What will happen to you if you are found guilty? Will the prosecutor aggressively pursue charges, or is there any chance the charges could be dropped before things get that far? These questions and more can be answered by an experienced criminal defense attorney. 

Factors Impacting Possible Dismissal

Without question, the best-case scenario would be for the charges to be dismissed early on in the case. That is a possibility, based on purely practical deliberations by the prosecutor, who knows that limited resources might be better spent elsewhere on more serious or more sure-to-win cases. Prosecutors are sometimes willing to drop the charges for first-time offenders, especially when low-level or non-violent crimes are involved. Certainly, there are always cases where prosecutors are willing to plea bargain away possible incarceration, depending on what you might have to offer. Lastly, dismissals sometimes occur due to an error or misconduct by police or prosecutors, including:

  • Errors in charging documents or criminal complaints;
  • Chain of custody issues relating to evidence in the case;
  • Tainted or missing evidence;
  • Improper searches or stops;
  • Arrests lacking probable cause;
  • Changes in witness testimony.

Elements of a Crime

It is conceivable that defense attorneys convince prosecutors that they do not have enough evidence, being that the prosecution has the burden of proving their case beyond a reasonable doubt. What does that entail?

  • A crime occurred due to the actions or omissions of the defendant (Actus Reus).
  • The defendant knew that their action (or lack thereof) would result in a crime (Mens Rea).
  • If the crime is identified by some sort of harm, additional issues must be proven beyond a reasonable doubt.
  • Either a specific victim or society, in general, was harmed by the actions of the defendant.
  • The harmful outcomes were the result of a crime.
  • Other issues related to the crime (known as attendant circumstances) include the time and place of the crime, relevant facts about the victim, procedures involved in the crime, motives, and other facts specific to the crime must also be explained to a jury and convince them beyond a reasonable doubt.  

When a prosecutor believes they do not have the facts to prove their case, it gives the defense more ammunition to argue for a dismissal. Continue reading

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