Articles Tagged with California criminal defense attorney

Job searches are a challenge for everyone. Between completing applications, submitting resumes, and having many interviews, the job hunt is not an easy task. Having a criminal history while searching for a job creates a unique set of barriers that can prevent people from gaining employment after re-entering society.

California has taken an active approach to the barrier in adopting the “Ban the Box” law. This law places limits on an employer’s inquiries into an applicant’s criminal history.

If you are facing issues while searching for a job with a criminal history, we have gathered some information to help guide you on your journey.

Request a Copy of Your Own Record

Although access to criminal records are usually restricted to law enforcement and other authorized agencies, the State of California Department of Justice will allow you to request a copy of your own record for purposes of accuracy and completeness.

Take some time to review your own criminal record and become familiar with what it contains. You do not want surprises because of what may appear on your record during your job search.

Be Aware of Your Rights

The Fair Chance Act (AB 1008), also known as “Ban the Box”, went into effect on January 1, 2018 in California. The Act prohibits employers with five or more employees from asking about your conviction history.  Under this law, an employer may not request or consider an applicant’s criminal history until after making a conditional offer of employment.

Because of the Fair Chance Act, employers are prohibited from asking about your conviction history when making an employment decision. Even if the job application itself asks whether you have been convicted of a crime, the potential employer is breaking the law.

This Act is important for you to know because it ensures that you are fairly considered for jobs. While California is providing strong protections for job seekers with a criminal history, some applicants are still facing problems because of their criminal records. According to a Mercury News article, some employers are not heeding the protections that are in place.

Clear Your Record

Imagine telling a potential employer that you do not have a conviction. With a record expungement, this is definitely a possibility. An expungement is a request from an individual, to the court, to destroy or seal a criminal conviction from state or federal data storages.  

An expungement will allow you to leave your criminal history behind. It will also provide you with peace of mind and confidence during your job search. If you want to clear your record, a knowledgeable expungement attorney can assist you with the record expungement process. Continue reading

There are restrictions issued to law enforcement officers on when and how they can execute a California search warrant. Nonetheless, mistakes and errors can and do occur during the execution of warrants. Unless a search is authorized by you, incident to a lawful arrest, or some other exception provided by law, a valid search warrant must be obtained before the search is conducted. Any violation of these rules may result in a reduction in your criminal charges, dismissal of the evidence unlawfully obtained, and even dismissal of your criminal charges.

A search warrant allows the police to search you, your home, your car, and your place of business. The police can even search an area suspected of containing evidence of illegal activity so long as it is specified in the search warrant.

Storming into homes with guns, protective armor, lights, dogs, and law enforcement personnel, usually during the early dawn hours, catches everyone in the home off guard and leads to avoidable deaths, unnecessary injuries, and costly legal settlements with survivors.

In a December no-knock drug raid in Houston, two suspects were shot and killed and five police officers were injured. Even the family pet was shot in the crossfire. The pet survived, but both of his owners died. The results of the raid were so bad that the Houston Police Department no longer conducts no-knock raids during low-level criminal investigations of a nonviolent nature.  

No-Knock Warrants

A no-knock warrant is issued by a judge and gives police permission to enter a property by force without prior notification to its occupants or requesting their permission. These types of warrants are often precipitated by a tip from an informant. The informant is the person who cooperates with the police and provides information about the people or companies under criminal investigation. The use of informants is common in criminal investigations, especially those involving illegal drug sales and distribution. So long as the informant’s information is reliable, it will satisfy a low threshold to support a finding of probable cause to issue the search warrant. The judge may inquire about the identity of the informant, examine past instances when the informant assisted law enforcement and the results of such cooperation. The police will also be called in to testify and corroborate the informant’s testimony.   Continue reading

Three teenage friends, two girls and one boy, regularly shared videos by group text message to each other on their mobile devices. Through the bond of their friendship, there was an unspoken assumption that whatever was shared among them would remain private. There was an element to their video sharing practice of trying to outdo each other with each video posted and shared. This assumption was put to the test when one sensitive video did not stay among them.

The 16-year-old maker and sender of the video made a sexually explicit video of herself and sent it to the other teens on the group chat chain. The male teen, 17 at the time, shared a copy of the video with his school resource officer from the county sheriff’s office. The other female teen, who was 16 at the time, shared the video with other students. Before long, the video was widely distributed throughout the school. The maker of the video remained home from school for 30 days unwilling to return to school because of the backlash she was experiencing from the other students.

The only person charged with a crime for this incident, in juvenile court, was the 16-year-old maker and sender of the video. Possession and distribution of child pornography is a crime in the teen’s jurisdiction, the State of Maryland. It is also a crime in California.

Self-produced child pornography is a touchy subject. While on the one hand, the teen in this case was immature and an argument can be made that she did not appreciate the consequences of making a sexually explicit video of herself, she consented to sharing the video with her friends because she made the post herself and released it to them. She did not, however, consent to its release to the entire student body. On the other hand, child pornography is the trade of videos and photographs which depict children engaging in sexual acts. Outside of the school, this video may be on someone else’s electronic device and as such, it is being used to exploit children. The only way to combat its use is by banning possession of it strictly, as would be the case in almost all U.S. states.   Continue reading

We are preparing for summer holiday travel by familiarizing ourselves with the security process for clearing airport checkpoints. In our last post we examined property or personal belongings searches. In this post we will spotlight body searches.

Can I Refuse a Body Screen?

Most airports have full-body scanners that use millimeter waves, MMW, to screen the body for contraband. Here, a prohibited item would be a cigarette lighter. If the scan identifies a cigarette lighter in your pocket, you will be asked to discard it to clear the body search portion of the scan. If the TSO cannot identify the item, he or she will refer you to an enhanced pat-down search.

When an enhanced pat-down search is ordered, the passenger may request the search be performed by a specific gendered TSO. A passenger may also request that instead of a full-body scan using MMW, an enhanced pat-down be performed and choose the gender of the TSO.  

There are many reasons people refuse a full-body scan that have nothing to do with carrying prohibited items or contraband. A person with a pacemaker cannot withstand the body scan. An individual with a concern about receiving radiation may refuse to provide MMW screening.

If the item detected in the full-body scan is contraband, like cocaine pellets in the passenger’s stomach, the passenger will be detained and referred to law enforcement for criminal investigation and arrest.

You May Request a Private Screening

A private screening means that an enhanced pat-down is conducted out of public view. The passenger may request a travel companion be present and the gender of the TSO. Again, passengers in these scenarios seek privacy and wish to protect it.

You do Not Have to Disrobe

During a TSA search, you will not be asked to disrobe or reveal a private area of your body. A cavity search can only be done by law enforcement personnel, not the TSA. Accommodations for religious clothing, like a hijab or turbans, may be requested and granted.

Be Respectful

The TSOs are screening thousands of passengers. Everyone’s clock is ticking. If any of your rights are violated during your airport screening, remind the TSO that it is your right to request an accommodation to the process. For more information on banned items you cannot carry onto an airplane, visit the TSA website or click here.

People Get Arrested at Airports All the Time

If you are in possession of contraband at an airport, you will be referred to law enforcement for an immediate arrest. If you or someone you know is charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading

Before you board a commercial flight anywhere in the world, you will need to go through airport security. In the United States, the Transportation Security Agency (TSA) is responsible for clearing airline passengers to fly.

The uniformed people at the airport security entrance are called Transportation Security Officers (TSOs). They are responsible for verifying that your identity matches the name on your airline ticket, inspecting and searching of your carry-on and personal items for prohibited materials, and searching your body for any contraband or prohibited items. Keep the following tips in mind this travel season to help you clear an airport checkpoint quickly.

Understanding the Search Process

What exactly is supposed to be going on when you place your bag and personal belongings on the conveyor belt? The TSA can only conduct an administrative search of your person and belongings. If they identify a prohibited item, like a shampoo bottle over 8 ounces, they advise you that in order to board the plane you must get rid of it. Once you discard the offending object, you complete the search process and may proceed to the airline boarding area.

A criminal search, on the other hand, can only be conducted by the police or law enforcement personnel such as the FBI or the Los Angeles Police Department. If, during an administrative search, a firearm is detected, for example, you will he held, and law enforcement called to investigate you and your belongings. Under most circumstances, you may be charged with illegal possession of a firearm, even if your state of residence permits you to carry one..

Be Prepared to Backup Accommodation Requests

You may be asked to demonstrate service animal credentialing for your dog to board with you. Similarly, individuals with pacemakers often travel with a doctor’s note, advising TSOs that the individual has a pacemaker and cannot undergo a security screen.

Accommodation Devices are Also Searched

Individuals traveling with wheelchairs, canes, or crutches, for example, will also have their accommodation devices screened and searched if contraband or prohibited items are detected. Even your eyeglasses can be inspected further. Any item or thing on your person can be evaluated.

Be Courteous

There is a lot going on at an airport security checkpoint. Be alert. Follow directions. Ask for clarification if confused. For a list of items you can carry onto an airplane, visit the TSA website or click here.

Large Airports Contain a Jail or Detention Facility

Large airports, like JFK in New York and LAX in Los Angeles, contain holding pens for people arrested for criminal conduct or behavior. You will most definitely miss your flight if you are detained in this way. If you are arrested an airport and charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged. Continue reading

The State of California has not executed an individual since 2006, when its capital punishment procedures relating to lethal injections were declared unconstitutional by the U.S. Court of Appeals for the Ninth Circuit, in Morales v. Tilton, 465 F.Supp. 2d 972 (N.D. Cal 2006). California authorizes capital punishment by gas or lethal injection. The state will continue to hold off on executions for capital crimes.

Governor Issues Moratorium on Executions

Two weeks ago, the Governor of California announced the statewide suspension of death penalty executions, granting a temporary reprieve to the 737 inmates currently on death row. California voters have rejected two initiatives to repeal the death penalty — Proposition 62 in 2016 and Proposition 34 in 2012. Instead, they voted to accelerate the death row appeals process in 2016 with the passage of Proposition 66.

Lethal Injection Procedures Declared Unconstitutional in 2006

The Ninth Circuit of the U.S. Court of Appeals, in the Morales case, found California’s death penalty procedures relating to lethal injections flawed. At issue was the drug recipe that was used for the lethal injections. The three-drug compound that made up the lethal injection dose could lead to suffering and an agonizing death if it was not administered carefully, resulting in a violation of the Eight Amendment to the U.S. Constitution’s cruel and unusual punishment clause.

According to BBC reporting, the death penalty is legal in 30 states, including California. Since 1976, California has executed 13 death row inmates. 737 executions remain outstanding, representing the most number of prisoners on death row in the court. Overall 2,738 inmates are on death row nationwide.

As part of the settlement of the Morales case, the state was ordered to submit new procedures for execution by lethal injection. Theoretically, if the court approved the new procedures, executions could resume. The Governor rescinded the lethal injection protocol and closed the San Quentin execution chamber concurrent with his announcement. Continue reading

As many as eight million Californians have criminal records for misdemeanor or felony crimes. All of them are subject to denied or limited employment, housing, and credit opportunities because of their criminal convictions. Many of the past crimes are for low level misdemeanors, like simple marijuana possession, or low-level felonies that are non-violent in nature.

Jurisdictions all over the United States are banning prospective employers from inquiring about a job applicant’s criminal conviction history during the recruitment process. It is not until the job applicant is made a formal job offer that it is permissible for an employer to inquire about a job applicant’s prior criminal convictions. Despite these modest changes to the law, discrimination against prior criminal defendants persist, aided by the public record of his or her criminal conviction.

Current Law Regarding Sealing of Criminal Records

Right now, people can seal their rap sheets following the completion of all their sentencing conditions. For example, a person convicted of driving under the influence, who receives a two-month sentence in county jail and three years of probation is able to request his or her criminal conviction record be sealed after applying and paying a fee, three years from the date of his or her release from jail.

Proposed Criminal Records Bill

The proposed Criminal Records Bill, would automatically seal the rap sheet of people whose crimes are specified in the statute as eligible for automatic sealing. The bill would apply retroactively, meaning people with prior criminal convictions who have not applied to seal their record would have their records automatically sealed when the Criminal Records Bill becomes effective.

Law enforcement agencies and some employers would still be able to access prior arrest records as part of criminal investigations or deep background checks for certain job positions. Members of the public, including potential landlords and employers, would no longer have access to a person’s arrest and conviction records.

The California Justice Department under the proposed bill would be able to contest the automatic sealing of a criminal record under certain conditions and upon application to the court. All others, however, would automatically be sealed upon successful completion of sentencing conditions.

Seal Your Criminal Records Now

You do not have to wait for the Criminal Records Bill to pass to seek the sealing of your criminal record. Individuals may petition the court to have their prior criminal conviction records sealed under certain circumstances. If you would like to know if your criminal record can be sealed, contact the qualified and knowledgeable San Diego Criminal Defense Attorney today to understand the process and your legal rights and responsibilities in seeking such relief. Continue reading

California is at the forefront of criminal justice reform. Last year, many laws were passed to reform the criminal justice system in an effort to make it fairer for Californians accused of committing crimes, whether they were serving time in juvenile detention facilities, jails, or state prisons. Abuses occur in any system, it is how those abuses are addressed that are the true measures of progress.

One area in the current spotlight is juvenile justice reform. Children under 18 who commit crimes are increasingly charged as adults as if they have the mental and emotional maturity to understand the consequences of their actions. As a society Americans feel that criminal conduct should be punished through incarceration; serving time seems to be the only acceptable form of punishment.  

The amount of time required to be served for certain crimes is disproportionate to the nature of the offenses. For example, white collar crimes are generally punished less severely than all other crimes even though the impact of the crime is felt by more people than a crime impacting just one victim. Drug crimes, especially simple marijuana possession, are punished more severely than sexual assault crimes, making no distinction between physical violence and drug addiction.

Two bills went into effect on January 1, 2019 specifically aimed at addressing some of the problems in the juvenile justice system. The first of those laws was Senate Bill §1391. This bill, now law, amends the Welfare and Institutions Code to eliminate the prosecution of 14 and 15-year-old children as adults. Effective January 1, 2019, criminal cases involving children under 15 years of age will remain in the juvenile court system. Children over 16, or individuals over 18 who committed a juvenile crime but eluded arrest until after they turned 18, or who commit a serious or violent felony can still be charged as adults should the prosecutor request it.

Prosecutors to Decline Charging Children Under 12 for Crimes

The second law, Senate Bill §439, also amends the Welfare and Institutions Code to eliminate the adjudication of crime, in both juvenile and adult court, for children younger than 12 years of age. Children accused of murder and forcible rape, however, will still face juvenile or adult charges, depending on the severity of the crime charged. A child under 12 will be released to his or her parents and be subject to supervision outside of the criminal justice system.

These reforms are an important step forward in thinking about crime and crime prevention. By offering social services rather than jail time to children accused of crimes, rehabilitation can be achieved and such children returned to society as contributing members.

Do Not Go it Alone

If your child has been arrested and charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged — violation, misdemeanor, or felony.   Continue reading

Domestic violence, according to The National Domestic Violence Hotline, is a pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship. The behavior becomes criminal when one partner hits or strikes the other partner, known as battery, which is often part of the pattern of abusive behavior. Other words used to describe domestic violence include intimate partner violence, domestic abuse, or relationship abuse.  

Who is an Intimate Partner?

Domestic battery as opposed to battery is a crime against a close family member or among persons in an amorous relationship, regardless of sexual orientation. An intimate partner includes a current or former spouse, a fiancé, co-parent of your child, a person you are dating, or a person who lives with you.

Domestic Battery Under the California Law

To be convicted of domestic battery under California law, the prosecution must prove that the accused person inflicted unlawful force or violence upon an intimate partner. (California Penal Code §243(e)(1)). If that charge fails, the prosecutor may charge the accused person with assault or battery.

Penalties for Misdemeanor Domestic Battery

Individuals convicted, by a guilty plea or after a trial, can face up to $2,000 in fines, be sentenced to one year in county jail, and be required to complete year-long treatment program for batterers. Beginning on January 1, 2019, there is the additional penalty of taking away the right of the accused person to own a gun for life.

Misdemeanor Domestic Battery Conviction Triggers Gun Ownership Ban

Any person convicted of misdemeanor domestic battery in California after January 1, 2019, even if it is a first offense, loses his or her right to own a gun for life. The imposition of the lifetime ban on gun ownership for convicted persons became law as part of Assembly Bill §3129 and is now part of the Penal Code at §273.5

Help is Available for the Accused Person

The National Domestic Violence Hotline helps the accused person as well as the victim of intimate partner violence. Per the hotline, if you are questioning your own behavior at all, or if someone else has brought it to your attention, acknowledging it is a step in the right direction. Give us a call today at 1-800-799-SAFE (7233) or chat online with us to start the conversation. Continue reading

One of the most memorable lines in the 1995 movie, The Usual Suspects, is, “The greatest trick the devil ever pulled was convincing the world that he did not exist.” I am citing this movie for another reason though, specifically, for its depiction of a police line-up in California. What makes the plot of this movie so entertaining is that the band of criminals meet during a police lineup that unsurprisingly nails the wrong guy to the crime.

Eyewitness identifications or police line-ups are a part of the criminal justice system about which people get upset quite often because of the unreliability of eyewitness identifications and the abuse of process that plagues the system. Police line-ups can be photo line-ups or in-person line-ups, such as the one made famous in the movie.

Senate Bill § 923

Beginning next year, on January 1, 2020, the California Penal Code will be amended pursuant to Senate Bill § 923 to require all police and prosecutors in the state to adopt basic rules for phone line-ups and live (in-person) lineups with eyewitnesses. The exact guidelines are still under development. The California legislature however, defined specific parameters and considerations that must be contained in the new procedures.

The rules created and adopted by California law enforcement and state prosecutors are as follows:

  • As close in time as the crime is committed, ask the eyewitness for a description of the perpetrator first, before showing the eyewitness any photos or people;
  • Prohibit the investigating police officer or detective from knowing who the suspect is or where the suspect is positioned in the line-up, whether photo or in-person;
  • Advise the eyewitness that the suspect may or may not be in the line-up, whether photo or in-person, and that he or she should not feel compelled or obligated to make an identification;
  • Prohibit the investigating police officer or detective from saying something that could influence the eyewitness’s decision; and
  • If the eyewitness is able to make an identification, ask the eyewitness to assess his or her confidence level in the identification, and record the eyewitness’s response word-for-word.

This bill was signed into law by former California governor Jerry Brown and was a part of a series of significant changes to California’s penal code. At the heart of the changes to the line-up procedure is the overwhelming wrongful convictions based on bad eyewitness identifications. By creating a streamlined and uniformed process for conducting police line-ups, the legislature hopes to decrease wrongful convictions based on misidentification of the suspect. Continue reading