Articles Tagged with California criminal defense attorney

White collar crimes happen each day among professionals – doctors, accountants, research analysts, human resources representatives, government employees and other business people who have jobs in office or administrative settings. Boertje & Associates are called on to defend individuals who face white collar crime charges. The following will discuss some of the common white collar crimes in San Diego.

What is White Collar Crime?

White collar crimes are illegal but non-violent acts involving lying, cheating, concealing, or stealing. White collar crimes are usually financial in nature and are motivated by financial gain.

The punishments for white collar crimes include jail time, fines, and the requirement to pay the stolen money back. Often times, those who are accused of white collar crimes are good, law-abiding citizens who simply made a mistake.

Common White Collar Crimes

  • Fraud. An act of fraud occurs when someone harms someone else to gain an unfair advantage. This includes tricking or deceiving someone, as well. California recognizes different types of fraud such as insurance fraud, real estate fraud, financial fraud, and identity theft.
  • Embezzlement. California law defines embezzlement as misappropriation of funds or property that belongs to another. When an employee uses funds in a way that was unauthorized, and the funds were entrusted to that employee, the employee is guilty of embezzlement.
  • Money Laundering. Money laundering is hiding the sources of money that was illegally obtained. This is a white collar crime that can be difficult for the prosecution to prove. Many money laundering cases fail based on lack of intent.
  • Perjury. Perjury is intentionally providing false information or misrepresenting yourself while under oath. More information can be found under California Penal Code 127.

Defending Against White Collar Criminal Charges

There are several strategies that an experienced criminal defense attorney will use to fight white collar accusations. These strategies include:

  • Working with experts such as forensic accounting specialists
  • Collecting records and following the paper trail
  • Proving lack of intent
  • Showing lack of sufficient evidence on the part of the prosecution
  • Contending mistaken identity
  • False accusations

A knowledgeable criminal defense attorney knows the ins and outs of white collar crimes and how to defend against these charges. The attorney should work creatively and as quickly as possible in the cases. With an attorney by your side, you will be able to move forward with your life and clear your name. Continue reading

Getting arrested is never in anyone’s plans. When a person is arrested and charged with a criminal offense, the criminal process begins. One of the key steps in the criminal process is the preliminary hearing. This hearing comes after the arraignment, or the first court appearance and the readiness conference, where your criminal defense lawyer negotiates to get the best deal for the client.

What is the Preliminary Hearing?

The preliminary hearing usually takes place within 10 days of the arraignment. If not, the defendant should be released according to California Penal Code 859b(b).  This hearing is where the judge decides whether there is enough evidence to support the charge against you. Essentially, the judge must decide two things:

  • Whether probable cause exists to believe the crime was committed
  • The defendant is the person who committed the crime

The preliminary hearing is where a successful San Diego criminal defense attorney move for dismissal of charges. Although the lawyer could present your case, this is not always the best plan of action to take. The criminal defense lawyer should work to dismiss the charges by using the following strategies:

  • Cross-examining key witnesses speaking against you
  • Narrowing down details of witness testimonies
  • Locate inconsistencies in the case against you

The preliminary hearing will include the same court staff as a normal trial. The judge, prosecutor, your defense attorney, and court reporter will all be in attendance. It is important to note that the preliminary hearing is not a trial. It is a brief appearance that determines whether the case should go to trial. It should not be used for discovery purposes, according to California Penal Code 866.

Defendant Rights Before and During Preliminary Hearing

The defendant has several rights prior to and during the preliminary hearing. All defendants should exercise their rights. Some of the rights include:

  • The right to legal representation
  • The right to cross-examine prosecution witnesses
  • The right to introduce defense witnesses
  • The right to discovery

Possibilities After the Preliminary Hearing

At the end of the hearing, your case may either be dismissed or your charges can be reduced to misdemeanors. Additionally, your case can go to trial. As a result, there will be another arraignment and future court dates will be scheduled.

Then, a pre-trial conference is held where your attorney will continue negotiating to reach a solution to your case. If a favorable solution is not reached, the trial will take place. Here is where your criminal defense attorney will present your case. Continue reading

We are in the full swing of the holiday season. It always seems as if there is a rise in petty theft and shoplifting crimes during this time of year. Sometimes people are arrested on a case of mistaken identity, while others intentionally and knowingly take from others. If you have been accused of shoplifting, reach out to a skilled San Diego criminal defense attorney today. 

What is Petty Theft and Shoplifting?

Petty theft and shoplifting is basically the act of taking something that does not belong to you, without paying for it or having the authority to take it.

Petty theft is known as larceny where someone takes possession of another’s items or goods without their permission and with the intent to deprive the person of the items or goods.

Petty theft and shoplifting was considered the same thing until November 2014 when shoplifting became a separate crime.

California Penal Code 459.5 goes into detail about shoplifting. Shoplifting is similar to petty theft, but with the following key differences:

  • Shoplifting refers to performing the act of stealing from a business or establishment during normal business hours, with the intention of stealing
  • Petty theft refers to stealing goods or even money, whether from a store or an individual, without permission

Businesses and establishments include movie theaters, hotels, stores, restaurants, gyms, libraries, medical facilities, and even schools.  

Why do People Shoplift and Commit Petty Theft?

Shoplifting happens for various reasons. Some reasons are financial, such as lack of money and the inability to afford gifts during the holiday season. Sometimes people lose their jobs during the holidays and they still need to make ends meet.

What are Some Examples of Shoplifting and Petty Theft?

Shoplifting and petty theft are similar; we would like to show you what shoplifting and petty theft looks like. If you are doing the following, you are participating in shoplifting and petty theft:

  • Carjacking
  • Changing price tags on items in stores
  • Pick pocketing
  • Taking someone’s purse

Common Defenses to Petty Theft and Shoplifting

Petty theft and shoplifting charges are serious in the State of California. But there are several defenses that may apply. The most common defenses include:

  • Consent
  •  Lack of intent
  • False accusation
  • Mistaken identity
  • Not enough evidence
  • Believing that the property belonged to the person being accused

The penalties for both petty theft and shoplifting may include no more than six months in jail and a fine of $1,000 maximum. With a qualified criminal defense lawyer, the accused may be able to get charges reduced or completely dismissed because of the negotiations that can take place. Continue reading

According to The Sentencing Project, private prisons nationwide held 128,063 people in 2016. This number represents 8.5% of the federal prison population. Since the beginning of this decade, the private prison population increased 47%. On September 11, 2019, a new law made California the first state to end its use of for-profit, private prisons and detention facilities. This ban on private prisons will change the issue of mass incarceration and influence the criminal justice system and the criminal process overall.

Assembly Bill 32 (AB 32) Bans Private Prisons

Assembly Bill 32 was passed on September 11, 2019, by the California State Legislature and signed by Governor Newsom on October 11, 2019. It has been added to the California Penal Code, and bans the use of private, for-profit prisons and detention facilities.

The law prohibits the Department of Corrections from entering into contracts, on or after January 1, 2020, with private facilities in state or out of state. The same law applies for the renewal of existing contracts. 

By January 2028, all contracts will be phased out and the State of California can no longer hold inmates in any private prison or detention facility.

The Impact of the AB 32

An article in CBS News reveals that AB 32 impacts over 1,400 inmates and 4,000 detainees that are currently housed in private prisons and detention facilities.

The Law Does Not Apply to Certain Facilities

It is important to note that the new law comes with exceptions mentioned in Section 9502. The law does not apply to any of the following facilities:

  • Rehab, counseling, mental health, educational facilities
  • Residential care facilities
  • Evaluation or treatment facilities
  • Vocational or medical facilities
  • School facilities used for disciplinary detention
  • Facilities used for quarantine or isolation for public health reasons
  • Temporary detention facilities

Additionally, the law does not apply to private facilities operating with a valid contract with a governmental entity that was in effect prior to January 1, 2020.

For a list of additional exceptions and to read the bill in its entirety, you are invited to review Assembly Bill 32 on the California Legislature website.

California and its Criminal Justice Reform Measures

NBC San Diego reports that the State of California’s inmate population has been declining due to measures to ease criminal sentences. According to the report, the inmate private prison population consists of less than 1% of the 125,000 inmate population. Continue reading

In California and throughout the nation, the collection of DNA is a huge undertaking. All 50 states are required to collect DNA evidence from suspects, with some occurring at the arrest, prior to getting a conviction. Several types of DNA evidence exist in society today. DNA swabbing is one of the most common. DNA swabbing is a type of DNA used to collect evidence from the suspect of a sexual offense, such as rape. For purposes of this article, we will focus on DNA swabbing, the techniques of swabbing, and problems that exist in San Diego County.

What is DNA Swabbing?

A DNA swab, or what is technically known as a buccal swab, is the process by which cells are collected from the cheek of the mouth using a cotton-tipped applicator. Many people refer to DNA swab as a cheek swab.

According to Puritan Medical Products, there are three techniques of DNA swabbing:

  • Touch DNA swabbing
  • Double touch DNA swabbing
  • Blood and fluid swabbing

Puritan Medical Products also lays out the steps of DNA swabbing:

  • Preparation
  • Swabbing for cells
  • Preservation of cells for transport

After learning about the techniques of DNA swabbing and the steps it takes to complete DNA swabbing, you may be surprised to hear that San Diego County is facing its own problems when it comes to DNA swabbing and testing of rape kits.

San Diego Faces Problems With Rape Kit Policies

San Diego County is currently facing a problem with the incomplete testing of DNA rape kits. The San Diego Police Department (SDPD) admits to not having the capacity to test all untested rape kits in their possession while handling daily duties, according to an article in the Voice of San Diego.  

SDPD was testing only a single swab from untested rape kits. This was the procedure specifically reserved for circumstances where the DA declined to prosecute, according to a report by 10 News San Diego.

Although San Diego is making plans to resolve these problems, this just reiterates the fact that DNA swabbing is not always effective. Ineffective DNA swabbing is what lands an innocent person in jail.

DNA Swabbing is Not Always Effective

Regardless of the steps taken to preserve the evidence, DNA swabbing is not always effective in crime investigations.  DNA swabbing can be faulty and a technician’s error in handling the evidence happens often.

Because of the ineffectiveness of DNA evidence, this is where a knowledgeable San Diego criminal defense attorney can create a cloud of reasonable doubt surrounding the evidence. Continue reading

When a person flees the scene of an accident he or she was involved in, the person is participating in criminal activity known as a hit and run. Most people only think of hit and runs as an accident involving vehicles, but hit and runs also involve motorcyclists, bicyclists, pedestrians, and e-scooter riders. Hit and runs also involve property such as land, signs and traffic signals and even pets. If you find yourself in a hit and run accident, you should seek legal assistance from a highly experienced San Diego hit and run attorney.

California Recognizes Two Types of Charges for Hit and Runs

Depending upon the hit and run situation, a person can face two types of charges – a felony charge and a misdemeanor charge. Today, Boertje & Associates will describe the differences in hit and run charges and how the charges apply to certain situations.

A person may face a felony charge for a hit and run if the accident results in an injury to another person, or even death. California Vehicle Code Section 2001 is the authority on the felony charge surrounding hit and runs and the penalties that follow. In order to avoid this charge, the person must have stopped the vehicle and exchanged information such as name, address, and vehicle information.

The person must also render aid in transporting the accident victim to a physician, surgeon, or hospital for treatment.

When property damage stems from a hit and run accident, a person may face a misdemeanor charge. To avoid this charge, under California Vehicle Code Section 2002, the person must have stopped the vehicle immediately at the nearest location. The location must not interfere with traffic or put the safety of other drivers at risk.

Common Defenses to Hit and Runs

A hit and run is a serious crime in San Diego that comes with strict penalties including jail time, prison time, thousands of dollars in fines, and driver’s license suspension or revocation. However, a San Diego hit and run attorney can help dismiss the case or at least reduce the charges and penalties with these defenses:

  • There is no property damage or injury to others
  • No knowledge of accident, property damage or injury
  • Car stolen or borrowed (meaning, the vehicle owner was not driving)
  • Did not willfully leave the scene (could not stop due to traffic)

Continue reading

 

When you are under arrest by the police, your first thought might be, “Will I go to jail?” If you do go to jail, then your first thought might be, “How can I get out of here?” One way you can get out of jail is to post bail with the law enforcement agency that has you in custody. Your experienced criminal defense attorney can provide bail assistance by working to get the bail reduced.

Three Ways to Get Released from Jail

There are three ways for defendants to get released from jail – bail, cash bail, and on their own recognizance (OR). Although this article’s primary focus is the bail option, you should be aware of the other two options. These options are:

  • Cash bail – paying the full amount of bail in cash
  •  O.R. – your own recognizance

How Does Bail Work in San Diego?

Depending upon the severity of the crime you are accused of, the bail amount will be a high amount or low amount. When a person is put in jail, the bail is set at a monetary value. For instance, the bail for a DUI causing injury, according to the San Diego County Court Bail Schedule, is $20,000. For murder, there is no bail. 

Hearing the bail amounts can be confusing to people. Some family members are unable to pay the bail amount, which leaves their loved ones sitting in jail, for even a simple misdemeanor.

The way bail works is that the bail will be set at a certain amount, but through the use of a bail bondsman or bail company, only 10% of the bail is necessary to get out of jail.

Example of How Bail Works

The way bail works is serious business. Imagine that your bail is set at $2,000. When you hire a bail company, the company will cover the entire $2,000, in exchange for a $200 fee. When you show up to all of your court hearings, the company will get their $2,000 back, and still keep your $200. This is how the bail company makes a profit.

If you fail to appear at your court hearings and skip out on the bail that was paid for you, a bounty hunter may be sent to locate you and take you back to jail so they can recover their funds. Continue reading

DNA plays an important role in crime investigations. From collecting fingerprints to hair follicles and swabs of saliva, DNA is the evidence that can make or break a criminal investigation. Today, we will define DNA, show you how DNA is typically used in criminal cases, the new technology surrounding DNA, and discuss whether DNA testing is always accurate. 

What is DNA?

Simply put, DNA is a blueprint or guide of cellular structures that create the genetic makeup of a person and reveal their identity.

How is DNA Used in Criminal Cases?

DNA is used in criminal cases to hold a person accountable for a crime and is typically used in these types of matters: 

According to a report in NBC 7 San Diego News, in violent crimes involving handguns, investigators and analysts are now able to use ammunition or shell casings to obtain DNA and link suspects to crimes.

DNA Technology

DNA is more advanced than it was even five years ago. In fact, DNA is so advanced now that gel is being used to prevent theft crimes. According to an article in Today, more than 5 million thefts occur each year in the United States.

Now a technology company is helping homeowners and renters by offering an anti-theft kit. The anti-theft kit allows homeowners and renters to take matters into their own hands by using gel to protect their property in the event a burglary occurs.

With the rise of thefts in San Diego, because of Proposition 47, we can expect for this gel technology to become more commonly used, especially since over 5,000 police departments have partnered with the DNA technology company.

Is DNA Testing Always Accurate or Reliable?

Of course not.

DNA mishaps is the primary reason why criminal defense attorneys make it a point to challenge DNA to represent their client. Many factors affect DNA testing, including:

  • Contamination.
  • Human error.
  • Chain of custody errors.

Under certain circumstances, DNA can be deemed inadmissible or is not allowed to be used as evidence in a criminal trial, under the California Evidence Code.

With these challenges, an experienced and knowledgeable criminal defense attorney will be able to use the DNA against the prosecution to prove their client’s innocence.  Continue reading

Vandalism is an act that most people attribute to children. Unfortunately, it is an act that is performed by minors and adults all too often in San Diego. Vandalism is a serious, intolerable crime in California.

What is Vandalism? 

Penal Code 594 PC defines the act of vandalism. California law states that every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law is guilty of vandalism:

  • Defaces with graffiti or other inscribed material.
  • Damages.
  • Destroys.

Examples of Vandalism in San Diego 

An ongoing report of vandalism includes BB gun vandalism where the suspects are firing BB gun pellets causing damage to vehicle windows and store windows in San Diego. 

Another instance of vandalism includes a recent closing of the Allied Gardens Pool, a San Diego city pool, due to someone throwing glass bottles over the fence and shattering the glass in and around the pool of the swim center.

San Diego Police is investigating a hate crime after graffiti included racist language spray-painted on the garage doors of two homes in University City, according to a CBS News story

Scooter Tampering is a Crime 

A final example of vandalism includes an article in the San Diego Community Newspaper Group reporting evidence of scooter tampering in Ocean Beach and Pacific Beach. The suspects are cutting brake lines on scooters. 

As of July 24, 2019, San Diego Police Department says there have been no other vandalism reports filed regarding brake tapering. Cutting brake lines on scooters is a crime. The San Diego police states that a misdemeanor or felony will follow depending on the amount of damage caused. 

Penalties for Vandalism in San Diego

The California Penal Code also spells out the penalties for vandalism. The penalties for vandalism depend on the value of the destruction. For example:

  • If the destruction is $400 or more, a person may receive between one and three years in jail and a fine of up to $10,000 or more depending upon the level of damage.
  • If the destruction is less than $400, the person may receive less than a year in a San Diego County jail for the misdemeanor and a fine no more than $1,000.
  • If the destruction is less than $400, with a previous conviction of vandalism or graffiti, the person may receive no more than one year in a county jail and a fine of no more than $5,000. 

Continue reading

According to the California Department of Forestry and Fire Protection and National Interagency Fire Center, the 2018 wildfire season was the deadliest and most destructive wildfire season in California. While these types of fires are natural disasters, there are times when fires happen on purpose through an act of arson.  

 What is an Act of Arson?

Arson is a criminal act of unlawfully and intentionally setting fire to any property. California law states that a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of any structure, forest land, or property.

Examples of Arson

Acts of arson occur each day in San Diego and they are fairly common. Here are two examples of what the act of arson looks like:

  • A San Diego jury finding a transient guilty of murder by arson on July 20, 2019, according to an article by Herald-Mail Media.
  • The Cocos Fire in San Marcos in 2014, where a 14-year-old intentionally started a fire that destroyed 36 homes and caused $10.4 million in damage, according to a report by NBC News.  

Why do People Commit Arson Crimes?

The reasons why people commit arson are often left unexplained. Research suggests that the main reason why people commit arson is to profit. These people are looking to collect on an insurance policy and use the money for their own financial gain. According to a psychologist, anger is also a motivating factor behind arsons, particularly in California.

If I am Arrested for Arson, What Does the Prosecutor Need to Prove?

If you get arrested for suspicion of committing an act of arson in San Diego, contact an experienced San Diego Criminal Defense Attorney with successful results in representing those involved in criminal matters.

It is difficult for the prosecution to prove that someone actually committed an act of arson. Arsons are difficult to prove because they are not obvious as to who or what caused the fire to start —  it could be a lit cigarette, a blown fuse or an electrical issue.

According to Cal Fire, San Diego brush fires are usually caused by accident. Just because someone walks away from or is near the place where a fire originates does not mean the person committed the act of arson. For a prosecutor to get a conviction of arson, he or she must prove not only that the defendant set the property, structure, forest or land on fire, but that the defendant’s act was willful and malicious.

This means that an act of arson must be committed on purpose with the intention of harming someone, injuring someone, or damaging property. Until the prosecution can bring evidence to prove the act, they do not have a case. 

In the Event You are Convicted of Arson, You Must Take This Step

California law, particularly Penal Code Section 457.1(a), requires a person convicted of arson to register with local law enforcement as a registered arson offender for the rest of his or her life. The person must update his or her contact or location records with law enforcement as well. This information is collected in an arson registry database maintained by the San Diego Metro Arson Task Force. Continue reading