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Articles Tagged with criminal defense attorney

Three people ignoring California’s stay-at-home order and violating the beach closures were arrested. According to Lt., Amber Baggs of the San Diego Country Sheriff’s Department, the three individuals were participating in a rally held at Moonlight Beach. 

When authorities encountered people walking along the beach they told them about the county public health order. While the deputies were explaining the situation, the individuals who were violating the order just sat down. The deputies provided the protestors with multiple opportunities to comply but they refused and as a result, were put under arrest.

Others in the group of protestors broke apart and headed toward Swami’s Beach Park where they eventually left the area and were not subject to legal action by the authorities. The protest was organized by Crista Anne Curtis, and she called the event “The Surf’s Up Shred the Tidal Wave of Tyranny” protest. This was the second event that Curtis organized. 

In addition to this beach protest, there was another one planned at the Pacific Beach lifeguard station by a different activist. Naomi Soria, who had previously organized a similar march in downtown San Diego, used social media to get the word out about the event. She called her planned beach protest “A Day of Liberty San Diego Freedom Rally.”

Effective March 19, Governor Gavin Newsom’s Executive Order N-33-20 declared a state of emergency in California and directed all Californians to stay at home. Soria is looking at charges brought forth by the San Diego Police Department to the city attorney’s office for violating Code 8665.

What is Code 8665?

Code 8665 states that if an individual willfully disobeys any provisions or lawful orders and regulations by the state they will be guilty of a misdemeanor. If convicted of the misdemeanor charges, they will be fined up to $1,000, or they may be sent to prison for up to six months. In some situations, they can face both the fine and imprisonment.

The First Amendment of the U.S. Constitution guarantees all Americans freedom of religion, speech, freedom of the press, the right to assembly, and the right to petition the government. The public health order infringes on the right to assembly, but there are many legal minds that believe the courts would side with the public health order. The government has vast, and expansive powers during a public health crisis.

While others say there is a significant difference between requiring an infected person to be quarantined versus wide-spread demands that healthy, low-risk individuals also essentially be quarantined. Mass lockdowns encroaches on American’s most fundamental rights as well as the freedom to move and travel. 

Have You Been Charged With a Misdemeanor in San Diego?

Since all of California is still under the stay-at-home order, it is becoming more and more common for residents of the state to want their freedoms back. Incidents were stepping out to enjoy the beach or to congregate in large groups is being monitored by the authorities and threats of arrest or actual detentions are on the rise. If you have been arrested for violation of Code 8665, contact the Law Offices of David M. Boertje immediately. Continue reading

Individuals arrested for driving under the influence (DUI) in California are now required to have an ignition interlock device (IID) installed in their motor vehicle after arrest. Effective January 1, 2019, an individual facing DUI charges will be able to maintain unlimited driving privileges while their regular license is suspended so long as the IID is installed in this or her motor vehicle.

Changes to the Vehicle Code

Senate Bill § 1046, signed into law by former Governor Jerry Brown, amends the Vehicle Code to require individuals convicted of DUI to install an IID on their vehicle for at least six months following their conviction.

What is an IID?

According to California’s Department of Motor Vehicles, an IID is about the size of a cell phone and is connected or wired to your vehicle’s ignition. The IID requires a breath sample before the engine will start. If the device detects alcohol on the driver’s breath, the engine will not start. The results of the failed test are also sent to the court, including the probation or parole officers assigned to your case, triggering a violation of a bail, probation, or parole condition. You will be asked to pull over and stop driving while you conduct a repeat test to make sure there is no alcohol in your system.

Duration of IID in Vehicle Depends on Conviction Record

The general rule is, if it is your first DUI conviction and no passenger or pedestrian got hurt, you may be offered the option to choose between installing an IID for six months with full driving privileges or not installing an IID but having a restricted (or suspended) license for one year. If a passenger or pedestrian gets hurt because you were driving under the influence, you will be required to install an IID in your vehicle for six months.

Repeat offenders will need to install and maintain an IID for more time. Second DUI conviction will require you to install an IID for one year. A third DUI conviction will require you to install an IID for two years. A fourth or subsequent DUI conviction will require an IID installation for three or more years. Continue reading

In the latest of the terrifying bills that have come out of our current Congress, Republicans in the House and Senate recently introduced two companion bills they are calling the Back the Blue Act of 2017, to keep up with the Trump Administration’s rhetoric of “law and order.” S.1134 was introduced by John Cornyn (R-Tex.), and is co-sponsored by 15 senators, all Republicans.  H.R.2437 as introduced by Ted Poe (R-Tex.), and includes five co-sponsors, also all Republicans.

What the Bills do

The bills would create a new category of federal crimes for killing or attempting to kill a state or local law enforcement officer who works for a police agency that receives federal funding. It in effect treats all local police agencies as federal agencies because nearly all police agencies already receive some sort of federal funding. The bill would also allow for the federal death penalty in such cases, and it would impose limits on the ability of defendants to file habeas petitions in federal court after they have exhausted their appeals.

The bill would also make it a federal crime to “assault” any police officer, bringing a federal mandatory prison sentence of two to 10 years.

Additionally, the bills would allow a district attorney to overrule local officials if he or she did not like the way those officials were handling a case involving a police death. As it stands, the language of the proposed legislation explicitly authorizes federal prosecutions in cases where  “the verdict or sentence obtained pursuant to State charges left demonstratively un-vindicated the Federal interest in eradicating bias-motivated violence.”

Qualified Immunity

It has always been the case that police actions are covered under qualified immunity, which means that in order for a victim’s lawsuit to proceed, the plaintiff in a civil rights lawsuit must show that not only were his or her rights violated, but also that a reasonable police officer should have known that the actions in question were a violation of the Constitution (essentially that the police intentionally violated his or her rights).

Under the language of this proposed bill, police would only be liable for out-of-pocket expenses and not statutory punitive damages, such as in instances of Section 1983 lawsuits under the Civil Rights Act. Lastly, the bills would bar plaintiffs from recovering attorneys fees under Section 1988 of the Civil Rights Act.

The bills are being opposed by civil rights and accountability groups nation-wide. Continue reading

It was recently reported that Rep. Duncan Hunter (R-Alpine) is currently under criminal investigation by the federal Department of Justice for allegedly misspending tens of thousands in campaign funds. According to a report by the Office of Congressional Ethics, Rep. Hunter may have appropriated the money from his congressional campaign committee for personal use to pay for family travel, tuition, jewelry, groceries, and other personal expenses. The Committee on Ethics then deferred its investigation at the request of the Justice Department.

At a town hall in Ramona, California, Hunter was asked about his alleged personal use of campaign funds. In response, the congressman said his campaign had made a “mistake” and that the funds had been paid back. He has reimbursed his campaign fund approximately $62,000.

As of March 23rd, Hunter has been under criminal investigation by the Department of Justice/ Federal Bureau of Investigation for the misspending. Federal election officials and the San Diego Union-Tribune have repeatedly raised questions over the last year about his unusual spending.  These spending issues reach back over a year, when the Federal Election Commission (FEC) first questioned Hunter for using campaign funds to pay for video games on 68 occasions.

The Citizens for Responsibility and Ethics in Washington, the group that filed the original ethics complaint against Hunter, said in a statement that “Hunter has shown a blatant disregard for the rules.” The FBI has looked at the financial dealings of more than a half dozen House members in the last decade.

Federal Campaign Rules

Political action committees or campaign committees are organized for the purpose of raising and spending money to elect and defeat candidates. They must register with the FEC within 10 days of formation and abide by disclosure rules and federal limits on contributions. Candidates are not allowed use the funds in these committees for personal use.

California Campaign Rules

California’s Political Reform Act was adopted as a statewide initiative (Proposition 9) by an overwhelming vote in 1974. The state has been a leader in promoting transparency in elections since. The law requires candidates and committees to file campaign statements disclosing contributions received and expenditures made. These documents are public and can be audited by the Fair Political Practices Commission  and Franchise Tax Board. However, the law only applies to state and local elections, and not federal (ie. Congressional ones).

Additionally many cities have adopted local ordinances on the city level that may also have additional regulations and restrictions. Continue reading

Saturday, March 7th marked the seventh anniversary of the Balboa Park “Chelsea’s Run” to commemorate the 17-year-old Poway High School student who was sexually assaulted and killed in 2010 by convicted sex offender John Gardner. Chelsea King was abducted while running in a Rancho Bernardo park by Gardner, the same man who admitted to killing Amber Dubois of Escondido. Garner pled guilty and was sentenced to life without parole.

Six months later, “Chelsea’s Law” was passed after being signed by Gov. Arnold Schwarzenegger. The law sharply increased penalties for those convicted of sexual assaults on minors (including the sentencing of life without parole). It also included reforms to increase outreach to paroled sex offenders most likely to re-offend, and made GPS monitoring mandatory for child sex offenders. It also barred sex offender parolees from being near where children congregate.

A report released five years after the enactment of Chelsea’s Law concluded that at least 332 defendants were charged statewide under various aspects of the Law. In San Diego County, 22 people were charged under the law between September 2014 and August 2015, including two who received terms of 25 years to life.

Aggravated Sexual Assault of a Child

Aggravated sexual assault of a child is an extremely serious crime. It is a felony punishable by 15 years imprisonment to life, along with a fine of up to $50,000. The sentence will increase if there is multiple victims. See CA Penal Code § 269. Additionally, those convicted will be required to register as a sex offender.

One will be charged under § 269 if s/he allegedly sexually assaults a minor under the age of 14, or if the victim is a minor (under 18 years old) and seven years younger than the defendant.

Aggravated Kidnapping

The crime of aggravated kidnapping occurs when someone:

  • Uses force, fear, or fraud against a minor under age 14; or
  • Demands a ransom;
  • Causes the victim bodily harm or death;
  • Violates California’s carjacking law under Penal Code § 215.

See CA Penal Codes § 207, 208, 209. A conviction of aggravated kidnapping carries a prison sentence of five years to life, depending on the circumstances. Continue reading

In the latest criminal justice reform to pass through the state of California, California voters have also approved Prop. 57, the Parole for Non-Violent Criminals and Court Trial Requirements Initiative. The measure passed with 65% of the vote. Prop. 57 is a yet another effort by Governor Jerry Brown to lower the state’s overcrowded prison population.

What Does Prop 57 Do?

Prop. 57 would make thousands of prison inmates eligible for earlier parole if their conviction was not for a “violent crime” and allow state officials and corrections officers to give early release credit for rehabilitation. The measure also strips prosecutors of the power to decide when juveniles should be tried as adults and leaves those decisions to judges. It is estimated that 130,000 prisoners could be released.

California governor Jerry Brown just signed into law A.B. 1671, which would punish the dissemination of secret recordings with health care providers. The bill was sponsored and lobbied by Planned Parenthood in response to the videos released by the Orange County-based Center for American Progress last summer. It is reported that the bill was intended to protect them after the scandal involving the organization’s alleged sale of fetal body parts from abortions.

Last year, the Center for American Progress released a video featuring high-ranking Planned Parenthood employees haggling over prices for fetal specimens as well as describing altering abortion procedures to obtain more intact fetal body parts for tissue procurement agencies. The video has been alleged as fake by Planned Parenthood, but spread like wildfire on the internet.

Because it is already illegal in the state of California to record someone without consent, the bill had been opposed by many civil liberties groups. The ACLU of California wrote a letter opposing the bill early in the legislative process, arguing that it was unconstitutional because it was a content-based restriction on speech.

Earlier this month, the news broke that two years after Eric Garner’s chokehold death went viral on the internet, the only person heading to jail is the man who filmed it, Ramsey Orta. This makes him the only person at the scene of Garner’s death who will serve jail time. In the beginning of July, it was reported that Orta took a plea deal on weapons charges that were unrelated to the filming of Garner’s death. He claims he has been repeatedly arrested and harassed by cops since he filmed the Garner incident.

Orta was arrested back in August 2014, shortly after the Garner incident in Staten Island, by the NYPD. The police claim that he was in a drug-dealing part of town, and that he tried to pass a teenager on a block that was known to have drugs. They claim they found a .25-caliber Norton semiautomatic handgun on him after they stopped and frisked him, and Orta was charged with two counts of criminal possession of a weapon. The NYPD had also arrested the teenager Orta passed, Alba Lekaj, 17, charging her with possession of the gun and possession of a small amount of marijuana. The police were in plain clothes.

Earlier this month in Manhattan Criminal Court, Orta pleaded guilty to the weapons charges. He will likely be spending the next four years in jail as part of the plea deal.

Two years ago a San Diego man named Carlo Mercado was arrested for shooting his two brothers Salvatore and Gianni Belvedere and his fiancée, Ilona Flint, at Mission Valley mall on Christmas Eve. The couple was discovered shot inside their car, which was parked in the mall’s parking lot. Gianni’s decomposing body was also found in a car parked at a Riverside Mall in January 2014. San Diego Police arrested Mercado in June 2014. Mercado has pled not guilty on three counts of first-degree murder.  

Last November, a judge ruled Mercado not competent to stand trial for his murder charges after two psychiatrists and one psychologist diagnosed Mercado with schizophrenia, psychosis, and catatonic depression. The judge further ordered him to be treated at Patton State Hospital in San Bernardino, CA for the next three years until he was found competent to assist in his own defense. Mercado has been at San Diego Central Jail since this past September, since evaluators at the hospital said he was now competent to stand trial. Mercado’s lawyer then requested a competency trial for him, indicating that the defense team will be arguing Mercado is still unable to understand the nature of his criminal proceedings or assist in his own counsel. Earlier this week, a judge set the competency trial for December 14.

What Does it Mean to be Competent to Stand Trial?

Last week, four students were arrested after police discovered a “detailed” plan to “shoot and kill as many people as possible” at Summerville High School in Tuolumne, California. Other students at the school heard the suspects discussing the shooting last week, so they told school staff, who then contacted the sheriff’s office. According to the Tuolumne County Sheriff’s office, the plan was so detailed that it included the names of the would-be victims. The four suspects were in the process of securing weapons. The suspects have not been identified since they are minors. Those four students had a court hearing Oct. 13th to determine whether they will be released from custody. They will be getting mental health evaluations.

Criminal Conspiracy (CA Penal Code 182)

Criminal conspiracy exists when two or more people agree to commit almost any unlawful act and then take some action toward its completion. The action taken does not need to be a crime in itself, but must indicate that those involved in the conspiracy knew of the plan and intended to break the law.

CA Penal Code 182 defines criminal conspiracy as taking place when:  

  • You agree with one or more other people to commit a crime at some time in the future, and
  • One of them commits an overt act in furtherance of that agreement.  

In this instance, prosecutors would have a good case for conspiracy because the four students allegedly plotted to plan a school shooting and had already commenced the ‘overt act’ of securing guns.

Conspiracy to Commit Murder (CA Penal Code 189)

The type of conspiracy you are convicted of will determine your punishment. Some conspiracies are wobblers – they can be prosecuted as a misdemeanor or a felony. A conspiracy to commit murder has all the same elements as conspiracy, expect one possesses the specific intent to kill another person unlawfully and commits an act in furtherance of that act. If convicted, you will face punishment that is equivalent to first-degree murder. It is punishable by death or 25 years to life imprisonment without the possibility of parole.

Withdrawal from the Conspiracy

One may withdraw from his or her role in a conspiracy before someone in the group takes an overt act to further the crime in order to be absolved of criminal liability. If you wait until after someone commits an overt act to affirm your withdrawal, you will still be charged with the conspiracy but will not be held liable for any crimes that are committed after you communicated your withdrawal. Continue reading

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