criminal defense attorney

December 2, 2016

Prop 57: Voters Approve Early Inmate Release

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.

November 16, 2016

California Enacts Law Penalizing Secret Recordings at Planned Parenthood

by David M. Boertje

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.

August 10, 2016

Ramsey Orta, the Man Who Filmed Eric Garner’s Death, to Serve Four Years

by David M. Boertje

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.

December 9, 2015

San Diego Competency Trial Set for Suspect in Triple Killings

by David M. Boertje

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?

November 6, 2015

Four California Students Arrested in High School Shooting Plot

by David M. Boertje

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

October 20, 2015

SANDAG Report: Crime Rate is Steady but Robberies Spike in La Jolla

by David M. Boertje

According to a San Diego Association of Governments (SANDAG) report, the San Diego region’s overall crime rate, violent-crime rate, and property-crime rate has remained relatively stable, and is even down 1 percent. While some categories of violent crime showed a few upticks, it is telling that the crime rate in the region has remained stable given the legislative changes enacted in the recent years that have allowed ex-offenders returning to local communities. A total of 5,335 violent crimes (those involving homicide, rape, robbery, and aggravated assault) were reported to local police in the region between January and June of 2015; an average of 29 per day. Domestic violence incidents are also up 4% from 2014.

While property crimes such as burglaries are reported to have dropped by approximately 13% throughout the San Diego region, the La Jolla area has seen an increase in crime. Reported robberies in La Jolla have doubled from five to 10, and rapes have increased from zero to eight incidents the first half of the year. Thefts over $400 and motor vehicle thefts have also increased from 49 to 54 incidents.

What is Robbery?

In California, Penal Code 211 defines the crime of robbery as taking personal property that belongs to someone else from the victim’s person or immediate presence, and against the victim’s will, through the use of force or fear.

Robbery is different from theft in that it must occur when the victim/property owner is present during the crime. The crime of robbery can also occur during a burglary of a home if the residents happen to be inside at the time. Robbery is always a felony under California law.

Robbery is considered a first degree felony if:

It is committed against any driver or passenger of a vehicle
It takes place in an inhabited structure
It takes place at an ATM after someone has just used it

It is punishable by up to six years imprisonment, a fine of $10,000, or felony formal probation.

Robbery in the second degree is committed whenever it does not meet the definition of first degree robbery. It is punishable by up to five years imprisonment, felony probation, and a $10,000 fine. Continue reading