Articles Tagged with criminal defense

We are close to the one-and-a-half-year mark of the legalization of the use and possession of recreational marijuana in California. There is a tremendous amount of misinformation on what is the permissible use and possession of recreational marijuana. The following post will tackle some of these misconceptions.

Use and Possession of Marijuana is Only Legal in 10 states, Including California

When reading about legal marijuana, it is important to focus on the source. More importantly, the state the author is referencing in an article or video is a critical factor. Recreational marijuana is only legal in 10 states. They are California, Washington, Oregon, Nevada, Alaska, Colorado, Michigan, Maine, Vermont, and Massachusetts. Each state defines legal recreational marijuana use and possession differently. Use or possession of recreational marijuana is illegal, under federal law, in all 50 states.  

Legal Marijuana can Only be Transported in a Closed Container in the Trunk of a Car

Even though use and possession of recreational marijuana is legal in California, certain uses and types of possession remain illegal and will result in an arrest and charge if detected by police. For example, drivers can possess marijuana in their vehicles so long as it is in a container in the trunk. Even though the driver purchased marijuana legally and possesses a legalized amount, if it is in an open container, in a purse, in a glove-compartment, or on the back seat, an arrest will follow. This law is similar to the open container rule relating to alcohol possession in a car. You would not drive around with an open beer bottle; you cannot drive around with a rolled-up joint on your dashboard. Both types of possession of the legal substance, alcohol or marijuana, will result in a criminal conviction for illegal possession of marijuana or alcohol.

Public Consumption of Marijuana is Illegal in California

Additionally, public consumption of marijuana is illegal in California. While there may be businesses that are licensed for on-site marijuana consumption in California, these businesses may not serve alcohol or allow tobacco use on their premises. This means that bars and clubs cannot allow marijuana consumption on their premises because they serve alcohol. Continue reading

Many arrests are initiated by the victim of the alleged crime calling the police. A victim can also go to the police precinct and file a criminal complaint against the perpetrator in person. Whether in person or on the phone, the police open an investigation as soon as the victim starts talking.

The police will listen to the victim’s complaint and interview him or her for details about the event. Evidence of the alleged crime is collected and identifying characteristics of the potential defendant is gathered. At some point, the details from the investigation are written in a statement, that after being reviewed by the victim, is sworn to and signed. This statement forms the basis of the criminal complaint.

Sometimes, however, these police reports are not entirely truthful. When a victim lies and files a criminal complaint against someone, it is a crime in California. With the help of artificial intelligence, the police are actively cracking down on these fake police reports.

Artificial Intelligence in Criminal Investigations

Since the 2000s, law enforcement and artificial intelligence have been working closely to develop science and technological tools that would enable law enforcement to do their job better. Take, for example, the use of DNA collected at crime scenes in rape investigations. When used correctly, unique DNA markers can be isolated and used to identify the suspect and eliminate with almost 100% certainty all other potential suspects.

The next wave of tools to be developed will assist law enforcement with specific criminal investigations. Take, for example, robbery investigations. In California, robbery is a felony with a prison sentence of over a year in state prison. A robbery charge means a suspect took personal property in possession of another person from his or her immediate presence, against his or her will, by using force or fear. California Penal Code Section 211.

When the police are called to investigate the robbery, the victim will be asked questions to elicit a criminal complaint. What happened, how did it happen, was the victim hurt, what was taken, and who did it, are basic questions the victim will be asked. The victim will also be asked for a written statement of the robbery and the events and details described.

VeriPol can Detect Lies in Robbery Reports

VeriPol is software used in robbery investigations to identify false robbery reports. It was developed by computer scientists in Spain and used by the National Police to identify false robbery reports. The software analyzes the victim’s written statement to identify false reports. 83% of the software-identified fake reports were closed after the victim faced further questioning and resulted in no robbery charges being filed.

By analyzing the fake reports, conclusions were drawn to make robbery investigations in the future better. False robbery reports tend to be shorter, focused on the stolen property rather than the robbery itself, few details were provided about the attacker or robbery, and there was an absence of witnesses. This is just one example of how artificial intelligence is transforming criminal investigations and being used by law enforcement to go after the correct defendants. Continue reading

A Whittier man, Dealio Lockhart, was recently sentenced to 22 years and four months in state prison for his role in the 2016 street race that caused a multi-vehicle pileup on the Golden State Freeway in Commerce. Three people died and four were seriously injured. An investigation by the City Prosecutor determined that Lockhart was driving 127 miles per hour just two and a half seconds before the fatal impact. The three dead included a UPS driver whose truck immediately burst into flames, burning him to death. Two young adults returning from a trip to Disneyland were also killed in the crash.

Illegal Street Racing is Dangerous

NBC News reported that a group from Orange County known as CDK are car enthusiasts that use parking lots and surrounding streets to perform sideshows or street racing. In mid-March the San Diego Police Department responded in full force to an announcement by the group, which is comprised of members of the Car Show Addicts, Dos Madres, and King Fresh car clubs, that they were going to meet in San Diego.

Strong Street Racing Culture

Southern California has long attracted car enthusiasts. The City of San Diego and San Diego County in particular, have been battling illegal street racing for decades. One program that achieved great success was launched in 1998 and was called www.racelegal.com. The goal of the program was to directly address illegal street racing activity and its accompanying public menace of death and injury by providing a safe and controlled racing environment at the SDUCC Stadium.

At the height of the program in 2003, there was a 99% reduction in organized illegal street racing activity in San Diego; and a 79% improvement in illegal street racing involved in crash deaths from bystanders or drivers. The nonprofit however, ran out of money and ceased operations in March. The group is trying to restart with new funding but faces opposition from the city because the SDUCC stadium site is being sold to San Diego State University.

Penalties for Illegal Street Racing Conviction

Individuals convicted of illegal street racing in San Diego face penalties that may include three months in jail, $1000 in fines, and having their vehicle impounded for 30 days. Continue reading

Criminal law has entered the digital age. Every day, the privacy of innocent people is compromised as law enforcement officials scoop up information about them while executing routine search warrants involving someone else. Last year, the U.S. Supreme Court ruled that a warrant was required for law enforcement to be able to access historical data about an accused person’s cell phone location over several weeks. This ruling, however, does not address the use of geo-fence warrants by law enforcement officials when seeking to identify the perpetrators or witnesses to a crime.

Geo-Fence Warrant in Action

The police department in a suburb of Phoenix obtained a search warrant to identify the perpetrators and witnesses to a crime. They asked Google to provide information about any and all devices it recorded near the crime site to identify suspects and witnesses. Independent video surveillance showed the vehicle of interest was a white Honda Civic. The video did not capture an image of the driver or license plate number.  

Google’s Sensorvault

Sensorvault is a global database maintained by Google to capture and record personal information about its users. Where you go with your friends, what you read, eat, listen to, and watch, and when these activities happen are all recorded.

For years, technology companies have responded to court orders and search warrant to reveal specific user information. That is and remains legal. Under the geo-warrants, a single warrant can collect location information on dozens or hundreds of devices at or near the area of interest.

Geo-fence warrants are just one of the technological advancements that have improved criminal investigations in California and North Carolina, Florida, Minnesota, and Washington, other states that routinely use these types of warrants during criminal investigations.

Apple states that it is not able to perform these types of searches involving their iOS devices. However, Google software is the culprit, and that software can be downloaded onto an iPhone. The software, not the device, tracks user’s location and other data.

Review and Understand Your Privacy Settings

Selling you location data is a lucrative business for Google and companies that track your information to share with themselves or others. To protect yourself against intrusion, understand the location history setting on your mobile devices and portable computers. If you routinely travel with your smartphone and tablet, the feature must be disabled on all devices to avoid being tracked. The location history setting enables users to see what information is being tracked and recorded. Users can opt to delete their location and account history permanently, but future information must also be purged or it will remain on their website in perpetuity. Continue reading

For the last two weeks the owner of the New England Patriots football team has been the subject of many jokes and conjecture in regards to his sex life following his recent arrest and charge for solicitation of prostitutes in Jupiter, Florida. As many as 300 people are expected to be arrested in the latest law enforcement crackdown of sex trafficking in massage parlors in that region. Kraft faces two counts of soliciting another to commit prostitution, which are misdemeanor charges allegedly based on two separate visits to the Orchids of Asia Day Spa.

The massage parlor at the center of the Kraft investigation, the Orchids of Asia Day Spa, was shut down along with nine other massage parlor businesses in Florida. The massage parlors are accused of running a prostitution service out of their stores. These massage parlors are often located in strip malls and advertise half an hour to an hour massages for a fee. Instead of a massage, however, sexual acts are performed by the workers.

Women were also arrested during this crackdown. The women were identified as sex workers or victims of sex trafficking. The sex trafficking victims are new arrivals to the United States. They are recruited in their hometowns overseas or in the U.S. immediately after their arrival under false pretenses of a legitimate job. Once here, however, they are forced to become sex workers against their will.

Sex Trafficking in San Diego

The weekend before the Super Bowl, the FBI made splashy headlines around the nation when they announced the arrest of 139 people in the greater Atlanta Georgia area for soliciting sex from prostitutes. The Florida and Georgia stings may seem remote, but San Diego conducts such stings regularly. In January 2018, 29 people were arrested for soliciting sex during a sex trafficking sting operation here in California. The FBI lists San Diego as one of the 13 highest sex trafficking areas in the country.

Massage parlors are part of many sting operations because they are a common place at which these types of activities occur. An investigation published by WNBC San Diego in November of 2018 found that 243 massage parlors in San Diego offered sex acts to clients as a service. The practice is so rampant, that a subscription-based website was created to provide reviews and pricing of the services members received. 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

This week a San Francisco free-speech group, the First Amendment Coalition, sued the California Attorney General and Justice Department over their refusal to disclose police misconduct records under the state’s new transparency laws. Last year the Senate passed a bill providing the public with greater access to police personnel files as well as greater access to video or audio from police shootings or deadly use of force encounters. Details surrounding both laws are described below.

Greater Access to Police Personnel Files

The California Penal Code was amended with Senate Bill §1421 to permit more access to police and prison personnel records. In the past, police and prison personnel records were not disclosed for confidentiality reasons even for litigation and public-records requests.

While police and prison personnel records are still confidential, they may be released in situations in which one or more of the following conditions apply.

  • When a gun is fired by police or prison personnel that results in death or great bodily injury;
  • A sustained finding that police or prison personnel sexually assaulted someone; or
  • A sustained finding that police or prison personnel were dishonest in a criminal case or in the investigation of another police or prison officer.

A sustained finding is a decision by investigational authorities in cases of police or prison personnel misconduct that finds fault in the conduct of the police or prison officer.

Greater Access to Video and Audio From Police Shootings

Assembly Bill §748 also amended the California Government Code and provides the public with greater access to video or audio from police shootings or deadly use of force incidents that result in death or great bodily injury.

The right to receive access to video and audio is not absolute. A police department or prison may deny disclosure or release of the video and audio recordings if the incident is under investigation and if would violate someone’s privacy rights. Assembly Bill §748 goes into effect on July 1, 2019.

Charged With a Misdemeanor or Felony Crime in California?

Most people in the criminal justice system are first-time offenders. For many accused people it may be the first and only criminal case they have in their lifetime. Understanding your rights and the steps involved to resolve a criminal case brings peace of mind during a turbulent and scary time for you and your loved ones.

Contact an experienced and knowledgeable San Diego Criminal Defense Attorney who can help mitigate penalties 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

An arrest is an undeniably traumatic experience. The simple question, am I free to go, will be answered with an affirmative “no.” Keep in mind that once the police officer starts the arrest process, he or she has probable cause to believe that you have committed a crime. If during the arrest process, you resist arrest, for example, you will receive an additional charge and that charge can stand on its own regardless of whether there is a conviction for the underlying arrest charge.

While you have a constitutional right to disrespect a police officer, if you desire to do so, we advise against it. It complicates the process. Resisting arrest can involve more than physical acts. Spitting on the police officer can support a conviction for resisting arrest, as well.

If you are arrested or taken to a police station:

  • DO tell the police your name and basic identifying information. But nothing else.
  • DO say “I want to remain silent” and “I want to talk to a lawyer.” The police should stop questioning you after that.
  • DO make sure you get your three phone calls within three hours of getting arrested or immediately after being booked. You can call a lawyer, bail bondsman, relative, or any other person. If you have children under 18, you get two additional calls to arrange childcare. Memorize phone numbers ahead of time.
  • DO know the police are recording your calls (except the call with your lawyer).

    If you are arrested or taken to a police station:
  • DON’T give police any information except for your name and basic identifying information.
  • DON’T give police a fake name or your cousin’s name. This may lead to another charge.
  • DON’T give explanations, excuses, or stories about your conduct or the subject of the police investigation. Calmly say, “I want to remain silent” and “I want to talk to a lawyer.”
  • DON’T talk about your case on the phone with anyone. The police might be recording your phone calls (except those to your lawyer).
  • DON’T make any decisions in your case without talking to a lawyer.
  • DON’T discuss your citizenship or immigration status with anyone other than your lawyer.

Continue reading

This time of year, there is an uptick in muggings, when someone is attacked and robbed in public. It can happen as a person enters his or her home, walks out of a restaurant, steps off the bus, or walks through a mall parking lot. Robbery is the taking of property from another person against his or her will by fear or force. The force may involve a weapon, such as a gun or bat, or physical force, like pushing the victim, punching the victim, or kicking the victim. Robbery in California is considered a serious and violent offense. Almost always charged with a felony, the highest crime classification in the state, individuals convicted of robbery face years in state prison.

Robbery Law in California

Under the California Penal Code at Section 211, anyone who purposefully steals someone else’s property by using force or fear will be convicted of robbery. The use of force can be pushing, hitting, slapping, grabbing, or any non-consensual contact. Fear includes any verbal act, such as threats of harm, conditional threats, and non-verbal threats like lifting up a shirt to show a gun.

An individual can be charged with first-degree robbery in California if the victim is a person performing his or her duties as an operator of a bus, taxi, cable car, street car, or any other vehicle used for the transportation of people for hire; the passengers of such vehicles; people in an inhabited residence; or a person using an ATM. A conviction of first-degree robbery can result in up to nine years in state prison.

Second degree robbery charges will follow if the accused person takes something that does not belong to him or her, in the presence of another person, and without the victim’s consent, and the accused person used force or fear and deprived the victim or owner of personal property. A conviction for second-degree robbery can result in up to five years in state prison. Continue reading

This week, Senate Majority Leader Mitch McConnell announced he would bring the First Step Act, a bipartisan criminal justice reform bill, to a vote. The proposed bill would bring criminal justice reform to individuals facing current charges and potentially cut the sentence of individuals currently serving time in federal prison.

Giving Federal Judges Sentencing Discretion

The bill proposes to give federal judges more discretion during the sentencing phase. Nonviolent crimes, particularly drug offenses, would receive shorter prison sentences. Some federal inmates would be placed in prisons closer to their homes – no more than 500 miles – making it easier for families to visit their loved ones.

Offering Rehabilitation Programs to Inmates

The bill seeks to expand prison employment programs so inmates could earn wages while they serve their federal prison sentence. Home confinement would be available for lower-level offenders, reducing the cost of housing non-violent offenders in federal prisons. Some minimum or low-risk offenders would be eligible for early release if they participate in education and rehabilitation programs aimed at reducing recidivism (returning to prison for a new offense once original sentence is served). Lastly, the bill would bar the use of restraints on pregnant inmates during labor.

Introducing Controversial Risk-Assessment System

The bill would set up a risk-assessment system to determine whether an inmate is likely to commit more crimes when released. This measure is controversial because of the high potential for bias, especially against minority communities.

Addressing Sentencing Disparities

The Fair Sentencing Act of 2010 reduced the sentencing disparity between crack and powder cocaine sentences for individuals convicted of possession after 2010. The newly proposed bill seeks to apply the same rule to any individuals convicted of crack offenses retroactively, or before the 2010 Act became effective.

Text – S.3649 – 115th Congress (2017-2018): First Step Act

Hire a San Diego Criminal Defense Attorney to Petition Court for Early Release

If a loved one is serving time in federal prison for a non-violent drug related offense, contact a San Diego Criminal Defense Attorney to petition the court for early release. Petitions need to be filed in court with participation with the U.S. District Attorney’s office after your loved one completes some rehabilitation programs, or outright if his or her conviction stems from possession of crack prior to 2010. If you currently face drug possession charges, contact a San Diego Criminal Defense Attorney to help reduce your sentence. Continue reading