Articles Tagged with criminal defense

There are endless ways people start intentional and accidental fires. Automobile accidents, playing with matches, handling fireworks without exercising safety precautions, discarding cigarettes, overloading electrical outlets, oven fires, and furnace fires are just some examples.  

What are Arson Charges?

Arson is the deliberate act of setting a fire to property to cause damage or destruction of that property. In California, the district attorney will charge an individual with arson by considering the intent of the accused person and whether the harm caused by the fire was to people, property, or both. An arson charge can be basic or aggravated. The harm can be to any property, structure, or forest land. The main distinction between the two charges is the intent of the accused person.

Basic arson requires the accused person to have acted willfully and maliciously, set fire or burned or caused to be burned, any structure, forest land, or property. Aggravated arson requires the same actions by the accused person but also requires:

  • The specific intent to cause the injury or property damage
  • The accused had a prior conviction of arson within the past 10 years
  • The accused caused property damage or losses in excess of 6.5 million dollars.

What are Criminal Penalties for Arson Charges?

Arson is classified as a misdemeanor or felony. A misdemeanor is subject to up to a year in jail; while a felony is subject to over a year in jail. Below is a list of the most serious criminal penalties for arson charges. For information about your arson charge, contact the San Diego Criminal Defense Lawyers.

  • Aggravated arson: Punishable by up to life in prison.
  • Arson causing injury to people called arson causing great bodily injury: Punishable by up to nine years in prison.
  • Arson causing injury to inhabited structures or properties: punishable by up to eight years in prison.
  • Arson causing damage to structures or forest land: punishable by up to six years in prison.
  • Arson of property and attempted: punishable by up to three years in prison.

What are Civil Penalties for Shoplifting Charges?

People convicted of an arson crime can also face up to $50,000 in fines and be required to pay restitution to the owner of the damaged property.

Charged Under California Arson Laws? Hire a San Diego Criminal Defense Attorney

California offers pretrial diversion programs for first-time offenders as an alternative to prosecution. Eligibility depends on age and prior criminal record. Criminal charges under the pretrial diversion program are dismissed if the person successfully completes court mandated programs and conditions within a specified time frame. If you or a loved one is facing felony or misdemeanor arson charges, seek legal advice and legal representation from an experienced San Diego Criminal Defense Attorney. Continue reading

On Tuesday, California Governor Jerry Brown signed a landmark criminal justice bill into law making California the first state to abolish cash bail in criminal cases. Judges now have the discretion to decide who is released on their own recognizance or who must remain in custody pending trial following an arrest for a criminal offense.

In the past, accused people had to buy their release through a bail bondsman or with cash. Now people will be released with no bail on their own recognizance or under supervised conditions.

Criminal justice reform advocates have long sought an overhaul of the bail process arguing the system was not favorable to the poor and overcrowded jails with defendants accused of minor offenses. Judges must now determine who is a public safety threat or a flight risk when making custody determinations.

Bail Schedule Abolished

Bail in California is set according to a fixed bail schedule. The charge and defendant’s prior criminal record are factors in determining bail amount. The judges were required to set bail according to the schedule. If the accused person could not pay cash bail they hired the services of a bail bonds person who would pay bail for a fee.

New Risk Assessment System to be Established

The new law goes into effect in October 2019. Bail will no longer be determined by schedule; instead judges will use a risk assessment system that is yet to be established. The preliminary framework includes two tracks for determining bail.

The first track is related to people charged with non-violent minor or misdemeanor charges. Considered low to medium risk, these individuals will be released 12 hours after they are arrested and booked and before they see the judge. No cash bail will be imposed. They will be given a future date to appear in court for arraignment and disposition of the case.

The second track is reserved for individuals considered medium to high risk or accused of violent offenses or are repeat offenders. These individuals will remain in custody (jail) until a bail hearing or trial. No bail will be set. Judges will consider the accused person’s criminal history, the nature of the offense (violent or non-violent) charged, and the accused person’s appearance history. If the individual failed to appear in court before, he or she may not receive bail and instead remain in custody until their case is resolved.

The new law, called Senate Bill No. 11 at Chapter 244 can be found here.   Continue reading

This is a second post in a series on DNA profiling in California.

DNA fingerprinting or DNA profiling is the process of determining an individual’s DNA characteristics. DNA tests can be performed using a sample of a person’s blood, hair, skin, amniotic fluid, or other tissue to create a unique DNA profile that then gets matched to a specific person. DNA fingerprinting is commonly used as a forensic technique in criminal investigations. At crime scenes, evidence is collected and tested. Once a DNA profile is created, law enforcement looks to match it with other people who may or may not have been at the crime scene. The profile or profiles created can include multiple suspects, the victim, or an unknown person. Through a process of elimination, successful DNA investigations are able to identify the perpetrator and support an arrest and then conviction for a crime.

How is a DNA sample collected?

People are mostly familiar with the buccal smear DNA sample collection process. A cotton swab is rubbed on the inside of the mouth and the saliva is tested to create a unique DNA sample. This process is the most widespread because it is easy to administer and non-invasive. Other methods collect a sample of blood, saliva, semen, vaginal lubrication, and other appropriate fluid or tissue from physical personal items like toothbrush or razor.

Whose DNA Gets Collected?

Until January 1, 2009, only adults arrested and convicted for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes, on or after November 3, 2004 were subject to DNA collection. Today, all adults arrested for any felony offense are subject to DNA collection. That includes:

  • All newly convicted felony offenders (adult or juvenile;
  • Persons currently in custody or on probation, parole, or any other supervised release after conviction prior to November 3, 2004; and
  • Anyone currently on probation or any other supervised release for any offense with a prior felony must provide a DNA sample.

(See California Penal Code Sections 295, 296, and 296.1)

When is DNA Collected?

Sample collection is an administrative consequence of a conviction and is the responsibility of law enforcement or the courts to ensure that samples are taken from people in conjunction with their conviction or as soon as possible thereafter. A person must be under the jurisdiction or control of the court, government, or criminal justice system to be subject to the requirement. People in custody, on probation, on parole, or on other release or supervision are affected by this law.

Arsonists and Sexual Offenders

Arsonists and sexual offenders are required to submit their DNA sample as part of the adjudication of their criminal case. DNA samples are collected from arsonists and sexual offenders even if the underlying offense was a misdemeanor.

Check back next week for the next installment of DNA Profiling in California in which we look at how special groups, juveniles, and criminal suspects, are handled. Continue reading

Back in 1989, DNA fingerprinting, commonly known as DNA profiling, was hailed as the 20th century’s most important breakthrough in forensic science. Law enforcement was eager to use the technology to identify and prosecute people accused of committing crimes. Law enforcement has been less eager, however, to exonerate innocent people who are suspects in criminal cases or who were convicted and jailed falsely.

Private organizations like the Innocence Project exclusively represent people who have been wrongfully convicted through DNA testing. The organization, now in its 25th year, has exonerated 513 people to date who spent a combined total of 7,804 years in prison. District Attorneys, like the Brooklyn, New York District Attorney’s Office have set up a Conviction Review Unit tasked with looking into old, questionable convictions. Since its founding in 2014, 24 people have been exonerated.

This series will examine the use of DNA profiling by law enforcement in California. The first post will explore DNA Sample Collection: The Who and When. The second post will probe DNA collection from special groups like juvenile offenders and criminal suspects. The last post will explore wrongful convictions and address how to seek exoneration following a criminal conviction.

What is DNA?

A google search reveals that “DNA is known as deoxyribonucleic acid, is a self-replicating material which is present in nearly all living organisms as the main constituent of chromosome. [In short], it is the carrier of genetic information.” What?

Let’s try this again. DNA is the material that carries all the information about how a living thing looks and functions. Each piece of information is carried in a different section of the DNA. These sections are called genes. DNA is short for deoxyribonucleic acid. It is in every living thing. Approximately 99.9% of human DNA sequences are the same in every person. The remaining .01% is different for every person.

What is DNA Fingerprinting or DNA Profiling or DNA Testing?

DNA fingerprinting creates a profile or map of the .01% of a human’s DNA that is different to create a unique identifier specific to an actual person. Keep in mind, with the exception of identical twins, no two people have the same DNA. Thus, a DNA fingerprint is the same as a physical print of human fingers because it creates a unique profile or picture of the person to whom that DNA specimen belongs.

Check back next week for a discussion on DNA Sample Collection and how its used by law enforcement when investigating a crime.

Charged With a Felony in California?

Seek advice and legal representation from an experienced San Diego Criminal Defense Attorney when facing felony charges in California. Available 24/7, the Boertje Law Firm represents clients at any stage of their criminal case. We proudly serve San Diego County, including Carlsbad, Chula Vista, Coronado, El Cajon, Encinitas, Escondido, Fallbrook, Imperial Beach, La Jolla, La Mesa, Lemon Grove, National City, Oceanside, Poway, San Diego, San Marcos, Santee, Spring Valley, and Vista. Whether your need for a criminal defense attorney arises during the pre-arrest investigation stage or the night before a court date, San Diego Criminal Defense Attorney David Boertje is available to talk to you. Call us toll free at (888) 476-0901 or contact us on the web to begin your legal representation. Continue reading

California’s domestic violence laws cover several sections of the Penal Code. At the heart of these laws is a familial or intimate relationship between the parties. The parties can be spouses, former spouses, cohabitants, former cohabitants, or be in an active dating relationship. Many times, the parties share children or one of them has children from a previous relationship.

Domestic Violence Charges

The most common domestic violence charge in California is Penal Code Section 273.5. This criminal offense is charged when an individual inflicts injury on a spouse, cohabitant, parent, or dating partner. When filing charges against a defendant in domestic violence cases, the prosecutor weighs the severity of the conduct and harm to the victim with the other circumstances of the event. The defendant may be charged with assault, if during an argument with his or her partner, he or she throws something at the other and causes an injury. If the object thrown is a mobile telephone that breaks, a charge may be added for domestic violence property damage.

Protective Orders

Victims of domestic violence can apply for emergency protective orders and restraining orders in both civil and criminal court on simple fear of a domestic violence situation. The offending partner may be ordered out of the home and restrained from any communication with the other partner. If there are children, the offending partner’s contact with them may also be prohibited during the pendency of the criminal case. Visitation and custody will be difficult to maintain during the pendency of the criminal action.

Technology and Abuse

New patterns of behavior in domestic violence cases are emerging relating to the use of technology. Many people own smartphones and smart devices at home that enable them to connect to items in the home, even if the person is not in the home. Items like cameras, thermostats, lights, locks, and speakers can be used to harass, monitor, revenge and control a domestic partner. All of these devices create logs of activity and records that are then used to support domestic violence charges.

A PERSON IN A DANGEROUS EMERGENCY SITUATION REQUIRING

IMMEDIATE INTERVENTION SHOULD CALL 911 FOR ASSISTANCE. Continue reading

Some criminal cases are not resolved at the end of the jury trial or after a plea has been entered. The defense attorney and state prosecutor can ask the court to reconsider a ruling or address a problem with the trial at the end through various oral and written motions. Some items however, can only be addressed on appeal.

Common Reasons for an Appeal

Just because you are not happy with the result of the criminal case does not mean you have a reason, or basis, to appeal. Common reasons people appeal criminal convictions are as follows:

  • Bad ruling by the judge;
  • Prosecutor failed to turn over evidence;
  • Defense lawyer made a mistake; or
  • Jury returned the wrong verdict.

What is an Appeal?

An appeal is not a new trial. Instead, it is a limited review of a problem with the conviction. No new evidence is introduced, no one testifies, and the case is not retried. Misdemeanor appeals are heard before the Appellate Division of the Superior Court; felony appeals are decided before the California Court of Appeals.

Limited Time Window to Appeal

Once you are convicted of a crime, following a bench or jury trial, you have the right to appeal. There is a strict timeline to file an appeal. You have 30 to 60 days after the conviction to file an appeal. The only exception to this rule are cases in which the defendant receives a death sentence. In California, a death sentence automatically triggers an appellate review.

What if I Pled Guilty?

If the criminal conviction is based on a plea before the trial, many times a condition of the plea agreement is that the criminal defendant waive his or her right to appeal as to the plea and sentence. You may have agreed to waive your right to an appeal if your conviction is based on a guilty plea. Review appellate options with your attorney prior to agreeing to a plea and most certainly after a conviction following bench or jury trial.

Do I Have to Pay an Attorney Again?

Keep in mind that appeals are a new case for the criminal defense attorney. Your original retainer or letter of engagement will not cover an appeal. You will need to enter into a new agreement with a criminal defense lawyer to represent you during the appeal. Continue reading

The following post is a continuation of a series on what to expect following a felony arrest in California. In the first post, the pre-investigation step was discussed and can be accessed here. What follows is a discussion about the arrest phase.

Exercise Your Right to Remain Silent

Do not talk to the police during a pre-arrest investigation without the presence of an attorney. The police are collecting information to assist their investigation. Any information gathered and collected by them will ultimately be used to support their arrest of you. Be courteous to law enforcement officials but remain firm – exercise your right to counsel and your right to remain silent.

The Arrest

The arresting police officer must have probable cause or a reasonable ground to arrest you absent an arrest warrant. Most people have a general understanding of an arrest because of exposure to arrests in movies or television shows. When the arrest is complete, you are physically restrained and become a criminal defendant.

Know Your Rights: Miranda Warnings

Miranda warnings are another part of the arrest process people are familiar with and closely associate with the commencement of a criminal case. The Miranda warning advises an arrested person of his or her right in criminal proceedings before being interrogated. Failure to properly administer Miranda warnings affects the admissibility of statements made to law enforcement officials after arrest. On television, Miranda warnings are often administered simultaneous to arrest, but in reality, the requirement is that they get administered before any questioning starts by the police. The order is not important – focus on requesting your right to an attorney and remain silent.

Know Your Rights: Ask to Speak with Counsel and Remain Silent

Ask for an attorney prior to the commencement of the police questioning or interrogation. Then, invoke your right to remain silent. When you request a lawyer’s assistance, all questioning by police should stop. Anything you get asked and answer after invoking your right to counsel may be excluded from evidence later in the criminal proceedings. The police can still question you. Always remain silent while in police custody. Limit all conversations with other police officers, jail cell or holding inmates, or other personnel in the police station. Keep in mind that telephone calls in police stations and jails are recorded. Remain silent.

Booking Process

Once physically handcuffed, you will be taken to central booking for processing. Processing means getting your photo and fingerprints taken, being searched (may include strip search), and being placed in a holding cell or temporary jail until you see a Superior Court Judge. San Diego County criminal defendants are taken to Downtown or Chula Vista; federal criminal defendants are taken to MCC. Provide answers to questions regarding your identity and identifying information, like name, address, date of birth, height, and weight. Continue reading

A felony is the most serious classification of crime with which a person can be charged under California’s Penal Code. Generally, a felony conviction carries with it a sentence of more than a year in jail or prison. Even if a person avoids a long jail sentence following a first felony conviction, any subsequent felony arrests and convictions are punished more severely under California’s Three Strikes Sentencing Law. California also recognizes capital punishment, and the most serious offenses may result in a death sentence for the accused.

The following articles in this series will present an overview of the felony arrest process in California. This brief overview contains general information about the steps that your case may take following a felony arrest. To discuss the circumstances surrounding your felony arrest, contact San Diego Criminal Defense Attorney David Boertje to obtain legal representation.

Step One: Pre-Arrest Investigation

The legal community considers felonies the most serious type of crime. Felonies are classified as violent or non-violent and involve unlawful conduct that leads to the death or serious injury of another person or damage to property. Examples of felony crimes are murder, rape, robbery, burglary, and arson. The crimes of poisoning, murdering police, witnesses, or prosecutors, or killing someone while committing a felony are eligible for capital punishment.

Some crimes come to the attention of law enforcement during a pre-arrest stage. Law enforcement officials conduct a pre-arrest investigation and contact the suspect for questioning. At the point of initial contact, no arrest has been made and no formal charges have been filed with the criminal courts against the person. In California, felony cases are heard in the Superior Court. Lower courts transfer cases to the Superior Court if misdemeanor charges are later upgraded to a felony charge.  

Search Warrants

During the pre-arrest investigation stage, police officers or detectives may seek a search warrant. A search warrant permits the police to search a suspect’s home, business, or personal property for evidence in support of their investigation. If you consent to a search of your person or property, the police do not need a search warrant to search you because your consent means you have given the police permission to search you or your property. Absent express consent from you, the police officers must first obtain a search warrant before they can search your home, business, or property. Continue reading

California appears to be on the cusp of initiating a statewide reform of their bail laws. The state’s notoriously high rates for bail have put it first in the nation, with an average bail of almost $50,000 per person accused of a crime. Critics of the current system argue that the high costs are unjustified and essentially jail individuals because they are poor. The sky-high bail rates increase the populations of an already-overcrowded jail system at no small expense to taxpayers. According to a study by the UCLA School of Law, California jails 59% of all people accused of a crime in the state at a cost of roughly $204 per day. Nationwide, only 32% of individuals accused of crimes are held until their trial, and the average pretrial supervision program costs a mere $15.

The state’s ineffective bail system gained national attention this month when an elderly man in San Francisco was held on a $350,000 bail, despite being accused of minor crimes. The San Francisco resident, Kenneth Humphrey, was accused of stealing $5 and a bottle of cologne. In response, the police charged him with robbery and residential burglary because he allegedly stepped into his neighbor’s room to take the cologne and $5 bill. Unable to pay the $350,000 in bail, Humphrey spent 250 days awaiting trial in San Francisco County Jail.

After a panel of state appellate court judges ordered a new bail hearing in January, the judges did not mince words in their condemnation of Humphrey’s treatment. “A defendant should not be imprisoned solely due to poverty,” the Court said. Humphrey’s treatment was the “antithesis” of the Constitutional protections of liberty and due process. Advocates point out that when impoverished people are held for long periods of time awaiting trial, they not only lose their jobs, but they are also more likely to accept a plea deal – even when innocent – just to be released from jail. While a plea deal results in being released from jail, the person accused of the crime will likely no longer have his or her job. Even worse, with a criminal record, it will be more difficult to locate employment.  

Before the court ruling, California followed a complex bail schedule and algorithmic risk schedules, described by the UCLA School of Law as “opaque.” According to the same study, the for-profit bail industry’s powerful lobbying arm is behind the high bail fees, high prison rates, and ultimately high spending on imprisoning people who are presumed innocent under the Constitution of the United States. Now, according to the judges, prosecutors and judges must take “ability to pay” into account when determining bail.

That argument resonated with California Attorney General Becerra, who said, “Bail decisions should be based on danger to the public, not dollars in your pocket.” The Attorney General joins a growing chorus of California politicians seeking to abolish “cash-only” bail; that list includes Lt. Gov Gavin Newsom, Sen. Kamala Harris, and California Chief Justice Tani Cantil-Sakaueye. According to the three-judge panel in Humphrey’s case, legislation is desperately needed. Thankfully, California has drafted a bail reform bill already in SB 10. All they need to do is sign it.   Continue reading

Gov. Jerry Brown signed legislation modernizing California’s sex offender registry, allowing potentially thousands of current sex offenders to be removed from the publicly accessible list beginning in 2021. The measure was introduced by Los Angeles District Attorney who noted that the registry, with over 105,000 names, has become so large and all-encompassing that it undermines the registry’s intended purpose – to assist in investigating and prosecuting new sex crimes. The current registry requires law enforcement to spend “hours on paperwork for annual evaluations of every offender,” according to the Los Angeles Times. Considering that one out of every 400 Californians is on the sex offender registry at this point, that amounts to a lot of wasted resources.

As one of the only four states in the country that require lifetime registration for a sex crime, the database includes offenders who have not offended in decades and pose no risk to the public – but still occupy hours of law enforcement agents’ time every year and swell the sex offender registry to the point of uselessness. For example, back in the 1960s and 1970s, police commonly raided public parks to arrest gay men having consensual sex. Gay rights activists have long protested these individuals being listed next to criminals who harm children.

The new sex offender registry will be much more focused on public safety, according to Gov. Jerry Brown’s office. For the lowest-level offenses, such as urinating in public, a person may petition the court to be removed from the sex offender registry within 10 years of committing the offense. A judge will assess each case individually, with the input of the District Attorney. After 20 years, individuals convicted of more serious crimes will have the opportunity to petition the judge to have their name removed from the registry. These crimes may include rape by deception and lewd and lascivious behavior with a child under 14, according to the newspaper. In any case, the name will only be removed if the person has gone the entire period of time without reoffending.

Under the new law, the sex offender registry will also identify sex offenders by their level of risk. Sex offenders accused of Tier 1 crimes, which include misdemeanor sex crimes or non-violent felony sex crimes, will be able to have their name removed from the sex offender registry as long as they do not re-offend during that time. Sex offenders accused of Tier 2 crimes, which include violent or serious felonies, will be removed from the database after going 20 years without reoffending. Sex offenders in Tier 3 are repeat offenders, predators who have committed sex crimes against children, or participated in the sex trafficking of minors. All Tier 3 sex offenders will spend their entire lifetime on the sex offender registry. Continue reading