Articles Tagged with criminal defense

The California legislature has been working furiously to pass many laws that affect all aspects of California life. Many changes were implemented that affect the criminal law and criminal justice system. One key change that has occurred affects accomplice liability or California’s aider and abettor laws with respect to felony murder. Gov. Jerry Brown signed a bill that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing.

For a brief overview of California’s accomplice liability laws, click here.

California’s Felony Murder Rule

Previously, California’s felony murder rule allowed accomplices to be convicted of first-degree murder if a victim died during the commission of a felony even if the accomplice did not intend to kill, or did not know a homicide took place.

The underlying felonies are arson, rape and other sexual crimes, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and homicide committed by intentionally firing a gun from a motor vehicle at a person outside of the motor vehicle with the intention to cause death.

Returning to our prior example, if Mateo had shot and killed a clerk in the jewelry store while robbing it, Logan and Nathan would also have been charged with felony murder under the old felony murder rule.

What is SB-1437?

SB-1437 prohibits a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties, and the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

How Does SB-1437 Affect My Case?

Anyone charged with felony murder after September 30, 2018 who was also an accomplice that did not actually kill the victim or intended to kill the victim could potentially mean less time in prison if convicted after a jury trial or plea.

If the jewelry heist occurred after September 30, 2018, Logan and Nathan would not be convicted of felony murder because they did not kill the victim nor knew that Mateo was going to kill the victim. Logan and Nathan are still guilty of robbery because they were active participants in the heist.

Check back next week to find out how SB-147 affects individuals already convicted and serving time for felony murder as an accomplice.

Charged Under California’s Felony Murder Statute?

Under California law, if you aid and abet a person who actually committed a crime, you could face the same exact penalties, meaning prison sentence. Aiding and abetting is not a crime in itself, instead it imposes criminal liability on the action of helpers. If you help someone commit a crime you will be charged with the same crime as the person who actually committed the crime. Contact the San Diego Criminal Defense Attorney to discuss your defense and mitigating circumstances. Continue reading

The United States is the third most populous country in the world behind India and China. The U.S. has been adding about 1 million immigrants annually since 1990. California is the most populous state in the Union. Not surprisingly, many immigrants make California home. California, New York, and Florida account for 60% of the foreign-born population who have immigrated to the U.S.

According to the FBI, violent and property crime has been steadily declining. In 2014, more offenders were arrested for drug crimes than property crimes and violent crimes. Researchers led by Robert Adelman at the State University of New York at Buffalo compared immigration rates with crime rates for 200 metropolitan areas over the last several decades. In 136 metro areas, including San Diego, almost 70% of the immigration population increased between 1980 and 2016 while crime stayed stable or fell.

Immigration Law

A lawful permanent resident is deportable if he or she is convicted of an aggravated felony or a crime involving moral turpitude.

What crimes make you deportable?

Aggravated felonies include murder, drug trafficking (possession and intent to distribute), money laundering (over $10k), trafficking in firearms or explosives, and crimes of violence with a sentence of at least a year.

What is a crime of moral turpitude?

Any crime that involves an intent to commit fraud, theft, or inflict bodily harm qualifies as a crime of moral turpitude.

Seek Legal Advice From an Immigration and Criminal Law Attorney

Discuss your criminal charges with your criminal attorney and an immigration attorney before pleading guilty to discuss what will happen to your immigration status once you are convicted of a crime. There are two ways criminal convictions can affect immigration status – inadmissibility and removability. Inadmissibility applies to people seeking admission to US – a criminal conviction can be used as a basis to allow the person to enter the U.S. from abroad. Removability applies to individuals in the U.S. legally. The criminal conviction makes the individual deportable or removable after entry.

A guilty plea or conviction after a trial for crime of moral turpitude or felony automatically triggers commencement of removal proceedings and forecloses relief from deportation known as cancellation of removal in many cases. It is really important to discuss the consequences to your immigration status if you plead guilty to a crime in California. Continue reading

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