felony

July 22, 2022

Reducing Your Criminal Charges From Felony to Misdemeanor

If you have been arrested and charged with a crime, the type of charge you are facing will impact how harsh your punishments will be. Also, the level at which you are charged can have far-reaching implications for your life long after you serve your time and pay your fines. For example, a misdemeanor charge may be considered a lesser crime in the eyes of others, and it will come with milder punishments than a felony. Felony offenses can come with steep fines and hefty jail sentences, not to mention being considered a “felon” can be a black mark on your reputation for the rest of your life.

After being arrested and charged with a crime, your best possibility of securing the most advantageous outcomes is to work with an experienced attorney. When you choose your lawyer, do your research because not all attorneys are the same; just because you can secure one for a lesser expense does not mean you will be getting quality legal counsel. In many cases, including with your legal representation, what you get is what you pay for. When you want a qualified and seasoned attorney with a proven track record of success in California representing your best interests, you can count on the San Diego criminal defense attorney at The Law Offices of David M. Boertje.

Why You Want Your Charges Reduced

It may seem like a small thing to have a California felony charge reduced to a misdemeanor since all criminal charges come with penalties. But, this is not true. There are several reasons why you should do whatever you can to find a way to get your charges reduced if it is not possible to have them dropped. Having an attorney by your side who knows how to do this is essential.

Consider the following implications that can impact the rest of your life even after you serve the time that will come with a felony conviction:

When you apply for a job, your background check will show your criminal record, but if your application asks if you have ever been charged with a felony, you can honestly answer the question with a solid no.
Convicted felons have a much harder time obtaining a bank loan.
A felony conviction may come with probation time after your release from prison. This means you are not completely free, even on the outside. Just one slip up could send you back to prison.
You will lose the ability to legally own a firearm.
Inability to obtain an active professional license.
Building relationships with new people can be challenging because your felony conviction may scare people off from wanting to get to know you.

October 26, 2018

Peers and Crime: Spotlight on SB-1437 (Part II)

by David M. Boertje

Changes to California’s felony murder rule with respect to accomplices has been the subject of the last posts. For background information on accomplice liability in California, click here. Access our last post for the background on SB-1437 and how it applies to new cases. The following post will examine the application of SB-1437 to past cases.

I am Already Serving a Life Sentence for Felony Murder as an Accomplice, is There Anything I can do to Get out of Jail Sooner?

SB-1437 contains a provision for defendants that have already been convicted of felony murder and were an accomplice in the original charge. Keep in mind that as an accomplice you are liable for the underlying felony. Any time allotted to the underlying felony must be served. The sentence that is reduced or eliminated has to do with the murder. The practical effect of the new law is less time in prison for individuals charged with felony murder as an accomplice after September 30, 2018.

Individuals serving time for felony murder as an accomplice before September 30, 2018, are now able to petition the court for a reduced sentence if they did not kill or intend to kill the victim in the felony murder charge.

SB-1437 provide a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or second degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder, and the defendant could not be charged with murder after the enactment of this bill.

Serving Time for Felony Murder as an Accomplice?

SB-1437 requires the participation of district attorneys and public defenders in the resentencing process. The individual appears in court again to be resentenced. Your attorney will address the mitigating circumstances and facts that demonstrate that you acted as an accomplice in the underlying felony but did not commit the homicide or intend to commit the homicide. It is critical that you contact the San Diego Criminal Defense Attorney if your loved one is incarcerated to discuss the possibility of a resentence for a felony murder conviction as an accomplice. Continue reading

October 19, 2018

Peers and Crime: Spotlight on SB-1437 (Part I)

by David M. Boertje

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

May 18, 2018

Felony Arrest in California: What to Expect (Part I)

by David M. Boertje

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

May 20, 2016

Man Accused of Setting Man Ablaze Charged With Torture

by David M. Boertje

A man named Jose Ricardo Garibay, 26, is accused of dousing a stranger, 39-year-old Julio Edeza, with a flammable liquid in a busy Oak Park parking lot and setting him on fire. The victim Edeza has been hospitalized and is currently in critical condition. He was taken to UCSD Medical Center with burns covering most of his body.

Garibay was arrested near his home in the 6200 block of Estrella Avenue. He surrendered without incident, and according to police accounts, was “very matter-of-fact about [his] arrest.”

Earlier this week, Garibay pleaded not guilty to charges of attempted murder, aggravated mayhem, and torture. He is being held without bail and faces life in prison if convicted. Additionally, special circumstance allegations could be added if the victim does not survive. Investigators have not determined a motive for the apparently random attack and law enforcement do not believe the assailant and victim knew each other. A status conference was set for April 29 and a preliminary hearing for May 3.

The Crime of “Torture” in California

While it sounds like a crime associated with a federal terrorism statute, the state of California has its own law addressing “torture,” which was passed into law in 1990 by way of a California ballot initiative. See CA Penal Code § 206. CA Penal Code § 206 defines torture as:

Inflicting great bodily injury on another person,;
With the intent to cause extreme pain and suffering or permanent disability;
“For the purpose of revenge, extortion, persuasion or any sadistic purpose.”

It is not necessary for the perpetrator to intend to kill a victim to be able to be charged and convicted of torture. However, in California, if a murder is committed willfully using torture, it is then considered a “special circumstances murder,” which means an automatic life sentence with no possibility of parole. This means that if someone dies as a result of being tortured. even if you only intended to maliciously assault him, you will be looking a life sentence.

By itself, torture is a felony punishable by a life sentence and a fine up to $10,000. If you are convicted with torture, you will not be eligible to seek a parole hearing until at least seven years into your sentence. Continue reading