San Diego criminal attorney

August 14, 2015

Driver Falls Asleep at the Wheel and Injures Joggers

Early this past Sunday morning, a woman driving along a northern San Diego County road fell asleep at the wheel and hit two people who were jogging on the side of the road. It is thought that neither drugs nor alcohol were a factor in the crash. Unfortunately, both joggers were injured and had to be taken to a local hospital.

The driver in this incident remained at the scene of the accident until law enforcement from the city of Poway arrived, and was later released. This situation serves as an important reminder that California law requires drivers involved in an accident that results in injuries to others to stop, provide aid, and exchange all necessary contact information. Failure to do so can result in serious criminal charges, including a charge of hit and run.

Watch Out for Hit and Run Charges

If you are involved in an accident that results in injuries, the California Vehicle Code requires you to:

Immediately stop your vehicle at the scene of the accident;
Provide “reasonable assistance” to any individuals injured as a result of the accident;
Exchange contact information with the other individuals, including your name, address, vehicle registration number, and the name/address of the owner of the vehicle; and
Notify local law enforcement or the California Highway Patrol if someone has sustained fatal injuries in the crash.

Providing “reasonable assistance” to anyone injured in a crash – which includes other drivers, passengers, and pedestrians – involves calling 911 to summon medical assistance and transportation for the injured party.

Penalties for Hit and Run

If you fail to perform any of these requirements after a crash, you could be charged under California law with either a felony or misdemeanor hit and run, even if you were not at fault in the accident. These charges carry potentially serious legal consequences, including up to a year in jail, significant monetary fines of up to $10,000, and a permanent entry on your criminal record. Should the accident you were involved in result in the death or permanent, serious injury of another person, the resulting hit and run charges can carry higher consequences of up to four years in state prison, or a fine of up to $10,000, or both.

August 12, 2015

Man Convicted of Second-Degree Murder for “Sucker Punch”

by David M. Boertje

Recently, a man convicted of second-degree murder was sentenced to prison for his part in an attack in the Gaslamp Quarter that resulted in the death of another man. Mahad A. Ahmed received a sentence of 15 years to life for delivering a fatal “sucker punch” to the victim, Michael Beaver, outside an F Street restaurant last year.

Prosecutors had argued that Mr. Ahmed and a group of his friends were in the middle of an altercation with Mr. Beaver when Mr. Ahmed ran up to the victim and sucker-punched him in the head. Witnesses reported that as Mr. Beaver fell, his head struck a metal rail. The victim was found unconscious the next morning, and later died in the hospital from blunt force injuries. Mr. Ahmed was charged in the case and, after a subsequent trial by jury, was found guilty of second-degree murder. Based on his sentencing last week, Mr. Ahmed could spend the rest of his life in prison and will not be eligible for parole for at least 15 years.

First- and Second-Degree Murder under California State Law

The California Penal Code defines murder as the unlawful killing of a human being with “malice aforethought.” It further breaks these homicides down into two categories: first-degree murder and second-degree murder.

An individual can be charged with first-degree murder if they commit a premeditated killing, or if they kill someone by means of a “destructive device or explosive,” or for any murder that results from shooting at someone outside a motor vehicle from within that vehicle. The punishment in California for first-degree murder ranges from imprisonment for 25 years, to life imprisonment without the possibility of parole, all the way up to the death penalty.

All other murders fall under the category of second-degree murder. For a charge of second-degree murder, the prosecution does not have to prove that a killing was premeditated. A killing that results from a sudden fight, as in the case of Mr. Ahmed and Mr. Beaver, or a murder in the heat of passion, constitutes second-degree murder. Individuals convicted of second-degree murder can be punished by a minimum prison term of 15 years to life. In some situations – like where the victim is a police officer or where the accused has served a prior prison term – that minimum punishment can be 20 years, or even lifetime imprisonment.

August 7, 2015

California Motorcyclist Charged with DUI after Fatal Pedestrian Accident

by David M. Boertje

Recently, an intoxicated motorcyclist named Sean McGinnis crashed into two pedestrians in San Francisco while they were walking along the sidewalk. One of the victims was taken to the hospitals with non-lethal injuries, while the other died. As a result, Mr. McGinnis has been arrested and charged with:

Felony DUI alcohol causing bodily injury (for the injured pedestrian);
Felony DUI drugs causing bodily injury; and
Felony vehicular manslaughter with gross negligence.

Vehicular Manslaughter While Intoxicated

California Penal Code 191.5 codifies the crime of “vehicular manslaughter while intoxicated” and “gross vehicular manslaughter while intoxicated.” In order to be charged with this crime:

You must drive under the influence of alcohol or drugs (commit a DUI);
You must act with negligence or gross negligence; and
As a result of your negligence, someone must have died.

The penalties for vehicular manslaughter depend on whether you acted with ordinary negligence or gross negligence. If you are found to have acted with ordinary negligence, you will be charged with Penal Code 191.5(b) (“ordinary vehicular manslaughter while intoxicated”). This is a misdemeanor punishable by up to one year in jail, or it can be a wobbler crime leading to a felony punishable by up to 4 years in jail in certain circumstances.

If you are found to have acted with gross negligence, you will be charged with Penal Code 191.5(a) (“gross vehicular manslaughter while intoxicated”). It is a felony punishable by up to 10 years in jail.

Your license will be suspended with either conviction.

Vehicular Manslaughter Manslaughter/Gross Vehicular Manslaughter in General

California Penal Code 192(c) codifies the crime of vehicular manslaughter (without the requirement of being under the influence). Prosecutors may still charge you with this crime if they do not gather enough evidence that you were actually under the influence. This crime is still a felony punishable by up to 6 years in jail. It has the possibility of being tried as a misdemeanor depending on one’s circumstances and criminal history, and because it is a lesser charge than vehicular/gross vehicular manslaughter with a DUI, a good defense attorney will try to reduce your charges to this one.

June 25, 2015

California Attorney General Has Blocked Public Access to Data on Wiretapping

by David M. Boertje

In the government’s latest assault on civil rights, California Attorney General Kamala Harris has announced a new policy last month that the California Department of Justice (“CADOJ”) will only be issuing its annual reports on wiretaps as locked pdfs– which would significantly limit the public’s ability to view the information.

Every year, the CADOJ is required to compile the details on each state-level wiretap order filed by local prosecutors. The report that is released yearly is mandated by the state legislature as a means to facilitate transparency. See the 2014 California Electronic Interceptions Report (released last month) here. The report for 2014 shows a massive spike (an increase of 44%) in California’s wiretaps, mostly in Riverside County as compared in 2013. Further, on a national level, the U.S. Drug Enforcement Administration has also showed an exponential increase in the use of wiretaps, increasing from 3,394 in 2000, to 11,681 electronic intercepts last year. DEA agents have also taken to making requests directly to state prosecutors instead of making federal requests, meaning most of the requests were never even reviewed by a federal judge.

Both the DEA and CADOJ offer little explanation regarding the massive expansion of wiretaps; they merely vaguely refer to the need to fight drug crimes.

May 20, 2015

U.S. Sentencing Commission Adjusts Penalties for White Collar Crimes

by David M. Boertje

Recently, the U.S. Sentencing Commission voted to adopt changes in the guidelines that judges use in sentencing white collar crimes – to be effective this coming November. The decision came in part as a reaction to the overpopulation crisis in the prison population, and increasing costs of incarceration. The current state of sentencing for economic crimes reflects public outcry that followed the Enron case and other crises in the early 2000s. This resulted in steady increases in the length of prison sentences for white collar crimes, where federal courts routinely hand out sentences of 10 or 20 years – and sometimes significantly more – in a wide variety of fraud cases.

The purpose of the commission is to serve as an independent agency to establish sentencing practices in federal court and to help congress develop efficient crime policy.

May 18, 2015

Protester Rights and the Bail Process

by David M. Boertje

On April 12, 2015, a man by the name of Freddie Gray was chased down and arrested for “possession of a switchblade” by Baltimore PD. Eyewitnesses report Gray screaming and asking for medical attention. By April 19, a week later, Gray had slipped into a coma and died while in police custody. Autopsy reports indicate that Gray’s neck was broken and his spinal cord was nearly severed. His death set off yet another wave of daily protests decrying police racism and brutality in west Baltimore that boiled over into riots throughout the last week of April. By April 27, Maryland Governor Larry Hogan declared a state of emergency and even imposed a 10pm curfew.

Meanwhile, a wave of national protests sprung up in support of Baltimore, including San Diego. In San Diego, hundreds marched once again in the neighborhood of City Heights, known in the area for being one of the historically poorest neighborhoods in this tourist town, as well as downtown San Diego. The City Heights area has also held a number of “BlackLivesMatter” protests in the past several months following the deaths of Michael Brown and Eric Garner. While many of these protests have not led to any arrests, that has not always been the case. Meanwhile, in Baltimore, there are reports of frightening instances of medical volunteers and legal observers being arrested without charges. In addition, a video of a Freddie Gray protester being pepper sprayed and slammed to the ground has also made its rounds to the internet.

May 5, 2015

Another Incident of Police Reacting Badly to Being Filmed

by David M. Boertje

On Tuesday, April 21, the U.S. Marshals Service announced they would be reviewing a video that shows a deputy U.S. Marshall in South Gate, California charging at a woman who was filming them at a crime scene, grabbing her phone, smashing it onto the curb, and then subsequently kicking her belongings (you can view the 53-second video here). Unbeknownst to the U.S. Marshals, someone else was quietly filming the woman doing the filming, and posted their video capturing the incident online. While the caption originally tagged the South Gate Police Department, it has been confirmed that the ‘officers’ involved in the video were U.S. Marshals, and the incident is now being “investigated.” In an interview with the Los Angeles Times, Beatriz Paez, 34, said she feared for her life during the confrontation. According to her attorney, the phone’s screen is shattered and doesn’t work, but they will be trying to recover Paez’s video from the phone’s chip.

Constitutional Violations

I have blogged about the constitutionality and the right to record police before, but today, I am going to discuss the potential civil rights violations that may have occurred in the aforementioned incident to further drive in my point that those exercising their constitutional rights are not doing anything illegal or wrong. By now, it should be obvious to most of you that constitutional law and criminal law are inter related, and have huge implications for those who have been subject to criminal charges and/or actions by police. Because of 1st amendment protections of free speech and 4th amendment protections against unlawful search and seizure and undue force, there should be no situation where an officer can intentionally grab and destroy a camera being used to lawfully record law enforcement in a public place, especially when the filmer was not impeding on police activities.

April 29, 2015

Francis Pusok and Walter Scott Illustrate the Continued Need to Preserve the Right to Film

by David M. Boertje

As if the recent current events surrounding Eric Garner and Michael Brown were not enough, this month saw two more high profile cases detailing police misconduct and brutality which made national news. In South Carolina, the tasering and shooting of Walter Scott occurred as he was running away from the police was shot on a cell phone by a bystander named Feidin Santana. In our own San Diego, a local NBC affiliate chopper captured the brutal beating of Francis Pusok in the desert. Both instances would not have come to light had a third party not captured it with a camera.

As the public’s trust in police dwindles, citizens are taking matters into their own hands by increasing their use of cellphone recordings as a means to advance some accountability. As police begin to feel more uneasy about this increased use of cell phone and camera recordings, many citizens are finding themselves in hot water for recording their own interactions with police, or police interactions with another third party. This is not the first time the issue of a citizen’s right to record police has come up, and it certainly will not be the last.

What Does the U.S. Constitution Say About Recording Police?

April 16, 2015

Gone Viral: The Story of an SDSU Student Passed Out While Driving

by David M. Boertje

As I have blogged before on the status of California’s DUI laws, last week saw a perfect illustration of what happens when one is caught drinking and driving. A 25-year-old San Diego State student by the name of Amber Dlaine McKinney Morgan was rescued by California Highway Patrol (CHP) officers who broke her window to get her out of her car.

Recently, the defendant was believed to be drunk and passed out in her car while it was stopped in the middle of I-805 northbound in San Diego’s Kearny Mesa area. KGTV photojournalist Paul Anderegg stopped to see what was going on and called 911. While waiting for a response, he ran out and tried to awaken the driver when there was a break in traffic. When CHP arrived, they found Ms. Morgan’s car locked, and were unable to revive her. The car then started rolling as traffic was speeding by, so CHP Officer Sergio Flores broke her window and dragged her out. Ms. Morgan was arrested about 1:20 a.m. on suspicion of driving under the influence of alcohol in the area of Interstate 805 and Clairemont Mesa. However, Ms. Morgan was freed from the Las Colinas Women’s Detention Facility after posting the bail that was set at $2,500. Her photo has gone viral on the internet.

The Bail and Criminal Process

April 14, 2015

Local San Diego Rapper Demands Change In Law, Days After Criminal Case Dismissed (Update)

by David M. Boertje

In a recent post, we discussed the current events surrounding local rapper “TinyDoo” (real name Brandon Duncan) and his charges of gang conspiracy. Specifically, Mr. Duncan, along with 15 other co-defendants, was charged in connection with gang criminal conspiracy connected with nine shootings that took place in San Diego between May 2013 and February 2014. In particular, Mr. Duncan was accused of promoting violent crimes through the lyrics of his rap music. Prosecutors claimed that he benefitted from the increased “street cred” from the shootings. However, his charges were dismissed by a San Diego Superior Court judge after he decided there was not enough evidence to prosecute him on charges of conspiracy.

Mr. Duncan claims he will not change his lyrics on the basis of free speech. In fact, just a few weeks ago the rapper spent his Sunday joining a race relations town hall meeting to demand a change in the current conspiracy law (CA Penal Code 182.5) which had him face a lengthy prison sentence. Defense attorneys argued there needs to be more than association to charge these men and the case violates free speech rights.

Promoting and Encouraging Crimes