Articles Tagged with San Diego criminal defense attorney

For a long time, hot weather has been associated with crime, particularly in cities throughout the U.S. Temperatures have been on the rise in American cities and around the world, with the last two years registering some of the warmest temperatures on record. For example, for decades the trend has been that in colder months fewer people are murdered.

The weather does not cause crime. Crime is caused by people’s actions. The rising temperature affects people differently. Hot weather either sends people out to cool down or in to cool off. Minor inconveniences can quickly escalate to an argument and then to violence because heat tends to make people physically uncomfortable. Feelings of irritability and anger are higher when the temperature is higher.

2017 Crime Rates in the United States

Every year, the Federal Bureau of Investigations (FBI) releases statistics of crime rates in America. The violent crime rate seems to have peaked in 2016. 1,250,162 violent crimes were reported in 2016. In 2017, the number decreased to 1,247,321 violent crimes. Violent crimes are against people and include murder and manslaughter, rape, robbery, and aggravated assault.

San Diego Violent Crime Rates are Down

San Diego is a city with approximately 1.42 million inhabitants and ranks as one of the top 10 most populous cities in the country. Of all the most populous cities in America, San Diego ranks as one of the safest cities when it comes to violent crime. In 2017, according to the FBI, the police investigated 5,221 violent crimes. Ahead of San Diego are San Jose, New York, San Antonio, Phoenix, Los Angeles, Dallas, Philadelphia, Houston, and Chicago. The most violent crimes occurred in the cities of Chicago, Houston, and Philadelphia.With respect to property crimes, San Diego had the second lowest rate with 18.4 crimes reported per 1,000 residents.

Have You Been Charged with a Felony Crime in California?

Felony crimes are the most serious criminal offenses in California. The penalties include long prison terms, and repeat offenders may face life imprisonment for future crimes. If you have been charged with a felony crime in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate penalties and prison sentences. Continue reading

In Alameda county, California lawmakers are considering a contentious bill that would end lifetime registration for certain sex offenders. The lawmaker who introduced the bill, Nancy O’Malley, and the District Attorney of Alameda County’s intent is to save the state money, since it is extremely expensive to monitor sex offenders.

Senate Bill 421 would reorganize the sex offender registry into a tiered system and group existing registered offenders into three categories based on the severity of their crimes. A certain number of offenders would be dropped from the list as soon as 2018. “There are people who are still registering who are now 80 years old and they register every year because when they were 18 years old they exposed themselves, there’s injustice in some of that,” says Ms. O’Malley.

The bill passed the state Senate’s Committee on Public Safety on last month. Proponents of the new bill say that lightening the work load of law enforcement will give them more time to focus on high-risk offenders that actually need monitoring.

Currently, a state tax force has 2,500 sex offenders to keep track of. There is currently an estimated 104,000 registered sex offenders statewide.

Potential Changes in California’s Sex Offender Registry

Most U.S. states already have a tiered system for sex offenders. But under current California law, all sex offenders have to register with law enforcement for the rest of their lives, no matter if they committed a nonviolent misdemeanor crime like indecent exposure (ie. urinating in public) or a violent felony rape.

If passed into law, S.B. 421 would create a tiered system for sex offenders:

  • Tier 1: Misdemeanor or non-violent sex offenders would have to register for 10 years.  This encompasses situations like when a young college student has too much to drink and exposes him or herself publicly.
  • Tier 2: Convicts who committed serious or certain violent offenses would have to remain on the list for 20 years.
  • Tier 3: Violent high-risk sex predators will remain on the list for the rest of their lives.  This includes sex offenders who violated Megan’s Law.

A sex offender’s removal from the registry would not be automatic. Offenders who qualify for removal would still have to petition the court and have their application reviewed by their local district attorney, who has to consider factors like the risk of re-offending. Continue reading

In a tragic turn of events, seven adults were shot at a University City apartment complex pool party earlier this month. One woman named Monique Clark was killed. Witnesses say that  49-year-old Peter Selis, a resident at the upscale La Jolla Crossroads complex, never even left his pool chair when he opened fire on a birthday party.  The question left in everyone’s mind is whether Selis was motivated by race, something that the witnesses and survivors of the shooting believe to be true. All the victims of the mass shooting were people of color – four black women, two black men, and one Latino man.  

The three police offers who arrived at the scene shot and killed Mr. Selis. The preliminary investigation revealed that Mr. Selis is a car mechanic at a Ford dealership, and a 2015 bankruptcy filing illustrated that he was under crushing debt.

Hate Crimes

According to the FBI, a hate crime is a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Hate crimes are the only criminal case in which prosecutors are required to prove a perpetrator’s motive at trial. Typically, the defendant’s mens rea, or criminal intent, is all that is needed to prove guilt. This means that the perpetrator’s state of mind must be an element of the crime; he or she must have taken action intentionally to pursue a criminal result. For example, if a gunman opens fire on a crowd, prosecutors must prove that he intended to pull the trigger (the action) and shoot people to harm them (the criminal result). With hate crimes, prosecution must prove that the perpetrator had the mens rea  to shoot people, but that he or she was also motivated by the victim’s race, gender, or religion.

As a result, hate crimes are extremely difficult to prove even if the crime of shooting is considered by some to be a ‘slam dunk’ case. The mere difference between the race of the offender and the victim in and of itself, absent of any other objective bias indicators, is unlikely to result in a conviction. Usually there must be more evidence to examine the surrounding circumstances. This may include statements the suspect made prior to the crime, which do not exist in the case of Mr. Selis.

A total of 84 “hate crime events” were reported in 2016 in San Diego. Continue reading

It has been reported by the San Diego Union Tribune that the amount of computer extortion crimes has significantly increased. Victims are getting notices that they have downloaded a virus and will have to pay X amount to ‘get rid of it.’ Victims are accidentally downloading ransomware. Hackers load malicious software onto people’s computers via emails, decoy ads, bogus news stories, and code embedded through websites. They then charge money to “remove” this ransomware. It is a form of extortion.

According to Special Agent Chris Christopherson, who investigates cyber crimes out of the FBI’s field office in San Diego, it is “entirely possible that we’ll have far in excess of $1 billion in losses” worldwide related to ransomware.” The final tally for 2016 has not been completed yet. The FBI claims that every hour, about 4,000 computers around the world become infected with ransomware. This is an exponentially larger problem for the city of San Diego, which faces daily attacks against its 14,000 desktop and laptop computers.

According to cyber experts, many victims never report the extortion because they feel ashamed for getting duped, or are worried that others will know they visited a pornography website or some other questionable page. Others do not know where to report the attack and doubt that law enforcement will investigate the incident.

Lately, there is increasing concern about the innovations seen in ransomware software. The new codes will offer to decrypt infected victim’s computers as long as they are willing to ‘infect someone else’ in their contact list.

Internet Crime

Internet crime is a blanket crime that generally describes fraud crimes involving the use of the internet or computers. These encompass fraudulent schemes carried through email, “phishing” (using email to obtain sensitive information), or accessing a computer or its data without permission.

In order to convict someone of internet fraud under federal law (18 U.S. Code § 1343), prosecutors have to prove that the defendant intended to commit fraud and that he or she used electronic communication to further that scheme. A conviction of internet fraud under the federal wire fraud statute is punishable by up to 20 years of imprisonment and a hefty fine.

Other criminal laws implicated in cyber crimes are identity theft statutes and credit card fraud (as they pertain to phishing schemes). Continue reading

This September, the notoriously liberal state of California just made it harder for cops to take cash from innocent people. Governor Jerry Brown just signed into law SB 443, which limits the amount of civil forfeiture that is allowed to take place in the state by police and law enforcement agencies.

Civil asset forfeiture occurs when the government (ie. police) literally seizes someone’s property, without compensating them, based on the suspicion that the property was used in connection with criminal activity. For example, you can be stopped during a routine traffic stop, and police who suspect you of drug dealing may take cash that was in your car based on that premise. They do not need a warrant or criminal conviction in order to do so.

It is well known that corrupt police agencies throughout California have been using civil asset forfeiture as an excuse to pad their budgets. An investigation by the Washington Post identified almost $10,000 in cash seizures that took place without any warrants or indictments.

The Lay of the Land

Compared to other states, California  was already more protective than others.  The state already required a criminal conviction before real estate, vehicles, boats and cash under  the value of $25,000 could be forfeited over to the government.  The standard of proof in the civil forfeiture proceeding has always been “beyond a reasonable doubt,” meaning the state had to establish clear and convincing evidence that the property was connected to illegal activity.

However, California’s state requirements are different from those under federal law.  Under a federal forfeiture, state, local, and federal law enforcement agencies may collaborate (called “equitable sharing”) and forfeit seized property under federal law, even if that would preempt California’s more stringent protections for property owners. This means that traditionally, federal agency such as ICE or the DEA just has to get involved in order for the forfeiture to become federal. Once state departments transfer the seized assets to a federal agencies, they get back 80% of those proceeds.

SB 443 changed that. Starting in 2017, police will first need to obtain any criminal conviction before they could receive equitable-sharing payments from forfeited real estate, vehicles, boats, and cash worth under $40,000. This is intended to prohibit police departments from sidestepping the state conviction requirements by transferring the money to federal agencies. In addition, the law also increased the threshold for forfeiting  cash with criminal conviction to $40,000. Continue reading

There are currently more than 800,000 people registered in the nationwide list of registered sex criminals, and that list is growing dramatically. Even some who had denounced convicted rapist Brock Turner’s actions had questioned whether he should have to spend the rest of his life as a registered sex offender.

In states like California, Florida, South Carolina, and Alabama it is impossible for people convicted of any sex crime to be removed from the online registries showing their pictures, addresses, convictions, and probation details. Critics have stated that an ex-offender will struggle with getting a job and place to live for the rest of his or her life. Advocates for sex crime victims insist that lifetime registries make the public safer by preventing offender recidivism and giving citizens and police access to information on the whereabouts of sex offenders and precluding them from places like schools.

Brock was released on September 2 after serving only half his jail sentence (three months) for good behavior. Brock moved back to his parent’s house in Bellbrook, Ohio. It is reported that protesters demonstrated in front of the home before and after his arrival and Turner’s parents reported to police eggs being thrown at the house.

It has already been reported several times that Prop 47 may be affecting crime rates in the state, but the state’s most damning evidence was just recently released. According to the state’s attorney general’s most recent report, the number of violent crimes jumped 10% across California last year, reversing several years of declines.

According to Attorney General Kamala Harris, homicides have increased by 10%, while robberies and aggravated assaults were up more than 8% from 2014 to 2015. Aggravated assaults with a firearm were even higher, with a reported jump of 15.7%.  It was also reported that property crimes such as burglary and car theft have increased by 8%.

Harris, who is currently running for the U.S. Senate in anticipation of Boxer’s upcoming retirement, did not comment on the causes of these crime spikes. Many factors could be to blame, ranging from unemployment rates to the police departments being short staffed.

Recently, prosecutors in Oakland, California announced they opened up a criminal investigation into the fatal balcony collapse that occurred on June 17 near the UC Berkeley campus.  Alameda County District Attorney Nancy O’Malley launched an investigation into the incident that killed 6 college students at an apartment party when police announced they would not look into the deaths. Specifically, the construction company responsible for the balcony’s construction (Segue Construction) now faces criminal negligence and manslaughter charges.  City officials have confirmed that the balcony was severely rotted by exposure to moisture, when it completely broke off the side of the apartment building, sending about 20 people down a dangerous fall.  The company has already settled two lawsuits involving balconies with dry rot at two apartment buildings in California.

You can be charged with Manslaughter through Criminal Negligence

Manslaughter (aka involuntary manslaughter) is defined as the killing another human being without premeditation, malice, or planning.  It is unintentional, unlike murder and homicide.  It is a felony under California Penal Code 192(b), punishable by a maximum of 4 years in jail and a fine up to $10,000.

Manslaughter typically comes up in the driving context, when someone unintentionally hits and kills someone with their car, for example.  This Berkeley tragedy shines a light on the fact that manslaughter charges actually come up in all kinds of contexts, such as negligent construction.  Moreover, the charge typically comes in partnership with other charges (ie. the California weapons law), or as a subpart of another greater charge, such as criminal negligence.  Here, the prosecutors will need to show that criminal negligence was involved in the collapse in order to file charges and gain convictions.  This is because manslaughter can be an example of criminal negligence, depending on the circumstances.

To be convicted of criminal negligence (aka gross negligence) in California, the prosecutor must prove that:

  • The defendant acted so recklessly s/he created a high risk of death or great bodily injury;
  • The defendant demonstrated a blatant disregard for human life; and
  • A reasonable person in a similar situation would not have acted that way.

While criminal negligence substitutes for criminal intent, it is limited in its application, and only extends to crimes based on accidental-type scenarios where you should have been aware of the dangers.  Thus, if you acted so unreasonably in such a manner that killed or severely injured someone, you may be convicted of involuntary manslaughter through criminal negligence.

Legal Defenses

Mere mistakes and accidents are not criminal negligence.  It requires more than just a mistake in judgement. To defend against a scenario where you face both criminal negligence and manslaughter charges, you must show that you had no reason to believe your actions were unreasonable or reckless.

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The Los Angeles County district attorney’s office has announced it will seek the death penalty against a mother (Pearl Fernandez) and her boyfriend (Isauro Aguirre), who have been accused of the torturing and death of the woman’s 8-year-old son.  This case stems from Gabriel Fernandez’s death in May 2013, where Fernandez and Aguirre were indicted by a grand jury on a charge of murder and a special circumstance of torture.

Grand jury testimony revealed that Pearl Fernandez had called 911 after she and Aguirre allegedly beat Gabriel for not picking up his toys. After the beating, the boy went silent and stopped responding.  Paramedics discovered that he had a cracked skull, three broken ribs and BB pellets embedded in his lung and groin.

The Recent U.S. Supreme Court Ruling’s Effect on California Death Row Practices

The CA prosecutor’s announcement coincidentally coincided with the U.S. Supreme Court’s recent ruling that upheld as constitutional the use of the drug midazolam for lethal injection in the state of Oklahoma.  See Glossip v. Gross (June 29, 2015).  Specifically, the Supreme Court has rejected inmates’ argument that using such a drug violates one’s right to a humane execution.  This ruling has shifted the spotlight the capital punishment debate back to California’s dysfunctional death row.  California has the largest death row backlog in the nation; 757 prisoners were awaiting their deaths (most convicted of murder) when executions were suspended in the state in 2006.

In 2006, District Judge Jeremy Fogel halted California executions after determining that the delays in the system were unconstitutional.  Prisoners used to be executed with a 3-drug cocktail, but lawsuits arose over the excessive pain that cocktail caused.  Since then, the state of California has failed to adopt new drug regulations, so families and victims of death row inmates sued the state last November.  Under that lawsuit’s settlement with families of murder victims, California prison officials agreed to propose a new single-drug execution method within 120 days of the Supreme Court’s ruling in the Oklahoma legal challenge.  With the ruling in hand, that deadline is now Oct. 27.  The state has not executed an inmate in nearly a decade.

Now, the state of California’s Department of Corrections and Rehabilitation must find a new drug to use, reactivate the system, and address the financial costs of such an expensive system.  California’s death row has cost $4 billion since its inception, with $100 million per year being paid for by taxpayers.

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As a practitioner in the criminal law field, it is part of my job to keep updated on new case law that will affect my clients.  This blog will seek to explain to you the latest development in criminal case law—coming from our highest court—the Supreme Court.  The Supreme Court has had no shortage of criminal law cases.  This year for example, they have already ruled in Rodrigo v. U.S. that police cannot stop motorists longer than necessary at traffic stops. And recently, in Johnson v. U.S., it ruled that catch-all phrase in the Armed Career Criminal Act defining what crimes make a defendant eligible for a longer prison term was “too vague.”

In this case, Samuel Johnson plead guilty to a federal weapons charge in 2012 (firearms possession).  He was sentenced to 15 years in prison—5 more than he would have gotten because he had prior convictions.  The Armed Career Criminal Act, which is a federal law that has jurisdiction over all states, has a clause that treats past convictions as violent felonies, even if no violence occurred.  If an offender has 3 prior convictions, the fourth automatically generates a 15-year prison sentence.

The Act lists burglary, arson, extortion, and use of explosives as specific categories or prior crimes that can lengthen one’s sentence.  The Supreme Court, in a 6 to 3 majority, held that specific clause of the law unconstitutional.

How Does This Ruling Affect Me?

One of the reasons Armed Career Criminal Act clause was held unconstitutional was because different states may have different laws on prior offenses.  Courts across the country have differed on what crime should be included in sentence lengthening, leading to inconsistent results.  Faced with such uncertainty, defendants often take prosecutors’ plea deals rather than risk the federal statute’s 15-year sentence.

Thanks to this ruling, if you have prior federal convictions (depending on what they are), they will no longer make you eligible for a longer, 15-year sentence.  However, it should still be noted that California has a very tough “3 strikes” law that has a long list of crimes that will make you eligible for life in prison if you are convicted 3 times of certain violent crimes.  In that respect, our state’s 3 strikes law is much tougher than the Armed Career Criminal Act.  It applies to state charges instead of federal charges.

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