San Diego criminal lawyer

May 20, 2015

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

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 13, 2015

Freddie Gray Tragedy a Lesson in Constitutional Rights

by David M. Boertje

As Baltimore becomes the latest casualty of events transpiring from police brutality, another Justice Department investigation is underway for the multitude of constitutional rights Freddie Gray may have suffered at the hands of police. Most people don’t think of criminal law as being fundamentally intertwined with our basic constitutional rights, or even as a ‘subsect’ of constitutional law. The purpose of this post is to break down which fundamental constitutional rights have significant implications for the rights of criminal defendants.

The Constitution

Most of the constitutional principles cited by criminal defense attorneys come from the first 10 amendments in the Constitution (aka the Bill of rights). Because the Constitution only applies to government actors, only those acting on behalf of the government (ie. police) can be liable for violating constitutional rights.

The 1st Amendment guarantees the free exercise of religion, speech, press, the right to peaceably assemble (ie. protest) or the petitioning for a governmental redress of grievances. This amendment has made its way into the spotlight again because more and more people are being arrested for civil disobedience, filming police, or participating in protests- all protected 1st Amendment activities. Violations of 1st Amendment give a right of action to sue the state actor for civil damages.
The 4th Amendment prohibits “unreasonable search and seizures” and “government intrusion into their persons,” whether through police stops of citizens on the street, arrests, or searches of cars during traffic stops. The right applies any time you are stopped, pulled over, arrested, detained, or in the safety of your home. Evidence seized in violation of the 4th Amendment is unlawful, and cannot be used against you in court.
The 5th Amendment protects you against self-incrimination, which is where the Miranda right, or right to remain silent stems from. This means that whenever you are taken into custody, you do not have to say anything to the police, and can ask for a lawyer. Voluntary statements are statements that will be used against you, so it is best to not say anything. Statements that have been taken in violation of the 5th Amendment (ie. a coerced confession) are also inadmissible against you in court. The 5th Amendment also protects you from “double jeopardy,” meaning you may not be put on trial more than once for the same offense.
The 6th Amendment gives you multiple rights: the right to confront a witness (meaning you may confront the person accusing you of a crime), the right to be notified of the charges against you, the right to a public trial in a criminal case, the right to be evaluated by a jury of your peers, and the right to a ‘speedy’ trial. However, it does not specify exact time limits. Thus, judges decide on a case-by-case basis whether a defendant’s trial has been so delayed that the case should be thrown out. The 6th Amendment also gives you one of the most famous rights: the right to be issued an attorney in a criminal trial, if you cannot afford one.
The 14th Amendment prohibits states from violating an individual’s rights of due process and equal protection. This means that legal proceedings must be fair, following the formal processes, and that defendants are not treated differently based on race, gender, or religion. This is the most heavily litigated portion of criminal law, as racial profiling has been shown to be rampant amongst most police forces, including San Diego.

May 1, 2015

Proposed CA Bill Could Protect Legal Immigrants from Drug-Related Deportation

by David M. Boertje

In California, like every state, it is illegal to possess, distribute, and transport illegal substances that are listed on the Controlled Substances Schedule. These substances include heroin, marijuana, peyote, hash, cocaine, methamphetamine, “magic mushrooms,” and prescription drugs such as Oxycontin (aka “oxy”), Vicodin (Hydrocodone), and stimulants.

All drug possession crimes in California are classified as infractions, misdemeanors, “wobblers” (meaning they can be a misdemeanor or felony), or felonies. There are 4 types of charges:

Simple possession;

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

April 4, 2015

Are there circumstances where Miranda rights don’t have to be read?

by David M. Boertje

As reviewed in the previous blog, Miranda rights protects one from compelled self-incrimination, but this right is not absolute. There are certain exceptions to the Miranda rule where police do not have to read you your rights. This means in any of these situations, police will use what you say against you in the courts processes without reading you your rights:

It does not apply to basic questions.

Police are still allowed to ask you basic questions not related to a suspected crime such as your name, address, etc. When asked these basic questions, it is best to just answer them but provide no more information than the police ask. If police start asking more substantive questions about your involvement in a crime, etc. respectfully decline and request a lawyer to be present.

April 3, 2015

Complaint Alleges SFPD Officer Broke City Law While Investigating With FBI

by David M. Boertje

Recently, two civil rights groups (the San Francisco branch of the Council on American-Islamic Relations and the Asian Law Caucus) filed a federal lawsuit against the San Francisco Police Department alleging that a police inspector not only violated department rules and city law whilst working with the FBI’s Joint Terrorism Task Force, but the SFPD also failed to report it. The two groups, which represent Arab, Middle Eastern, Muslim and South Asian communities, specifically claim that Sgt. Inspector Gavin McEachern violated software engineer Sarmad Gilani’s civil rights back in July 2014. In that instance, the FBI’s Counterterrorism unit approached the plaintiff’s workplace at Google and asked him a handful of questions regarding his travel plans, personal blog, and political expressions on social media. None of those questions actually had anything to do with a criminal investigation, because Sarmad Gilani had not committed a crime.

The groups are specifically concerned over the violations of Gilani’s privacy guaranteed by Article 1, Section 1 of the California Constitution, as well as the laws and policies of the City and County of San Francisco and, as applicable to the police department, that department’s policies and procedures. They also filed a federal Freedom of Information Act request on Gilani’s behalf to obtain discovery over the subsequent travel issues Gilani had due to the investigation(s) on him.

The Use of the Federal Freedom of Information Act (FOIA) for Criminal Cases

March 2, 2015

California Supreme Court Says Sex Offender Residency Law is Unconstitutional

by David M. Boertje

Earlier this Week, the California Supreme Court decided unanimously that blanket, statewide bans on where sex offenders may not live (“Jessica’s Law”) violate the constitutional rights of parolees in San Diego County. Jessica’s Law (aka Proposition 83), named after a 9-year-old girl who fell victim to a sex offender who failed to report his whereabouts, was proposed via a ballot initiative in 2006. Due to Megan’s Law, those who have been convicted of a sex crime must register with their local law enforcement agency.

Jessica’s Law therefore barred registered sex offenders from living within 2,000 feet of a school or park where children gather, regardless of whether the crimes actually involved children. Sex offenders subsequently challenged the law in court, claiming that it made it impossible for them to find a place to live. The court recognized that the law made over 97% of rental housing in San Diego unavailable, and ruled that the consequences of the law were so severe, it hampered rehabilitation and caused homelessness. Although the unanimous ruling immediately affects only San Diego County, it will certainly pave the way for the same policies in major metropolitan areas, including San Francisco.

What to Do If You Are Charged With a Sex Crime