David M. Boertje

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You think you have seen it all as an employee in a nursing home; patients with all kinds of problems come in, and an exhausted staff relying on inadequate resources is expected to address the many needs of multiple elderly residents. There is no question that things could be better. But are you personally liable for the situation when things get really bad?

Case in Point

Squalor, emaciation, and dehydration: those were the words investigators and the Attorney General’s office used to describe the conditions of a care facility in Riverside, California. The facility, which was unlicensed, lacked the staff and equipment necessary to provide adequate care for the disabled residents. Workers there were criminally charged and will be going to prison.

It is Criminal—Literally

While nursing homes like this are often sued for damages to address the harm inflicted on their residents, many people don’t realize that criminal charges may be applicable, as well. In California, elder abuse can result in substantial fines and time behind bars. 

 

Offense Fines Incarceration
Failure to report $1,000- $5,000 6 months – 1 year
Disregarding health codes $2,500 180 days
Willfully threatening/causing fear — 1-3 years
Financial Abuse $1,000-$10,000 1-4 years
Willful negligence $1,000 6 months
Willful negligence likely to result in injury or death $6,000 1-5 years
Sexual assault — 1-10 years
Murder — 25 years- life or

 death penalty

 

Signs of Elder Abuse

Elder neglect/abuse may be difficult to see right away, but the symptoms tend to reveal themselves with time. Some of the most common issues might include:

  • Burns, bruises, scars, or other indications of physical abuse that suggest physical punishment or forceful restraint;
  • Unclean or hazardous conditions;
  • Dirty hair or clothes, poor dental hygiene, or other evidence of neglected personal care; 
  • The absence of necessary items such as hearing aids, glasses, or walkers;
  • Depression, anxiety, and other distinct changes in affect;
  • Bedsores, dirty diapers, and other indicators of derelict hygiene;
  • Fear of being left alone or being approached by certain individuals;
  • Perplexing changes to spending habits, banking patterns, or wills/trusts;
  • Evidence that medications have been improperly administered;
  • Rocking back and forth or otherwise displaying signs of trauma.

Continue reading

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If you are facing criminal charges, you may be hoping that charges will be dropped or dismissed, eliminating the tension and cost of a trial. While plenty of defendants are not so lucky, it is certainly a possibility in many cases. 

Dropped and Dismissed Charges are Not the Same

There is a distinct difference between having charges dropped and having them dismissed:

  • Dropped Charges: Charges may be dropped at any time during a case if a prosecutor loses confidence in their chances of winning. Even if charges have not yet been officially filed, they may be dropped.
  • Dismissed Charges: Charges can only be dismissed after they have been filed, and this must be done by a judge.

Why Might Charges be Dropped or Dismissed?

There are plenty of reasons that a case might not make it to trial and a verdict. Some of the most common scenarios include:

  • A strong case cannot be developed with the evidence currently available, so proof beyond a reasonable doubt is unlikely.
  • A victim may request that the charges be dropped and refuse to cooperate with the prosecution, weakening the case.
  • There could be errors in the criminal complaint.
  • The prosecutor may lack the resources to pursue the case.
  • The defendant may be exonerated based on new evidence– even after a conviction.
  • Information central to the case may have been illegally obtained and is therefore inadmissible.
  • The rights of the suspect may have been violated—such as through an illegal search or failure to Mirandize, leading to a decision to drop it.
  • A plea deal may have been negotiated between the prosecution and the defense that drops certain charges in exchange for a guilty verdict or cooperation in testifying against others.
  • Venue issues may lead to dropped charges.
  • A Plea in Abeyance may be offered, requiring rehabilitative classes, for example, in exchange for dropped charges (although failure to complete the requirements would result in a mandatory guilty plea on the charges).

Is it the Same as Being Acquitted?

Having charges dropped or dismissed is definitely not the same thing as getting an acquittal. In the case of an acquittal, a judge or jury found that there was not enough evidence to convict the defendant. That means the defendant can never be retried on those charges—that would be Double Jeopardy. Conversely, if the charges were simply dropped or dismissed, the prosecutor could refile the exact same charges at a later date when they believe they have a stronger case. 

What Appears on My Record?

Both dismissals and acquittals will appear on one’s criminal record unless the record is expunged. Of course, neither will have the crushing impact on employment or housing that a guilty verdict has. Continue reading

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Tyrese Gibson—known for his role in the Fast & Furious franchise– purportedly failed to adhere to a court order requiring more than $70,000 in back child support to be paid. As a result, he was found to be in willful contempt of court. It was the third such hearing, and this time the judge required Gibson’s detainment until the payment was made. Contempt of court is a common charge and one that can result in certain penalties depending on the situation. 

Criminal Contempt of Court

When someone disobeys a court order or angers a judge, it can result in contempt charges.  It is a criminal matter when criminal penalties are associated with the charges. While the majority of court proceedings occur without incident, there are certain actions that could lead to these charges, including making a disturbance in the courtroom and insulting a judge. Contempt may be either direct or indirect:

Direct Contempt: Direct contempt is up close and personal and occurs within the courtroom, generally involving behaviors that aggravate and/or insult the judge. Charges of contempt could be leveled against courtroom spectators, witnesses, attorneys, and even jurors. Actions that could result in such charges include:

  • Remaining seated as the judge comes into the courtroom;
  • Attending court while under the influence of alcohol or drugs;
  • Quarreling/yelling in the courtroom;
  • Intimidating others with threatening gestures, scowling, and/or threats;
  • Lying while under oath;
  • Using profanity to the point that it disrupts the proceedings.

Indirect Contempt: While direct contempt of court is linked to activity inside the courtroom itself, indirect contempt, also known as constructive contempt of court, is based on actions outside of the courtroom, like in the case of Gibson.  He’d been ordered to make payments and allegedly did not comply. Other examples of indirect contempt include:

  • Missing a hearing;
  • Breaking probation requirements;
  • Refusing to turn over subpoenaed evidence;
  • Improperly making efforts to communicate with one or more jurors;
  • Endeavoring to bribe jurors or court workers;
  • Ignoring instructions in a protective order.

Penalties in the Golden State

Disrespect of the court offends judges and the judicial system and could lead to penalties, including fines of up to $1,000 and up to six months in jail, on top of attorney’s fees and other expenses in some cases. In situations where the court requires a particular action, like, say, testifying or providing evidence that has thus far been denied, the offender could be jailed until they agree to comply with the court order. Continue reading

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2024 is a big election year, so it is surprising to some that there are still so many questions about the voting laws here in the Golden State. The qualifications to vote are clearly outlined by the ACLU: 

  • You must be a citizen of the United States.
  • You have to be at least 18 to vote, although you can pre-register to vote at age 16 or 17.
  • You cannot be currently deemed mentally incompetent by a court.
  • You cannot currently be in either a federal or state prison on a felony conviction.

Students and Those Living Abroad 

Students or any Californians living away from their traditional homes can register to vote either at their usual home address in California or at the address considered to be their current primary residence.

When in Jail 

If you are incarcerated in a California jail on a misdemeanor or are in jail unable to make bail, you are allowed to vote. Make sure you are registered and request an absentee ballot from the county elections office near you.

Convicted Felons

Once you are out of prison, you are automatically entitled to vote, with no action required to regain your voting rights. This is true even for individuals who are serving post-release supervision or probation.

What About Unsheltered Individuals?

For those experiencing homelessness, registration may occur using the location where the person usually resides. It could be a park, street corner, or shelter. The address of a shelter or outreach center is a good one to use because such locations will generally be able to accept election materials on behalf of the unhoused.

Can I Vote by Mail?

Yes, and you can send it through the normal mail service or put it in an election drop box. Someone else is allowed to drop off your ballot on your behalf as long as they are not being paid for the service. Just make sure you fill out the section on your ballot envelope authorizing someone else to drop it off.

Early Ballots

If you are registered, you can vote by mail or vote in person at an early voting location in some counties.

Voting on Election Day

Election day is the second Tuesday in November, and polls are open for 13 hours, from 7:00 in the morning until 8:00 in the evening. If you are in line by 7:00, you will be allowed to vote, even if you do not get to the ballot box until after 8:00. You must go to the voting location to which you are assigned, which your county elections office can help you determine.

What if My English is Limited?

Some counties provide facsimile or translated ballots in other languages on request. Contact the county clerk in your area prior to election day to see what’s available.  You are also allowed to bring an interpreter with you unless the person is your employer or their agent or an agent or officer from your labor union. Continue reading

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Alarm bells ring when a baby dies.  In this nation, some estimate that anywhere from 1,000 to 3,000 children experience shaken baby syndrome (SBS). One-fourth of those children eventually die, and the rest suffer from lifelong debilitating issues, including seizures, behavior and learning issues, hearing loss, blindness, cerebral palsy, and paralysis. 

Is the Science Solid?

The quest for an explanation is ravenous after the death of a child. While there are many pediatricians who stand by SBS diagnoses, it must be noted that the American Association of Pediatrics (AAP) has backed away from it, stating that both legal and medical authorities had misinterpreted it. What is that about?

The Stance of the AAP 

According to the AAP, there are many conditions that can cause the symptoms associated with SBS. Norman Guthkelch–the neurosurgeon who developed the theory of SBS– believed it had been misinterpreted. For him, it was merely a suggestion to parents on how to prevent childhood injuries. Currently, many doctors agree that there are myriad issues that can cause the symptoms of SBS. Never had Dr. Guthkelch envisioned that the diagnosis would lead to the imprisonment of innocent parents who were grieving their injured or dead children. To date, there have been 32 exonerations of people who had formerly been found guilty of SBS. Will the very public case of a death penalty inmate in Texas be the 33rd exoneration?

A Recent Case 

A man’s infant daughter died after experiencing brain swelling, bleeding behind the eyes, and head bruising. The diagnosis at the time was SBS, even though the man claimed the baby had fallen from a bed. He took his daughter to the hospital and raised suspicions with hospital staff with his lack of emotion. It was just one of many factors that led to a guilty verdict and the death penalty sentence he received. (It was later discovered that the man was autistic, explaining the lack of emotion). More than two decades later, the lead detective in the case says that alternate theories to SBS were never considered or investigated. The man’s attorneys report that the baby had pneumonia at the time of her death, and it had become septic. She suffered numerous other health issues that may have contributed to her death, as well. A bipartisan group of lawmakers in Texas is calling for clemency for the man, and only time will tell how it unfolds for him. 

California Law

When a parent or caregiver is accused of Shaken Baby Syndrome in California, they may be charged with child abuse, murder, or attempted murder. These charges could put an offender behind bars for decades. Continue reading

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Even though you thought you were just being patriotic when you chatted up fellow voters, now you have been arrested and charged with voter intimidation.  What is voter intimidation, and what should you do about these charges? 

Voter Intimidation 

U.S. code defines voter intimidation as any combination of coercion, threats, or intimidation of someone else in an attempt to interfere with that person’s right to vote for the federal position or candidate of their choice. It is a federal offense and could land offenders behind bars. But what does voter intimidation look like in practice? Some examples include:

  • Obstructing someone’s access to a polling place; 
  • Using verbal or other threats in or around a polling site;
  • Questioning, pursuing, or otherwise disrupting voters;
  • Grilling a voter about their voting authorization, including questioning their citizenship and/or criminal record;
  • Lying about or misconstruing the rules related to voting requirements in an effort to dissuade people from even attempting vote;
  • Soliciting personal information from potential voters in phone calls, flyers, or in person.

Who Can Be Poll Watchers?

Poll watchers oversee polling sites and ballot counting locations with the goal of keeping election work honest and transparent. In California, these individuals:

  • Sets up/closes down polling locations;
  • Protects voting equipment/ballots;
  • Helps voters understand voting rights;
  • Must be a legal permanent resident of U.S. citizen;
  • Could be a high school student who meets these qualifications:
  1.                  Is a U.S. citizen;
  2.                  Has a GPA of 2.5 or higher;
  3.       Has permission from their parents/guardians.

Restrictions on Poll Watchers and Election Observers

Although poll watchers are allowed to observe the behavior of both voters and officials, they are prohibited from certain activities.  Clearly, they are not allowed to intimidate or threaten voters. Additionally, they cannot:

  • Interfere with the voting process;
  • Promote any political position, candidate, or party;
  • Wear campaign paraphernalia or clothing;
  • Wear law enforcement, private security, or peace officer uniforms;
  • Physically touch voting materials, furniture, or equipment;
  • Converse with election officers;
  • Without permission, attempt to enter a secure area;
  • Speak with voters about their vote or their eligibility within 100 feet of a polling site;
  • Talk to workers or otherwise interrupt the work in the central counting location;
  • Challenge the process or decisions made by election officials;
  • Photograph or video voters coming and going from polling places.
  • Look at a voter’s ballot, choices, or personal information.

Penalties for Voter Intimidation

If found guilty of interfering with the work of election officers or voters who are exercising their legal right to cast a ballot, section 1170 of the Penal Code allows for imprisonment for up to three years. The same goes for tampering with voting materials or equipment and attempting to discourage someone from voting. Continue reading

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A woman confided in her brother about her husband’s threats and abuse. They mulled over various ways to eliminate her abuser, who had dragged her through dog feces, gripped her hand in order to break the glass she was holding, causing the shards to slice her hand, pulled her hair, and punched her. Worse yet, he had threatened to murder their two children when she left him once. The woman had twice called the police to report the domestic violence but discovered that officers appeared unwilling to do anything more than advise the couple to work out their problems. That led the woman’s brother to take matters into his own hands, and after some friends lured his sister’s abusive husband to a remote site, he shot and killed the man. Both the abuse victim and her brother went to prison with life sentences. That was in 1984. The brother died in prison. The woman is still there. 

The Castle Doctrine

Four decades later, not a lot has changed when it comes to women killing their abusers. The castle doctrine– a 17th-century law that embraced its European homeland– gives any man the right to protect himself and his property—which includes his wife and children– when attacked. When not within the confines of his home, conversely, a man was expected to retreat when attacked. But that all changed in 1876 with the development of the true man doctrine. It stated that a “true man” would never retreat from a conflict. This developed into states creating stand your ground laws in 2005. Such laws give people in some states the right to defend themselves in their homes, cars, hotel rooms, and so forth when under attack, as well as in public spaces. However, in California, public spaces are a different matter, and retreating is required if lethality is not necessary. At any rate, these laws were not written to apply to domestic violence situations because both individuals in a home have the right to be there. In other words, one can protect oneself from dangerous threats originating from outside the home but not from those spewing up inside, where victims of domestic violence are at the greatest risk.

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After an arrest, many people find themselves feeling so alarmed that they just cannot think straight. But it is important to hold it together because mistakes in this situation can be costly. Try to think logically, and keep these tidbits in mind.

  • Cooperate, while remaining silent until you have contacted your attorney. It is NEVER a good idea to resist arrest or actually try to run away from police.
  • Call your attorney immediately. Police clearly suspect you of committing a crime, and having your attorney by your side is critical to having your rights protected.
  • Do not speak. Remind officers (politely) of your Fifth Amendment rights. You are not required to answer any questions before your attorney arrives because anything that you tell them could ultimately be used to make a case against you. Resist even casual conversation that might seem unconnected to the case at hand. You should not try to explain or defend yourself at all. The only things you should consider asking is if you are free to go, or if you can call your attorney. Period.
  • Limit what you share about the case with friends and family. They may later be called to testify in the case, so whatever you disclose could wind up being discussed in a courtroom at some point. Do not put them in a position where they may have to share information that could hurt your case.
  • Do not post anything on social media sites that could suggest a negative character or lifestyle. You just never know what might be used against you later on. Do not post anything about the case at hand.
  • Do not contact your accuser. Do not try to apologize or clear up any misunderstandings. If they try to contact you, shut it down and let your attorney know.
  • Show up for court on time, appropriately dressed, and with the right attitude.  Anything less might be interpreted as a sign of disrespect for the judge and/or the judicial process. Any belligerence, cockiness, or general disrespect on your part could lead to contempt of  court charges. That will only make matters worse—and could even mean fines and/or jail time.
  • Do not try to get rid of potential evidence. You do not want police going through your garbage cans and finding something that could be incriminating—it is a great way to get additional charges added related to trying to destroy evidence.
  • Be straight with your attorney. A good criminal defense attorney will fight for your rights, but that is tough to do if you hold back relevant information. When the prosecution surprises your attorney with facts, it is incredibly difficult to achieve positive outcomes.

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Michigan’s school shooter pleaded guilty to a mass shooting and was sentenced to a life behind bars for his actions, but that was not the end of the story for Michigan prosecutors. It was not long before his parents were charged and convicted of involuntary manslaughter—one count for each of the four students killed by their son. Even though the shooter’s parents had not been on the scene of the shooting and had not even known what was occurring until after the fact, the law held them accountable for their son’s actions based on evidence that they had ignored the warning signs that should have forewarned them of the possibility of exactly the murderous event that occurred. That negligence cost them each 15 years behind bars. Could an incident like this in California have the same kind of result? 

Gun Violence Facts

The tragic truth is that children and adolescents die as a result of firearm interactions more often than they do as a result of motor vehicle collisions, or of any other cause, for that matter. Additionally, just the exposure to gun violence can have incredibly negative impacts on America’s youth. Every day in 2022, seven children died from gun violence across this country. Two-thirds of those fatalities were from actual assaults, while the rest were suicides (27%) or accidental (5%).

Parental Responsibility Laws

Since 1996 states nationwide have been enacting parental responsibility laws to address delinquent behavior by children. The hope to get parents more involved in their children’s lives was the driving force behind these laws. It was believed that the fear of both civil and criminal penalties would motivate parents to supervise their kids more carefully and reduce juvenile crime. 

California Law

In California parents can be held civilly liable for up to $45,000 in property damage, and can be held criminally liable for contributing to the delinquency of a minor if their neglect resulted in violent behaviors from their child. What constitutes neglect? Essentially it is just the lack of supervision, control, and protection of a minor child. For parents, the misdemeanor charge carries a 364-day jail sentence. California’s safe storage laws can come into play if a minor got their hands on a firearm that should have been safely locked up. That could add another three years in prison to a parent’s sentence. Continue reading

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Neighbors called the police when they heard yelling in the apartment. They were concerned that the man’s elderly mother might be in danger after he had allegedly punched another neighbor and stormed into his home. When deputies arrived at the apartment complex, they found the man’s mother with wounds to her hands, crying in her apartment. Her son was unstable mentally, she said, and had been screaming about one of the neighbors, grabbing his mother’s hands earnestly until he broke the skin on her hands with his nails. Officers arrested the suspect on domestic battery charges, and he was held on a bail of $3,137. The man’s mother was clearly the victim of a crime, though it seems equally clear that the perpetrator was the victim of mental illness. 

Mental Health Problems Linked to Crime

According to a plethora of research, people who suffer from psychiatric disorders have a higher likelihood of committing crimes. Without proper treatment, these individuals tend to experience cognitive impairments, delusions, hallucinations, and paranoia. They are also more likely to experience substance misuse disorders, homelessness, and unemployment. These factors all interact, making people with mental health issues more likely to be involved in criminal activity, and violent crimes in particular. Even so, they are more likely to be victims than to be perpetrators.

Help is Limited

People experiencing mental illnesses often have a tough time accessing treatment for their mental health conditions. A dearth of treatment facilities, combined with exorbitant costs related to treatment, leads many of those suffering from serious mental health conditions to do without the help they need. It is clear that individuals who have a support system and health insurance are much less likely to engage in additional crimes following their release from jail, largely because they have better access to the help they need. 

Arrests of Mentally Ill Individuals

People with mental illnesses are arrested and imprisoned disproportionately in comparison to the rest of the population. This seems to be in large part because society simply does not know what else to do with them. Minor issues like jaywalking result in preventative arrests to keep these people off the streets temporarily, perhaps in the hopes that being locked up will limit their ability to commit more serious crimes. The truth is that roughly four in 10 men incarcerated across the country suffer from mental illness, and two in three women who are incarcerated are suffering from mental illness. When it comes to juveniles, the numbers are even more alarming: seven in ten youth in the juvenile justice system have mental health conditions that impact their lives. Continue reading

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