San Diego Criminal Lawyers Blog

December 27, 2024

Is 911 Call Analysis Reliable?

What would you do if you came upon a dead body? Call 911, of course! As much as that is the proper thing to do (what else would you do, after all), it’s a bit alarming to know that police departments across the country have been participating in training classes designed to help them determine the innocence or guilt of a 911 caller, simply by listening to the 911 call. People are going to prison based largely on the analysis of these calls. This is even though many consider the science behind 911 call analysis to be shoddy, at best.

The Assertions

Tracy Harpster, the creator of the theory that a 911 analysis can detect guilt in a caller, claims that by studying 20 variables in a 911 call, one can determine a caller’s involvement in a homicide. That is right; simply by going through a checklist related to the manner in which a caller relays events, their speaking cadence, their grammar, the degree of urgency in the call, and more, analysts can determine guilt. After studying 200 calls, some of the conclusions include:

Callers who comment on the victim’s eyes are generally guilty;
When a caller asks if they should touch the body, it is an indication of guilt;
Callers who say, “huh?” are more likely to be guilty;
Guilty callers refer to blood, while callers who are innocent will refer to bleeding;
About eight in ten callers who ask for help immediately are innocent;
Guilty callers acknowledge that someone has died, while innocent callers cannot accept that fact;
Discussing an earlier conversation between oneself and the victim with the dispatcher indicates guilt.

Questions About the Science

There are several issues related to Harpster’s study. Harpster documented 100 calls that had been analyzed (and later another 100), though he provided no transparency relating to whether those calls were selected randomly. Also unknown is whether analyzers were aware of the outcome of the cases prior to conducting the analysis. Additionally, only calls by sober English speakers were included in the study. There were no guidelines to address issues related to a host of potential caller characteristics, including anxiety, cognitive issues, education level, speech impediments, and those for whom English is a second language, for example.

Study Replications

Attempts have been made to replicate Harpster’s study, but none of the follow-up studies involved significant numbers, and some were related to other areas of the law, including cases of missing children and cases of military law enforcement. Not a single study has topped 200 participants in a study sample—and at least one study conducted by the FBO found major contradictions in their conclusions. They stated that using the analysis could lead to major bias in conducting an investigation.

One More Thing…

Harpster is making plenty of cash on his little theory—charging thousands of dollars for each 8-hour training class for over a decade. Then, those involved in the training are permitted to show up in court and testify as expert witnesses. This, despite the fact that the intricacies of human thought and behavior are boiled down to 20 markers in a decidedly charged situation, makes little sense to begin with. Continue reading

December 20, 2024

Did a Bar Fight Lead to Criminal Charges?

by David M. Boertje

When tempers are hot and alcohol mixed in, the resulting chaos can be quite serious. Bar fights are notoriously erratic, oftentimes leading to unanticipated consequences. In addition to the mental and physical outcomes, you could wind up with legal charges that might be a very unpleasant and life-altering part of the equation– one that you likely did not factor into your night out.

California Brawls in the News

Californians are not immune to drinking a little too much and then becoming involved in public altercations:

A San Diego bar manager was killed after an angry man punched him because the manager had asked several patrons to leave the premises.
After a political discussion erupted into an argument in a Laguna Beach bar, one man followed others out of a bar and ran them down with his car, causing serious injuries.
An Anaheim bar fight involving 10 individuals resulted in five people sustaining stab wounds and lacerations after at least one person brought out a knife.
After a man with formal boxing training was involved in an altercation with a drunken individual who became aggressive, the inebriated man was killed in a Laguna pizzeria/bar.

Possible Criminal Charges

These cases involve individuals who lost their cool and became involved in violent encounters. These individuals, and many other Californians in similar circumstances, may face charges, including:

Disturbing the peace: Simply challenging someone to fight, as well as actually fighting in public, could result in charges (Penal Code 415) that could land you in jail for 90 days and stick you with a fine of $400.
Battery: Penal Code 242 may be charged if violence or force is used against another person, which could put you behind bars for six months and tack on a $2,000 fine. That’s if there are no serious injuries. If a victim endures serious harm, felony charges could lead to four years of incarceration in state prison.
Assault: Depending on the type of assault, an aggressor could face anywhere from six months in jail for simple assault to 25 years in prison if a weapon was used and a fine of $1,000-$5,000.
Hate crime enhancements: Any of these sentences could be considered hate crimes if the victim was targeted based on race or sexual orientation, which could tack on another one to three years of incarceration.

December 13, 2024

California Stalking Charges

by David M. Boertje

If you have been charged with stalking in the state of California, you could be facing some grim time behind bars. Now is the time to get a proficient, tough attorney at bat for you.

What Constitutes Stalking?

When someone persists in malicious, unwanted behavior that any reasonable person would be wary of, criminal charges could ensue. The types of behavior that could lead to stalking charges include:

Following and/or surveilling them;
Insistently calling, sending gifts, texting, or otherwise contacting someone, hanging around their place of work or school; showing up around their home, or repeatedly “running into them” in social settings;
Threatening, upsetting, or intimidating them;
Trying to garner personal information from their co-workers, friends, or family;
Ruining, defacing, or destroying their property and/or belongings.

Aggravated Stalking

Aggravated stalking involves threats that might lead the victim to fear bodily harm and/or death.

Facts About Stalking

Stalking is a crime that triggers dread in victims, families, and communities, and it is regrettably far more common than one might think:

Each year, about 13.5 million people are stalked in America;
About 30% of women and 12% of men in this country will have some involvement with a stalker at some time;
Over seven in ten stalking victims endure threats of physical harm;
84% of stalking victims concede that they are worried about their safety;
10% of stalking cases drag on for five years or more;
One in five stalkers threaten victims with weapons;
Roughly12% of stalkers eventually relocate to escape their stalkers;
40% of stalkers are current or previous intimate partners;
20% of stalkers are strangers to their victims;
One-third of stalkers have participated in previous stalking ventures;
Four percent of stalkers are authority figures.

Penalties for Stalking

The court may issue several orders to protect the victim of stalking:

The stalker must stay away from the victim’s school, home, workplace, or other specific locations;
The stalker may not contact, threaten, or intimidate the victim and household members;
The stalker must comply with any other court orders.

Additional legal penalties for stalking depend on the type of offense and the number of offenses:

Misdemeanor stalking: one year in jail and $1,000 in fines;
Violating a Protective Order: two to four years imprisonment;
Felony Stalking: two to five years in prison.

If a victim of stalking has a reasonable long-term fear of being physically harmed or killed by the stalker, and the stalker is convicted of a felony, the court will also restrict the stalker from possessing, owning, or having any contact with a firearm, and they will have to surrender any firearms they already have in their possession. Continue reading

December 6, 2024

Common Misconceptions About Being Criminally Charged

by David M. Boertje

If you have been charged with a criminal offense, you know it is a jarring experience, even if you are innocent—or maybe especially if you are innocent. Some may tell you not to fret—the truth always wins out in the end. But the fact of the matter is that innocent people are convicted of crimes and locked up every single day across this country. What you need more than anything at this point is a hard-hitting, straightforward criminal defense attorney fighting on your behalf.

Don’t Buy it!

Law enforcement is legally allowed to mislead—aka lie—to you in order to squeeze information out of you. So just because they tell you something, it doesn’t mean it’s grounded in fact. Additionally, television may have left you with some misconceptions. For example:

If you are not read your Miranda Rights before being interrogated, a recent Supreme Court decision determined it is not a violation of a constitutional right. Instead, it violates a constitutional rule, which means you can never collect damages for violations. It turns out, sadly, that Miranda Rights are not all they are cracked up to be.
Officers may say that things will go well for you if you just cooperate, but that is not necessarily the case. Never say anything without your attorney present because whatever comes out of your mouth could be twisted out of context and used against you later.
You may be told that there is clear and damning evidence and/or testimony implicating your guilt. But police could be a police fantasy story! Don’t fall for it!
Police may say that if you just confess, things will get easier for you. Of course, never, never make a verbal or written confession without the advice of your attorney. You just can’t know how binding any deal the police offer you will be without your lawyer there.
Perhaps you will be told that if you just cooperate, you will be home in a snap. Don’t count on it. Unlike the fast-paced cases that occur every week on your favorite crime-drama TV show, once enmeshed in a criminal case, it could be a very long time before you are in the clear.
After charges are filed, you may think that they can be rapidly and effortlessly dropped, but in truth, the whole thing must go through a court process, which can take time.
You may believe that since you are innocent, going to trial is your best option–no matter what. In fact, with a trial, there will be costs in money, time, stress, and worry, and after all that, you still may be found guilty. In some cases, a plea deal is a good option, so listen to your attorney before making any decisions.

November 29, 2024

Accused of Being a Porch Pirate?

by David M. Boertje

All across the country, packages are stolen from doorsteps and porches at an alarming rate—particularly around the holidays. But with cheap, easy access to home security available to homeowners these days, more than a few porch pirates have been caught skulking around where they don’t belong, which has led to more arrests for thefts. If you have been caught up in this kind of scenario, you may be in the market for an experienced criminal defense attorney.

Porch Pirating Facts

Package thieves–nicknamed porch pirates in reference to their penchant for plundering from unsuspecting online consumers—swipe packages from yards, porches, and doorways to the tune of billions of dollars, which is more than a little problematic and maddening to the public and to the police charged with addressing local crime. Some noteworthy facts on the issue include:

$12 billion in merchandise was stolen from porches and yards last year.
One out of every four citizens– 58 million people—were victims of porch piracy and lost packages in 2023.
Apartments dwellers are twice as likely to be hit by porch pirates than those who live in houses.

Precautions That Help

With the rise of porch pirates, many have started to take steps to protect their purchase, including:

Installing motion-detector lighting;
Installing doorbell cameras and other security cameras;
Having neighbors keep an eye out for deliveries and/or strangers.

California Law

California law punishes individuals for stealing packages and selling stolen merchandise. The penalties depend on the value of the merchandise taken. Thieves could face time behind bars, as well as fines.

Defending Charges

If you have been charged with stealing packages from others, there are a number of possible defenses worth considering:

It was a misunderstanding: The package was in a public area and you thought it was intended for you;
It was a case of mistaken identity: They got the wrong person;
There was no criminal intent: You did take the package but legitimately thought it was yours (more likely in an apartment scenario);
The arrest involved a violation of your rights: Perhaps there was an improper search and seizure, or you were not read Miranda rights.

November 22, 2024

When You are Pulled Over for a DUI

by David M. Boertje

You see those flashing red and blue lights in your rearview mirror, and you are hoping someone else is being pursued. But your stomach drops when you realize that it is you that the officer is interested in. It is stressful enough to be pulled over—and the panic really escalates if you have had a drink or two before getting behind the wheel. What should you do?

Keep Your Head on Straight

Clearly, you need to pull over; do not even entertain the idea of trying to outrun the patrol car. Do it as quickly and as smoothly as possible, signaling your intent. After you are safely on the side of the road, turn your ignition off, roll down your window, and prepare to talk to the officer, keeping your hands visible at all times. As the officer approaches, remind yourself that a little politeness goes a long way. Obey the officer’s request to see your license, registration, and insurance cards. If you are asked about where you have been, where you are going, or whether you have been drinking, respectfully assert your right to remain silent. If things seem to escalate, tell the officer you would like to have an attorney present for any further questioning.

Breathalyzer or Blood Tests

California’s implied consent laws require drivers to comply with an officer’s request to administer a test to determine your blood alcohol level. First, they will likely want to conduct a field sobriety test. If you choose not to cooperate with the request for a blood test, urine test, or breathalyzer, it will likely lead to your arrest. It could also result in the revocation of your driver’s license, the installation of an ignition interlock device in your vehicle, and potential charges. Ostensibly, you were pulled over for some sort of recklessness, so even if you cannot be charged with DUI, reckless driving could be its own nightmare. Additionally, it is possible for police to obtain a warrant to get the blood draw.

After an Arrest

If the officer chooses to arrest you, do not forget to be compliant and again request the presence of an attorney before answering any questions. You could be facing some severe consequences, including increased insurance rates, community service, fines, DUI school, and even time in jail. A conviction can definitely have long-term consequences since you will have a permanent blemish on your record, which could affect employment opportunities and more. Continue reading

November 15, 2024

Criminal Charges of Elder Abuse

by David M. Boertje

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.

November 8, 2024

The Difference Between Dropped and Dismissed Charges

by David M. Boertje

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

November 1, 2024

Contempt of Court Charges

by David M. Boertje

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

October 25, 2024

Voting Laws in California

by David M. Boertje

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