Criminal Defense

September 20, 2024

Parental Criminal Liability in California

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

September 13, 2024

Criminal Justice and Mental Health Issues

by David M. Boertje

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

September 6, 2024

Aiding and Abetting a Crime

by David M. Boertje

If you are wondering if it is possible to be charged with a crime and imprisoned when you clearly did not commit that crime, you should know that, under certain circumstances, it most definitely is. That is because under California law, if you so much as encourage, assist, induce, or counsel someone else who does commit the crime, you could be found just as liable as the perpetrator. So, even if you are nowhere near the scene of the crime when it occurs, you could be found guilty of aiding and abetting and could receive the same sentence as the person who committed the crime. California’s laws are equivalent to federal law when it comes to aiding and abetting a crime, meaning you could be federally charged with the crime for helping the principal in their actions if it’s a federal offense.

Crime Elements

We are talking about a very serious charge. To be sure, there are specific components that must be proven in order for a prosecutor to get a guilty verdict:

There was an underlying crime.
The one aiding and abetting was aware that the intent was to commit the underlying crime.
The one aiding and abetting had the intent to help the principal commit the crime in question.
There was clear assistance/participation in the commission of the underlying criminal activity in the form of advice or the provision of some form of aid.

When a prosecutor proves beyond a reasonable doubt that someone knowingly contributed to making the criminal offense a successful undertaking, a guilty verdict could be forthcoming.

Examples

What are some examples of ways in which someone could aid and abet a crime and find themselves facing the same penalties as the person who actually committed the crime? Just a few examples include:

Helping the criminal to cover up fraud;
Enticing a victim into an area in order to allow someone else to assault the victim;
Providing a weapon that one knows is intended to be used in the commission of a crime;
Being a lookout while someone else robs a store;
Receiving goods that you know are stolen;
Driving a getaway vehicle after a bank robbery.

Being an Accessory After the Fact

What if someone provides assistance to a criminal after a crime has been committed? That could lead to criminal charges of being an accessory after the fact. Examples include:

Disposing of evidence of a crime;
Providing a false alibi to cover someone’s tracks;
Allowing a criminal to hide from police in your home;
Helping a criminal to escape by loaning them your car or giving them money;
Making false statements to police.

August 30, 2024

Can Judges Be Removed?

by David M. Boertje

A judge was accused of sexual harassment and mistreating staff and attorneys in Contra Costa County and subsequently lost his law license as per the State Bar’s determination. He then went into therapy for six months, consulted with fellow judges, did some volunteer work, and claimed that he had learned his lesson and would not repeat the kinds of behaviors that had gotten him into trouble. The Commission on Judicial Performance, which reviewed the case, reinstated his legal license, which allowed him to practice law again, although it did not return him to the bench. The Court’s ruling was based on their perception of this judge as a conscientious and exemplary judge who had simply engaged in some offensive and discourteous behavior toward women for a decade or more.

What Usually Happens When Judges Break Oaths or Laws?

The story is not really out of the ordinary in some ways—although the penalty to the judge was harsher than what is typical for judges who get into trouble. People may be surprised to learn that roughly nine out of ten judges across the country who obviously violated their oath of office and sometimes even broke the law managed to keep their jobs on the bench. Some of the shocking judicial behavior that was deemed unethical or worse include:

One judge who was known for being harsh with minorities and the poor sentenced a single parent to almost 500 days in the clink because of unpaid traffic tickets; the judge was required to endure an 11-month suspension without pay;
Three judges who got into an inebriated squabble in a parking lot at 3:00 in the morning, (resulting in two of them getting shot), were able to return to the bench after being suspended.
Another judge barged into the jury room as they were deliberating a case to proclaim that God had told him that the defendant in the case was innocent. That judge only received a warning and went back to his job on the bench (although the case in question was turned over to another judge).
Finally, a judge who violated nepotism rules when he assigned cases to his son was ultimately allowed to retire rather than face sanctions after an investigation into the charges.

Judicial Oversight

California, like all other states, has an agency whose job it is to investigate allegations of judicial misconduct. These agencies have the authority to discipline judges with anything from reprimands up to removal. But there are those who believe these panels, generally composed of judges, lawyers, and others associated with the law, often err on the side of safeguarding the reputation and rights of judges rather than really exacting reasonable punishments. So, although thousands of people are impacted by the questionable actions of omnipotent judges, the system to hold judges themselves accountable is considered by many to be weak. Continue reading

August 23, 2024

Defending Charges of Child Abuse/Neglect

by David M. Boertje

Anyone accused of child abuse or neglect may be facing some pretty serious penalties. In addition to the risk of losing custody of one’s children, the possibility of criminal charges that could lead to serious jail time is very real.

Abuse Defined

According to the Federal Child Abuse Prevention and Treatment Act (CAPTA), abuse can be defined as an action– or lack of action– by parents and/or caregivers that leads to severe emotional or physical outcomes, sexual abuse or exploitation, or a failure to act that results in serious harm or death. Examples might include:

Cruel and harsh spanking, hitting, punching, burning, shaking, and similarly severe physical punishments;
The prolonged denial to provide food;
Sexual abuse of any kind;
Restraining children to their beds or locking them in a closet;
Withholding provisions such as food or water as a form of discipline;
Verbally cruel statements or name-calling that is intended to humiliate or demean.

Neglect Defined

According to CAPTA, neglect is likely the most common form of child abuse. It is defined as a parent or caregiver’s failure to provide a child with necessary supervision, clothing, food, and shelter. Examples of neglect include:

Underfeeding or feeding only limited foods (such as only ramen noodles);
Failing to provide a clean and secure environment;
Failing to bathe children or provide clean clothing;
Failing to provide adequate medical, vision, and dental care;
Failing to provide clothing that is appropriate for weather conditions;
Apathy toward a child;
Leaving a child in a hot vehicle;
Leaving a child unattended for periods of time that are inappropriate for the age of the child;
Experiencing inebriation or drug abuse in the presence of the child.

California State Law

In addition to the definitions in federal law, under California state law, abandonment is also listed as a form of child abuse—which is essentially the lack of supervision for an extended period of time.

What is Not Abuse or Neglect?

Parents are very much in the spotlight these days, and discipline techniques are often criticized by outsiders. Parents need not be concerned about charges that lack merit, including disciplinary actions that include:

Talking with the child about right and wrong;
Having reasonable expectations for behavior that are age-appropriate;
Taking away a toy, phone, computer, etc. for a period of time;
Ignoring bad behaviors and allowing natural consequences to follow (as long as they are not dangerous);
Redirecting misbehavior;
Using time-outs for time periods that are age-appropriate (generally, one minute per age is considered about right).

August 16, 2024

Have You Been Accused of Date Rape?

by David M. Boertje

After a date that led to physical intimacy—intimacy that you thought was consensual– the partner involved has reported a completely different scenario than what you remember, and you’ve been charged with rape. How could this happen, and what does it mean for your future?

California Penal Code

According to California statute, there is no real difference between a date rape—one that occurs between people who know one another and are friends or romantic partners– and the sexual assault that occurs when unknown assailants attack random victims in dark alleyways. Simply knowing someone does not give one the legal permission to engage in sexual intercourse if the other person cannot or does not give their willing consent.

What is Consent?

Consent is the free agreement among parties to engage in sexual activity. It cannot occur in certain situations, including:

When a minor is involved;
When incapacitation due to alcohol consumption or drug use is a factor;
When threats or intimidation are a factor;
When one party is unconscious;
If the power differential between the individuals is seriously lopsided, as in between a teacher and student, for example.

Enthusiastic Consent

When assumptions are made based on what a person is wearing or the ways in which they are flirting, it can lead to serious mistakes. In the latest models relating to relationships, the goal for understanding is enthusiastic consent, which means there’s a clear “yes,” not simply the lack of a “no.” While smiles, eye contact, and body language are all part of the signaling system that may establish moving forward is okay, it’s important to get clear verbal affirmation, as well, particularly when you are with someone you don’t know well. And never forget that a person is legally able to change their mind at any point.

Date Rape Drugs

In some situations, individuals determine that they have been raped based on the fact that there is no memory of a block of time and because they may have indications that they have been engaged in sexual activity. Date rape drugs may have been slipped into food or drinks in order to prevent a victim from resisting. Some of the most common drugs used in this way are Rohypnol (Roofies), Ketamine, and Gamma-Hydroxybutyric Acid (GHB), but there are many others out there. If evidence of these substances, along with other clues, are discovered in a forensic exam, it can go a long way toward a rape conviction. Continue reading

August 9, 2024

Animal Cruelty in California

by David M. Boertje

Being charged with animal cruelty in the state of California is a big deal, resulting in time behind bars and big fines in most cases. Fighting such charges will go much better for you with the help of an experienced and determined criminal defense lawyer.

Specific Crimes and Penalties

In general, it is against the law to harm or torture animals, to neglect their food and water requirements, to abandon an animal, or to kill an animal with malice. Specific related offenses and their penalties include:

Crime	Maximum Penalty
Maliciously maiming/mutilating/wounding/torturing or Killing an animal	3 years in prison and $20,000 in fines
Dog fighting	3 years in prison and $50,000 in fines
Sexual abuse of an animal	6 months in jail and $1,000 in fines, plus costs associated with rehabilitation
Unlawful tethering of a dog	6 months in prison and $51000 in fines
Confining animals improperly	6 months in jail, $500 in fines,
Leaving animals in vehicles in bad weather	6 months in jail and $1,000 in fines
Poisoning a pet	6 months in jail and $1,000 in fines, plus costs associated with rehabilitation
Cockfighting	1 year in jail and $10,000 in fines
Transporting animals in a cruel way	6 months in jail and $1,000 in fines

Defending Charges

One of the key factors in these charges is the state of mind of a defendant. If one intentionally causes an animal distress, it could be a legal problem. A person’s maliciousness is factored into the penalty phase of any trial. If a defendant was not responsible for an animal, or the animal was harmed with no ill intent, things will go better in court. Another issue that plays a big role in determining penalties is the number of times the person has faced similar charges. Continue reading

August 9, 2024

The Realities of Racial Profiling

by David M. Boertje

While there are those who assert that racial discrimination is an atrocious—albeit ancient chunk of American history, there are more than a few people of color who beg to differ that it has been alleviated in modern times. Discrimination based on race, ethnicity, national origin, and religion can be debilitating in all kinds of settings, none more so than in the world of criminal justice. Racial profiling by police and similar agencies has been documented to target people of color for stops, arrests, and incarceration.

Fear Behind the Wheel

If you have heard of the “crime” of driving while Black or brown, you probably know that one chilling part of life for minority populations in this country is the fear of being pulled over by racist law enforcement officers for tiny or nonexistent traffic infractions, only to then experience escalated violent interactions. That is because, all too often, law enforcement officers associate people of color with crime, making traffic stops and other interactions more likely than for white people.

Constitutional Violations?

The sad truth is that racial profiling is not restricted to a single segment of the law enforcement community, one particular race, or just one section of the country. In recent years the FBI targeted supposed Black Identity Extremists (BIE) with surveillance maneuvers that the agency has refused to make public. In excess of 18,000 law enforcement agencies have been alerted to the threat of attacks on police by BIE, despite any real evidence that Blacks have been attached to any such structured movement. Similarly, Asian Americans who work in the sciences have been scrutinized and even arrested based largely on their ethnicity. This particular discrimination is rooted in what the former Trump Administration called the “China Initiative,” which continues to operate under the Biden administration.

Meanwhile, Latino populations report more and more targeting by law enforcement, coming as the rise in anti-immigrant attitudes grows more vocal. Brown-skinned Americans fear being unfairly suspected of crimes, mistakenly deported, or worse yet, becoming one more number in the growing statistics showing that the number of Latinos killed by police and/or ICE agents is abruptly climbing. Middle Eastern Americans, too, have undergone more than their fair share of racial profiling as federal raids on communities of color continue to diminish public confidence in the law enforcement community. Racial profiling and its inherent domino effects can permanently uproot families, careers, and futures for blameless Americans of color, primarily because of the way others perceive them.

California Law

Racial profiling has been illegal in California for nearly a decade, prohibiting the practice and requiring reporting to the AG’s office of both pedestrian and vehicle stops, as well as any complaints of profiling. There is also an advisory board that is charged with examining research, data, and best practices in this area and sharing their conclusions with the public and policymakers. But regardless of laws on the books, racial profiling is baked into the mentalities of many Americans, some of whom work in law enforcement.

How to Respond to Racial Profiling

While it may feel impossible to stomach, it is important to remain calm in the face of law enforcement racial profiling. Obey officers’ demands and save your opinions for your attorney when you get the chance. Continue reading

August 2, 2024

Coercion After an Arrest

by David M. Boertje

If you have been arrested and charged with a crime, the best thing you can do is to cooperate with authorities on basic matters, like providing your name, and then respectfully request an attorney before answering any other questions. That is because, in the criminal justice system, coercion can be an issue that leads to real problems for you down the road. Any confession, coerced or otherwise, is going to be a headache in one way or another.

Volunteer Nothing

If you are in custody, you are a suspect. You may think that being cooperative and answering questions will demonstrate your innocence, but nothing could be further from the truth. And do not think that you can use the fact that you had not yet been Mirandized as a defense—police can always claim that they would have figured out our guilt without your help. So never, ever share incriminating information, no matter how innocent you think it is.

Police Coercion

When authorities–like police– pressure or intimidate individuals in order to get a confession, it sometimes leads to poor outcomes for victims, communities, and even law enforcement agencies. Some techniques that can be disastrous include:

Threatening horrendous consequences if cooperation is not forthcoming;
Using rank and the associated power to intimidate someone who is already afraid of police;
Psychological techniques that confuse or frighten victims;
Lying to scare suspects;
Physically threatening individuals.

Coerced Confessions

Even when one waives their Miranda rights, when police do not live up to expected standards of interrogation, they can get coerced confessions from unsuspecting detainees. Obviously, punching a suspect or pointing a weapon at them in order to get them to confess is extreme, but there are much more benign ways authorities might coerce. Improperly threatening to go after family members, publicizing embarrassing information about a suspect, or even refusing to let a suspect use the restroom or have food and water are techniques that could lead to involuntary or coerced confessions.

Consequences of Coercion

The obvious issue with coercion is that innocent people get sent to jail, leaving the real criminals on the streets to repeat their crimes. But that does not have to be the case. When officers intimidate a suspect, which results in getting that suspect to acquiesce to authority, the confession and any information shared under duress could be suppressed, meaning the evidence would not be admitted in court. It could all be considered “fruit of the poisonous tree” and be inadmissible. Continue reading

July 26, 2024

Could You Be Deported for Committing a Crime?

by David M. Boertje

For non-citizens living in the United States, following all laws is crucial. While it is true that the idea of incarceration and fines is upsetting to anyone, things can get much more problematic for immigrants who lack U.S. citizenship. That is because, in certain situations, criminal activity could result in deportation. The rules set out by the Immigration and Nationality Act could lead to a hasty, unplanned exit from America (or inadmissibility) for non-citizens.

Non-Citizens

There are three types of individuals, all of whom are in the country legally, but none of whom qualify for a U.S. passport, and none of whom are citizens of the United States:

Dreamers: Undocumented individuals who entered the country as children when they were under the age of 16, who have been here for five or more years but who are under the age of 31, and who have had no serious criminal convictions and are in school, are high school graduates, GED holders, or have performed military service.
Temporary residents: Foreign nationals and their spouses and children who are here on a work or education visa;
Permanent residents, who have green cards and who live and work in the U.S. legally.

Problems That Could Lead to Deportation

A number of issues could result in deportation:

Compliance Failures: Discounting the requirements to comply with a change of address registration or the falsification of any documentation related to visas, permits, or entry documentation could lead to deportation.

Crimes of Moral Turpitude: Crimes of Moral Turpitude are crimes that society has deemed intolerable because they violate recognized rules of morality. Two criteria must be met in order to result in deportation:

The crime of moral turpitude was committed within five years of being admitted to the U.S. (or within ten years for someone who has permanent resident status);

The crime has a maximum criminal penalty of one year or more behind bars.

Drug Charges: Drug charges (unless there is a single charge related to having 30 grams or less of marijuana for personal use only); being an addict or user of drugs (outside this marijuana exclusion);

Firearms Charges: Using, trading, buying, selling, or carrying a firearm, device, or accessory that could be destructive and that is in violation of state or federal law;

Aggravated Felonies: Any conviction of an aggravated felony;

High-Speed Flight: Participation in a high-speed flight from an immigration checkpoint;

Domestic Violence: Violating a protective order, as well as any conviction of stalking, domestic violence, child abuse, neglect, or abandonment;

Falsely Claiming U.S. Citizenship: Falsely representing oneself as a U.S. citizen to receive a benefit;

Illegal Voting: Voting in any local, state, or federal election for a constitutional provision, regulation, ordinance, or individual; Continue reading