Articles Posted in Criminal Defense

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The Los Angeles Times is reporting that Public Defender Chesa Boudin announced that no more cash bail would be used in criminal cases in San Francisco. This will mean that defendants will no longer have to pay to obtain pretrial release. A “risk-based” system will be used instead to define the need for a defendant to be placed in jail prior to trial.

Is this really a newsworthy story in California, the state that has already passed a law ending cash bail? It is. While California did pass the legislation, Senate Bill 10, for the ending of cash bail, it has not taken effect yet. The legislation was signed in August of 2018 by Governor Jerry Brown. The legislation was written to replace the old cash-based system with a new system putting the responsibility for determining jail time for defendants awaiting trial on the judge. For former Gov. Brown, signing this legislation was a personal victory as he was a vocal critic of cash bail saying it was a “tax on poor people” in 1979. 

Senate Bill 10 and similar legislation being brought up by Boudin, are yet another way that California is leading the nation in criminal justice reform efforts. Advocates of these reforms say that requiring money for bail perpetuates already difficult racial and economic strains that exist within the criminal justice system. That a monetary bail system only works for the wealthy who can afford it.

Could Senate Bill 10 Have a Negative Impact on California’s Economy?

Los Angeles is the largest jail system in the United States. California makes up a significant portion of the bail market, meaning that those who work in the bail industry could be out of work. This has led to a national coalition of bail agency groups coming out to fight against the bill and try to have it overturned. They were successful in that they acquired enough signatures to be on the November 2020 ballot.

Eliminating the cash bail system means that for now, it stays in limbo until the residents of California vote its fate. The outcome of the bill is unknown. There are polls that suggest there is quite a division amongst voters on whether or not to put an end to the cash bail system. 

Not only does the bill have opposition from the bail industry, but the ACLU of California has their doubts about the alternative. They fear that when a judge gains so much power, there will be an increase in defendants put behind bars. For those in San Francisco though, changes to the bail system will happen independently of how the vote in the state turns out in November. It is up to the D.A. to decide which policies they approve and will enforce for pretrial jail time. Continue reading

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The Times of San Diego is reporting that there is video documentation in addition to a photo of an individual committing arson on January 12. A male set fire to a clothing alteration business in the Talmadge area around 12:30 a.m. that Sunday. The damages to the store cost approximately $1 million. The man was seen riding his bicycle up to the front of the doors of AA Fashion located at 4644 El Cajon Boulevard and setting it on fire. According to the San Diego Police, after he ignited the flames, he rode away.

The business was completely destroyed by the damages from the fire. The police are asking the public for information related to the suspect and his whereabouts. Anyone with tips will be kept anonymous and may be eligible to be rewarded up to $1,000.

Fire Statistics

In the United States, the U.S. Fire Administration (USFA) indicates that cooking is the number one cause of residential fires. Cooking is responsible for 51.6% of all residential fires. Heating issues come in second causing 9.1% of all residential fires in the country. There are 15 causes stated by USFA in order of most common for residential fires. Intentional fires to a residential structure come in at number six and are responsible for 4.2% of all these fires.

In 2017, there were an estimated 1,900 fatalities from fires and 13.1% of them were intentionally caused. Also that year, there were 7,000 injuries from fires. 

When it comes to non-residential establishments, cooking still tops the list of the most common causes. In non-residential buildings cooking is the cause of 30.4% of the fires. Interestingly, the third-highest factor behind non-residential fires is from intentional causes. Roughly 9.8% of all non-residential fires were set intentionally.

Fire deaths occur most commonly in residential fires. While residential fires account for approximately 28.9% of all fires, they result in 77.6% of all fire deaths. Non-residential fires occur in 8.7% of all fires. Vehicle fires are more common than one may think, as these make up 14.3% of all fires.

What are the Arson Laws in California?

Penal Code 451 describes the state of California’s arson laws. In our state aggravated arson comes with up to five years in state prison when:

  • The person committing the arson has a felony on their record already for reckless arson under Penal Code 451 or 452. 
  • Great bodily injury or substantial physical harm is done to a first responder like a firefighter, police officer, or any other emergency personnel
  • If there is more than one person who has great bodily injuries 

Continue reading

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For the last seven years, the police in the city of San Diego made use of facial recognition technology through a network of 1,300 mobile cameras. The information compiled was successful in developing a database of 65,500 face scans. As of December 31, 2019, though, the California legislature put a stop to the use of the technology. A three-year ban was enacted against the use of mobile facial recognition technology by law enforcement. The ban came at the frustration of the police, but privacy advocates saw it as a win. 

Unfortunately, determining the effectiveness of the technology is not simple or easy. San Diego law enforcement agencies did not keep track of the results associated with the facial recognition initiative. According to the city’s police spokesperson, it is not known that there were arrests or prosecutions as a result of using the technology.

What is the Tactical Identification System (TACIDS)?

In 2012 the TACIDS was put into place without a public hearing or public notice. The software behind the system worked by focusing on unique identifiers via patterns and textures on the face to compare with a database of over 1.8 million mugshots. In less than two seconds the software can compare the traits to find matches with the images collected by the San Diego County Sheriff’s office.

FaceFirst supplied the software to law enforcement agencies. There were 30 agencies as well as the U.S. Department of Homeland Security’s Immigration and Customs Enforcement who used TACIDS. Out of all the agencies that had access to the software, law enforcement in San Diego made the most use of it. The large police department used it frequently. The newly developed Neighborhood Policing Division which began in 2018 was easily behind the department’s high rate of use. This division was a response to the rising homeless population in the city. The technology was given to officers so that they could identify homeless individuals who often do not carry identification.

How Did the Ban on TACIDS Come About?

Privacy advocates had major concerns with the facial recognition technology, and increased pressure on lawmakers motivated them to put the ban in place. The American Civil Liberties Union tested the software and found that it had flaws. They found a 20% failure rate for matching individuals and the majority of those that were mistaken were with individuals of color. Community leaders argued that the technology violated people’s civil liberties. Lawmakers listening to these concerns agreed that there are problems with the way surveillance capabilities are utilized. Continue reading

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On December 28 Ernie Buchanan, a 44-year-old father of six, lost his life after he was shot near the Alpha Project homeless shelter located on 17th Street and Imperial Avenue in San Diego. Homicide detectives found and arrested Floyd Garrett, 47, and Johnny Lee Hill, 40, for the murder of the security guard. Garrett was found and arrested in Phoenix while Hill was arrested in San Diego, according to San Diego police’s acting homicide Captain Martha Sainz.

Sainz reported that Buchanan was employed as a security guard at the Alpha Project, but it is not believed that his murder was connected with his job at the nonprofit located in the downtown’s East Village neighborhood. The president and CEO of the Alpha Project Bob McElroy explained that Buchanan was on break prior to the attack. Friends of Buchannan describe him as friendly and a mentor for children. McElroy indicated that Buchanan was a good person and employee.

Both Hill and Garrett were identified using footage from smart street lights that are positioned around the city and record both video and other data. With the help of the Phoenix Police Department, Garrett was found and taken into custody. In San Diego the police credit the street light technology as critical in assisting them with solving crimes. However, privacy advocates have voiced their concerns over the technology and the police department’s use of it.

The streetlights cost the city $30 million and were praised for their ability to reduce energy expenditures. The sensors on these lights collect data on a variety of activities in the city such as parking, vehicle count, pedestrian count, temperature, humidity, and air pressure. One year after they were implemented the police added them to their arsenal of tools to help fight crime. According to authorities, these lights helped with over 160 investigations from August 2018 through September 2019. The police use of the light’s technology was not a topic discussed during the planning stages and public meetings and the city did not approve the police’s use of the technology.

Have You Been Charged With Murder in San Diego and Need Legal Representation?

You will need the assistance of a San Diego murder and homicide defense lawyer when you are facing serious murder and homicide charges. David M. Boertje is an effective and aggressive California criminal defense attorney who will examine your case and provide you options for a compelling defense that will protect your best interests. Depending on the details of your case, it could be possible to negotiate a favorable plea bargain on your behalf. Continue reading

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A fatal hit-and-run occurred last month when Gloria Williams, 62, was riding in her motorized wheelchair along the street of Euclid Avenue. She was hit from behind by a dark-colored SUV at approximately 3:45 p.m., the San Diego Police Department reports. A video of the SUV that hit Williams was obtained from street light cameras near the scene of the accident. The SUV was also recorded at a nearby gas station. The video evidence showed that the driver of the SUV was a black male with very short hair. He was using a cane to walk and was wearing baggy plaid pants with a “#here we go! Steelers” sweatshirt. The San Diego Police are asking the public to call the county Crime Stoppers at 888-580-8411 or go to their website at sdcrimestoppers.org with information. Anyone who has a tip will remain anonymous and be able to obtain a reward for any information that leads to an arrest.

Hit-and-Run Laws in California

In the state of California, anyone who is involved in an accident must stop and provide aid to those injured as well as exchange information. Under Vehicle Code Section 20002 failure to do so when property damage is involved will result in a misdemeanor charge. Under Vehicle Code Section 20001, a hit-and-run accident becomes a felony when there are physical injuries to a victim. If fatal injuries are sustained in one of these accidents, it is required that the California Highway Patrol or the local authorities are notified.

Legal Representation for California Residents Facing Hit-and-Run Charges

If you are facing criminal charges for leaving the scene of an accident, it is highly advisable that you do not speak with anyone about your case because you could jeopardize it. You have rights that deserve to be protected, and if you are under investigation, make sure that you have a qualified San Diego hit-and-run defense lawyer by your side during any questioning. You are not required to answer questions without legal representation looking out for your best interests.

The success of your case and your ability to stay out of jail are determined by your defense. The effective and aggressive California criminal defense attorneys at the Law Offices of David M. Boertje have a proven track record of success defending those who are facing serious charges like hit-and-run. There are a number of strategies that can be used in your defense to lessen or eliminate your charges. The results of a hit-and-run conviction include steep fines, time in jail, and a permanent criminal record. You cannot take any chances that the rest of your life will be negatively impacted because of one mistake. Continue reading

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According to reports, Adrian Vergara, 26, pleaded guilty to assaulting a 16-year-old Syrian refugee while using charged racial slurs during the attack. The incident took place on October 15th on board a San Diego trolley at approximately 3:00 p.m. in the afternoon. The Syrian refugee was said to be on his way home from school and while he was talking on his phone in Arabic. Vergara pulled an earbud out of the victim’s ear and said, “What trash are you speaking?” The victim told him that he was speaking in the Arabic language and then Vergara verbally attacked him with Islamophobic slurs. He then physically assaulted the 16-year-old, violently striking him up to six times. After the attack, Vergara exited the trolley on 62nd Street in Encanto.

The police confirmed that the victim endured minor facial injuries as a result of the attack. San Diego Police Department Lt. Shawn Takeuchi indicated that through using video footage detectives were able to obtain visual information on Vergara’s appearance. About a week later, the Port of San Diego harbor police arrested Vergara for a misdemeanor narcotics violation. When the authorities had Vergara in custody, he was recognized as the individual who was connected to the San Diego Police Department’s investigation into the hate crime on the young Syrian refugee.

Vergara was charged with and pleaded guilty to assault and a hate crime for which he was sentenced to five years in state prison. Nine days before the assault took place on the trolley in San Diego, there was another hate crime arrest in Little Italy. A man, identified as Kyle Allen, 50, was shoving Muslim women who were wearing hijabs. He was also yelling at them to “go back to (their) country.” Allen is currently facing charges of battery as well as hate crimes. 

What is Assault and Battery in California?

Assault and battery charges are commonly referred to as in conjunction with each other but they are not treated the same under the law in California. They are actually two different classifications under the state’s law. California assault law, Penal Code 240 PC, defines assault and battery.

  • Assault is when there is an attempted act of using violence or force against another
  • Battery is defined as the actual action where force or violence is used against another 

Under California law, when a person attacks another and it is classified as a simple battery, it is considered a misdemeanor punishable by a fine of up to $2 thousand alone or in combination with a maximum of six months in county jail.

However, the penalties are much higher when a battery inflicts significant injuries and it then becomes known as “aggravated battery.” A person convicted of an aggravated battery may either be facing a misdemeanor or a felony depending on the circumstances. Misdemeanors come with a maximum sentence in the county jail of up to one year while felonies can come with a four-year prison sentence. Continue reading

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White collar crimes happen each day among professionals – doctors, accountants, research analysts, human resources representatives, government employees and other business people who have jobs in office or administrative settings. Boertje & Associates are called on to defend individuals who face white collar crime charges. The following will discuss some of the common white collar crimes in San Diego.

What is White Collar Crime?

White collar crimes are illegal but non-violent acts involving lying, cheating, concealing, or stealing. White collar crimes are usually financial in nature and are motivated by financial gain.

The punishments for white collar crimes include jail time, fines, and the requirement to pay the stolen money back. Often times, those who are accused of white collar crimes are good, law-abiding citizens who simply made a mistake.

Common White Collar Crimes

  • Fraud. An act of fraud occurs when someone harms someone else to gain an unfair advantage. This includes tricking or deceiving someone, as well. California recognizes different types of fraud such as insurance fraud, real estate fraud, financial fraud, and identity theft.
  • Embezzlement. California law defines embezzlement as misappropriation of funds or property that belongs to another. When an employee uses funds in a way that was unauthorized, and the funds were entrusted to that employee, the employee is guilty of embezzlement.
  • Money Laundering. Money laundering is hiding the sources of money that was illegally obtained. This is a white collar crime that can be difficult for the prosecution to prove. Many money laundering cases fail based on lack of intent.
  • Perjury. Perjury is intentionally providing false information or misrepresenting yourself while under oath. More information can be found under California Penal Code 127.

Defending Against White Collar Criminal Charges

There are several strategies that an experienced criminal defense attorney will use to fight white collar accusations. These strategies include:

  • Working with experts such as forensic accounting specialists
  • Collecting records and following the paper trail
  • Proving lack of intent
  • Showing lack of sufficient evidence on the part of the prosecution
  • Contending mistaken identity
  • False accusations

A knowledgeable criminal defense attorney knows the ins and outs of white collar crimes and how to defend against these charges. The attorney should work creatively and as quickly as possible in the cases. With an attorney by your side, you will be able to move forward with your life and clear your name. Continue reading

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When a person is convicted of a crime in San Diego, the court or judge can grant probation rather than sending the person to jail. Often times, this is the case in California. Probation is a term that we always hear in the criminal law matters, but sometimes we really do not know what it means to be on probation. Today, we will discuss probation and probation violation basics.

What is Probation?

Probation is a period of time in which a person who is convicted of a crime undergoes court-ordered supervision. The supervision period takes the place of jail time, according to California Penal Code Section 1203.1.

When probation is complete, the person can have the conviction vacated in order to wipe out the conviction as if it never happened.

Two Types of Probation in California

California has two types of probation — formal and informal. The two types of probation in California has differences as such:

  • Formal Probation. Requires one to report and be supervised by a probation officer once a month at the least.
  • Informal Probation. Also known as summary probation. Does not require supervision by a probation officer. The requirement is to simply stay out of trouble and not violate the probation.

Regardless of the type of probation, activities such as counseling, drug testing and community service may be a requirement of completing probation. If a person does not follow the rules of probation, it can be revoked and the person can be sent to jail or prison to complete the rest of the sentencing time. This is called probation violation.

Ways to Violate Probation in California

When a person does not adhere to the terms of probation, this is known as probation violation. One can face violation for any of the following:

  • Using firearms
  • Committing a new crime during the probation
  • Getting arrested
  • Failure to complete community service
  • Failure to complete counseling or treatment
  • Not meeting with the probation officer

When you are accused of breaking any of the probation rules, you should seek legal advice from a qualified San Diego probation violation lawyer. The lawyer will work to get rid of or reduce the consequences that come along with the probation.

Consequences of Violating Probation

Probation violation comes with strict consequences including:

  • Imprisonment
  • Rehab or counseling program
  • Extension of probation with additional terms and conditions

The consequences for probation violation are essentially left up to the judge. Determining factors depend on the specific reasons for violation. Continue reading

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Every year during the holidays, tons of San Diegans will be receiving packages of goods that they have ordered online. Meanwhile, porch pirates will be following Amazon, UPS, FedEx and the U.S. Postal Service to steal these goods from the homes of others. San Diego legislators are working to combat porch pirates at the state level. While porch pirating is a low level theft crime under Proposition 47, stealing packages off porches is still a crime.  

What is a Porch Pirate?

A porch pirate is someone who takes packages and goods that are left on the doorsteps or porches of homes. Essentially, a porch pirate is a thief.

California Ranks #3 for Porch Pirating

With the growth of online shopping comes a common problem in San Diego, California, and throughout the United States – porch pirating.

A survey as indicated by The Mercury News report, reveals that the Golden State made the top 10 list of states with the highest rates of porch pirating.

The City of San Diego ranks number 9 on the list for the top cities in California with porch pirating issues.

What is Proposition 47?

The enactment of California Proposition 47 reduced the penalties for crimes such as theft of property under $950. This includes porch pirating. The penalties for theft were reduced from a felony to a misdemeanor.  

According to an article in the San Diego Union-Tribune, this proposition encourages people to steal because if they are caught, the penalties are slim to none. As a result, there has been an increase of theft in the San Diego area.   

Why do People Commit Porch Piracy?

People often steal from the porches of others because of financial woes. They may not be able to afford the goods themselves. Some do it for the rush of stealing and getting away with it. Others may commit porch piracy because of drug abuse and mental illness issues.

How to Prevent Porch Piracy

Below are some tips to prevent porch piracy:

  • Install door cameras or porch surveillance cameras
  • Request signature be required for delivery
  • Deliver to another address such as a UPS store, FedEx Kinkos, or Walgreens
  • Schedule the package to arrive when you know you will be home for the day

Common Defenses to Porch Pirating

Although porch pirating is a misdemeanor, it is still an offense in the State of California. There are several defenses that may apply if you are charged with this crime. The most common defenses include:

  • Mistaken identity
  • False accusation
  • Insufficient evidence
  • Believing that the property belonged to the person being accused

Continue reading

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Getting arrested is never in anyone’s plans. When a person is arrested and charged with a criminal offense, the criminal process begins. One of the key steps in the criminal process is the preliminary hearing. This hearing comes after the arraignment, or the first court appearance and the readiness conference, where your criminal defense lawyer negotiates to get the best deal for the client.

What is the Preliminary Hearing?

The preliminary hearing usually takes place within 10 days of the arraignment. If not, the defendant should be released according to California Penal Code 859b(b).  This hearing is where the judge decides whether there is enough evidence to support the charge against you. Essentially, the judge must decide two things:

  • Whether probable cause exists to believe the crime was committed
  • The defendant is the person who committed the crime

The preliminary hearing is where a successful San Diego criminal defense attorney move for dismissal of charges. Although the lawyer could present your case, this is not always the best plan of action to take. The criminal defense lawyer should work to dismiss the charges by using the following strategies:

  • Cross-examining key witnesses speaking against you
  • Narrowing down details of witness testimonies
  • Locate inconsistencies in the case against you

The preliminary hearing will include the same court staff as a normal trial. The judge, prosecutor, your defense attorney, and court reporter will all be in attendance. It is important to note that the preliminary hearing is not a trial. It is a brief appearance that determines whether the case should go to trial. It should not be used for discovery purposes, according to California Penal Code 866.

Defendant Rights Before and During Preliminary Hearing

The defendant has several rights prior to and during the preliminary hearing. All defendants should exercise their rights. Some of the rights include:

  • The right to legal representation
  • The right to cross-examine prosecution witnesses
  • The right to introduce defense witnesses
  • The right to discovery

Possibilities After the Preliminary Hearing

At the end of the hearing, your case may either be dismissed or your charges can be reduced to misdemeanors. Additionally, your case can go to trial. As a result, there will be another arraignment and future court dates will be scheduled.

Then, a pre-trial conference is held where your attorney will continue negotiating to reach a solution to your case. If a favorable solution is not reached, the trial will take place. Here is where your criminal defense attorney will present your case. Continue reading

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