Criminal Defense

July 10, 2018

California Domestic Violence Laws

California’s domestic violence laws cover several sections of the Penal Code. At the heart of these laws is a familial or intimate relationship between the parties. The parties can be spouses, former spouses, cohabitants, former cohabitants, or be in an active dating relationship. Many times, the parties share children or one of them has children from a previous relationship.

Domestic Violence Charges

The most common domestic violence charge in California is Penal Code Section 273.5. This criminal offense is charged when an individual inflicts injury on a spouse, cohabitant, parent, or dating partner. When filing charges against a defendant in domestic violence cases, the prosecutor weighs the severity of the conduct and harm to the victim with the other circumstances of the event. The defendant may be charged with assault, if during an argument with his or her partner, he or she throws something at the other and causes an injury. If the object thrown is a mobile telephone that breaks, a charge may be added for domestic violence property damage.

Protective Orders

Victims of domestic violence can apply for emergency protective orders and restraining orders in both civil and criminal court on simple fear of a domestic violence situation. The offending partner may be ordered out of the home and restrained from any communication with the other partner. If there are children, the offending partner’s contact with them may also be prohibited during the pendency of the criminal case. Visitation and custody will be difficult to maintain during the pendency of the criminal action.

Technology and Abuse

New patterns of behavior in domestic violence cases are emerging relating to the use of technology. Many people own smartphones and smart devices at home that enable them to connect to items in the home, even if the person is not in the home. Items like cameras, thermostats, lights, locks, and speakers can be used to harass, monitor, revenge and control a domestic partner. All of these devices create logs of activity and records that are then used to support domestic violence charges.

A PERSON IN A DANGEROUS EMERGENCY SITUATION REQUIRING

IMMEDIATE INTERVENTION SHOULD CALL 911 FOR ASSISTANCE. Continue reading

July 6, 2018

Increasing Use of Facial Recognition in Solving Crimes

by David M. Boertje

In mid-June 2018, in a small town in Maryland, the police used a facial recognition program to identify and track down a robbery suspect. Investigators fed an Instagram photo of the suspect into the state’s vast facial recognition system and a match was made. Within minutes the Instagram photo was matched with the robbery suspect’s drivers’ license photo and the suspect’s drivers’ license popped up, providing law enforcement with the suspect’s name and address within minutes.

Increasingly, police departments across the country are using facial recognition programs to solve crimes. The prevalence of smartphone with video capabilities, the SMART connections in homes, and video cameras in private homes and public streets provide constant surveillance. Since these devices capture all activities, now more than ever, crime scenes are full of digital evidence of conversations and actions recorded.

The image of a suspect alone is not enough to identify him or her. In the past, police department released photo of suspect asking the public to provide tips to identify him or her on the news or on their websites. Now, with the image from the crime scene itself, the police can bypass the public completely, and through something as ubiquitous as an Instagram photo, identify the suspect by matching his photos with the state’s facial recognition program.

31 states, including California, use facial recognition programs to identify suspects by running photo of them against the state’s drivers’ license system photos. The technology is so advanced that not too far down the road will be a way to run the check right from a police officer’s body camera, real time, as a suspect is apprehended and taken into custody. Amazon’s Rekognition program, is one such facial recognition program used in California to assist collection of evidence in law enforcement investigations.

Although the use of these technologies raise all kinds of privacy concerns, the benefit to law enforcement, is difficult to discount if a crime is in progress or the identity of the suspect is unknown to investigators. Continue reading

June 29, 2018

How to Appeal a California Criminal Conviction

by David M. Boertje

Some criminal cases are not resolved at the end of the jury trial or after a plea has been entered. The defense attorney and state prosecutor can ask the court to reconsider a ruling or address a problem with the trial at the end through various oral and written motions. Some items however, can only be addressed on appeal.

Common Reasons for an Appeal

Just because you are not happy with the result of the criminal case does not mean you have a reason, or basis, to appeal. Common reasons people appeal criminal convictions are as follows:

Bad ruling by the judge;
Prosecutor failed to turn over evidence;
Defense lawyer made a mistake; or
Jury returned the wrong verdict.

What is an Appeal?

An appeal is not a new trial. Instead, it is a limited review of a problem with the conviction. No new evidence is introduced, no one testifies, and the case is not retried. Misdemeanor appeals are heard before the Appellate Division of the Superior Court; felony appeals are decided before the California Court of Appeals.

Limited Time Window to Appeal

Once you are convicted of a crime, following a bench or jury trial, you have the right to appeal. There is a strict timeline to file an appeal. You have 30 to 60 days after the conviction to file an appeal. The only exception to this rule are cases in which the defendant receives a death sentence. In California, a death sentence automatically triggers an appellate review.

What if I Pled Guilty?

If the criminal conviction is based on a plea before the trial, many times a condition of the plea agreement is that the criminal defendant waive his or her right to appeal as to the plea and sentence. You may have agreed to waive your right to an appeal if your conviction is based on a guilty plea. Review appellate options with your attorney prior to agreeing to a plea and most certainly after a conviction following bench or jury trial.

Do I Have to Pay an Attorney Again?

Keep in mind that appeals are a new case for the criminal defense attorney. Your original retainer or letter of engagement will not cover an appeal. You will need to enter into a new agreement with a criminal defense lawyer to represent you during the appeal. Continue reading

June 20, 2018

Felony Arrest in California: What to Expect (Part VI)

by David M. Boertje

This is the final installment of a six-part series on what to expect in California if you face felony criminal charges. Take a look at our past posts in the series and get to know the other steps of the felony arrest in California process.

The prior posts are:

The final step of the felony arrest process in California is sentencing. This is by far the most nerve-wracking time for people accused of crimes. By now, you have met the judge and prosecutors on your case, your attorney has kept you informed of the developments and challenges in your case, and you also have a basic understanding of maximum punishments and fines that can be assessed. What is missing, of course, is the judge’s decision.

Step 6: Sentencing

Whether you reach the sentencing phase by plea or after trial, every person charged with a felony in California will be sentenced or have punishment imposed. A sentencing hearing occurs after the trial and before the judge issues his or her sentencing decision. Some judges will provide the accused with a sentencing commitment, which is a preview of the judge’s sentencing decision; others wait until after the sentencing hearing to communicate their decision.

At the sentencing hearing, each side is afforded an opportunity to present and explain what type of sentence or sentence considerations the judge should consider when assessing punishment in the case. From a defense perspective, mitigating circumstances, prior positive community involvement, and lenient treatment are advocated. From the prosecution’s perspective, victim impact statements and harsher penalties are presented for the judge’s consideration.

After hearing both sides, the judge may sentence the criminal defendant to prison for a fixed time-period, a life sentence, or death in capital punishment cases. Other forms of permissible punishment include the assessment of fines, penalties and surcharges, and the assessment of conditions, like parole or mandatory alcohol and drug treatment. Especially in sexual assault matters, the accused person may be required to register in Sexual Offender Registries and have conditions imposed on where they may live after serving time.

Three Strikes Law

For individuals convicted of two or more violent crimes or serious felonies, a third felony conviction will automatically trigger the three strikes law. The three strikes law compels the judge to impose a life sentence, removing all other punishment options at the sentencing phase regardless of any mitigating circumstances.

Death Penalty

A death sentence is the most severe punishment for someone charged with a felony. According to the Los Angeles Times, the California Supreme Court in August 2017 kept in place a measure passed by voters to speed up executions. Due to delays and legal challenges, the state of California has not executed a prisoner in a decade. Continue reading

June 15, 2018

Felony Arrest in California: What to Expect (Part V)

by David M. Boertje

This is part five of a six-part series on what to expect in California if you are arrested and charged with a felony. Prior posts are available at Step One: Pre-Arrest Investigation, Step Two: Arrest, Step Three: Arraignment and Bail, and Step Four: Pretrial Proceedings. What follows is an explanation of a felony trial.

Step Five: Trial

If a criminal case cannot be resolved in a plea negotiation or settlement, the case proceeds to trial for determination of guilt. A defendant can receive a trial by jury or a trial by court also known as a bench trial. At the conclusion of either trial, a verdict is reached and it is communicated to the accused person. The judge or jury tells the defendant that he or she is guilty or not guilty.

In a trial by jury, 12 community members listen to testimony from various people. Among the people who can testify are the victim, eyewitnesses, law enforcement personnel, medical doctors, forensics experts, and the defendant. A defendant may continue exercising his or her right to remain silent and not testify at trial. Ultimately, the decision to testify at trial is one made by the defendant’s attorney and the defendant. In addition to listening to the trial testimony from witnesses, the jury also examines evidence, makes factual determinations, and decides whether the defendant is culpable – guilty or not guilty.

In a bench trial, the judge makes all the decisions of the case. He or she listens to the evidence to decide whether the defendant is guilty or not and makes all decisions regarding the law and criminal procedure at issue during the trial.

Post-Trial Motions

If either side is not satisfied with the results of the trial by jury or bench trial, post-trial motions are available to address trial issues. A motion is a formal request to the court to address an issue that arose at trial. Motions can be made by the defendant or state prosecutor. One common post-trial motion, often filed by the defense, is a motion for a new trial. There are certain permissible reasons to obtain a new trial. There can be jury misconduct, an error of law by the court, or new evidence, to name a few of the permissible reasons. Post-trial motions must be made prior to the sentencing hearing. At sentencing, the trial judge assesses the punishment and penalties the defendant will receive.

Check back next week to read the six and last installment of this series – Step Six: Sentencing. Continue reading

June 8, 2018

Felony Arrest in California: What to Expect (Part IV)

by David M. Boertje

We continue the series on what to expect following a felony arrest in California. What follows is an explanation of pre-trial proceedings.

Phase 4: Pre-trial Proceedings

Many felony arrests are resolved at the pre-trial phase of criminal prosecution. Although the accused person is required to attend all court conferences unless excused by the Superior Court Judge, a criminal defense attorney has many tools available to resolve the case at this stage. Common tools are court appearances (conferences and hearings), waivers, motions (requesting court to resolve a dispute about the evidence or charges between the defense and prosecution), discovery issues, and plea bargains or negotiations.

Court Appearances: Preliminary Hearing, Readiness Conference, or Felony Disposition Conference

Following the arraignment, the next most important appearance is the preliminary hearing, known as a “prelim” or “probable cause hearing.” During the preliminary hearing, two issues are before the court: Is there probable cause to believe that a crime was committed; and if so, is there probable cause to believe that the defendant is the person who committed the crime. While rare, the Superior Court Judge may dismiss the charges against the accused person at this point and no further action will be required. More commonly, however, if both questions are answered in the affirmative, the Superior Court Judge will rule that the accused person must “answer for the charges.” This means that the criminal case is sent to the trial court for further pretrial proceedings, like the readiness conference or felony disposition conference.

At the readiness conference the prosecution makes an offer to the accused person to resolve the case before any other activity in the case happens. In exchange for pleading guilty, the prosecution usually offers a reduction in charges or lower sentencing recommendations. Usually negotiated in the judge’s chambers, if resolvable, the criminal defendant accepts the plea and pleads guilty to the charges or reduced charges. If not resolved, the criminal matter continues on the pre-trial track and further proceedings like waivers and motion practice occur.

Waiver of Speedy Trial Right

If you choose to fight the charges, California Penal Code states that the prosecution must bring the case to trial within 60 days of your arrest. At the readiness conference, if the offer is not accepted, the criminal defendant often waives the right to a speedy trial because it is advantageous to his or her defense. The result is that a trial takes a long time to schedule and ultimately resolve. When you waive your right to a speedy trial, the timing of the case is no longer important.

Pre-trial Motions

Pre-trial motions are a set of requests made to the trial judge, by either side, to help reduce the issues for trial. The motions include Motion to Suppress Evidence, Motion to Dismiss Information, Motion for Speedy Trial, Motion to Sever Counts or Charges, and Motion to Compel Discovery. Each of these motions have a purpose and must be made at certain times in the process or the ability to make the motion is waived because the motions are time-limited.

From a defense perspective, there are three powerful motions that can be made during the pretrial phase of the case – the motion to set aside information, the pitchless motion, and the motion to suppress. In a motion to set aside the information, the defense askes the court to dismiss one or more of the criminal charges that have been lodged. A pitchless motion asks the court for permission to review the arresting or investigating police officer’s personnel file. Defense attorneys are looking for prior complaints, excessive force, biases, or other police misconduct to taint the arresting or investigating police officer’s credibility. Lastly, a motion to suppress evidence asks the court to exclude from consideration all illegally obtained evidence. If these motions are successful, they are instrumental in resetting plea negotiations and may lead to the dismissal of all charges because of lack of evidence or credibility concerns

Discovery

Discovery in a criminal proceeding is a phase in which the defense and prosecution exchange evidence regarding the criminal case. Neither party may hide or withhold information from the other party and then attempt to present it later at trial. There is an exception for newly discovered evidence. There are strict rules and time-limits for the exchange and presentment of evidence in criminal proceedings. Continue reading

May 25, 2018

Felony Arrest in California: What to Expect (Part II)

by David M. Boertje

The following post is a continuation of a series on what to expect following a felony arrest in California. In the first post, the pre-investigation step was discussed and can be accessed here. What follows is a discussion about the arrest phase.

Exercise Your Right to Remain Silent

Do not talk to the police during a pre-arrest investigation without the presence of an attorney. The police are collecting information to assist their investigation. Any information gathered and collected by them will ultimately be used to support their arrest of you. Be courteous to law enforcement officials but remain firm – exercise your right to counsel and your right to remain silent.

The Arrest

The arresting police officer must have probable cause or a reasonable ground to arrest you absent an arrest warrant. Most people have a general understanding of an arrest because of exposure to arrests in movies or television shows. When the arrest is complete, you are physically restrained and become a criminal defendant.

Know Your Rights: Miranda Warnings

Miranda warnings are another part of the arrest process people are familiar with and closely associate with the commencement of a criminal case. The Miranda warning advises an arrested person of his or her right in criminal proceedings before being interrogated. Failure to properly administer Miranda warnings affects the admissibility of statements made to law enforcement officials after arrest. On television, Miranda warnings are often administered simultaneous to arrest, but in reality, the requirement is that they get administered before any questioning starts by the police. The order is not important – focus on requesting your right to an attorney and remain silent.

Know Your Rights: Ask to Speak with Counsel and Remain Silent

Ask for an attorney prior to the commencement of the police questioning or interrogation. Then, invoke your right to remain silent. When you request a lawyer’s assistance, all questioning by police should stop. Anything you get asked and answer after invoking your right to counsel may be excluded from evidence later in the criminal proceedings. The police can still question you. Always remain silent while in police custody. Limit all conversations with other police officers, jail cell or holding inmates, or other personnel in the police station. Keep in mind that telephone calls in police stations and jails are recorded. Remain silent.

Booking Process

Once physically handcuffed, you will be taken to central booking for processing. Processing means getting your photo and fingerprints taken, being searched (may include strip search), and being placed in a holding cell or temporary jail until you see a Superior Court Judge. San Diego County criminal defendants are taken to Downtown or Chula Vista; federal criminal defendants are taken to MCC. Provide answers to questions regarding your identity and identifying information, like name, address, date of birth, height, and weight. Continue reading

May 18, 2018

Felony Arrest in California: What to Expect (Part I)

by David M. Boertje

A felony is the most serious classification of crime with which a person can be charged under California’s Penal Code. Generally, a felony conviction carries with it a sentence of more than a year in jail or prison. Even if a person avoids a long jail sentence following a first felony conviction, any subsequent felony arrests and convictions are punished more severely under California’s Three Strikes Sentencing Law. California also recognizes capital punishment, and the most serious offenses may result in a death sentence for the accused.

The following articles in this series will present an overview of the felony arrest process in California. This brief overview contains general information about the steps that your case may take following a felony arrest. To discuss the circumstances surrounding your felony arrest, contact San Diego Criminal Defense Attorney David Boertje to obtain legal representation.

Step One: Pre-Arrest Investigation

The legal community considers felonies the most serious type of crime. Felonies are classified as violent or non-violent and involve unlawful conduct that leads to the death or serious injury of another person or damage to property. Examples of felony crimes are murder, rape, robbery, burglary, and arson. The crimes of poisoning, murdering police, witnesses, or prosecutors, or killing someone while committing a felony are eligible for capital punishment.

Some crimes come to the attention of law enforcement during a pre-arrest stage. Law enforcement officials conduct a pre-arrest investigation and contact the suspect for questioning. At the point of initial contact, no arrest has been made and no formal charges have been filed with the criminal courts against the person. In California, felony cases are heard in the Superior Court. Lower courts transfer cases to the Superior Court if misdemeanor charges are later upgraded to a felony charge.

Search Warrants

During the pre-arrest investigation stage, police officers or detectives may seek a search warrant. A search warrant permits the police to search a suspect’s home, business, or personal property for evidence in support of their investigation. If you consent to a search of your person or property, the police do not need a search warrant to search you because your consent means you have given the police permission to search you or your property. Absent express consent from you, the police officers must first obtain a search warrant before they can search your home, business, or property. Continue reading

May 8, 2018

Research Suggests No Link Between Crime and Immigration

by David M. Boertje

As Attorney General Jeff Sessions prepares to sue the state of California over its so-called “sanctuary state” policies, which prevent local authorities from complying with some requests by federal law enforcement agents, research suggests that crime and immigration may not be correlated. In fact, research shows that immigrants may commit fewer crimes overall. While crime rates in California remain low, some types of crime – notably, violent crime – have begun to see an upswing in recent years.

Attorney General Sessions, along with President Trump’s administration, have routinely linked crime with immigration, especially unlawful immigration. According to President Trump, “Many aliens who illegally enter the United States… present a significant threat to national security and public safety.” As California moves to protect its residents living in the state without proper documentation, its politicians disagree with the President that illegal immigrants are more likely to cause crime or commit crimes.

In the debate between the President and the country’s most populous state, evidence appears to back California’s position. In an analysis by the San Diego Union-Tribune, the results of three studies showed that immigrants committed less crime. According to one study, which analyzed incarceration demographics in 1980, 1990, and 2000, native-born individuals are anywhere from two to five times more likely to become incarcerated than immigrants. Speculating about the causes, the conservative-leaning CATO Institute said the severity of punishments, including likely deportation for minor crimes, may be the reason for the lower crime rate among immigrants.

California, a state flush with immigrants, is currently enjoying a historically low crime rate. However, violent crime is increasing throughout the state – a full 3.7% in just the last year, according to the newspaper. At 444 instances of violent crime per every 100,000 California residents, this is still a marginally low number – and a far cry from the rate of 1,104 violent crimes per 100,000 residents seen in the state when crime peaked in 1992. Some critics have retorted that the low crime rate is more likely caused by crime that increasingly goes unreported or criminal justice reform, which decriminalizes some types of formerly criminal behavior.

In contrast to the violent crime rate, California’s property crime rate fell roughly 3% last year. San Diego did not mirror the state’s crime trend with both the violent crime rate and property crime rate both dropping last year. Only Los Angeles County and Kern County saw an increase in both crime rates.

As further evidence that immigration does not cause an uptick in crime, the San Diego Union-Tribune cites the relative safety of border cities. If immigrants caused more crime, then cities with more immigrants, such as those on the border, should have higher crime rates. According to the newspaper, the opposite is true. Border cities are generally safer – both San Diego and El Paso, Texas are some of the safest cities in the country. Continue reading

May 3, 2018

Crimes Against the Elderly on the Rise in San Diego

by David M. Boertje

Crimes against the elderly are increasing at a disturbing rate in San Diego, California. In 2016, the last year with data available, the violent crime against elderly San Diego residents increased 13%. This accounts for 780 violent crimes against the vulnerable senior citizens living in San Diego – 14 homicides, 24 rapes, 205 robberies, and 537 aggravated assaults, according to CBS 8. In total, elder abuse cases, which include other types of elder abuse such as financial abuse and mental suffering, increased by 39% between 2015 and 2016.

The rise in elder abuse is especially problematic as San Diego increasingly becomes a destination for retirees. According to CBS, the number of San Diego residents over the age of 65 is expected to increase by 23% by 2050. Currently, only 13% of San Diego County residents are over the age of 65.

Because more elderly residents could mean more elder abuse, San Diego is proactively trying to protect this vulnerable group of people. The District Attorney’s office, responsible for prosecuting crimes, gathered several government agencies, including the Aging and Independent Services, and created the “San Diego County Elder and Dependent Adult Abuse Blueprint.”

The Elder and Dependent Adult Abuse Blueprint is meant to identify the unique needs and challenges faced by the elderly. According to Sheriff William Gore, these unique considerations include various health challenges, such as dementia or Alzheimer’s, as well as any other related disorders or cultural issues. Then, the local government’s plan-of-action will implement “best practices” for handling these problems by looking at how other local governments and states handle the same issues.

San Diego County urges anyone who believes they may be a victim of elder abuse, or knows of someone who may be a victim, to call Adult Protective Services at 800.510.2020. In 2017, the hotline received 14,700 referrals and handled almost 10,000 cases. According to Adult Protective Services, this represents an increase in the number of callers, though the number of callers in previous years was not available. According to the agency, financial abuse was the most common form of elder abuse. Financial abuse occurs when an elderly person’s property or assets are being misused – typically through fraud, trickery, force, or threats of force. Mental suffering and physical abuse were listed as the second and third most common complaints, according to the agency.

Discussing the disturbingly high rate of elder abuse in San Diego and the government’s comprehensive response, District Attorney Summer Stephan told CBS News, “Our society will be judged on how we treated our most vulnerable, including our children and our seniors.” Continue reading