Criminal Defense

November 16, 2018

Getting Hired with an Arrest or Conviction Record

Many employers conduct criminal background checks when individuals apply for a job. If you have been arrested or convicted of a crime, getting a job can become a stressful undertaking because some employers do not hire individuals with arrest or conviction records. Depending on the job, some classes of convicted people may be prohibited by law from getting hired.

Problems with Criminal Background Check Reports

It is not uncommon for an applicant to have incorrect or missing information in their criminal background check report. Reports can be mismatched, contain inaccurate information, include someone else’s information, or misclassify the criminal offense.

Expunging or Sealing Criminal Conviction Records

People who committed crimes when they were minors or people who have old criminal convictions can seek that their arrest and criminal conviction records be expunged, meaning they are hidden or sealed from public disclosure. This helps individuals put past behavior away and keep it from affecting their future employment or housing prospects.

Federal Laws that Protect Individuals with Arrest and Conviction Records

There are two main laws, the Fair Credit Reporting Act (FCRA) and Title VII that protect individuals from discrimination in employment because of prior arrest and conviction records. Under the FCRA, background checks that look into an individual’s criminal records, may not include arrest records that are more than seven years old, unless the position pays more than $75,000 a year. Conviction records however, have no such time limit. Title VII prohibits discrimination including in job screening and hiring practices in employment and frowns upon employment practices that issue blanket prohibitions against employment people with prior arrests or convictions.

Charged with a Misdemeanor Crime in California?

It is important that a person accused of a crime talk with his or her criminal defense attorney to understand the impact of a criminal conviction on his or her employment options. Current jobs may be lost after a person pleads guilty to a crime and future job opportunities may be curtailed because of an arrest or criminal conviction.

For example, if you are employed in commercial driving and you are arrested for driving while intoxicated, you may lose your commercial drivers’ license immediately. No drivers’ license means you can not work while your case is pending.

If you have been charged with a crime in California, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. Contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Continue reading

November 9, 2018

Does the Weather Impact the Crime Rate?

by David M. Boertje

For a long time, hot weather has been associated with crime, particularly in cities throughout the U.S. Temperatures have been on the rise in American cities and around the world, with the last two years registering some of the warmest temperatures on record. For example, for decades the trend has been that in colder months fewer people are murdered.

The weather does not cause crime. Crime is caused by people’s actions. The rising temperature affects people differently. Hot weather either sends people out to cool down or in to cool off. Minor inconveniences can quickly escalate to an argument and then to violence because heat tends to make people physically uncomfortable. Feelings of irritability and anger are higher when the temperature is higher.

2017 Crime Rates in the United States

Every year, the Federal Bureau of Investigations (FBI) releases statistics of crime rates in America. The violent crime rate seems to have peaked in 2016. 1,250,162 violent crimes were reported in 2016. In 2017, the number decreased to 1,247,321 violent crimes. Violent crimes are against people and include murder and manslaughter, rape, robbery, and aggravated assault.

San Diego Violent Crime Rates are Down

San Diego is a city with approximately 1.42 million inhabitants and ranks as one of the top 10 most populous cities in the country. Of all the most populous cities in America, San Diego ranks as one of the safest cities when it comes to violent crime. In 2017, according to the FBI, the police investigated 5,221 violent crimes. Ahead of San Diego are San Jose, New York, San Antonio, Phoenix, Los Angeles, Dallas, Philadelphia, Houston, and Chicago. The most violent crimes occurred in the cities of Chicago, Houston, and Philadelphia.With respect to property crimes, San Diego had the second lowest rate with 18.4 crimes reported per 1,000 residents.

Have You Been Charged with a Felony Crime in California?

Felony crimes are the most serious criminal offenses in California. The penalties include long prison terms, and repeat offenders may face life imprisonment for future crimes. If you have been charged with a felony crime in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate penalties and prison sentences. Continue reading

November 2, 2018

Crime in California

by David M. Boertje

Criminal behavior in California is defined by law and contained in the state’s statutes. If a person engages in actions the state has determined are criminal, he or she will be prosecuted in criminal court and possibly be convicted of the crime.

People today are well-informed and aware of the criminal justice system through what they see on TV and in movies, although they may not have much personal experience with it. True crime stories are highly publicized and have armchair jurors making judgments about the guilt or innocence of accused people. So, let us go over the basic of criminal charges in California.

There are four main types of crime:

Crimes against the person: Personal crimes are considered crimes against the person. They result in physical or mental harm to another person. Examples of personal crimes are assault, battery, false imprisonment, kidnapping, homicide, and rape.
Crimes against property: Property crimes are considered crimes against property. Things, rather than people, are harmed or another person’s right to use or enjoy property is taken away. These include larceny, robbery, burglary, arson, embezzlement, forgery, false pretenses, and receipt of stolen goods.
Inchoate crimes: Incomplete crimes are called inchoate crimes. These offenses were started by the perpetrator, but were not completed. The word attempt is often added to the underlying offense, like attempted homicide or attempted rape. In addition to attempt, these crimes also include solicitation and conspiracy.
Statutory crimes: Certain behavior by itself is not illegal, but state laws make it illegal. A good example of this is alcohol-related crimes, like driving under the influence of alcohol. Drinking by itself is not a crime. It only becomes a crime when the person tries to drive while under the influence. This type of behavior is called a statutory crime.

Have You Been Charged with a Crime in California?

Penalties for criminal convictions depend on the seriousness of the crime. The more serious crimes, like kidnapping and robbery, carry a year or more in prison. Misdemeanors are less serious and carry less than a year in jail. Both also carry monetary fines. If you face criminal charges in California, consult a qualified San Diego criminal defense attorney who can help mitigate your penalties. Continue reading

October 26, 2018

Peers and Crime: Spotlight on SB-1437 (Part II)

by David M. Boertje

Changes to California’s felony murder rule with respect to accomplices has been the subject of the last posts. For background information on accomplice liability in California, click here. Access our last post for the background on SB-1437 and how it applies to new cases. The following post will examine the application of SB-1437 to past cases.

I am Already Serving a Life Sentence for Felony Murder as an Accomplice, is There Anything I can do to Get out of Jail Sooner?

SB-1437 contains a provision for defendants that have already been convicted of felony murder and were an accomplice in the original charge. Keep in mind that as an accomplice you are liable for the underlying felony. Any time allotted to the underlying felony must be served. The sentence that is reduced or eliminated has to do with the murder. The practical effect of the new law is less time in prison for individuals charged with felony murder as an accomplice after September 30, 2018.

Individuals serving time for felony murder as an accomplice before September 30, 2018, are now able to petition the court for a reduced sentence if they did not kill or intend to kill the victim in the felony murder charge.

SB-1437 provide a means of vacating the conviction and resentencing a defendant when a complaint, information, or indictment was filed against the defendant that allowed the prosecution to proceed under a theory of first degree felony murder or murder under the natural and probable consequences doctrine, the defendant was sentenced for first degree or second degree murder or accepted a plea offer in lieu of a trial at which the defendant could be convicted for first degree or second degree murder, and the defendant could not be charged with murder after the enactment of this bill.

Serving Time for Felony Murder as an Accomplice?

SB-1437 requires the participation of district attorneys and public defenders in the resentencing process. The individual appears in court again to be resentenced. Your attorney will address the mitigating circumstances and facts that demonstrate that you acted as an accomplice in the underlying felony but did not commit the homicide or intend to commit the homicide. It is critical that you contact the San Diego Criminal Defense Attorney if your loved one is incarcerated to discuss the possibility of a resentence for a felony murder conviction as an accomplice. Continue reading

October 19, 2018

Peers and Crime: Spotlight on SB-1437 (Part I)

by David M. Boertje

The California legislature has been working furiously to pass many laws that affect all aspects of California life. Many changes were implemented that affect the criminal law and criminal justice system. One key change that has occurred affects accomplice liability or California’s aider and abettor laws with respect to felony murder. Gov. Jerry Brown signed a bill that limits who can be prosecuted for felony murder to those who commit or intend to commit a killing.

For a brief overview of California’s accomplice liability laws, click here.

California’s Felony Murder Rule

Previously, California’s felony murder rule allowed accomplices to be convicted of first-degree murder if a victim died during the commission of a felony even if the accomplice did not intend to kill, or did not know a homicide took place.

The underlying felonies are arson, rape and other sexual crimes, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and homicide committed by intentionally firing a gun from a motor vehicle at a person outside of the motor vehicle with the intention to cause death.

Returning to our prior example, if Mateo had shot and killed a clerk in the jewelry store while robbing it, Logan and Nathan would also have been charged with felony murder under the old felony murder rule.

What is SB-1437?

SB-1437 prohibits a participant in the perpetration or attempted perpetration of one of the specified first degree murder felonies in which a death occurs from being liable for murder, unless the person was the actual killer or the person was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the person was a major participant in the underlying felony and acted with reckless indifference to human life, unless the victim was a peace officer who was killed in the course of performing his or her duties, and the defendant knew or should reasonably have known the victim was a peace officer engaged in the performance of his or her duties.

How Does SB-1437 Affect My Case?

Anyone charged with felony murder after September 30, 2018 who was also an accomplice that did not actually kill the victim or intended to kill the victim could potentially mean less time in prison if convicted after a jury trial or plea.

If the jewelry heist occurred after September 30, 2018, Logan and Nathan would not be convicted of felony murder because they did not kill the victim nor knew that Mateo was going to kill the victim. Logan and Nathan are still guilty of robbery because they were active participants in the heist.

Check back next week to find out how SB-147 affects individuals already convicted and serving time for felony murder as an accomplice.

Charged Under California’s Felony Murder Statute?

Under California law, if you aid and abet a person who actually committed a crime, you could face the same exact penalties, meaning prison sentence. Aiding and abetting is not a crime in itself, instead it imposes criminal liability on the action of helpers. If you help someone commit a crime you will be charged with the same crime as the person who actually committed the crime. Contact the San Diego Criminal Defense Attorney to discuss your defense and mitigating circumstances. Continue reading

October 11, 2018

When can the DA Charge Someone as an Accomplice?

by David M. Boertje

Anyone who encourages, facilitates, or aids in the commission of a crime can be arrested, charged, convicted, and sentenced with the same crime as the person who actually committed it. Known as aiding and abetting or accomplice liability, this California charge catches all crimes, whether felony or misdemeanor, and any participation, whether the person committed the act constituting the offense or just aided and abetted in the commission of a crime. Aiding and abetting is not a separate crime.

For example, Nathan, Mateo, and Logan plan to rob a jewelry store. Each plays a different role. Nathan draws a diagram of the display case and safes. He gives the drawing to Mateo. Logan drives Mateo to the jewelry store and waits out front in the getaway car. Mateo actually goes inside the store, takes the jewelry, runs out of the store, and jumps in Logan’s car. The two of them drive off.

While only Mateo stole the jewels, all three could be charged with armed robbery because Mateo as the direct perpetrator entered the jewelry store and committed an armed robbery. Nathan and Logan are liable as aiders and abettors even if they did not know Mateo had the gun with him when he robbed the store.

Nathan can not put forth a defense that he was not present during the armed robbery because by drawing the diagram of the display cases and safes, he had more than knowledge of the planned robbery – he was involved in planning it and did nothing to stop it.

A new California law will redefine accomplice liability in felony murder cases. Check back next week for an in-depth look at Senate Bill 1437.

Charged Under California’s Aiding and Abetting Laws?

Under California law, if you aid and abet a person who actually committed a crime, you could face the same exact penalties, meaning a prison sentence. Aiding and abetting is not a crime in itself, instead it imposes criminal liability on the action of helpers. If you help someone commit a crime, you will be charged with the same crime as the person who actually committed the crime. Contact a San Diego Criminal Defense Attorney to discuss your defense and mitigating circumstances. Continue reading

October 5, 2018

Guns and Crime in California

by David M. Boertje

Without a doubt, California has the toughest gun laws in the United States. Earlier this week, Governor Jerry Brown signed several gun control bills into law, making the state’s gun laws even tougher. Effective January 1, 2019, what follows is a summary of the new legislation.

Age to buy shotgun or rifle increased to 21: Bill SB100 increased the age for buying a shotgun or rifle in California from 18 to 21. Exceptions are carved out for hunters, police officers, and members of the military.
Domestic violence offender lifetime gun ownership ban: Bill AB3129 permanently bans anyone convicted of certain domestic violence misdemeanors from owning a firearm for life.
Prior mental illness confinement lifetime gun ownership ban: Bill AB1968 permanently bans anyone who has been hospitalized more than once in a year for mental health issues and found to be dangerous to self or other from owning a firearm for life.
Mandatory training: Bill AB2103 requires anyone applying for a concealed gun permit to attend an eight-hour gun safety and handling training course or class. The applicant must pass a test that includes fining a gun at a target.
Police initiated restraining orders: Police seeking a gun violence restraining order will be permitted to apply for order verbally when there is no time to make written request.
Maintenance of lost firearm database: All California law enforcement agencies will be required to input information on lost or stolen guns into a state database within a week of the agency finding out the firearm was missing.
“Bump stock” ban: Bill SB1346 bans “bump stocks” which convert semiautomatic rifles to rapid fire machine guns.
Ban on possession of ammunition and gun magazines if guns taken away: Bill SB1200, permits judges to order that mentally unstable people whose guns are taken away also be barred from possessing ammunition and gun magazines.

Charged With a Gun Crime in California?

Illegally carrying a firearm in California is a serious offense. If you have been charged with a gun crime in California, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. If you face gun charges in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate penalties. Continue reading

September 26, 2018

Mental Illness and Crime in California

by David M. Boertje

The idea that there is some relationship between mental illness and crime is a popular theme when violent crimes are sensationalized in the media. People with mental illness live everywhere. So, it is unsurprising that some individuals accused of committing crimes in California also suffer from mental illness.

Mental Illness and Crime

According to a study conducted by David B. Kopel and Clayton E. Cramer, only a small minority of seriously mentally ill people commit violent crimes. However, close examination of mentally ill patients reveals the following:

Mentally ill patients comprise a large fraction of the jail and prison population;
Mentally ill people are disproportionately victimized by violent crime;
Some forms of mental illness increase the risk that a person will perpetrate a violent crime;
Untreated severe mental illness is significant in homicide cases; and
On a month to month basis mental illness treatment is more expensive in a hospital rather than prison.

San Diego Mental Health Collaborative Court (MHCC)

Since November 2016, San Diego county has offered a mental health collaborative court program to assist incarcerated people successfully reenter the community at the end of their jail or prison term. Assessments begin while the incarcerated person is still in jail and services start as soon as the individual is released.

A team of court personnel, social workers, nurses, psychiatrists, and counselors work with the incarcerated person between the ages of 18 and 59 who have been involved in or are transitioning out of correctional facilities. The individual receives a personalized treatment plan, medication management, peer support counseling, a housing subsidy, and educational or vocational services and training.

Individuals are referred to the program directly by the California Department of Corrections and Rehabilitation. To be eligible for the program, the incarcerated person must be:

18 or older;
Probation eligible
A U.S. citizen or contain lawful resident or temporary resident status;
Mentally competent;
Diagnosed with a serious mental illness;
Voluntarily participate in the program; and
Non-serious criminal charge.

Charged With a Crime in California?

A criminal case usually starts with a police arrest report. The prosecutor then decides what criminal charges to file. Some cases go to a grand jury for a preliminary indictment, where a jury decides if there is enough evidence to proceed. If you or someone you know is facing criminal charges in California, contact a San Diego Criminal Defense Attorney.

California offers individuals with mental illness programs in court, correction facilities, and post-release. Discuss your case with a San Diego Criminal Defense Attorney today. Continue reading

September 21, 2018

Immigration Status and Crime in California

by David M. Boertje

The United States is the third most populous country in the world behind India and China. The U.S. has been adding about 1 million immigrants annually since 1990. California is the most populous state in the Union. Not surprisingly, many immigrants make California home. California, New York, and Florida account for 60% of the foreign-born population who have immigrated to the U.S.

According to the FBI, violent and property crime has been steadily declining. In 2014, more offenders were arrested for drug crimes than property crimes and violent crimes. Researchers led by Robert Adelman at the State University of New York at Buffalo compared immigration rates with crime rates for 200 metropolitan areas over the last several decades. In 136 metro areas, including San Diego, almost 70% of the immigration population increased between 1980 and 2016 while crime stayed stable or fell.

Immigration Law

A lawful permanent resident is deportable if he or she is convicted of an aggravated felony or a crime involving moral turpitude.

What crimes make you deportable?

Aggravated felonies include murder, drug trafficking (possession and intent to distribute), money laundering (over $10k), trafficking in firearms or explosives, and crimes of violence with a sentence of at least a year.

What is a crime of moral turpitude?

Any crime that involves an intent to commit fraud, theft, or inflict bodily harm qualifies as a crime of moral turpitude.

Seek Legal Advice From an Immigration and Criminal Law Attorney

Discuss your criminal charges with your criminal attorney and an immigration attorney before pleading guilty to discuss what will happen to your immigration status once you are convicted of a crime. There are two ways criminal convictions can affect immigration status – inadmissibility and removability. Inadmissibility applies to people seeking admission to US – a criminal conviction can be used as a basis to allow the person to enter the U.S. from abroad. Removability applies to individuals in the U.S. legally. The criminal conviction makes the individual deportable or removable after entry.

A guilty plea or conviction after a trial for crime of moral turpitude or felony automatically triggers commencement of removal proceedings and forecloses relief from deportation known as cancellation of removal in many cases. It is really important to discuss the consequences to your immigration status if you plead guilty to a crime in California. Continue reading

September 13, 2018

Identity Theft Crimes and Penalties in California

by David M. Boertje

Identity theft is a crime in California. Identity theft relates to the deliberate use of someone else’s name and identifying information to obtain a financial benefit. Criminal identity theft is a separate crime and relates to using another person’s name and identifying information resulting in a criminal conviction record being created in that person’s name. This post will discuss identity theft crimes.

What is Identity Theft?

California Penal Code 530 is the section of the criminal law code that deals with identity theft crimes. San Diego police and the district attorney’s office have specialized units that investigate, arrest, and charge individuals accused of identity theft crimes. A growing state and national issue, identity theft crimes are aggressively prosecuted at both the state and federal level.

Identity theft or fraud describe crimes in which someone wrongfully obtains and uses another person’s personal data in some way that involves fraud or deception, most often for economic gain. Identity theft is a federal and state offense.

Federal identity theft charges are often accompanied by other crimes. They are identification fraud, credit card fraud, computer fraud, mail fraud, wire fraud, or financial institution fraud.

What are the Criminal Penalties for Identity Theft Charges?

In California, identity theft crimes are penalties punishable by up to three years of state prison, restitution to the victim, court costs and fines, and post-release parole supervision.

The federal identity theft crimes listed above are felonies and can result in up to 30 years of imprisonment in a federal detention or correctional center.

Charged Under California’s Identity Theft Laws? Hire a San Diego Criminal Defense Attorney

A criminal case usually starts with a police arrest report. The prosecutor then decides what criminal charges to file. Some cases go to a grand jury for a preliminary indictment, where a jury decides if there is enough evidence to proceed. If you or someone you know is facing identity theft charges in California, contact the San Diego Criminal Defense Attorney.

California offers pretrial diversion programs for first-time offenders as an alternative to prosecution. Eligibility depends on age and prior criminal record. Criminal charges under the pretrial diversion program are dismissed if the person successfully completes court mandated programs and conditions within a specified time frame. Continue reading