Criminal Defense

March 17, 2017

Soaring Number of Computers Hijacked for Ransom

It has been reported by the San Diego Union Tribune that the amount of computer extortion crimes has significantly increased. Victims are getting notices that they have downloaded a virus and will have to pay X amount to ‘get rid of it.’ Victims are accidentally downloading ransomware. Hackers load malicious software onto people’s computers via emails, decoy ads, bogus news stories, and code embedded through websites. They then charge money to “remove” this ransomware. It is a form of extortion.

According to Special Agent Chris Christopherson, who investigates cyber crimes out of the FBI’s field office in San Diego, it is “entirely possible that we’ll have far in excess of $1 billion in losses” worldwide related to ransomware.” The final tally for 2016 has not been completed yet. The FBI claims that every hour, about 4,000 computers around the world become infected with ransomware. This is an exponentially larger problem for the city of San Diego, which faces daily attacks against its 14,000 desktop and laptop computers.

According to cyber experts, many victims never report the extortion because they feel ashamed for getting duped, or are worried that others will know they visited a pornography website or some other questionable page. Others do not know where to report the attack and doubt that law enforcement will investigate the incident.

Lately, there is increasing concern about the innovations seen in ransomware software. The new codes will offer to decrypt infected victim’s computers as long as they are willing to ‘infect someone else’ in their contact list.

Internet Crime

Internet crime is a blanket crime that generally describes fraud crimes involving the use of the internet or computers. These encompass fraudulent schemes carried through email, “phishing” (using email to obtain sensitive information), or accessing a computer or its data without permission.

In order to convict someone of internet fraud under federal law (18 U.S. Code § 1343), prosecutors have to prove that the defendant intended to commit fraud and that he or she used electronic communication to further that scheme. A conviction of internet fraud under the federal wire fraud statute is punishable by up to 20 years of imprisonment and a hefty fine.

Other criminal laws implicated in cyber crimes are identity theft statutes and credit card fraud (as they pertain to phishing schemes). Continue reading

March 10, 2017

New California Laws You Need to Know for 2017

by David M. Boertje

Every new year, California Governor Jerry Brown sifts through hundreds of bills sent to his desk and signs into law a slew of legislative changes in the criminal law sector for the state. In 2016, Brown saw 1,059 bills come forward, 898 of which he signed into law. He also vetoed 159 and let two become law without signing them. Here are the key laws that will be enacted in 2017 that affect the criminal law sector.

Assault Weapons

As part of a legislative package toughening gun regulations, Senate Bill 880 and Assembly Bill 1135 sought to close a loophole for guns with reloading devices called “bullet buttons.” While California already prohibits the sale and possession of assault weapons (defined as those with magazines that can be detached without disassembling the gun), “bullet button” devices quickly release spent magazines to get around the ban. As of the new year, it is now illegal to sell semi-automatic, centerfire rifles or semi-automatic pistols that do not have a fixed magazine and also have one from a list of specific features in California.

Changes in Sex Crime Laws

Senate Bill 1322 also took effect at the start of the new year. It prevents law enforcement from charging those under 18 years of age with prostitution or loitering with the intent to commit prostitution and was intended to protect victims of sex trafficking from criminal prosecution. Senate Bill 1129 further removes the mandatory minimum sentencing penalties imposed for repeat prostitution offenders who are 18 years of age or older. This law will give judges more discretion in sentencing on a case by case basis as opposed to hardline penalties.

However, while some criminal reform laws have made things more lenient on certain offenders, other laws, like Assembly Bill 2888 ensures that certain rape cases have mandatory minimum prison sentences that are not suspendable. This was a direct reaction to the lenient sentencing of convicted Standford rapist Brock Turner. Lastly, Assembly Bill 27 will classify all forms of rape as a violent felony.

Uber and Lyft

Companies including Uber and Lyft can no longer hire drivers who are registered sex offenders, have been convicted of violent felonies, or have had a DUI conviction within the last seven years.

Date Rape Drugs

Senate Bill 1182 makes the possession of date rape drugs like Roofies with intent to commit sexual assault a felony instead of a misdemeanor. Continue reading

March 3, 2017

Bill Cosby’s Attorney Files for Change of Venue

by David M. Boertje

Bill Cosby’s criminal defense team filed a motion for a change of venue out of Montgomery County for his criminal trial stemming from a sexual assault charge. Cosby was charged with a 2004 drugging and sexual assault of a Temple University employee. His attorneys are claiming that the extensive media coverage has biased potential jurors in the area, and that Cosby will not receive a fair trial. In other words, they are saying that the media coverage has led to an atmosphere which is “likely to produce prejudice” at Cosby’s trial.

Cosby’s attorneys cite numerous local and national media publications which they allege have smeared their client. The filed motion also claims that Cosby was used as a “political pawn” in the contentious District Attorney race between former DA Bruce Castor and current DA Kevin Steele. Specifically, Steel ran a 30-second ad attacking his political rival Castor for failing to prosecute Cosby.

Cosby’s motion did not recommend a new venue, but attorney Brian McMonagle asked Common Pleas Judge Steven O’Neill to either grant the request or hold a hearing for the change of venue. Cosby is scheduled to go to trial in June, with numerous issues still outstanding in the case. However, multiple hearings are expected ahead of the trial.

What is a Motion for Change of Venue?

There are two basic requirements that must be met before a court can hear a case. The first is jurisdiction, which refers to a court’s authority to decide legal issues that affect the rights of the parties involved, and the second is which court is the best location to hear the case (where a case may be heard).

“Venue” in a criminal case is generally defined as the court that is assigned to hear the matter. Defendants do not have the right to a county of his or her choice; venue usually relates to where the crime occurred. It is one’s constitutional right to receive a fair trial, although the ability to change a venue is not a constitutional right in itself. A defendant can request for a change of venue if there is a reasonable likelihood that he or she cannot receive a fair trial in the original venue.

Each jurisdiction has its own specific requirements for filing for a motion of change of venue. These requirements can be referred to as the rules of civil procedure. See relevant civil procedure forms for California here. Continue reading

January 13, 2017

Some California Leaders Vow to Resist Deportations Under Trump

by David M. Boertje

Throughout his presidential campaign, Donald Trump has made clear that he wants to “build a wall” along the border of the U.S. and Mexico and that he wants to deport or incarcerate as many as 3 million undocumented immigrants who are criminals. As he works to implement his populist campaign, Trump will now have to contend with state and local officials in California who have resisted the federal government on immigration before and appear poised to do so again.

Top Democratic lawmakers in California are now preparing to enact legislation to protect undocumented immigrants from deportation. Some of the reforms within the legislation include providing free legal help to undocumented immigrants during deportation proceedings, offering more assistance in criminal court, and further limiting local law enforcement’s cooperation with federal immigration agents. The bills are predicted to pass, as both the chambers of California’s Legislature, as well as the governor’s office, are controlled by Democrats. Additionally the state is 40% Latino, the leaders of both chambers of the state legislature are Latino, and, the attorney general-designee, Xavier Becerra, is also Latino.

In the past, California has spent $33 million on legal assistance for immigrants. About 820,000 undocumented immigrants have been convicted of crimes, according to the Migration Policy Institute, a nonpartisan research group.

Federal Immigration Law

Immigration laws are a federal matter under the jurisdiction of the Department of Homeland Security. The agency under that department, is ICE, or Immigration and Customs Enforcement. It is not specified in any federal statute exactly how immigration enforcement is supposed to happen, so the federal government has significant discretion to determine how immigration laws are carried out and who is targeted, given the limited resources they have (called prosecutorial discretion). In 2014 under the Obama administration, the Department of Homeland Security issued new enforcement guidelines focusing agents on immigrants who had serious criminal records or who illegally crossed the border after the start of 2014.

While it is certainly possible for one to be deported just by virtue of overstaying a VISA or entering the country illegally, your chances of being deported are much higher if you have committed a “deportable crime.” This includes:

Crimes of moral turpitude;
Aggravated felonies;
Firearms offenses
Sexual crimes;
Domestic Violence crimes.

IT does not matter how long you have lived in the U.S. or whether you have a dependent child who is a U.S. citizen. Likewise, it does not matter if you are a legal immigrant with a green card. Continue reading

January 6, 2017

New California Law Prohibiting Employers from Asking about Juvenile Criminal Records Takes Effect January 1

by David M. Boertje

A new law that prohibits employers in the state of California from asking about a job applicant’s juvenile criminal records is set to take effect January 1of the new year. Assembly Bill (A.B.) No. 1843 amends Section 432.7 of the California Labor Code to prohibit employers from asking about or considering one’s juvenile records or involvement in the juvenile system if it did not result in a conviction. It also would bar employers from using the information as a condition of employment.

In other words, it will soon be illegal for an employer to ask a job applicant about or consider “information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”

Currently, the California Labor Code prohibits private and public sector employers from asking a job applicant to disclose information on an arrest or detention that did not result in a conviction or a pretrial diversion program, or an expunged record. AB. 1843 expanded these prohibitions.

California Governor Jerry Brown signed A.B. 1843 into law in September of 2016. Proponents of the bill have claimed that it would reduce the chances of a minor, especially minors from communities of color, from falling back into the justice system, since prior criminal history is a huge barrier to getting a job.

Sealing or Expunging Juvenile Records in California

Despite common misperception, juvenile records are not automatically sealed once you turn 18. While juvenile records are not public records unlike adult criminal records, they are still accessible until a formal order from a judge seals and destroys them.

In California, juvenile arrest records include every report and court record related to criminal activity you were involved in as a minor. This includes arrest reports, exhibits, and probation reports. Expungement (sealing) of juvenile records means that they will no longer be accessible to anyone and in alot of cases, destroyed. It has the effect of making it like the arrest or conviction never happened.

In order to qualify for expungement of juvenile records, you must be 18 years of age, and have not been convicted of a crime that involved moral turpitude as an adult. You must also not have pending civil litigation against you, and the court must be able to conclude that you have been rehabilitated. Continue reading

December 29, 2016

Eldest Bundy Son Wants Hearing to Challenge Detention Status

by David M. Boertje

Ryan Bundy, the eldest son of Cliven Bundy and member of the clan involved in the armed occupation of Malheur National Wildlife Refuge in Oregon has asked for a hearing to challenge his detention status in a Nevada jail. He claims that he poses no risk for flight and poses no threat to the public.

He and his brother Ammon Bundy were transferred to Nevada after they and the six accomplices involved in the standoff were acquitted by a jury in their Portland, Oregon trial. The Bundy family now awaits a second criminal trial for their 2014 armed standoff against Bureau of Land Management (BLM) agents on their father’s ranch in Nevada.

Ryan is serving as his own attorney for the trial in Nevada, just as he did during his federal trial in Oregon. Ryan and his brother Ammon Bundy both refused earlier this month to enter a federal courtroom in Las Vegas for a lengthy pretrial and date-setting hearing before a different magistrate judge. They, along with their father Cliven Bundy, are among the 17 people facing 16 felony charges including conspiracy, obstruction of justice, extortion, weapon, assault on a federal officer, and making criminal threats. The trial for the first six defendants is set to begin on February 6, 2017.

December 23, 2016

Bail System is Next Target of California Criminal Justice Reform Efforts

by David M. Boertje

Adding to the already long list of criminal justice reforms enacted in 2016, it is reported that for next year, California lawmakers plan to make it a top priority to reform the system through which judges award criminal bail, saying courts across the state are “punishing the poor for being poor.”

Assemblyman Rob Bonta and Sen. Bob Hertzberg said they plan to introduce bills stating the Legislature intends to enact laws that will reduce the number of people detained before trial and address the racial and economic disparities in the bail process. It is still under deliberation what the details of these bills will be. The lawmakers have put together a broad coalition of organizations and lawmakers to tackle the issue, but they predict that the insurance and bail industry lobby will be reform’s biggest opponents.

The bail system has seen unprecedented momentum towards reform. In October of 2015 a lawsuit was filed against the state of California alleging that the current fixed bail scheduled system is unconstitutional and does not provide equal opportunities for wealthy and poor incarcerated individuals. San Francisco’s attorney general Dennis Herrera has already come out publicly against California’s bail system.

December 9, 2016

California Supreme Court: Prop. 47 Applies to Plea Deals

by David M. Boertje

In the latest court case involving Prop. 47, the California Supreme Court recently held that the voter-approved ballot measure that reduced penalties for certain drug and property crimes from felonies to misdemeanors, applies to prisoners convicted under plea deals. The panel unanimously held that Prop. 47 did not create an exception for prisoners whose sentences are based on plea deals that included the dismissal of more serious charges, therefore those convicted are eligible for Prop. 47’s benefits.

The case arose from a Los Angeles County case in which prosecutors agreed to a deal that dismissed a robbery charge and allowed the defendant to plead guilty to a lesser charge of grand theft in exchange for a six-year sentence. Prop. 47 reduced that grand theft charge to a misdemeanor, so the defendant petitioned for a lower sentenced for that already-pled down conviction. Prosecutors argued that they were entitled to have the original charges reinstated if such prisoners chose to seek a reduced sentence because those prisoners would otherwise be able to unfairly escape their sentence, “their part of the plea deal — and get an added benefit to which they were not entitled.” They further argued that they were entitled to the six-year sentence the defendant agreed to as part of his plea deal, and that they should be allowed to cancel the plea bargain in response to his petition.

Most cases and many felony ones are resolved by plea agreements rather than going to trial. Legal experts said the court’s decision will have limited impact because most trial courts in the state have been extending Proposition 47’s benefits to inmates with plea deals even before Thursday’ ruling.

Plea Deals for Felonies

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or no contest in exchange for the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence (which is usually a more lenient sentence). For those facing felonies, this is usually the preferred alternative than facing a jury trial for a crime that carries a much higher prison sentence.

After you have been charged, you must first plead “not guilty” in your first court appearance. You are required to answer to the charge of your original crime either way. From there, the prosecutor will typically want to negotiate to avoid trial, and lighten his work load. It is recommended you have an experienced attorney negotiate out your felony for you. Continue reading

December 7, 2016

U.S. Marshalls File Probable Cause Statement Against Ammon Bundy’s Lawyer

by David M. Boertje

In a bizarre end to an already-bizarre criminal case, a group of six U.S. marshals surrounded the criminal defense attorney who defended Ammon Bundy, tackled him, and stunned him with a taser. The marshals have now filed a probable cause statement to justify their actions. In a statement filed in the U.S. District Court in Portland, the marshals give their explanation of why they took the actions they did, although their statement does not mention that a stun gun was used on Mumford.

Back in October, in a stunning loss for federal prosecutors, Ammon Bundy, his brother Ryan Bundy, and five of their followers were acquitted from their federal conspiracy charges connected to their armed occupation of Malheur National Wildlife Refuge in Oregon. It is reported that after the jury returned the not-guilty verdict, Mumford stood before U.S. District Judge Anna J. Brown and demanded that his client be released from custody immediately. He continued to yell and argue as the judge told him that Nevada still had a hold order on Bundy. Evidently that was when Mumford was tackled an tased.

A judge in Washington has been assigned to handle the citation against Mumford, who was cited for failing to follow a federal officer’s direction (a federal order) and disturbance at the end of the trial. The probable cause statement that was filed stated that Mumford was yelling so loud that people could hear him outside the courtroom, and his physical responses were pre-assault indicators consistent with someone preparing for a physical altercation.

What is Probable Cause?

Probable cause is generally defined as the reasonable belief based on the facts articulated, that a suspect has committed the crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. It is a 4th Amendment requirement necessary before police make an arrest, get a warrant, or make a search.

A probable cause statement, also known as an affidavit of probable cause, is a a sworn statement, typically made by a police officer, that outlines the factual justification for why a judge should allow for an arrest or search warrant. If probable cause is found in the case of Mumford, then the U.S. Marshals had a legal right to seize Mumford and take him into custody. Continue reading

December 2, 2016

Prop 57: Voters Approve Early Inmate Release

by David M. Boertje

In the latest criminal justice reform to pass through the state of California, California voters have also approved Prop. 57, the Parole for Non-Violent Criminals and Court Trial Requirements Initiative. The measure passed with 65% of the vote. Prop. 57 is a yet another effort by Governor Jerry Brown to lower the state’s overcrowded prison population.

What Does Prop 57 Do?

Prop. 57 would make thousands of prison inmates eligible for earlier parole if their conviction was not for a “violent crime” and allow state officials and corrections officers to give early release credit for rehabilitation. The measure also strips prosecutors of the power to decide when juveniles should be tried as adults and leaves those decisions to judges. It is estimated that 130,000 prisoners could be released.