Criminal Defense

August 12, 2016

Federal Judges Say California Supreme Court is Jeopardizing Constitutional Rights

U.S. 9th Circuit Court of Appeals Judges Jay S. Bybee, a George W. Bush appointee, and Stephen Reinhardt, appointed by President Carter, are expressing their frustrations in a California Supreme Court ruling that would allow a state prisoner to challenge his detention in federal court. The case, Freddy Curial v. California dealt with legal deadlines, and the appellate panel on the 9th Circuit found itself having to deduce why the state’s supreme court rejected the prisoner’s habeas corpus filing. In that case, the prisoner was sentenced to life without parole. The lower state court rejected his petition for habeas corpus due to a procedural technicality- a missed legal deadline. His rejection, written by state judge, did not even state the reason why the petition was denied.

It is reported that the state Supreme Court system is overwhelmed by legal challenges from inmates each year, and ends up deciding most of the cases with one paragraph summary rulings citing almost no legal authority. This frustrates the federal judges from the federal court system who have to later review them. However, to complicate things even more, recent U.S. Supreme Court decisions have held that federal courts must defer to state judges except for limited circumstances.

The Court System and the California Appeals Procedure Explained

August 10, 2016

Ramsey Orta, the Man Who Filmed Eric Garner’s Death, to Serve Four Years

by David M. Boertje

Earlier this month, the news broke that two years after Eric Garner’s chokehold death went viral on the internet, the only person heading to jail is the man who filmed it, Ramsey Orta. This makes him the only person at the scene of Garner’s death who will serve jail time. In the beginning of July, it was reported that Orta took a plea deal on weapons charges that were unrelated to the filming of Garner’s death. He claims he has been repeatedly arrested and harassed by cops since he filmed the Garner incident.

Orta was arrested back in August 2014, shortly after the Garner incident in Staten Island, by the NYPD. The police claim that he was in a drug-dealing part of town, and that he tried to pass a teenager on a block that was known to have drugs. They claim they found a .25-caliber Norton semiautomatic handgun on him after they stopped and frisked him, and Orta was charged with two counts of criminal possession of a weapon. The NYPD had also arrested the teenager Orta passed, Alba Lekaj, 17, charging her with possession of the gun and possession of a small amount of marijuana. The police were in plain clothes.

Earlier this month in Manhattan Criminal Court, Orta pleaded guilty to the weapons charges. He will likely be spending the next four years in jail as part of the plea deal.

August 5, 2016

California Violent Crime and Property Crime Jump Increase in 2015

by David M. Boertje

It has already been reported several times that Prop 47 may be affecting crime rates in the state, but the state’s most damning evidence was just recently released. According to the state’s attorney general’s most recent report, the number of violent crimes jumped 10% across California last year, reversing several years of declines.

According to Attorney General Kamala Harris, homicides have increased by 10%, while robberies and aggravated assaults were up more than 8% from 2014 to 2015. Aggravated assaults with a firearm were even higher, with a reported jump of 15.7%. It was also reported that property crimes such as burglary and car theft have increased by 8%.

Harris, who is currently running for the U.S. Senate in anticipation of Boxer’s upcoming retirement, did not comment on the causes of these crime spikes. Many factors could be to blame, ranging from unemployment rates to the police departments being short staffed.

August 3, 2016

Exonerated Man Thanks San Diego Lawyers, Law Students

by David M. Boertje

In 1993, California man William Richards was convicted and sentenced to 25 years for killing his wife Pamela. During the 23 years he spent behind bars, Mr. Richards has always maintained his innocence. For years San Diego-based California Innocence Project lawyers and California Western School of Law students worked to exonerate him. Back in 1993, Pamela was found dead by her husband when he arrived home from work. Her head had been crushed by a cinder block. The police who investigated the case did not find any footprints other than their own, and no defensive wounds on Richards, even though Pamela was missing a fingernail from scratching someone. The bloodstains on Richard’s clothing and shoes corroborate his statements that he had found his wife dead and held her in grief.

Justin Brooks, director of the California Innocence Project, took on Richard’s case because he felt there were too many unsolved questions of the crime if Richards had to withstand three trials in order to be convicted. Richard’s conviction had come in his third trial, based on the expert testimony of a dental expert.

It is reported that at least 16 law students from San Diego have worked on his case. Now age 66, penniless, homeless and without relatives, Richards is staying at the Riverside County home of a former student who worked on his case to try to get his life back on track. He was greeted and hugged by a law student who worked on his case when he was released from prison.

July 29, 2016

The Pre-Med Student Who Found Prince Dead Could Face Drug Charges

by David M. Boertje

Andrew Kornfeld, the son of the California addiction specialist who was hired to treat the late singer Prince, could face criminal charges for possessing a prescription drug (Suboxene), which is used to help kick opiate addiction. Kornfeld was at Prince’s estate when the singer was found dead in an elevator. Kornfeld was the one who made the 911 call. Kornfeld was on the scene in his capacity as a consultant for his father’s California outpatient addiction clinic, Recovery Without Walls.

The drugs were taken into possession by the Carver County Sheriff’s Office, as they are considered a controlled substance in Minnesota. According to criminal Defense lawyers, the Minnesota Good Samaritan law does not protect Kornfeld from drug charges because he had those drugs prior to Prince’s death. In Minnesota, possessing Schedule III controlled substances like Suboxone without a prescription is punishable by up to five years in prison and a $10,000 fine.

Can I Get in Trouble for Being a Good Samaritan?

July 27, 2016

Authorities Can Not Force the Homeless Off the Street

by David M. Boertje

While the act of being homeless itself is not an official crime, many cities have begun dealing with the issue of homelessness by way of “neutral” laws that criminalize the poor or discourage them from camping out on city streets. Over the past several years San Diego has been no stranger to the controversy as exploding rents, unaffordable housing, and a lack of resources have pushed more and more people out into the streets. With the near-perfect weather and laid back West Coast lifestyle, the city draws thousands of homeless people per year.

San Diego does not know what to do with the influx of people and homeless encampments. In Sherman Heights and Logan Heights for example, some locals have praised the installation of jagged rocks under the Sherman Heights underpass to discourage people from sleeping and camping out there. Others feel that the blame should be on officials and their lack of political will to provide low-income and homeless housing in an effort to solve a problem that is not going away.

So, what is the city doing? Homelessness itself may not be a crime, but common elements of homelessness can be.

July 22, 2016

California Bill Proposes Mandatory Sentence in Wake of Brock Turner Case

by David M. Boertje

In lieu of the national outrage over the seemingly light sentence of Stanford University swimmer Brock Turner, the state of California has just proposed a bill which would mandate a minimum sentence of three years for crimes of sexual assault. The legislation, Assembly Bill 2888, was introduced by Democratic Assemblymen Evan Low and Bill Dodd and co-sponsored by Rosen and Democratic state Sen. Jerry Hill. Critics warn that while well intended, we forget about prosecutorial discretions and police discretions, which are the main barriers to rape convictions.

Brock Turner, 20, spiraled into fame when he was convicted of three felony assault charges: assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object. His sentence drew national outrage and increased dialogue on what it means to have White privilege, because he was only sentenced to six months. It is further projected he will only serve three months of that sentence, when he was facing 10 years imprisonment. The jury deliberated for less than two days over the eight-day trial.

Turner was arrested after two male students witnessed him on top of a drunk and unconscious woman behind a dumpster on campus. will be required to register as a sex offender for the rest of his life, but he still remains free on $150,000 bail.

Sexual Assault vs. Rape

Under California law, Turner was indeed convicted of sexual assault (aka sexual battery) rather than rape. Under the California Penal Code, the definition of rape includes “sexual intercourse,” whereas “forcible acts of sexual penetration” is a separate crime. See CA Penal Code § 243.4. In the Turner case, the foreign object under the statute was Turner’s fingers. In fact, California is one of many states that include body parts that are not sexual organs in its statutes on penetration with a foreign object. Thus, rape is a higher offense.

CA Penal Code § 243.4, also known as California’s sexual battery/assault law, specifically prohibits touching the intimate part of another person for purposes of sexual arousal, gratification, or abuse. It can be tried as a misdemeanor or felony. It is tried as a felony when the victim is unaware of the nature of the act (ie. unconscious), unlawfully restrained, or mentally incapacitated to consent. Continue reading

July 20, 2016

California Bill Allows Window Smashing to Save Dogs from Hot Cars

by David M. Boertje

Last month, California lawmakers proposed a new law that would allow people who spot a dog (and presumably any animal) left in a hot car to legally smash the window out to rescue it. Assembly Bill 797, “The Right to Rescue Act,” was drafted by Assemblymembers Marc Steinorth of Rancho Cucamonga, Ling Ling Chang of Diamond Bar, and Kristin Olsen of Riverbank. As of June 6, it was amended in the state Senate, and it is making its way through the legislature. The state Assembly members made a video of themselves sitting in a hot car for 21 minutes to illustrate the dangers of leaving a dog in a hot vehicle could pose.

It is summer. California is known for its heat waves and wildfires during the season. Just this week, as temperatures reached 91 degrees in Sacramento last week, it was reported by the Dodo that a small dog had been left in a hot car. When firefighters arrived on the scene, after being called by a concerned passerby, they found the temperature inside the car had reached 160 degrees. The dog was on the dash, appearing to be panting. When the owners returned back to the car, they were cited and their dog was surrendered to animal control.

Leaving an Unattended Animal in a Car

While the proposed bill would allow bystanders to legally break your window to rescue a dog, it is already a crime in California to leave a pet unattended in a motor vehicle. See CA Penal Code § 597.7. Whether leaving a pet alone is a crime depends on the circumstances. You are guilty of this offense if you leave an animal unattended when:

It is too hot;
It is too cold;
There is no adequate ventilation, food or water;
Or there are other circumstances that could reasonably be expected to cause suffering, disability, or death.

Leaving an animal in a hot car is considered animal abuse. Cars have the greenhouse effect due to the glass, so temperatures surge inside cars by as much as 30 degrees. It is not recommended to leave an animal unattended in a hot vehicle unless the engine is on and the AC is running. It is simply not enough to just leave the window open a crack.

A first time conviction for leaving a pet unattended in a vehicle is an infraction that carries a $100 fine, as long as the animal did not suffer harm. However, well-intentioned people often accuse others of animal abuse when it is not the case. Leaving a husky in a car that has the windows open when the weather is 40 degrees for example, is unlikely to cause harm to the dog. However, a tiny, hairless chihuahua could be a different story. Continue reading

July 13, 2016

The First ‘Blue Lives Matter’ Law Enacted in the US

by David M. Boertje

As a reaction to the “Black Lives Matter” movement, the state of Louisiana has just enacted a controversial “Blue Lives Matter” law (HB 953), which would make police officers and other ‘public safety’ workers a special protected class under hate-crime law. In other words, it is now a ‘hate crime’ to target police officers. The state is the first to enact such a law, and likely will not be the last. As of June 7th, the state of Tennessee is already wanting to jump on the bandwagon of enacting its own ‘Blue Lives Matter’ law. Congress has already proposed a bill along similar grounds.

Traditionally, hate-crime statutes provide for additional criminal penalties for those convicted of crimes who targeted victims on the basis of race, ethnicity, or religion. The new law moves away from the traditional legal principles of focusing on immutable characteristics and into occupations, which are a choice.

The law has come under much criticism. Critics say that those who argue that it is actually police who are under assault are furthering animosity towards police. The New Orleans chapter of activist group Black Youth Project 100 stated that “Including ‘police’ as a protected class in hate crime legislation would serve to provide more protection to an institution that is statistically proven to be racist in action, policy, and impact.”

July 8, 2016

Lawyers for the Bundys Worry Fear Partial Jury

by David M. Boertje

In the ongoing saga of the Malheur wildlife refuge occupation in Oregon, defense lawyers for Ammon Bundy and his crew are generally concerned that the jury will not be impartial. Prior to this, they have also accused federal judge Jennifer Navarro in Nevada of being biased and have tried to disqualify her from overseeing the case.

Andrew Kohlmetz, an attorney who represents defendant Jason Patrick, one of the refuge’s occupiers, had requested a change of venue for the September 2016 trial and asked a federal judge Wednesday to approve funding for an analysis of the media attention the case received and, possibly, a survey of community attitudes. The two requests would total almost $130,000. Kohlmetz states that the media attention this case has garnered may have biased potential jury members.

U.S. District Court Judge Anna Brown in Oregon seemed inclined to request the funding request until a thorough jury selection process is done to provide more information. She does not believe that jury members from Portland will be too “liberal.” It is reported she would like a jury comprised of residents from all over Oregon to represent diverse mindsets.

California Juries and the Jury Selection Process

In our criminal justice system, being judged by a ‘jury’ of our “peers” is amongst one of the most heralded constitutional rights. Juries are mentioned in the fifth, sixth, and seventh amendments in our Constitution. The theory was that an impartial jury would lead to the most just results in every case.

Who is Eligible?

In the U.S., any citizen over the age of 18 is eligible to serve on a jury. However, they must understand and speak English. They must live in the Court’s jurisdiction with a valid government issued ID, but cannot be on active military duty. Juries are randomly selected from various lists including voter registries. An individual cannot be summoned more than once a year.

In California, trial juries are generally made up of 12 jurors. But in civil trials and in criminal cases involving a misdemeanor, there can be fewer than 12 jurors if both sides agree to it.

Rooting out Bias

An important part of jury selection involves asking the court to dismiss certain candidates. After a potential juror is asked a series of screening questions, the attorney can request to dismiss him/ or her “for cause,” meaning he or she expressed some bias. These requests are unlimited. Alternatively, an attorney can also exercises a “peremptory challenge,” to a candidate meaning he or she does not have to state a reason for striking the person. There are only 6-20 requests allowed.

Lawyers are not allowed to veto prospective jurors based on their race, religion, or ethnicity. If they are suspected of doing so, the opposing party will likely file what is known as a “Wheeler motion,” meaning the entire jury will be dismissed and a new panel will be ordered. Continue reading