Criminal Defense

June 29, 2016

Tutor Facing Sex Crimes is Victim of Antiquated Law?

A tutor at Mar Vista High School is now facing criminal charges for having a sexual relationship with a 16 year old student at the school. Alejandro Rodriguez, 20, is accused of having a relationship with a student that lasted about a week. The victim in this case, has only been identified as “John Doe.” Evidently, he had told his cousin about the relationship, who then told the victim’s father. His father immediately contacted the police.

Rodriguez has been charged with four felony counts of oral copulation and one count of sodomy of a person under 18 years of age. If convicted, he faces up to five years in prison. It is reported that the DA’s office is prosecuting the relationship as a non-forcible sex crime. According to Rodriguez’s defense attorney, claims that if his client had been a woman, and not involved in a same-sex relationship, there would be a less restrictive charge available. It is because his client can only be charged with sodomy, the ‘crime’ of anal sex, with both parties being men.

California Statutory Rape Laws

June 24, 2016

The Bundys Argue Their Rights are Being Violated

by David M. Boertje

Ammon and Ryan Bundy have filed for an administrative hearing over what they claim are ‘deplorable and unconstitutional’ conditions. According to the document filed by their attorneys, the Bundys argue that their first amendment rights are being violated because they are not free to assemble nor practice their mormon religion by engaging in religious activities or wear religious garments. They further allege that they are “being denied access to materials and resources reasonably required to defend their respective cases.” Perhaps more surprisingly, the Bundys are also alleging a violation of the second amendment rights because guns are not allowed in jails for prisoners. According to Oregon Public Broadcasting, they are considering suing the Multnomah County Sheriff’s Office to get possession of their weapons.

Rights of Prisoners

It is obvious that prisoners have fewer rights and freedoms while incarcerated. Some rights, however, are still guaranteed by the U.S. Constitution. The eighth amendment prohibits conditions for prisoners that would be considered “cruel and unusual” punishment, although that term was not clearly defined at the time of the Constitution’s signing. Generally, any type of treatment that would reasonably be considered inhumane and in violation of basic human dignity would violate constitutional law.

Prisoners are also supposed to enjoy certain first amendment protections, such as the freedom of religion. However, they do not have the same level of rights as free citizens. Rights such as ‘protesting’ or ‘assembling’ may be restricted under Rational Basis Review. This just means that there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forward to justify it. Such regulations are not considered unconstitutional as long as the regulations apply to all inmates in a neutral fashion.

Lastly, all inmates at the state and federal level have the right to:

Be free from sexual harassment and assault;
Be free from racial segregation (unless deemed necessary for the safety of prisoners); and
Receive adequate medical care.

Unfortunately many of these freedoms are violated regularly. Continue reading

June 22, 2016

Life Under Curfew for American Teens: ‘It’s Insane, No Other Country Does This’

by David M. Boertje

The Guardian came out with an interesting piece on the enforcement of local curfew ordinances and their effect on youth. In the city of San Diego, it is illegal for anyone under the age of 18 to be out past 10pm. The city, using its police department, runs sweeps looking for minors out past curfew in all nine districts. Sometimes the SDPD makes dozens of arrests a night.

Conceived as a crime-reduction tactic, curfews were promoted during the “tough on crime” era of the 1990s. They were motivated by the reasoning that parents should know where their minor children are. In California, the city of Monrovia was the first in the state to enact a curfew ordinance. They touted its successes and from there, curfew ordinances spread like wildfire. These ordinances remain in place decades later.

The strictness of curfews varies by city and state. Baltimore, Maryland, for example, has one of the strictest curfews in the country, while the city of Denver, Colorado only enforces curfew during the summer while school is out. According to available FBI data, there were 2.6 million curfew arrests in the US between 1994 and 2012.

Studies by the American Civil Liberties Union have shown that curfews, while well-intended, are racially biased and only enforced in poorer, minority-filled areas.

Legal Details of San Diego’s Curfew Ordinance

San Diego’s curfew ordinance is specifically found in San Diego Munic. Code § 58.0102. Under its regulations, a minor under the age of 18 cannot be out without being accompanied by a parent or guardian during the week. Those in violation are cited and subsequently sent to a youth diversion program. Parents can also be cited if they knowingly permit their minor child to be out in public during curfew hours. Additionally, curfew hours differ by jurisdiction. In east San Diego, curfew hours are between 10pm and 6am. In Del Mar, Solana Beach, Poway, Escondido, Chula Vista and Coronado they are from 11pm to 5am.

The statute specifies 10 legal exemptions, such as coming home from a game/school activity or job, being involved in an emergency, or running an errand at the direction of your parent. Continue reading

June 17, 2016

Texas Police Say Criminals Often Use Imitation Weapons

by David M. Boertje

In the state of Texas, like many other states, police are saying that more crimes are being committed with imitation weapons like BB guns because they are made so realistically, are cheaper, and easier to obtain. Fake weapons like BB guns can be bought for as little as $25 and require no background check. Criminals also mistakenly believe that they will avoid harsher sentences if they are caught possessing a fake weapon instead of a real one.

In the county of Arlington, Texas, police have reportedly seen at least half a dozen crimes committed with a BB gun, imitation gun, or airsoft gun instead of a real one. In the most recent case, Arlington PD caught a teenager robbing someone with a fake gun, and the Houston PD says that the use of these fake weapons has risen over the years.

In states like Texas, New Jersey, and even California, if the victim of a crime believes the weapon is real, that is enough to warrant a felony charge as if the weapon were real.

June 15, 2016

Prop 47 to Blame for the Crime Surge in California and Las Vegas

by David M. Boertje

It is reported that crime rates in the state of California more than doubled in California’s major cities in the first half of 2015, violent crime rose by double digits, and property crimes also spiked. According to the FBI data, California’s crime rate is now on the rise after decades of decline.

In the neighboring city of Las Vegas, there has been a reported 66 homicides just this year– up from the 29 homicides in 2015. In Las Vegas specifically, Metro Police Sheriff Joseph Lombardo has stated that there has been an influx of people arrested– mostly with gang ties from California. Robberies, home invasions, and sexual assaults have risen by 22% in the city.

While there are no hard statistics linking the crime to Prop 47, both metro police in Las Vegas and law enforcement in California are blaming Prop 47, which was signed into law in late 2014. Most murder suspects in California also have ties to Las Vegas, so it is not surprising that they would flee to Sin City. Due to the efforts of a joint operation between LAPD and Nevada authorities, 27 parolees who have fled to Las Vegas have been arrested and also returned to California.

What Prop 47 Did

Last year the California Supreme Court also held that Prop 47 applied to minors. Proponents of the criminal reform law say that Prop 37 was intended to reduce sentences and increase investments in drug treatment for low-level offenders, particularly those with drug addiction. By doing so, they were also increasing the space in prisons for the truly violent criminals. The law had also reduced sentences for gun thefts and possession of date-rape drugs and changed a number of property crimes from felony to misdemeanors.

Not Going as Planned?

Opponents have claimed that the effects of Prop 47, which were supposed to increase social services for people, have not had the intended effect. The law does not take into account one’s criminal record, so dangerous people with violent records have been let out early to commit more crimes. For example, under the current law one cannot be charged with a felony as long as he or she steals property worth less than $1,000. This is the case no matter how many times he or she commits the crime.

That being said, it is likely that the legislature may amend the law in the near future to account for some of these things that opponents are claiming to be the cause in the increase in crime rates. Continue reading

June 8, 2016

FBI Hid Surveillance Devices Around Alameda County Courthouse

by David M. Boertje

It has been reported that once again the F.B.I. seems to be hiding planted microphones to spy on American citizens. Federal agents have planted hidden microphones and conducted secret video surveillance at Alameda County’s Rene C. Davidson Courthouse in northern California for ten months. They did not have a search warrant as required by the fourth amendment to be able to do so.

The FBI’s surveillance operation was part of an investigation into alleged bid rigging scheme at foreclosed property auctions where thousands of houses and apartment buildings were sold by banks. Defense attorneys for some of those accused of the fraud say these surveillance tactics violate their clients’ constitutional rights, along with anyone else’s whose conversations might have been recorded. They claim that speaking in public does not mean one does not have an expectation of privacy. Private conversations, especially in or near courtrooms, happen routinely amongst citizens and attorneys alike.

The FBI planted microphones in bushes, at a bus stop, on a pole, and inside vehicles near the auction site. A similar thing happened in San Mateo last year. Facing these allegatiosn of constitutional violations, government prosecutors in San Mateo had moved to withdraw the recordings as evidence at trial.

June 3, 2016

Civil Asset Forfeiture: The Newest Legal Threat You Have Never Heard of

by David M. Boertje

A new law that is causing a buzz in the state of California is S.B. 443 (Forfeiture of Controlled Substances). The bipartisan law, authored by Senator Holly Mitchell (D-Los Angeles) and David Hadley (R-Torrance) failed to pass the assembly floor back in September 2015, and was recently amended in the state senate on April 6. The proposed law would require a conviction of a crime regarding controlled substances in order for police to seize one’s money and assets on the grounds it was suspected drug money. It would also prohibit state agencies from transferring these seized funds over to a federal agency and receiving an equitable share of those funds. A Tulchin poll found that nearly 80% of California voters would support such a law.

Despite bipartisan support and nearly unanimous votes at every previous juncture, law enforcement departments had deployed a variety of lobbying efforts and scare tactics back in September to defeat the bill.

What is Civil Asset Forfeiture?

June 1, 2016

Riverside: Unmarked Police Vehicles Will Stay That Way

by David M. Boertje

Last month, officials from the city of Riverside announced that they will not be repainting some of their unmarked police vehicles back to the standard black and white. The idea was discussed at department meetings after City Councilman Mike Soubirous, who happens to be a retired California Highway Patrol officer, questioned why city police have more unmarked cars than marked vehicles. Out of the Riverside PD’s 345-vehicle fleet, 124 cars are marked, 195 are unmarked, and others are specialized vehicles.

Police chief Sergio Diaz has reportedly claimed cost to be a primary determining factor. It would cost $2.6 million to convert unmarked cars to marked ones, and he did not believe having more visible police cars would deter crime. The City Council did not dispute the Riverside PD and will not be taking any action.

It is Legal for Police to Use Unmarked Vehicles to Give Out Traffic Citations

May 27, 2016

20 Arrested as Crowd Turns Violent Outside Trump Rally in California

by David M. Boertje

Police in the Costa Mesa and Orange County area arrested 20 people protesting presidential candidate Donald Trump. Hundreds of protesters blocked traffic in the streets surrounding the area where Trump held a rally. Fights were seen breaking out and some chanted “Racists go home!” Others repeatedly yelled “Whose streets? Our streets!” It is reported that some people waved American and Mexican flags. It is reported that at least one police car had its windows smashed, another police SUV had its tired punctured, and a crowd unsuccessfully tried to flip a police car. Additionally, police claim one cop was struck in the head by a rock. Camera footage shows rocks being thrown at the cars trying to get into the Trump event. It is reported by the LA Times that it was mostly Latino activists present at the rally.

The next day, hundreds of protesters forced Donald Trump to leave his motorcade and cross a freeway while he was trying to get to the Republican debate in Burlingame. They also reportedly tried to storm the hotel where Trump was supposed to give his speech. California is the last state to vote in the Republican primary, and the contest that awards the most delegates. In this notoriously liberal state, it seems as though Americans have lost patience for what they view as the conservative racism and bigotry that Trump represents. Protests are expected to continue as Trump makes his way through California.

Malicious Mischief (Also Known as Vandalism)

May 20, 2016

Man Accused of Setting Man Ablaze Charged With Torture

by David M. Boertje

A man named Jose Ricardo Garibay, 26, is accused of dousing a stranger, 39-year-old Julio Edeza, with a flammable liquid in a busy Oak Park parking lot and setting him on fire. The victim Edeza has been hospitalized and is currently in critical condition. He was taken to UCSD Medical Center with burns covering most of his body.

Garibay was arrested near his home in the 6200 block of Estrella Avenue. He surrendered without incident, and according to police accounts, was “very matter-of-fact about [his] arrest.”

Earlier this week, Garibay pleaded not guilty to charges of attempted murder, aggravated mayhem, and torture. He is being held without bail and faces life in prison if convicted. Additionally, special circumstance allegations could be added if the victim does not survive. Investigators have not determined a motive for the apparently random attack and law enforcement do not believe the assailant and victim knew each other. A status conference was set for April 29 and a preliminary hearing for May 3.

The Crime of “Torture” in California

While it sounds like a crime associated with a federal terrorism statute, the state of California has its own law addressing “torture,” which was passed into law in 1990 by way of a California ballot initiative. See CA Penal Code § 206. CA Penal Code § 206 defines torture as:

Inflicting great bodily injury on another person,;
With the intent to cause extreme pain and suffering or permanent disability;
“For the purpose of revenge, extortion, persuasion or any sadistic purpose.”

It is not necessary for the perpetrator to intend to kill a victim to be able to be charged and convicted of torture. However, in California, if a murder is committed willfully using torture, it is then considered a “special circumstances murder,” which means an automatic life sentence with no possibility of parole. This means that if someone dies as a result of being tortured. even if you only intended to maliciously assault him, you will be looking a life sentence.

By itself, torture is a felony punishable by a life sentence and a fine up to $10,000. If you are convicted with torture, you will not be eligible to seek a parole hearing until at least seven years into your sentence. Continue reading