Criminal Defense

March 4, 2016

“He Said, San Diego Unified Said”

Back in July of 2015, a man named Mike Gurrieri filed a lawsuit against the San Diego Unified School District’s superintendent for allegedly ordering edits to his criminal investigation to cover up for the accused principal. Mr. Gurrieri was assigned by the San Diego Unified School District as an internal investigator to investigate a sexual assault that allegedly occurred at Green Elementary School in San Carlos, California. Parents had filed a claim that the school’s principal, Bruce Ferguson, took little to no action and did not even report it to the police. Mr. Gurrieri claims he spent months digging to find that several allegations by different students have been mishandled. Mr. Gurrieri was then allegedly fired for not complying with the cover-up.

Court documents filed by district attorneys state that Gurrieri was incapable of conducting an adequate investigation and had asked school-district officials to fire him because the job was too difficult for him. The San Diego School District hired attorneys to defend their case against Gurrieri’s lawsuit back in September. The district claims that Gurrieri’s report was based on “hearsay,” rumors, and gossip. The differing stories mean that there is a long legal battle ahead, as both parties engage in a dance of “he said, she said.”

What is Hearsay?

Hearsay is a relevant issue in criminal trials. It may be generally defined as an out-of-court statement offered to prove the truth of whatever it asserts. As a result, hearsay evidence is often inadmissible at trial. See the California Rules of Evidence. Thus, the original speaker, or eyewitness, must be present at the trial and giving the statement under oath (ie. “I saw him pull out the gun”). The reasoning behind this rule is that hearsay is generally not reliable, unless the speaker is available to be cross-examined by the opposing side.

Hearsay must be a statement, meaning it must be an oral assertion, written statement, or nonverbal conduct.

The Exceptions

While there is a general prohibition to allowing hearsay into the evidence of a trial (or lawsuit), the California Evidence Code sets forth a long list of exceptions to the hearsay rule. Some include:

A declarant’s spontaneous or excited utterances. Startling statements are considered reliable because they were made stress before s/he had a chance to fabricate;
The Declarant’s existing mental state or physical condition;
Business and public records;
Former testimony given under oath;
A witness’s past recorded (written) recollection which may be read into evidence;
Dying declarations;
Certain statements by children (particularly in sexual assault cases).

March 2, 2016

The Basics of a Plea Bargain: Pros and Cons

by David M. Boertje

More than 90% of all criminal cases do not make it to jury trial. Instead, they end in plea bargains – sometimes to the benefit, and sometimes to the detriment of criminal defense clients.

What is a Plea Bargain?

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or no contest (nolo contendere) 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). As our court system becomes more crowded, prosecutors and judges alike feel increased pressure to move cases quickly through the system, and trial is a time-consuming and expensive endeavor. As a result, both criminal defense attorneys and prosecutors typically strike up a deal to avoid the headache.

Plea bargains may occur any time after the arrest and before the trial.

Negotiating plea bargains is a relatively simply strategy that most attorneys will initially attempt on behalf of their clients. Over time, prosecutors and police have taken up a few tricks which will affect a defendant’s ability to negotiate a favorable plea bargain, especially without the assistance of an attorney. For one, they typically over-charge defendants in order to set the bar high prior to entering into plea negotiations and to get a higher rate of ‘guilty’ pleas or conviction rates. Additionally, to deal with a large influx of similar cases, prosecutor’s offices may offer defendants a standard deal, which is offered to all defendants charged with the same crime. As a result, sometimes it is relatively easy to get a lesser charge, but sometimes defendants are also faced with feeling ‘pushed’ into pleading guilty for something, in a plea deal because of overzealous prosecution.

Plea Deals in DUIs

Plea deals are regularly sought for California DUI cases because the penalties are so severe. The most frequently reduced DUI charges are a “wet” reckless and a “dry” reckless under the CA Vehicle Code 23103.

A wet reckless is typically the first level of DUI reduction that the prosecution will consider. It just refers to a crime where alcohol was involved). If you are convicted with a “wet reckless” instead of a DUI, you will face less jail time, reduced fines, and not mandatory license suspension. A skilled attorney may even get a potential DUI conviction down to a “dry” reckless, which means you will be charged with misdemeanor reckless driving where alcohol was not involved. Continue reading

February 26, 2016

San Diego Court Waiver Allows Police to Search Cellphones Without a Warrant

by David M. Boertje

In response to the passing and enactment of SB 178 (the Electronic Communications Privacy Act) for the new year, San Diego Superior Court judges have started using waiver days after the new state law took effect. SB 178 would require police and probation officers to get a warrant signed by a judge before searching through a suspect’s electronic communications, cell phones, emails, etc.

To the surprise of many criminal defense lawyers in the area, their clients were being asked to sign a newly drafted waiver which would allow police to search cell phones, computers, and other types of electronics without first obtaining a warrant. The one-page waiver spells out the types of items that would be subject to search: call logs, emails, text messages, and social media accounts accessed through a variety of devices — everything from an iPhone to an Xbox. Perhaps more concerning is the fact that some attorneys claim their clients were being required to sign these waivers at their arraignments.

Criminal defendants who have signed the waiver have essentially signed away their rights. By the terms of the agreement, they have agreed to disclose any and all passwords used to access those devices or accounts, including fingerprint that unlocks an electronic device. Do not sign these types of waivers if you are asked. It is recommended you consult with a criminal defense attorney right away.

February 24, 2016

Legal Experts Say Governor Brown’s Parole Plan Would Lessen Plea-Bargain Power

by David M. Boertje

This past year, California has been no stranger to criminal justice reforms as a means to lower the state’s prison population. In addition to the 807 bills signed into law set to take place in 2016, Governor Jerry Brown (D- CA) has introduced another state ballot initiative which aims to free certain felons earlier and have fewer juveniles tried as adults. Under Brown’s new proposal, those who have been convicted of nonviolent crimes, including non-violent felons, would be allowed to seek a parole hearing if they have completed their base enhancements, even for those with gang enhancements or firearms possessions.

Additionally, the proposal requires that judges instead of prosecutors, would have to decide whether juveniles can be tried as adults. Currently, California is one of 15 states which allow prosecutors to make the decision.

Legal experts say that the current proposal as it stands would weaken prosecutor’s plea-bargain power. Specifically, by permitting early release for someone with consecutive sentences or enhancements, prosecutors would lose some power in the negotiation of pleas with defendant. Approximately 95% of criminal cases in California are resolved by plea bargains.

Currently, it is estimated that 20,000 out of California’s 127,000 inmates are currently serving time for drug or property crimes would be candidates for earlier release under this new proposal. The proposal is expected to make about 7,000 inmates immediately eligible for parole hearings, though officials said about 5,700 of those are already eligible under an existing federal court order. Brown said the proposals build on federal court orders requiring California to reduce its prison population. If California voters approve it in November, this new proposal will be signed into law.

The Parole Process in California

In California, parole only applies to felony cases where one is sent to state prison. Those who have served a certain percentage of their sentence and have a good record in prison will become eligible for a parole hearing. Once eligible, you must make your case to the California parole board, which is comprised of at least one commissioner deputy commissioner from the Board of Parole Hearings. At the hearing, they will examine your prior history, offenses, disciplinary record in prison, and applicable rehabilitation programs you have committed, to and psychological/risk assessments. The California Penal Code requires the Board to set a release date for an inmate unless s/he currently poses an unreasonable risk of danger to the public. The governor is allowed to override a parole board and block early release. Continue reading

February 19, 2016

Uber Driver Sues Ex-Taco Bell Exec, and Vice Versa

by David M. Boertje

A former Taco Bell executive by the name of Benjamin Golden who was fired after a video of him went viral assaulting an Uber driver, has now filed a lawsuit for $5 million against the transportation company. This bizarre case was a response to the $25,000 lawsuit filed by the Uber driver, Edward Caban, who is shown in a dashcam video being slapped and hit by Golden, last year.

Last October, Mr. Golden allegedly got into an Uber driven by Mr. Caban, in Costa Mesa, California. He was ordered out of Caban’s vehicle for being too inebriated to give directions. The dashcam video from Caban’s car shows Mr. Golden getting angry, and then beginning to strike Caban from the back seat and slamming his head against a window. Mr. Caban used pepper spray to fend Mr. Golden off, and subsequently posted the footage online. It later went viral, and Mr. Golden was terminated by Taco Bell.

Golden has been charged with assault and battery by the Orange County District Attorney. Golden has pleaded not guilty, and decided to file a counter-suit, claiming that he “fear[ed] for his safety and well-being” after being ejected from the vehicle and has “suffered severe emotional distress, humiliation, anxiety, fear, pain and suffering and the loss of his job.” Mr. Golden claims that Mr. Caban did not have a right to record him, and he is claiming “invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, assault and battery.”

February 10, 2016

Gov. Brown Denies Parole For SD Officer’s Killer

by David M. Boertje

Early this New year, Governor Jerry Brown has once again denied parole to a former gang member who was convicted of fatally shooting a San Diego police officer in 1978. Jesus Salvador Cecena, 54, was only 17 when he was convicted of first-degree murder for shooting Officer Archie Buggs four times at a traffic stop, in the Skyline neighborhood. This marks the second year in a row the governor reversed the Board’s decision to recommend Cecena for parole. A two-member panel had announced its decision during an August 2015 hearing, citing that he had met the standards under a new law meant to assist prisoners serving long sentences for crimes committed as juveniles. The local police department there obviously launched a campaign against this decision to allow Cecena for parole.

While Brown acknowledged Cecena’s young age at the time, the Governor said in his statement he still believes Cecena would be a threat to society if he were to be released from prison. He claims that Cecena still has not given a credible explanation for his actions. At the sentencing in the late 1970’s a judge noted the evidence indicated the shooting was calculated and deliberate. Cecena was sentenced to life in prison and has been locked up since 1979.

The new law referred to be the parole board says the parole board must give “great weight to the diminished culpability of juveniles” and also consider the prisoner’s “maturity and rehabilitation in prison.” Cecena’s prison record indicates he has disavowed association with prison gangs and helps mentor younger prisoners.

February 3, 2016

Local Company Owners Indicted in $7M Hotel-Worker Fraud Case

by David M. Boertje

The owners of Good Neighbor Services, an Orange County based janitorial company that provides cleaning services to luxury hotels across Southern California, have been indicted in a $7 million insurance fraud and tax evasion scheme that has allegedly lasted over 10 years.

Hyok “Steven” Kwon and Woo “Stephanie” Kwon, from Irvine California, are accused of working with six accomplices to vastly underreport the number of employees they employ to avoid taxes. It is reported the Kwons underreported their number of employees by 800 people, resulting in the avoidance of $3.6 million in workers’ compensation insurance rates and more than $3.3 million in payroll taxes. San Diego District Attorney Bonnie Dumanis called it the largest ever insurance premium fraud case in San Diego history.

During the course of the investigation, employees said they were paid with checks that carried the names of other businesses, even though they wore uniforms with the Good Neighbor Services logo. The DA’s investigation discovered the Kwons were using 12 different shell companies to defraud insurance providers and the state of California. They also claim they did not receive overtime pay or workers compensation benefits. Additionally, workers who were injured on the job were allegedly threatened with being fired.

January 29, 2016

Russell Taylor, Jared Fogle’s Accomplice, Sentenced to 27 Years

by David M. Boertje

Russell Taylor, the man who was accused of being Jared Fogle’s accomplice in a child pornography ring, was sentenced to 27 years in federal prison by Judge Tanya Walton Pratt, on December 10, 2015. Mr. Taylor is convicted of producing and distributing child pornography, specifically to Jared Fogle, the former Subway spokesperson. He used hidden cameras to photograph children as young as age nine in sexually explicit acts.

Mr. Taylor’s sentence was eight years less than what prosecutors sought for 12 counts of producing child pornography and one count of distributing it. However, it was more than the 15 to 23 years that Taylor’s attorneys requested. The judge rejected Taylor’s argument that he was just Fogle’s pawn, but recognized that he cooperated with authorities in Fogle’s prosecution. She noted that Taylor did not deserve to spend more time in prison than Fogle, who faces up to 50 years. It is reported that 12 victims are involved in the child porn production case, many of whom are Taylor’s own nieces and nephews.

What is a Criminal Accomplice?

A criminal accomplice is generally defined as someone who “knowingly, voluntarily, or intentionally gives assistance to another in (or in some cases fails to prevent another from) the commission of a crime.”

Under California law, criminal accomplice liability is also known as ‘aiding and abetting.’ CA Penal Code § 30-33 allows for the prosecution for anyone who encourages, facilitates, or aids in the commission of a crime, no matter how insignificant his or her role was. Presence at the crime scene is not required, and the involvement can be as simple as drawing the perpetrators a map or supplying the weapons used.

Aiding and abetting during the crime is known as an ‘accessory before the fact.’ There is no legal distinction between being an accessory or an actual perpetrator when it comes to sentencing. The penalties for being a criminal accomplice depend on the crime that was committed.

Legal Defenses

Typical legal defenses for aiding and abetting include:

You were falsely accused;
You withdrew from the participation before the crime in question was committed;
You were merely present at the scene, and did not actually aid or encourage the crime;
You only facilitated the crime after its commission (which allows for lesser penalties).

Mere knowledge about the crime that is about to be commissioned is not enough to warrant a conviction for aiding and abetting. However, you must show you took steps to try to prevent the crime. Continue reading

January 22, 2016

Hung Jury in the First of the Freddie Gray Trials

by David M. Boertje

Last April, the U.S. Department of Justice opened up a civil rights investigation over the death of Freddie Gray while he was in the custody of the Baltimore police. His neck was somehow broken and spinal cord severed whilst in transport to the police station.

Now, the trial of one of the six officers who have been charged in the case, William Porter, has resulted in a ‘mistrial. Mr. Porter faced four charges:

Second-degree assault

January 20, 2016

Citrus Heights Holiday Package Thief Arrested

by David M. Boertje

In a case of “bah humbug,” a female suspect was arrested on December 18th for allegedly committing a string of package and mail thefts off of people’s porches in Citrus Heights, California. According to the Citrus Heights Police Department, Donna Marie Sieverin, 39, was arrested at her home in Sacramento for allegedly stealing Christmas gifts and mail from over 10 victims. She was on searchable probation from a previous burglary offense at the time of her arrest.

Ms. Sieverin was arrested after one mail theft victim, a homeowner in the area, caught her on a surveillance video and turned it into the media and police. The Citrus Heights Police Department states that it is utilizing “bait” packages throughout the city to help capture other suspects who may be committing similar thefts. Recently, package theft has been on the rise during the holiday season throughout the area.

It is a Crime to Steal Someone’s Christmas Package