Criminal Defense

January 15, 2016

An Epidemic of Questionable Arrests by School Police

According to a report by the Center for Public Integrity, there have been tens of thousands of questionable juvenile arrests that have occurred throughout San Bernardino County in the last decade. The arrests were so numerous in the Inland Empire that they surpassed arrests of juveniles by municipal police in some of California’s biggest cities such as Sacramento, Oakland, and San Francisco. Specifically, the San Bernardino City Unified School District has its own police department staffed with 28 cops, eight support staff, and more than 50 campus security officers trained in handcuffing and baton use.

Between 2005 and 2014, the department made over 30,000 arrests of school children, 10 times the national rate of juvenile arrests. While the area has a reputation for high levels of youth-gang crime, only 9% of those arrests were for alleged felonies. Instead, the vast majority of arrests were for minors violating city ordinances such as graffiti violations or daytime curfews, and 9,900 were for allegations of disturbing the peace. This is about a third of all the arrests made.

Disturbing the peace is a frequent catch-all that is used when police justify an arrest as ‘necessary for the public safety.’ This covers behavior ranging from disruptive, loud behavior, to school fights. According to the report, the San Bernardino area is also home to more some of the most academically vulnerable demographics in the state – low income, black, and Latino minorities, making this trend extremely disturbing.

January 13, 2016

Teens Get Prison for Armed Robbery Spree; Plead Guilty to Evading Police

by David M. Boertje

Earlier this month, two teens, Victor and Jonah Ledesma, 19 and 18, were sentenced to prison for robbing pedestrians at gunpoint and knifepoint during a crime spree in the Hillcrest, University Heights, North Park, and La Jolla communities. The two teens had pleaded guilty to robbery, auto theft and evading police back in September.

Victor Ledesma already had a robbery conviction, so he was sentenced to 21 years and four months imprisonment. Judge Timothy Walsh sentenced Jonah Ledesma to 13 years in prison. Additionally, two additional 15 year olds were arrested in connection to the crimes connected by the Ledesmas, but they were prosecuted in Juvenile court. Deputy District Attorney Jim Koerber said nine victims were held up during six robbery incidents.

The event that led up the suspects’ arrests occurred in Mission beach, when their car ran over a spike strip and smashed into another car. They were trying to evade the police in a car chase at the time.

January 8, 2016

Two Arrested in SGF Shoplifting Case Released

by David M. Boertje

Two suspects that were arrested in connection with suspected shoplifting at a south Springfield Walmart were released from the Greene County Jail because they could not be extradited. The same three suspects that were involved in the alleged shoplifting attempt were already wanted in a prior shooting and alleged shoplifting incident at another Walmart in Los Banos, California in November. The shooting allegedly occurred when the suspects were being confronted about suspected shoplifting activity.

According to the deputy district attorney for Merced County, Ray Littlefield, 21, Peyton Garnica, 20, and Carl Littlefield, 20, were wanted on a “Ramney Warrant.” Carl Littlefield, who police say fired the shot, still remains at large. A Ramney Warrant is an arrest warrant that is obtained by a police department gaining approval by a judge, while bypassing the district attorney.

Earlier this week, a detective with the Los Banos Police Department traveled to Springfield to interview the two suspects in the Greene County Jail. The police department says that extradition, the process of moving the suspects from one area to another under a Ramey warrant, is not allowed. In Greene County, the prosecutor is still deciding on whether to file charges on the two suspects in the south Springfield Walmart shoplifting incident.

California Petty Theft and Shoplifting Law

Theft is generally defined as the unlawful taking of someone else’s property. In California, the crime of theft is considered ‘petty theft’ when the value of the property taken is under $950. See CA Penal Code § 484. This crime is also known as larceny or theft by larceny.

Shoplifting, however, is a different offense under the Penal Code. Shoplifting is defined as when one entires a commercial establishment with the intent to steal items worth under $950. See CA Penal Code§ 459. You may be charged with shoplifting even if you do not succeed in procuring the items. All that matters is that you intended to steal them.

Both petty theft and shoplifting are misdemeanors punishable by a fine up to $1,000 and six months in county jail.

Theft of property that is worth more than $950 is called “grand theft.” See CA Penal Code 487. That is a wobbler crime, meaning it may be charged as a felony or misdemeanor depending on the circumstances. Grand theft charged as a felony can result in up to three years imprisonment.
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January 6, 2016

Man Accused of Hate Crime, Arson in California Mosque Fire

by David M. Boertje

Earlier this weekend, a 23-year-old man named Carl James Dial from Palm Desert, CA, was arrested on on suspicion of committing a hate crime and arson in connection to a mosque in Riverside County, CA. On Friday afternoon, a fire was reported at the Islamic Center in Palm Springs. The fire was contained to the building’s front lobby, and no one was injured. The mosque is only 75 miles from San Bernardino, where the deadly shooting committed by Islamic extremists killed 14 people last month. It is the only mosque in Coachella valley.

In a statement released Friday evening, Congressional Rep. Raul Ruiz, whose district includes the area in which the mosque is located, called on authorities to investigate the fire as a possible hate crime. That same mosque was also hit by gunfire last November 2014 in what was also investigated as a possible hate crime.

Mr. Dial was arrested and is being detained at the Riverside County Jail in Indio on suspicion of committing a hate crime, two counts of arson, one count of maliciously setting a fire, and one count of second-degree burglary. He is being held in lieu of a $150,000 bail. Authorities provided no details on how the fire was set. Mr. Dial is scheduled to appear in Court next week.

California Arson Law

California Penal Codes § 451 and 452 make it a crime to set fire to any building, forest land, or property willfully and maliciously or recklessly. The punishment for arson in California depends on:

The type of property that was burned;
Whether someone was injured;
Whether you set fire willfully or only recklessly.

Setting a fire recklessly is a misdemeanor, but it becomes a felony if someone is injured in the fire. Willful and malicious arson is always a felony in California, and you will even be charged with murder if you accidentally kill someone in the process (under the felony-murder rule).

California Hate Crime Law

California has its own specific statute which makes it a stand-alone crime to commit a hate crime. It is a felony to commit an act of assault or vandalism if your are motivated by one’s nationality, religion, gender, sexual orientation, race, or ethnicity. Hate crimes are punishable by three years imprisonment for each act. See CA Penal Code 422.6. Continue reading

January 1, 2016

Police Search Ensues After Viral Facebook ‘Toddler Pot’ Video

by David M. Boertje

The holiday month kicked off with a not-so-festive video that was uploaded on Facebook by an unknown man, pressuring a toddler, who is wearing diapers, to smoke what appears to be a marijuana blunt. The video was uploaded in the Chicago, Illinois area and drew such a national public outrage, that the Chicago Police Department is now looking for the man who uploaded the video. Additionally, detectives with the Area South Special Victims unit have become involved to investigate the footage. A spokesperson for the Illinois Department of Children and Family Services also would not confirm whether they will be investigating the video, and the Attorney General’s office announced that it would not.

It is unknown when the video was taken or uploaded, but the man who filmed it may face child endangerment charges if caught. The man behind the camera is heard telling the toddler “smoke” and “inhale.” When the video ends the man appears to be saying “let me hit that.”

California Child Endangerment Law

December 30, 2015

No Criminal Charges for CHP Officer Who Punched Woman Ten Times

by David M. Boertje

Earlier this year, the Los Angeles County district attorney’s (DA) office announced that it would not press charges against the California Highway Patrol (CHP) officer, Daniel Andrew, who was recorded on a cell phone throwing down a woman and repeatedly punching her alongside the 10 Freeway. The district attorney’s office issued a 30-page report concluding that Officer Andrew was “required to use some level of force” to keep the victim, Marlene Pinnock, from running or walking out onto freeway traffic. The DA’s office further stated that Andrew was by himself and had a duty to protect both Ms. Pinnock and commuters from a potentially dangerous situation.

Back in 2014, a cell phone recording of this incident was released online and caused public outrage. The DA’s decision not to file criminal charges comes nine months after the final use-of-force report was issued on Pinnock’s original arrest on July 1, 2014. It has also been over a year since CHP gave the DA their report on their criminal investigation into Andrew’s actions. The video shows him throwing Ms. Pinnock down to the ground, sitting on her, and punching her at least ten times. Andrew was also forced to resign as part of a $1.5-million settlement reached in September in an excessive force lawsuit filed in federal court by Pinnock against CHP. Civil rights advocates had pushed for additional criminal charges.

What is the Standard for Use of Force?

December 24, 2015

After Paris, LAPD Sees Terror Risk Shifting Across the City

by David M. Boertje

There is no shortage of tragic news in the realm of terrorism lately. The bombings in Paris have sparked counterterrorism efforts 6,000 miles away in Southern California. Specifically, Los Angeles International Airport (LAX) has always remained a focus of the region whenever the topic of national security comes up, as it is a major international travel port. As a result, the LAPD has increased its security in the airport and even broadened the locations where the masses gather, such as buses, railway stations, malls, and popular public places within Los Angeles County. The LAPD is concerned that Los Angeles will be a popular terrorist target because of the urban sprawl, high population, and different neighborhoods which all hold popular venues for people to gather.

The department’s priority plan is to protect “soft targets,” which are areas that typically do not have security. The approaching holiday season also has the department on edge. Travel warnings have been issued for the LAX area for the millions of travelers that go through the tri-county area. The alerts will remain effective until February 24.

What is a Terroristic Threat?

December 22, 2015

Man Arrested in Officer Assault During Black Friday Brawl

by David M. Boertje

As the country braces for yet another holiday shopping season, it has already been reported that shoppers have been brawling all over the country at shopping malls. A man in El Paso has been arrested and charged with assaulting a police officer during a Black Friday brawl at a Walmart store. Authorities in El Paso arrested a 23-year-old man named Ruben Garcia after he allegedly hit an off-duty officer multiple times while he was working security at the store. Police claim Garcia was trying to take a TV that was already being held by an elderly woman. She was crying and asking for help. When the officer approached him, a fight ensured. Garcia is also accused of attempting to choke the officer. Garcia was booked into the El Paso County Detention Facility and charged with assault of a public servant.

What is Assault and/or Battery?

People often confuse the terms “assault” and “battery,” but the reality is that they are two distinct crimes in California. Under CA Penal Code § 240, assault is defined as the attempt to use force or violence against someone else. Battery on the other hand, results in the actual use of force or violence on someone else. Actual injury does not have to occur for battery charges, as long as the unlawful touching and force was committed.

December 18, 2015

U.S. Appeal Court to Hear Rasmea Odeh was Denied Fair Trial

by David M. Boertje

Last month, lawyers for Palestinian American community leader and activist Rasmea Odeh (associate director for the Arab-American Arab Network) argued before a U.S. Appeal court that Odeh was denied her constitutional right to a fair trial. In November of 2014, Odeh was convicted of immigration fraud by a jury in federal court in Michigan for failing to disclose her prior conviction, arrest, and imprisonment by an Israeli military court.

In 1969, the Israeli military charged Odeh with helping to coordinate a pair of bombings in Jerusalem that left two men dead. She has always maintained her innocence in these matters. More importantly, the court in Michigan sentenced Odeh to 18 months imprisonment, ordered her to pay a $1,00 fine, and stripped her of her U.S. citizenship. She now faces deportation back to Jordan after she serves her sentence. US District Judge Gershwin Drain who had presided over her trial barred Odeh from speaking about the torture and abuse she suffered in Israeli detention. He also did not allow her to call an expert witness to testify that she suffers from post-traumatic stress disorder because Odeh asserts she did not knowingly lie on her immigration and naturalization applications.

Post Traumatic Stress Disorder (PTSD) as a Legal Defense

Post traumatic stress disorder is defined by the Mayo clinic “as a mental health condition that’s triggered by a terrifying event.” Symptoms may include nightmares, flashbacks, anxiety, and depression. In the criminal law context, PTSD may serve as an affirmative defense or raised as an evidence of mitigation to help the defendant receive alternative sentencing or more lenient treatment. Affirmative defenses that can be offered are insanity and diminished capacity. With diminished capacity, one would argue that the defendant was less capable than a normal person of having the required mental state for the offense. In other words, due to his/her diminished capacity, s/he did not have the wrongful intent to commit the crime.

If PTSD is used as a mitigation factor, you must show that due to your emotional trauma, your behavior did not rise to as a high level of culpability as it otherwise would have. For example Section 1170.9 of California Penal Code allows judges to sentence certain military veterans suffering from PTSD to treatment instead of jail or prison. The statute allows veterans to seek treatment instead of jail time if a veteran committed their crime as a result of PTSD. If a defendant alleges s/he is eligible under the statute, he/she will have to ask for a hearing to determine eligibility. Continue reading

December 16, 2015

Sinaloa Cartel Allegedly Linked to San Diego Human Smuggler

by David M. Boertje

Convicted human smuggler Martel Valencia-Cortez was believed to have assaulted a San Diego Border Patrol agent with a rock earlier this year. It is believed that Cortez had threw a rock at the agent at a human smuggling event, who thereafter fired his weapon at Cortez. He was allegedly caught smuggling 14 illegal aliens into California. Cortez was somehow able to escape back to Mexico while the 14 illegal aliens were taken into custody. Cortez is currently on the run, and is evidently well-known in the area. He has been allegedly smuggling people over the border since 1997 and was recently released from prison from a three year smuggling charge in September.

Cortez is considered armed and dangerous by officials. Additionally, he is now believed to be connected to “El Tigre,” a lieutenant in the Sinaloa Drug Cartel a by U.S. Border Patrol.

Human Trafficking in California

Federal law makes it a crime to smuggle or help smuggle (bring in) someone into the United States if they are not a citizen. See Sections 274(a) of the Immigration and Nationality Act. It is a felony punishable by imprisonment of 10 years and a fine. The penalty also gets multiplied by the number of people one is convicted of attempting to smuggle in.

In California, Penal Code § 236.1 addresses the crime of “human trafficking.” The Code defines human trafficking as:

Bringing people into the U.S. to exploit them for labor;
Depriving someone of their personal liberty as it pertains to sexual exploitation or child sexual exploitation;
Persuading or trying to persuade someone to engage in a commercial sex act (ie. prostitution).

Human trafficking is a Class C felony in California. However, back in 2012, California voters passed Proposition 35 (the “Californians Against Sexual Exploitation Act”), which provided for even harsher penalties. Now if you are convicted of human trafficking to obtain forced labor services, you will face five to 12 years imprisonment and a fine up to $500,000. If you are convicted of human trafficking for the purposes of sexual exploitation, child pornography, or extortion, the term of imprisonment increases to 8 to 20 years, a fine of $500,000 and a requirement of joining the sex offender registry. Lastly, if you are convicted of persuading a minor to engage in a commercial sex act, you will be facing 15 years to life imprisonment, a $500,000 fine, and a sex offender registration. Continue reading