Criminal Defense

December 22, 2015

Man Arrested in Officer Assault During Black Friday Brawl

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

December 11, 2015

California Judge Will Not Seek Third Psych Report

by David M. Boertje

A Humboldt County Superior Court judge recently ruled that he will not be seeking a third psychiatric expert to evaluate accused murderer Gary Lee Bullock’s insanity plea, reasoning that he was only legally obligated to hire two. Gary Bullock will be standing trial for bludgeoning to death Friar Eric Freed at St. Bernard Catholic Church back on New Year’s Day, 2014. He also allegedly attempted to burn Freed’s body and blow up the rectory before stealing the victim’s car.

According to California state law, Bullock’s trial will be bifurcated as a result of his plea. This means that the first portion of the trial will have the jury determine whether or not he is guilty of the charged offenses. Then, if the jury returns a guilty verdict, it must follow Section 8 of the California State penal Code (known as the M’Naghten Rule) in order to determine whether Bullock was legally insane at the time of the accused act.

Bullock’s trial was delayed six times when the psychiatric evaluations were pushed back. Jury selection for Bullock’s case began last month.

December 9, 2015

San Diego Competency Trial Set for Suspect in Triple Killings

by David M. Boertje

Two years ago a San Diego man named Carlo Mercado was arrested for shooting his two brothers Salvatore and Gianni Belvedere and his fiancée, Ilona Flint, at Mission Valley mall on Christmas Eve. The couple was discovered shot inside their car, which was parked in the mall’s parking lot. Gianni’s decomposing body was also found in a car parked at a Riverside Mall in January 2014. San Diego Police arrested Mercado in June 2014. Mercado has pled not guilty on three counts of first-degree murder.

Last November, a judge ruled Mercado not competent to stand trial for his murder charges after two psychiatrists and one psychologist diagnosed Mercado with schizophrenia, psychosis, and catatonic depression. The judge further ordered him to be treated at Patton State Hospital in San Bernardino, CA for the next three years until he was found competent to assist in his own defense. Mercado has been at San Diego Central Jail since this past September, since evaluators at the hospital said he was now competent to stand trial. Mercado’s lawyer then requested a competency trial for him, indicating that the defense team will be arguing Mercado is still unable to understand the nature of his criminal proceedings or assist in his own counsel. Earlier this week, a judge set the competency trial for December 14.

What Does it Mean to be Competent to Stand Trial?

December 4, 2015

How Young Girls are Lured into Prostitution in San Diego

by David M. Boertje

In a shocking study just released by researchers from the University of San Diego and Point Loma Nazerene University, results estimated there are 8,830 to 11,773 underage and adult sex-trafficking victims in San Diego per year. This number is much higher than originally thought, and victims of sex trafficking come from all races and socioeconomic backgrounds, although 98% are female. It is estimated that $810 million spent on prostitution annually is connected to sex-slavery. However, only 15 to 20% of human trafficking victims in the county come into contact with law enforcement.

Typically, under-aged girls are recruited under the guise of romance by an older male at a public place such as the mall or school. They then get manipulated to work the streets to support their older ‘boyfriends.’ In the internet age, social media such as Facebook is also being used to recruit girls. Children who don’t fit in with their peers, or those who suffer from mental illness are often targeted. Other times, an experienced prostitute posing to be an under-aged girl enrolls in schools to help with recruitment.

In 2012, the District Attorney’s Office prosecuted 48 human trafficking, pimping, and pandering cases of adults and minors. That number has fluctuated the past several years. The same office is also responsible for prosecuting human trafficking-related cases as well as racketeering and gang activity.

November 27, 2015

Southern California Sheriff’s Department Touts Gang Enforcement Focus

by David M. Boertje

In October of this year, the San Bernardino County Sheriff’s Department this week showcased a program that focuses on gang enforcement with two new gang teams and a new homicide team. This program is set to be formed from redirected resources from the newly defunct narcotics enforcement team. It has been reported that over the past six months, the Desert Gang Team has made over 250 arrests, seized 58 firearms and documented 347 gang members and associates.

The shift is a response to California’s Proposition 47, approved last year, which reduced the penalties for the possession of most controlled substances from felonies to misdemeanors. As a result, the San Bernardino County Sheriff’s Narcotics Division was re-designated the Gangs/Narcotics Division. The Valley Gang Team is responsible for the metropolitan areas of the county from the borders with Los Angeles, Orange, and Riverside Counties extending to the Yucaipa Valley, including the mountains. The Desert Gang Team is responsible for the desert areas of the county.

California’s Gang Laws

November 25, 2015

San Diego’s District Attorney Joins National Push to Lower Incarceration Rate

by David M. Boertje

In a new coalition called Law Enforcement Leaders to Reduce Crime and Incarceration created by 130 police chiefs, prosecutors, and sheriffs, lawmakers from across the nation recently met in Washington, D.C. to address criminal justice reform. The coalition met with President Obama to figure out ways to push for alternatives to arrests, restore balance to criminal laws, reform mandatory minimum prison sentences, and strengthen community law enforcement relationships.

San Diego County District Attorney Bonnie Dumanis was amongst the leaders to join the coalition to develop ways to safely reduce the nation’s incarceration rate. According to the group, the “incarceration rate in the United States has reached a crisis point.” The group specifically pointed to the changes needed to be made to keep low-level offenders or the mentally ill out of the system. The push for reform comes as law enforcement nationwide has tried to restore its relationship with the community in the face of the disparate impacts that incarceration has on communities of color.

Some of the focus areas the coalition has identified include:

November 18, 2015

Update on Body Cameras Worn by SDPD

by David M. Boertje

As I have written before, Police agencies across the country have begun outfitting officers with cameras as an attempt to regain the public’s trust. It has been shown that the San Diego Police Department’s (SDPD) use of body cameras on officers has resulted in fewer complaints from the public. However, while complaints against officers fell 23% between July 2014 and June 2015 instances of force increased 10% in the same time period, according to an SDPD report. It is not known why. Currently, 871 officers across the department wear cameras. However, the report only analyzed data from the Southeastern, Central, and Mid-City division (the only departments that have used body cameras for a full year).

Recently, the California Western School of Law in downtown San Diego held a forum with San Diego police Chief Shelley Zimmerman, the ACLU, law students, and members of the general public on whether body camera footage should be publicly available. The SDPD takes the position that privacy issues outweigh expectations that a police agency would release footage of a controversial event, such as use of force by an officer. SDPD’s 15-page body camera policy requires officers to hit “record” when they are about to encounter a member of the public. Public access to police body-worn camera videos continues to be part of the national discussion over police use of force.

Public Records Requests

With body camera video more common either voluntarily or mandated by law, criminal defense attorneys will be able utilize the more-accessible footage to gain evidence to aid in your case. Whether or not body camera footage will be publicly available, the California Public Records Act § 6250 et seq allows for members of the public to request records from a state agency such as a police department.

Public records in the California Public Records Act are defined as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Specifically, while individual’s ‘rap sheets or arrest records are exempt from disclosure due to privacy, information in the “police blotter” (e.g. time and circumstances of calls to police; name and details of arrests, warrants, charges, hearing dates, etc.) must be disclosed. While identifying data in police personnel files and misconduct complaints are exempt, disclosure may be obtained using special procedures under Evidence Code section 1043. Continue reading

November 13, 2015

Green Beret Facing Charges for Beating Molester

by David M. Boertje

During the last Afghan civil war, the warlords that ruled their territory later became U.S. allies in our fight against the Taliban in Iraq. Now, an American Green Beret, Sgt. 1st Class Charles Martland, who refused to ignore the child molestations he witnessed overseas, is fighting for his career. Mr. Martland beat an Afghan militiaman who kidnapped a 12-year-old boy and chained him to his bed as a sex slave whilst stationed in Afghanistan. He was formally reprimanded for assaulting an Afghan police officer, and he is not the only one (Sgt. Dan Quinn was punished for freeing a child back in September). Soldiers who are sent overseas are often instructed to ignore the corruption and violence committed upon the local populace.

While this sad story occurred overseas, it is a stark reminder that Americans face criminal charges or legal consequences every day for defending themselves or others in need from danger.

Self Defense as a Legal Defense