Criminal Defense

December 9, 2015

San Diego Competency Trial Set for Suspect in Triple Killings

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

November 6, 2015

Four California Students Arrested in High School Shooting Plot

by David M. Boertje

Last week, four students were arrested after police discovered a “detailed” plan to “shoot and kill as many people as possible” at Summerville High School in Tuolumne, California. Other students at the school heard the suspects discussing the shooting last week, so they told school staff, who then contacted the sheriff’s office. According to the Tuolumne County Sheriff’s office, the plan was so detailed that it included the names of the would-be victims. The four suspects were in the process of securing weapons. The suspects have not been identified since they are minors. Those four students had a court hearing Oct. 13th to determine whether they will be released from custody. They will be getting mental health evaluations.

Criminal Conspiracy (CA Penal Code 182)

Criminal conspiracy exists when two or more people agree to commit almost any unlawful act and then take some action toward its completion. The action taken does not need to be a crime in itself, but must indicate that those involved in the conspiracy knew of the plan and intended to break the law.

CA Penal Code 182 defines criminal conspiracy as taking place when:

You agree with one or more other people to commit a crime at some time in the future, and
One of them commits an overt act in furtherance of that agreement.

In this instance, prosecutors would have a good case for conspiracy because the four students allegedly plotted to plan a school shooting and had already commenced the ‘overt act’ of securing guns.

Conspiracy to Commit Murder (CA Penal Code 189)

The type of conspiracy you are convicted of will determine your punishment. Some conspiracies are wobblers – they can be prosecuted as a misdemeanor or a felony. A conspiracy to commit murder has all the same elements as conspiracy, expect one possesses the specific intent to kill another person unlawfully and commits an act in furtherance of that act. If convicted, you will face punishment that is equivalent to first-degree murder. It is punishable by death or 25 years to life imprisonment without the possibility of parole.

Withdrawal from the Conspiracy

One may withdraw from his or her role in a conspiracy before someone in the group takes an overt act to further the crime in order to be absolved of criminal liability. If you wait until after someone commits an overt act to affirm your withdrawal, you will still be charged with the conspiracy but will not be held liable for any crimes that are committed after you communicated your withdrawal. Continue reading

November 4, 2015

California Weighs Banning Concealed Handguns on Campuses

by David M. Boertje

I was recently reported in the news that California is once again considering legislation that would completely ban concealed carry guns at colleges and schools in the state. Senate Bill 707, was introduced by Senator Lois Wolk (D-Davis). The idea for the bill came from university and college police, who say school officials should have more control over campus safety. Democrats were in support and Republicans opposed it, but lawmakers approved the measure in early September. The Bill is now headed to Gov. Jerry Brown’s desk. If he signs it, it will become law.

California’s “Gun-Free School Zone Act” (California Penal Code 626.9)

California already has some of the strictest gun laws in the country that cover gang-related activities, weapons one is not allowed to own (ie. assault rifles), and who may or may not purchase a gun. What you may not realize, however, is that current California law makes it illegal to possess a firearm within 1,000 feet of a school or college campus without permission from administrators. See CA Penal Code 626.9 (enacted in 1995). The law does include exemptions for retired law enforcement officers and those with concealed carry permits.

Penalties for violation include a two to five year imprisonment. Discharging a firearm in a school zone raises that sentence to five to seven years.

Senate Bill 707 would basically expand this law and prohibit those who do have a conceal and carry permit from bringing a gun within 1000 feet from schools and universities.

California Concealed Firearm Permits (California Penal Code 26150 & 26155)

It is normally a crime to carry a loaded or unloaded gun in public in California unless you have a permit. You may be able to apply for a permit with the state if:

You are determined to have good moral character (ie. no prior convictions);
Good cause exists because you can demonstrate you and your family are in immediate danger;
You meet legal residency requirements;
You have completed an acceptable gun safety course.

A concealed gun must still be a legal gun. California bans the possession of assault weapons and rifles. See California Penal Code 30600. Additionally, a permit for conceal and carry may not necessarily carry over to other states if you are traveling. Some states have reciprocity with others. California in particular, does not recognize out-of-state conceal and carry permits. Continue reading

October 30, 2015

Fraud Case Alleges Hundreds of Surgeries By Non-Doctor

by David M. Boertje

An orthopedic surgeon, his lawyer, another doctor, and 12 other defendants (15 in total) have been charged in a California health-care fraud conspiracy in Los Angeles. This past Thursday, Los Angeles county prosecutors handed down indictments for Dr. Munir Uwaydah and the associates who helped cover his illicit activity. The conspiracy ring is alleged to have prescribed unnecessary expensive medications, billed two-minute doctor’s appointments as hour-long examinations, and doctored MRI results and medical records to justify unnecessary operations. It is also alleged that Dr. Uwaydah allowed his physician’s assistant, Peter Nelson, to perform surgeries at an Orange County hospital in 2005. Dr. Uwaydah’s medical license was revoked two years ago after several earlier allegations.

The conspiracy ring is estimated to have cheated insurance companies out of $150 million. It is described as one of the largest health-care schemes in state history. Uwaydah and Nelson are charged with 21 counts of aggravated mayhem — each for a different patient. The District Attorney stated that this is a vast underestimation of the hundreds of procedures that Nelson performed. Nelson is being held on a $21 million bail. The office manager, Kelly Soo Park, 49, is also being held on $18.5 million bail in the fraud case for her involvement in hiding Uwaydah’s money from investigators.

Health Care Fraud in California

October 28, 2015

Two Parents Arrested After Child Found in ‘Deplorable Conditions’

by David M. Boertje

The parents of two children allegedly found in ‘deplorable conditions’ were arrested in San Jacinto, according to the Riverside County Sheriff’s Department. Deputies and Child Protective Services (CPS) arrived at the 1600 block of Santa Fe Avenue after receiving a report about child abuse. The report to CPS came from an employee of the children’s school district. Authorities said they found two children “deliberately confined” to a room under “deplorable conditions” without access to a restroom or basic necessities. Deputies believe the children lived in that condition for more than one year. It was determined that this confinement occurred only during night time.

The children’s parents, Emily Tardy, 29, and Steven Crane, 38, were arrested for alleged child abuse. The Riverside County District Attorney’s Office decided not to charge the couple with felony child abuse and instead charge them with misdemeanor child endangerment. Both are being held on $35,000 bail. They each pleaded not guilty to all counts and are scheduled to be back in court on Oct. 9.

California Penal Code 273(a) – Child Endangerment