Criminal Defense

July 31, 2015

California Prosecutor May Bring Manslaughter Charges for Collapsed Balcony

Recently, prosecutors in Oakland, California announced they opened up a criminal investigation into the fatal balcony collapse that occurred on June 17 near the UC Berkeley campus. Alameda County District Attorney Nancy O’Malley launched an investigation into the incident that killed 6 college students at an apartment party when police announced they would not look into the deaths. Specifically, the construction company responsible for the balcony’s construction (Segue Construction) now faces criminal negligence and manslaughter charges. City officials have confirmed that the balcony was severely rotted by exposure to moisture, when it completely broke off the side of the apartment building, sending about 20 people down a dangerous fall. The company has already settled two lawsuits involving balconies with dry rot at two apartment buildings in California.

You can be charged with Manslaughter through Criminal Negligence

Manslaughter (aka involuntary manslaughter) is defined as the killing another human being without premeditation, malice, or planning. It is unintentional, unlike murder and homicide. It is a felony under California Penal Code 192(b), punishable by a maximum of 4 years in jail and a fine up to $10,000.

Manslaughter typically comes up in the driving context, when someone unintentionally hits and kills someone with their car, for example. This Berkeley tragedy shines a light on the fact that manslaughter charges actually come up in all kinds of contexts, such as negligent construction. Moreover, the charge typically comes in partnership with other charges (ie. the California weapons law), or as a subpart of another greater charge, such as criminal negligence. Here, the prosecutors will need to show that criminal negligence was involved in the collapse in order to file charges and gain convictions. This is because manslaughter can be an example of criminal negligence, depending on the circumstances.

To be convicted of criminal negligence (aka gross negligence) in California, the prosecutor must prove that:

The defendant acted so recklessly s/he created a high risk of death or great bodily injury;
The defendant demonstrated a blatant disregard for human life; and
A reasonable person in a similar situation would not have acted that way.

While criminal negligence substitutes for criminal intent, it is limited in its application, and only extends to crimes based on accidental-type scenarios where you should have been aware of the dangers. Thus, if you acted so unreasonably in such a manner that killed or severely injured someone, you may be convicted of involuntary manslaughter through criminal negligence.

Legal Defenses

Mere mistakes and accidents are not criminal negligence. It requires more than just a mistake in judgement. To defend against a scenario where you face both criminal negligence and manslaughter charges, you must show that you had no reason to believe your actions were unreasonable or reckless.

July 29, 2015

California Death Penalty Debate Back on the Table

by David M. Boertje

The Los Angeles County district attorney’s office has announced it will seek the death penalty against a mother (Pearl Fernandez) and her boyfriend (Isauro Aguirre), who have been accused of the torturing and death of the woman’s 8-year-old son. This case stems from Gabriel Fernandez’s death in May 2013, where Fernandez and Aguirre were indicted by a grand jury on a charge of murder and a special circumstance of torture.

Grand jury testimony revealed that Pearl Fernandez had called 911 after she and Aguirre allegedly beat Gabriel for not picking up his toys. After the beating, the boy went silent and stopped responding. Paramedics discovered that he had a cracked skull, three broken ribs and BB pellets embedded in his lung and groin.

The Recent U.S. Supreme Court Ruling’s Effect on California Death Row Practices

The CA prosecutor’s announcement coincidentally coincided with the U.S. Supreme Court’s recent ruling that upheld as constitutional the use of the drug midazolam for lethal injection in the state of Oklahoma. See Glossip v. Gross (June 29, 2015). Specifically, the Supreme Court has rejected inmates’ argument that using such a drug violates one’s right to a humane execution. This ruling has shifted the spotlight the capital punishment debate back to California’s dysfunctional death row. California has the largest death row backlog in the nation; 757 prisoners were awaiting their deaths (most convicted of murder) when executions were suspended in the state in 2006.

In 2006, District Judge Jeremy Fogel halted California executions after determining that the delays in the system were unconstitutional. Prisoners used to be executed with a 3-drug cocktail, but lawsuits arose over the excessive pain that cocktail caused. Since then, the state of California has failed to adopt new drug regulations, so families and victims of death row inmates sued the state last November. Under that lawsuit’s settlement with families of murder victims, California prison officials agreed to propose a new single-drug execution method within 120 days of the Supreme Court’s ruling in the Oklahoma legal challenge. With the ruling in hand, that deadline is now Oct. 27. The state has not executed an inmate in nearly a decade.

Now, the state of California’s Department of Corrections and Rehabilitation must find a new drug to use, reactivate the system, and address the financial costs of such an expensive system. California’s death row has cost $4 billion since its inception, with $100 million per year being paid for by taxpayers.

July 24, 2015

Supreme Court Strikes Down Law That Would Keep Violent Offenders in Prison Longer

by David M. Boertje

As a practitioner in the criminal law field, it is part of my job to keep updated on new case law that will affect my clients. This blog will seek to explain to you the latest development in criminal case law—coming from our highest court—the Supreme Court. The Supreme Court has had no shortage of criminal law cases. This year for example, they have already ruled in Rodrigo v. U.S. that police cannot stop motorists longer than necessary at traffic stops. And recently, in Johnson v. U.S., it ruled that catch-all phrase in the Armed Career Criminal Act defining what crimes make a defendant eligible for a longer prison term was “too vague.”

In this case, Samuel Johnson plead guilty to a federal weapons charge in 2012 (firearms possession). He was sentenced to 15 years in prison—5 more than he would have gotten because he had prior convictions. The Armed Career Criminal Act, which is a federal law that has jurisdiction over all states, has a clause that treats past convictions as violent felonies, even if no violence occurred. If an offender has 3 prior convictions, the fourth automatically generates a 15-year prison sentence.

The Act lists burglary, arson, extortion, and use of explosives as specific categories or prior crimes that can lengthen one’s sentence. The Supreme Court, in a 6 to 3 majority, held that specific clause of the law unconstitutional.

How Does This Ruling Affect Me?

One of the reasons Armed Career Criminal Act clause was held unconstitutional was because different states may have different laws on prior offenses. Courts across the country have differed on what crime should be included in sentence lengthening, leading to inconsistent results. Faced with such uncertainty, defendants often take prosecutors’ plea deals rather than risk the federal statute’s 15-year sentence.

Thanks to this ruling, if you have prior federal convictions (depending on what they are), they will no longer make you eligible for a longer, 15-year sentence. However, it should still be noted that California has a very tough “3 strikes” law that has a long list of crimes that will make you eligible for life in prison if you are convicted 3 times of certain violent crimes. In that respect, our state’s 3 strikes law is much tougher than the Armed Career Criminal Act. It applies to state charges instead of federal charges.

July 14, 2015

13-Year-Old Boy Crashes into a Senior Center During Joyride

by David M. Boertje

A 13-year-old teen in Chula Vista who took his parents’ car for a wild joyride overnight crashed into a senior service center and then left the scene of the accident. The Chula Vista Police Department (CVPD) said the joyride began with the teen crashing into a parked Dodge Ram truck. He then continued driving down East Palomar Street, making a too wide of a turn. As a result, the car jumped the curb, ran across the sidewalk, and then smashed through a fence and into St. Paul’s Plaza, a senior service center.

The unnamed teen sustained minor injuries, but walked away from the scene. The boy was found a short time later and taken to Rady Children’s Hospital with unspecified injuries. No one else was injured. The incident is under investigation but police said they do not believe alcohol played a role in the crash. It is unclear, at this point, if the teen will be charged in the joyride crash, although he theoretically would still face civil charges of property damage from the senior center even if police choose not to criminally charge him.

The Crime of Joyriding

Joyriding, which is addressed in the California Vehicle Code 10851(a), is defined as driving or taking a vehicle that does not belong to you without the owner’s permission. Vehicles include passenger vehicles, motorcycles, motor scooters, buses, school buses, commercial vehicles, trucks, tractors, trailers and semi-trailers. In order to ‘take’ a vehicle, you must move it; it does not matter how far you took it or how long you had the vehicle. To be convicted of joyriding, it is also not a requirement that you intended to steal the vehicle—unlike a charge of grand theft auto.

In order to convict you of joyriding, the prosecution must prove that:

You drove or took a vehicle;
The vehicle did not belong to you; and
You did not have permission to drive or take the car.

Legal Defense

If you can prove that you own the vehicle, or that you had good reason to believe you did, you cannot be charged with joyriding. For example, one of the reasons you might have believed a car was yours is in the case of divorce– if you shared a car with your spouse, and you were unaware after your separation that the car did not belong to you.

Another legal defense is that the owner of the vehicle gave you permission to borrow his or her car.

July 8, 2015

Reckless Endangerment in California: Enhanced Sentencing for a DUI

by David M. Boertje

In the common law, reckless endangerment (also known as criminal endangerment) is a crime consisting of acts that create a substantial risk of serious physical injury to another person. In essence, it is a crime that covers a wide range of behavior, although the term has mainly come up in the context of a DUI.

In the state of California however, the crime of “reckless endangerment” comes up in the context of committing a DUI when there is a child under the age of 14 in the car with you. Specifically, this crime qualifies you for a sentencing enhancement. Vehicle Code 23572, which addresses DUIs with children present, imposes a punishment of:

48 hours in a county jail for a first DUI conviction;
10 days in jail for a second DUI conviction;
30 days in jail for a third DUI conviction; or
90 days in jail for a fourth or subsequent misdemeanor DUI conviction

In addition to your underlying California DUI sentence, a charge under Vehicle Code 23572 imposes an additional maximum 180 days in jail.

Watch Out for Child Endangerment Charges

In addition to a DUI charge, you may also face another additional charge of “child endangerment” under California Penal Code 273a. Child endangerment is not merely a family law issue; it is a crime. Unlike the crime of child abuse, this charge does not require you actually injure a child—only that you exposed the child to risk of injury. Child endangerment is a misdemeanor punishable by up to one year in county jail. If convicted of felony child endangerment, you face up to 6 years in California State prison.

It is important to note however, that if you are convicted of both a DUI, and child endangerment under PC 273a, the court is prohibited from imposing the additional sentencing enhancement under Vehicle Code 23572.

Criminal Negligence

California defines criminal negligence as a mental state of disregarding known or obvious risks to human life and safety. An example would be leaving a loaded firearm within reach of a small child. This is a different and separate charge from child endangerment, but a charge of criminal negligence may substitute for criminal intent under very specific circumstances. When this happens, it can subject you to more serious charges such as child endangerment or manslaughter even if your actions were unintentional.

July 6, 2015

How Do Multiple Convictions Affect My Sentence?

by David M. Boertje

Attorneys often hear this question—how do multiple convictions affect a sentence? Being convicted of more than one crime may have a big impact on a criminal defendant’s sentence or “punishment.” This issue comes up in the context of convictions for the same offense such as multiple DUIs, multiple convictions for different things, and multiple convictions for the purposes of qualifying for California’s ‘3 strikes’ law.

Multiple Convictions in Federal Court

The U.S. Sentencing Commission (USSC) is a federal agency within the judicial branch of the government that develops sentencing guidelines for the U.S. federal courts. There are two kinds of courts in this country–federal courts and state courts. Criminal cases involving federal laws can be tried only in federal court (but most criminal cases involve violations of state law and are tried in state court). Examples of federal crimes include bringing illegal drugs into the country or across state lines. If you find yourself in federal court, the judge may consider the U.S. Sentencing Commission’s guidelines. The 2011 Federal Sentencing Manual §5G1.2 basically requires multiple conviction sentences to run consecutively unless the court decides otherwise or the specific law that defendant broke says differently. If the judge wants otherwise, s/he must specify in the sentence.

Consecutive vs. Concurrent Sentences

A consecutive sentence (also called a “cumulative” sentence) is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are served one after the other. For example, if a defendant is convicted of three crimes that carry sentences of five, three, and two years, he’ll serve 10 years in prison. A concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is 5 years.

Multiple Convictions in State Court

In California, like any other state, a judge may also specify whether s/he wants a sentence to run concurrently or consecutively. Moreover, there have been some recent changes in California’s stringent “3 Strikes” laws. Back in 2014, the California Supreme Court ruled that 2 felony convictions stemming from a single act may not be considered separate strikes under the state’s “3 strikes” sentencing law. Rather, it only served as 1 strike for the purposes of that law. In the past, the court has ruled that two felonies may be treated as separate strikes even if they were prosecuted in a single trial. This has affected the sentencing for those with multiple convictions.
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July 3, 2015

Can I Be Charged for the Same Crime Twice in Different States?

by David M. Boertje

This blog seeks to explain two basic concepts in criminal law which tends to lead to significant confusion: double jeopardy, and dual sovereignty.

Double jeopardy is a constitutional principle that comes from the double jeopardy clause in the Constitution’s 5th Amendment. It means that you may not be charged or prosecuted for the same crime twice. For example, if you were charged with the murder of Mr. Smith, went to trial, and were found innocent, you may not later be charged again with the murder of Mr. Smith if new evidence surfaces against you for the crime. You may be charged for other crimes, such as robbing and assaulting Mr. Smith, or conspiring to kill Mr. Smith, but not murdering Mr. Smith.

The Exception: Dual Sovereignty

June 25, 2015

California Attorney General Has Blocked Public Access to Data on Wiretapping

by David M. Boertje

In the government’s latest assault on civil rights, California Attorney General Kamala Harris has announced a new policy last month that the California Department of Justice (“CADOJ”) will only be issuing its annual reports on wiretaps as locked pdfs– which would significantly limit the public’s ability to view the information.

Every year, the CADOJ is required to compile the details on each state-level wiretap order filed by local prosecutors. The report that is released yearly is mandated by the state legislature as a means to facilitate transparency. See the 2014 California Electronic Interceptions Report (released last month) here. The report for 2014 shows a massive spike (an increase of 44%) in California’s wiretaps, mostly in Riverside County as compared in 2013. Further, on a national level, the U.S. Drug Enforcement Administration has also showed an exponential increase in the use of wiretaps, increasing from 3,394 in 2000, to 11,681 electronic intercepts last year. DEA agents have also taken to making requests directly to state prosecutors instead of making federal requests, meaning most of the requests were never even reviewed by a federal judge.

Both the DEA and CADOJ offer little explanation regarding the massive expansion of wiretaps; they merely vaguely refer to the need to fight drug crimes.

June 12, 2015

Teen Who Set Cocos Fire Sentenced To Community Service

by David M. Boertje

The 14-year-old teenage girl who set the Cocos fire in San Diego last May was sentenced recently by Judge Howard Shore in a two-week non-jury trial. The minor, whose identity has not been revealed, was sentenced to 400 hours of community service and must pay $40,000 in restitution in fines. She must also report back to the judge every 60 days and write ‘apology’ letters to the victims of the fire who lost their homes. She will serve no jail time.

The teen was convicted of three arson counts one misdemeanor count of allowing a fire to get out of control. Originally, she (13 at the time) set a fire in her backyard which was extinguished by San Diego firefighters. She then set another one the next day, and another one in a neighbor’s backyard, which set the ember that traveled nearly half a mile to spark the Cocos fire. The Cocos fire then spread to more than a dozen brush fires due to the hot, dry, windy conditions and burnt over 2,000 acres and destroyed three dozen homes. The judge ruled that the teen acted “willfully and maliciously in setting the fires,” but said there was no evidence to suggest she intended to harm anyone or burn homes.

June 10, 2015

The Reduced Penalties for Some Crimes Initiative

by David M. Boertje

As mentioned in my previous post, Prop 47 (“the Reduced Penalties for Some Crimes Initiative”), which was approved by California voters via a ballot initiative last November 2014, would reduce the classification of most nonviolent and non-serious property and drug crimes from a felony down to a misdemeanor.

Since then, the California Legislature in its 2015 legislative session has introduced bills to amend Proposition 47 to weaken it. If any of these bill are passed and signed by the governor, the changes must go on a 2016 ballot for constituents to vote on. Some of the proposed changes include:

Senate Bill 333 and Assembly Bill 46 would allow felony charges to be filed against suspects accused of having certain date-rape drugs (Proposition 47 reduced the personal use of most illegal drugs to misdemeanors).
Assembly Bill 390 would require persons convicted of specified misdemeanors to provide DNA samples (California law currently only requires individuals convicted of felonies to provide DNA samples).
Assembly Bill 150 would make stealing a gun a felony crime (Proposition 47 made stealing an item that is valued at less than $950 a misdemeanor). Therefore, the proposed change would make stealing a gun valued at less than $950 a misdemeanor.
Assembly Bill 1104 would allow the issuance of search warrants for misdemeanor crimes that were previously classified as felonies before Proposition 47’s passage.