Criminal Defense

September 15, 2015

Fraud in California

As shown by this month’s headlines, California seems to be plagued with fraud issues on the government level. Most of the fraud is allegedly being committed by government workers. The California Department of Insurance awarded $34.95 million in grants to district attorney offices across the state to help fight workers’ compensation insurance fraud. The grants were funded by employer fees and will be used to pay enforcement officials to investigate and prosecute fraud workers’ compensation system during fiscal year 2015-2016.

While the Department of Insurance was dealing with its own problems, it was discovered that California DMV workers traded cash for illegal licenses. At least 100 commercial truck drivers bribed DMV workers at $5,000/piece for trucking licenses. From 2011 to 2015, employees allegedly changed computer records to show that truck drivers passed their behind-the-wheel tests when they did not. Officials said up to 23 traffic accidents could be related to the fraud.

Fraud in California

Under the common law, fraud is generally defined as an intentional misrepresentation of existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage.

Generally, you violate California’s criminal fraud statutes whenever you commit an act that results in an unfair or undeserved benefit for yourself, and/or cause harm or loss to another person. The California Penal Code addresses many types of fraud:

Car insurance fraud
Health insurance fraud
Unemployment insurance fraud
Welfare fraud
Worker’s compensation fraud
Check, credit card, and securities fraud (the 3 types of financial fraud)
Forgery and identity theft
Mail fraud
Check fraud (writing bad checks)
Foreclosure and real estate fraud

Penalties

The penalties for each individual type of fraud differ. For example, workers compensation fraud can be punished by two to five years imprisonment and a $150,000 fine. Fraud can be charged as either a misdemeanor or felony. Prosecutors typically decide this based on the amount of money involved and any prior convictions on one’s record. Continue reading

September 11, 2015

Former Oroville Mayor Pleads No Contest to Embezzlement

by David M. Boertje

Earlier this week, former mayor and CPA of Oroville California (north of Sacramento), Dennis Diver, pleaded no contest to two counts of embezzlement. Prosecutors from the Butte County District Attorney’s Office said the politician embezzled 400,000 dollars in the span of less than 2 years. Diver is accused of moving funds around between accounts. The victims were a regional district of several Northstate rotary clubs, three trusts and one estate, all of whom were clients of Diver. A forensic accountant was used by the DA’s office give forensic analysis of how fraudsters were moving money.

Diver will appear in Court on September 30 for sentencing. He faces up to four years in prison although he will likely be granted probation so he can repay back the embezzled funds. He has repaid $186,00 so far.

Embezzlement is a Kind of Theft

September 9, 2015

California Stalking Laws

by David M. Boertje

Each year 7.5 million people are stalked, with 61% of the victims being female. 44% of the victims are stalked by a former intimate partner. In the current digital era, studies indicate that the rates of stalking and harassment have increased, and areas such as Southern California have higher rates than other parts of the nation. Stalking, cyber-stalking, harassment, and bullying are all similar bad acts. Sometimes it can be the result of a misunderstanding or vindictive accuser. Other times, spouses dealing with divorce start accusing each other of stalking or harassment.

What is Stalking?

California Penal Code 646.9 defines stalking as following, harassing, and/or threatening another person to the point where s/he fears for his or her safety, or the safety of his or her family. As with the standard for threats, one must have had a ‘reasonable fear’ in order to fulfill the standard for stalking.

September 4, 2015

Won Battle, Lost War in Cell Phone Search Case

by David M. Boertje

Last year, in a historic ruling, the U.S. Supreme Court ruled in Riley v. California that law enforcement must obtain a warrant to search cell phones. This historic opinion changed police protocol across the nation and set a strong precedent supporting privacy in a technological era.

Many of you must be wondering what happened to David Leon Riley, who had moved to suppress evidence during his criminal trial regarding his gang affiliation, which was acquired via his cell phone. Riley had been convicted for his connection to the 2009 shooting in San Diego’s Skyline neighborhood. Riley’s attorney is once again petitioning the U.S. Supreme Court arguing the lower court reconsider his case because the lower court had ordered Riley to remain in prison to serve out the rest of his 15-year-to-life sentence.

The 4th District Court in California specifically found that while the phone’s photographs were improperly seized and admitted as evidence, the error was not important enough to have affected the final verdict.

August 28, 2015

California Court Holds Proposition 47 Applies to Minors

by David M. Boertje

Late last week, California’s 4th District Court of Appeal ruled that Proposition 47 – the voter-approved measure that reclassifies certain petty crimes from felonies to misdemeanors – applies to minors in the same way it does to adults. It has been found in the past that Prop. 47 caused a noticeable drop in California’s incarceration rate. In light of this ruling, juvenile defendants charged with particular crimes previously classified as felonies should now only face misdemeanor charges, and some juvenile offenders may be able to have their prior felony convictions retroactively changed to misdemeanor convictions.

Background on Proposition 47

Proposition 47, the “Reduced Penalties for Some Crimes Initiative,” was approved by California voters last November. Unless a defendant has prior convictions for particular violent or gun-related crimes, Proposition 47 mandates that he or she be sentenced to a misdemeanor instead of a felony for the following seven petty crimes:

August 27, 2015

Recent Arrest of UFC Fighter Highlights Complexity of Domestic Violence Law

by David M. Boertje

The recent arrest of retired UFC fighter Chris Leben in San Diego in connection with an incident between the fighter and his estranged wife serves as a cautionary tale of the seriousness of domestic violence charges in California.

Mr. Leben was arrested on multiple charges, including the violation of a restraining order. Though Mr. Leben’s recent arrest was not based on charges of assault or domestic violence, the restraining order obtained by his wife makes reference to physical violence. However, Mr. Leben has strongly denied any and all charges of domestic violence and claims that, in fact, he has been the victim of years of domestic violence at the hands of his wife. In a recent interview, Mr. Leben highlighted how charges of domestic violence pose a significant threat to his character and his livelihood.

Domestic Violence in California

August 14, 2015

Driver Falls Asleep at the Wheel and Injures Joggers

by David M. Boertje

Early this past Sunday morning, a woman driving along a northern San Diego County road fell asleep at the wheel and hit two people who were jogging on the side of the road. It is thought that neither drugs nor alcohol were a factor in the crash. Unfortunately, both joggers were injured and had to be taken to a local hospital.

The driver in this incident remained at the scene of the accident until law enforcement from the city of Poway arrived, and was later released. This situation serves as an important reminder that California law requires drivers involved in an accident that results in injuries to others to stop, provide aid, and exchange all necessary contact information. Failure to do so can result in serious criminal charges, including a charge of hit and run.

Watch Out for Hit and Run Charges

If you are involved in an accident that results in injuries, the California Vehicle Code requires you to:

Immediately stop your vehicle at the scene of the accident;
Provide “reasonable assistance” to any individuals injured as a result of the accident;
Exchange contact information with the other individuals, including your name, address, vehicle registration number, and the name/address of the owner of the vehicle; and
Notify local law enforcement or the California Highway Patrol if someone has sustained fatal injuries in the crash.

Providing “reasonable assistance” to anyone injured in a crash – which includes other drivers, passengers, and pedestrians – involves calling 911 to summon medical assistance and transportation for the injured party.

Penalties for Hit and Run

If you fail to perform any of these requirements after a crash, you could be charged under California law with either a felony or misdemeanor hit and run, even if you were not at fault in the accident. These charges carry potentially serious legal consequences, including up to a year in jail, significant monetary fines of up to $10,000, and a permanent entry on your criminal record. Should the accident you were involved in result in the death or permanent, serious injury of another person, the resulting hit and run charges can carry higher consequences of up to four years in state prison, or a fine of up to $10,000, or both.

August 12, 2015

Man Convicted of Second-Degree Murder for “Sucker Punch”

by David M. Boertje

Recently, a man convicted of second-degree murder was sentenced to prison for his part in an attack in the Gaslamp Quarter that resulted in the death of another man. Mahad A. Ahmed received a sentence of 15 years to life for delivering a fatal “sucker punch” to the victim, Michael Beaver, outside an F Street restaurant last year.

Prosecutors had argued that Mr. Ahmed and a group of his friends were in the middle of an altercation with Mr. Beaver when Mr. Ahmed ran up to the victim and sucker-punched him in the head. Witnesses reported that as Mr. Beaver fell, his head struck a metal rail. The victim was found unconscious the next morning, and later died in the hospital from blunt force injuries. Mr. Ahmed was charged in the case and, after a subsequent trial by jury, was found guilty of second-degree murder. Based on his sentencing last week, Mr. Ahmed could spend the rest of his life in prison and will not be eligible for parole for at least 15 years.

First- and Second-Degree Murder under California State Law

The California Penal Code defines murder as the unlawful killing of a human being with “malice aforethought.” It further breaks these homicides down into two categories: first-degree murder and second-degree murder.

An individual can be charged with first-degree murder if they commit a premeditated killing, or if they kill someone by means of a “destructive device or explosive,” or for any murder that results from shooting at someone outside a motor vehicle from within that vehicle. The punishment in California for first-degree murder ranges from imprisonment for 25 years, to life imprisonment without the possibility of parole, all the way up to the death penalty.

All other murders fall under the category of second-degree murder. For a charge of second-degree murder, the prosecution does not have to prove that a killing was premeditated. A killing that results from a sudden fight, as in the case of Mr. Ahmed and Mr. Beaver, or a murder in the heat of passion, constitutes second-degree murder. Individuals convicted of second-degree murder can be punished by a minimum prison term of 15 years to life. In some situations – like where the victim is a police officer or where the accused has served a prior prison term – that minimum punishment can be 20 years, or even lifetime imprisonment.

August 7, 2015

California Motorcyclist Charged with DUI after Fatal Pedestrian Accident

by David M. Boertje

Recently, an intoxicated motorcyclist named Sean McGinnis crashed into two pedestrians in San Francisco while they were walking along the sidewalk. One of the victims was taken to the hospitals with non-lethal injuries, while the other died. As a result, Mr. McGinnis has been arrested and charged with:

Felony DUI alcohol causing bodily injury (for the injured pedestrian);
Felony DUI drugs causing bodily injury; and
Felony vehicular manslaughter with gross negligence.

Vehicular Manslaughter While Intoxicated

California Penal Code 191.5 codifies the crime of “vehicular manslaughter while intoxicated” and “gross vehicular manslaughter while intoxicated.” In order to be charged with this crime:

You must drive under the influence of alcohol or drugs (commit a DUI);
You must act with negligence or gross negligence; and
As a result of your negligence, someone must have died.

The penalties for vehicular manslaughter depend on whether you acted with ordinary negligence or gross negligence. If you are found to have acted with ordinary negligence, you will be charged with Penal Code 191.5(b) (“ordinary vehicular manslaughter while intoxicated”). This is a misdemeanor punishable by up to one year in jail, or it can be a wobbler crime leading to a felony punishable by up to 4 years in jail in certain circumstances.

If you are found to have acted with gross negligence, you will be charged with Penal Code 191.5(a) (“gross vehicular manslaughter while intoxicated”). It is a felony punishable by up to 10 years in jail.

Your license will be suspended with either conviction.

Vehicular Manslaughter Manslaughter/Gross Vehicular Manslaughter in General

California Penal Code 192(c) codifies the crime of vehicular manslaughter (without the requirement of being under the influence). Prosecutors may still charge you with this crime if they do not gather enough evidence that you were actually under the influence. This crime is still a felony punishable by up to 6 years in jail. It has the possibility of being tried as a misdemeanor depending on one’s circumstances and criminal history, and because it is a lesser charge than vehicular/gross vehicular manslaughter with a DUI, a good defense attorney will try to reduce your charges to this one.

August 5, 2015

Pier 14 Shooting Spurs Immigration Debate

by David M. Boertje

In one of the most bizarre, tragic, and controversial stories in California this year, the infamous “Pier 14″ murder has sparked much debate on immigration, felony laws, and San Francisco’s status as a ‘sanctuary city.’ At the end of June, a woman named Kathryn Steel was strolling around Pier 14 when she was gunned down by Francisco Sanchez in what is thought to be a “random” murder. She was shot by Sanchez when he saw her, and the two do not seem to have any connection.

Sanchez is an undocumented immigrant from Mexico. He has a sordid legal history with seven felony convictions in the U.S. (four involving narcotics) and has been deported five times, most recently in 2009 by Immigration and Customs Enforcement (“ICE”) officials. He has stated in the interview that he was high on pills when he shot Steel with a stolen gun and had no idea what he was doing. He has been taken into custody and charged with murder.

ICE turned Sanchez over to San Francisco PD back in March on an outstanding drug warrant, requesting to be notified before his release so arrangements could be made to take custody. However, San Francisco PD had dropped the drug charges against him because he had not had violent crime convictions in recent years. The San Francisco PD’s actions have been criticized and thrown into a national debate on immigration policy.

Murder in California (CA Penal Code 187)

The legal definition of murder, according to California Penal Code 187(a), is “the unlawful killing of a human being or a fetus with malice aforethought.” What distinguishes murder from (unintentional) manslaughter in California law is the fact that malice (malicious intent) is necessarily involved in a murder.

Under the California Penal Code, malice may be express or implied. Express malice means that you specifically intended to kill the victim. It is implied when:

The killing resulted from an intentional act;
The natural consequences of the act are dangerous to human life; and
The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

There are various murder charges one may be charged with, including 1st degree murder, 2nd degree murder, Capital murder (which is 1st degree murder with special circumstances), and felony-murder.

Penalties

The penalties for murder depends on the type of murder you are charged with, but conviction for 1st degree murder in California can lead to 25 years in prison to life. Additionally, other punishments include a strike pursuant to the 3 strikes law, victim restitution, and a fine of up to $10,000. If you are a non-U.S. Citizen, certain misdemeanors, and felony or murder charges gives ICE the right to deport you.