Criminal Defense

June 3, 2015

San Diego Lawmakers Attempt to Address School Threats in Legislation

Last month, District Attorney Bonnie Dumanis came out in public support of the new bill authored by State Sen. Marty Block (D- San Diego), SB 456, which would distinctly make it a misdemeanor crime for someone to threaten to fire a firearm on private and public school campuses. The bill was originally introduced in February. In the last two years alone, Dumanis states that the number of students suspended and expelled for making a terrorist threat in San Diego County has risen 35 percent, from 62 in 2011-12 to 84 students in 2013-14, according to data from the state Department of Education. More than 130 threats to schools in the San Diego Unified School District were made over the past three years. Statewide figures also show an increase, but at a slower rate than the San Diego School District.

Under current law, those types of crimes are charged under Penal Code 422, a generic charge for someone making a criminal threat. Specifically, the current Penal Code requires that one caused a “reasonable fear” within the person(s) threatened. If the bill becomes law, a school firearm threat, for example, would become a specific crime subject to a fine of up to $1,000 and up to a year in county jail. The new law would remove the fear requirement and require those convicted to pay for any reasonable emergency response costs incurred by the public agency responding to the threat.

June 1, 2015

California Lawmakers and SDPD Try to Address the 20 Bills Aimed at SDPD

by David M. Boertje

Police agencies across the country have begun outfitting officers with the cameras as an attempt to regain the public’s trust back, and the SDPD is no exemption. However this is not enough. Last month, on April 30th SDPD was involved in yet another fatal shooting of an unarmed man, Fridoon Zalbeg Rawshannehad. The officer’s body cam was shut off prior to the shooting for unexplained reasons, and the incident is still being investigated by SDPD’s homicide unit. In the interim, the SDPD is still struggling to explain the shooting of an unarmed citizen, Victor Ortega, three years ago. In that case, Judge Burn’s denied SDPD’s motion to dismiss the lawsuit due to the inconsistencies of officer testimony.

Meanwhile, at least 20 proposals to regulate body cameras worn by cops, revamp the prosecution of deadly force cases, and impose other measures were made in the wake of national high-profile killings by police, and have been debated by California lawmakers. In Sacramento alone, legislators have introduced at least five measures pertaining to body cameras, including one that would establish grant funding to pay for the equipment, another proposing guidelines for data storage and one that would address how footage would be subject to public records laws.

May 27, 2015

Senate Bill 603 Introduced to Prevent Defendants from Cross-Examining their Victims

by David M. Boertje

The Senate Committee on Public Safety recently held a hearing at the end of April on Sen. Ben Hueso (D- San Diego) and the San Diego County District Attorney’s Office’s proposed bill. Senate Bill 603, which is currently making its rounds through the California legislative process in Sacramento, would require a court to conduct a hearing in cases in which the defendant is acting as his own attorney to determine whether someone else, most likely a standby lawyer, should be appointed to question the victims. Under SB 603, a judge would have to determine whether the victim would be traumatized further by being cross examined by the defendant. That kind of finding would be allowed only in certain kinds of cases, such as rape and sexual assault, as well as in felony charges of stalking, domestic violence, elder abuse or child abuse.

The sponsored bill was prompted by a San Diego woman named Jessica. Jessica says she was traumatized for the second time when the man who sexually assaulted her questioned her in court. The attack happened near the Old Town bus station back in March 2013. Jessica said a man dragged her behind a cafe and assaulted her. He chose to represent himself (pro se) during his trial.

May 25, 2015

Evading a Police Officer: The Double Standard Created by the Supreme Court

by David M. Boertje

It has been a busy year for criminal law development. With the seemingly unending current events surrounding police and citizen relations, the topic of when it is legal to run from police has resurfaced. It is already established by now that Freddie Gray was not doing anything wrong when he ran from police that tragic April 12. Police would later find out he had a switchblade in his pocket but that was not the reason why he ran. According to the police report, the patrol officer made eye contact with Gray, which prompted him to run. It was later discovered that in communities such as Gray’s, the mere presence of police make people nervous; that was the reason Gray ran. He was nervous since he has a past record of petty crime. It would also be discovered that Gray hailed from a neighborhood from Baltimore that had a poverty and unemployment rate of double that of the nation.

May 20, 2015

U.S. Sentencing Commission Adjusts Penalties for White Collar Crimes

by David M. Boertje

Recently, the U.S. Sentencing Commission voted to adopt changes in the guidelines that judges use in sentencing white collar crimes – to be effective this coming November. The decision came in part as a reaction to the overpopulation crisis in the prison population, and increasing costs of incarceration. The current state of sentencing for economic crimes reflects public outcry that followed the Enron case and other crises in the early 2000s. This resulted in steady increases in the length of prison sentences for white collar crimes, where federal courts routinely hand out sentences of 10 or 20 years – and sometimes significantly more – in a wide variety of fraud cases.

The purpose of the commission is to serve as an independent agency to establish sentencing practices in federal court and to help congress develop efficient crime policy.

May 18, 2015

Protester Rights and the Bail Process

by David M. Boertje

On April 12, 2015, a man by the name of Freddie Gray was chased down and arrested for “possession of a switchblade” by Baltimore PD. Eyewitnesses report Gray screaming and asking for medical attention. By April 19, a week later, Gray had slipped into a coma and died while in police custody. Autopsy reports indicate that Gray’s neck was broken and his spinal cord was nearly severed. His death set off yet another wave of daily protests decrying police racism and brutality in west Baltimore that boiled over into riots throughout the last week of April. By April 27, Maryland Governor Larry Hogan declared a state of emergency and even imposed a 10pm curfew.

Meanwhile, a wave of national protests sprung up in support of Baltimore, including San Diego. In San Diego, hundreds marched once again in the neighborhood of City Heights, known in the area for being one of the historically poorest neighborhoods in this tourist town, as well as downtown San Diego. The City Heights area has also held a number of “BlackLivesMatter” protests in the past several months following the deaths of Michael Brown and Eric Garner. While many of these protests have not led to any arrests, that has not always been the case. Meanwhile, in Baltimore, there are reports of frightening instances of medical volunteers and legal observers being arrested without charges. In addition, a video of a Freddie Gray protester being pepper sprayed and slammed to the ground has also made its rounds to the internet.

May 13, 2015

Freddie Gray Tragedy a Lesson in Constitutional Rights

by David M. Boertje

As Baltimore becomes the latest casualty of events transpiring from police brutality, another Justice Department investigation is underway for the multitude of constitutional rights Freddie Gray may have suffered at the hands of police. Most people don’t think of criminal law as being fundamentally intertwined with our basic constitutional rights, or even as a ‘subsect’ of constitutional law. The purpose of this post is to break down which fundamental constitutional rights have significant implications for the rights of criminal defendants.

The Constitution

Most of the constitutional principles cited by criminal defense attorneys come from the first 10 amendments in the Constitution (aka the Bill of rights). Because the Constitution only applies to government actors, only those acting on behalf of the government (ie. police) can be liable for violating constitutional rights.

The 1st Amendment guarantees the free exercise of religion, speech, press, the right to peaceably assemble (ie. protest) or the petitioning for a governmental redress of grievances. This amendment has made its way into the spotlight again because more and more people are being arrested for civil disobedience, filming police, or participating in protests- all protected 1st Amendment activities. Violations of 1st Amendment give a right of action to sue the state actor for civil damages.
The 4th Amendment prohibits “unreasonable search and seizures” and “government intrusion into their persons,” whether through police stops of citizens on the street, arrests, or searches of cars during traffic stops. The right applies any time you are stopped, pulled over, arrested, detained, or in the safety of your home. Evidence seized in violation of the 4th Amendment is unlawful, and cannot be used against you in court.
The 5th Amendment protects you against self-incrimination, which is where the Miranda right, or right to remain silent stems from. This means that whenever you are taken into custody, you do not have to say anything to the police, and can ask for a lawyer. Voluntary statements are statements that will be used against you, so it is best to not say anything. Statements that have been taken in violation of the 5th Amendment (ie. a coerced confession) are also inadmissible against you in court. The 5th Amendment also protects you from “double jeopardy,” meaning you may not be put on trial more than once for the same offense.
The 6th Amendment gives you multiple rights: the right to confront a witness (meaning you may confront the person accusing you of a crime), the right to be notified of the charges against you, the right to a public trial in a criminal case, the right to be evaluated by a jury of your peers, and the right to a ‘speedy’ trial. However, it does not specify exact time limits. Thus, judges decide on a case-by-case basis whether a defendant’s trial has been so delayed that the case should be thrown out. The 6th Amendment also gives you one of the most famous rights: the right to be issued an attorney in a criminal trial, if you cannot afford one.
The 14th Amendment prohibits states from violating an individual’s rights of due process and equal protection. This means that legal proceedings must be fair, following the formal processes, and that defendants are not treated differently based on race, gender, or religion. This is the most heavily litigated portion of criminal law, as racial profiling has been shown to be rampant amongst most police forces, including San Diego.

May 11, 2015

The Infamous California “3 Strikes Law”- Which Crimes Count?

by David M. Boertje

The State of Washington was the first state in the nation to pass the ‘no-nonsense’ 3 strikes policy to address repeat, criminal offenders in 1993. California enacted its 3 strikes law shortly after Washington in 1994. These “habitual offender laws” are statutes adopted by individual state legislatures to impose harsher sentences on those who have committed three or more felonies. In most states including California, this means a life sentence without the possibility of parole on the 3rd strike.

Since 1993, 28 states have passed that same policy (Arkansas, California, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, and Wisconsin), with Massachusetts being the latest state to adopt a 3 strikes law in 2012.

May 7, 2015

Landmark Ruling: Police May Not Detain Traffic Violators Longer than Necessary

by David M. Boertje

The Supreme Court once again re-visited the topic of traffic stops (the Court held this past December that evidence obtained from a search at a traffic stop based on a mistake of law was okay). Its most recent ruling issued on April 21 held that that police may not detain a traffic violator longer than necessary so as to allow police time to conduct a dog sniff for drugs. See Rodriguez v. United States.

On March 27, 2012, defendant Denny Rodriguez was stopped alongside a Nebraska highway for swerving in and out of lanes, by Officer Morgan Struble, who subsequently questioned him, checked his license, registration, and whether he had any outstanding arrest warrants. He also checked the documents of Rodriguez’s passenger as well. Twenty minutes later, the officer tried to detain Rodriguez further, to which he objected. Rodriguez was detained while additional officers and a K-9 unit arrived at the scene. The K-9 sniffed out a bag of amphetamines and Rodriguez was indicted for possession and intent to distribute methamphetamine and sentenced to five years in prison. He appealed to the Supreme Court which granted certiorari, and with Justice Ruth Bader Ginsburg speaking for the 6-3 majority, the Court held that officers may only check a driver’s license, registration, and any outstanding warrants. The stop becomes “unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket.”

What This Means

May 5, 2015

Another Incident of Police Reacting Badly to Being Filmed

by David M. Boertje

On Tuesday, April 21, the U.S. Marshals Service announced they would be reviewing a video that shows a deputy U.S. Marshall in South Gate, California charging at a woman who was filming them at a crime scene, grabbing her phone, smashing it onto the curb, and then subsequently kicking her belongings (you can view the 53-second video here). Unbeknownst to the U.S. Marshals, someone else was quietly filming the woman doing the filming, and posted their video capturing the incident online. While the caption originally tagged the South Gate Police Department, it has been confirmed that the ‘officers’ involved in the video were U.S. Marshals, and the incident is now being “investigated.” In an interview with the Los Angeles Times, Beatriz Paez, 34, said she feared for her life during the confrontation. According to her attorney, the phone’s screen is shattered and doesn’t work, but they will be trying to recover Paez’s video from the phone’s chip.

Constitutional Violations

I have blogged about the constitutionality and the right to record police before, but today, I am going to discuss the potential civil rights violations that may have occurred in the aforementioned incident to further drive in my point that those exercising their constitutional rights are not doing anything illegal or wrong. By now, it should be obvious to most of you that constitutional law and criminal law are inter related, and have huge implications for those who have been subject to criminal charges and/or actions by police. Because of 1st amendment protections of free speech and 4th amendment protections against unlawful search and seizure and undue force, there should be no situation where an officer can intentionally grab and destroy a camera being used to lawfully record law enforcement in a public place, especially when the filmer was not impeding on police activities.