Articles Tagged with California criminal defense attorney

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The State of California has not executed an individual since 2006, when its capital punishment procedures relating to lethal injections were declared unconstitutional by the U.S. Court of Appeals for the Ninth Circuit, in Morales v. Tilton, 465 F.Supp. 2d 972 (N.D. Cal 2006). California authorizes capital punishment by gas or lethal injection. The state will continue to hold off on executions for capital crimes.

Governor Issues Moratorium on Executions

Two weeks ago, the Governor of California announced the statewide suspension of death penalty executions, granting a temporary reprieve to the 737 inmates currently on death row. California voters have rejected two initiatives to repeal the death penalty — Proposition 62 in 2016 and Proposition 34 in 2012. Instead, they voted to accelerate the death row appeals process in 2016 with the passage of Proposition 66.

Lethal Injection Procedures Declared Unconstitutional in 2006

The Ninth Circuit of the U.S. Court of Appeals, in the Morales case, found California’s death penalty procedures relating to lethal injections flawed. At issue was the drug recipe that was used for the lethal injections. The three-drug compound that made up the lethal injection dose could lead to suffering and an agonizing death if it was not administered carefully, resulting in a violation of the Eight Amendment to the U.S. Constitution’s cruel and unusual punishment clause.

According to BBC reporting, the death penalty is legal in 30 states, including California. Since 1976, California has executed 13 death row inmates. 737 executions remain outstanding, representing the most number of prisoners on death row in the court. Overall 2,738 inmates are on death row nationwide.

As part of the settlement of the Morales case, the state was ordered to submit new procedures for execution by lethal injection. Theoretically, if the court approved the new procedures, executions could resume. The Governor rescinded the lethal injection protocol and closed the San Quentin execution chamber concurrent with his announcement. Continue reading

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As many as eight million Californians have criminal records for misdemeanor or felony crimes. All of them are subject to denied or limited employment, housing, and credit opportunities because of their criminal convictions. Many of the past crimes are for low level misdemeanors, like simple marijuana possession, or low-level felonies that are non-violent in nature.

Jurisdictions all over the United States are banning prospective employers from inquiring about a job applicant’s criminal conviction history during the recruitment process. It is not until the job applicant is made a formal job offer that it is permissible for an employer to inquire about a job applicant’s prior criminal convictions. Despite these modest changes to the law, discrimination against prior criminal defendants persist, aided by the public record of his or her criminal conviction.

Current Law Regarding Sealing of Criminal Records

Right now, people can seal their rap sheets following the completion of all their sentencing conditions. For example, a person convicted of driving under the influence, who receives a two-month sentence in county jail and three years of probation is able to request his or her criminal conviction record be sealed after applying and paying a fee, three years from the date of his or her release from jail.

Proposed Criminal Records Bill

The proposed Criminal Records Bill, would automatically seal the rap sheet of people whose crimes are specified in the statute as eligible for automatic sealing. The bill would apply retroactively, meaning people with prior criminal convictions who have not applied to seal their record would have their records automatically sealed when the Criminal Records Bill becomes effective.

Law enforcement agencies and some employers would still be able to access prior arrest records as part of criminal investigations or deep background checks for certain job positions. Members of the public, including potential landlords and employers, would no longer have access to a person’s arrest and conviction records.

The California Justice Department under the proposed bill would be able to contest the automatic sealing of a criminal record under certain conditions and upon application to the court. All others, however, would automatically be sealed upon successful completion of sentencing conditions.

Seal Your Criminal Records Now

You do not have to wait for the Criminal Records Bill to pass to seek the sealing of your criminal record. Individuals may petition the court to have their prior criminal conviction records sealed under certain circumstances. If you would like to know if your criminal record can be sealed, contact the qualified and knowledgeable San Diego Criminal Defense Attorney today to understand the process and your legal rights and responsibilities in seeking such relief. Continue reading

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California is at the forefront of criminal justice reform. Last year, many laws were passed to reform the criminal justice system in an effort to make it fairer for Californians accused of committing crimes, whether they were serving time in juvenile detention facilities, jails, or state prisons. Abuses occur in any system, it is how those abuses are addressed that are the true measures of progress.

One area in the current spotlight is juvenile justice reform. Children under 18 who commit crimes are increasingly charged as adults as if they have the mental and emotional maturity to understand the consequences of their actions. As a society Americans feel that criminal conduct should be punished through incarceration; serving time seems to be the only acceptable form of punishment.  

The amount of time required to be served for certain crimes is disproportionate to the nature of the offenses. For example, white collar crimes are generally punished less severely than all other crimes even though the impact of the crime is felt by more people than a crime impacting just one victim. Drug crimes, especially simple marijuana possession, are punished more severely than sexual assault crimes, making no distinction between physical violence and drug addiction.

Two bills went into effect on January 1, 2019 specifically aimed at addressing some of the problems in the juvenile justice system. The first of those laws was Senate Bill §1391. This bill, now law, amends the Welfare and Institutions Code to eliminate the prosecution of 14 and 15-year-old children as adults. Effective January 1, 2019, criminal cases involving children under 15 years of age will remain in the juvenile court system. Children over 16, or individuals over 18 who committed a juvenile crime but eluded arrest until after they turned 18, or who commit a serious or violent felony can still be charged as adults should the prosecutor request it.

Prosecutors to Decline Charging Children Under 12 for Crimes

The second law, Senate Bill §439, also amends the Welfare and Institutions Code to eliminate the adjudication of crime, in both juvenile and adult court, for children younger than 12 years of age. Children accused of murder and forcible rape, however, will still face juvenile or adult charges, depending on the severity of the crime charged. A child under 12 will be released to his or her parents and be subject to supervision outside of the criminal justice system.

These reforms are an important step forward in thinking about crime and crime prevention. By offering social services rather than jail time to children accused of crimes, rehabilitation can be achieved and such children returned to society as contributing members.

Do Not Go it Alone

If your child has been arrested and charged with a crime in San Diego, contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged — violation, misdemeanor, or felony.   Continue reading

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Domestic violence, according to The National Domestic Violence Hotline, is a pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship. The behavior becomes criminal when one partner hits or strikes the other partner, known as battery, which is often part of the pattern of abusive behavior. Other words used to describe domestic violence include intimate partner violence, domestic abuse, or relationship abuse.  

Who is an Intimate Partner?

Domestic battery as opposed to battery is a crime against a close family member or among persons in an amorous relationship, regardless of sexual orientation. An intimate partner includes a current or former spouse, a fiancé, co-parent of your child, a person you are dating, or a person who lives with you.

Domestic Battery Under the California Law

To be convicted of domestic battery under California law, the prosecution must prove that the accused person inflicted unlawful force or violence upon an intimate partner. (California Penal Code §243(e)(1)). If that charge fails, the prosecutor may charge the accused person with assault or battery.

Penalties for Misdemeanor Domestic Battery

Individuals convicted, by a guilty plea or after a trial, can face up to $2,000 in fines, be sentenced to one year in county jail, and be required to complete year-long treatment program for batterers. Beginning on January 1, 2019, there is the additional penalty of taking away the right of the accused person to own a gun for life.

Misdemeanor Domestic Battery Conviction Triggers Gun Ownership Ban

Any person convicted of misdemeanor domestic battery in California after January 1, 2019, even if it is a first offense, loses his or her right to own a gun for life. The imposition of the lifetime ban on gun ownership for convicted persons became law as part of Assembly Bill §3129 and is now part of the Penal Code at §273.5

Help is Available for the Accused Person

The National Domestic Violence Hotline helps the accused person as well as the victim of intimate partner violence. Per the hotline, if you are questioning your own behavior at all, or if someone else has brought it to your attention, acknowledging it is a step in the right direction. Give us a call today at 1-800-799-SAFE (7233) or chat online with us to start the conversation. Continue reading

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One of the most memorable lines in the 1995 movie, The Usual Suspects, is, “The greatest trick the devil ever pulled was convincing the world that he did not exist.” I am citing this movie for another reason though, specifically, for its depiction of a police line-up in California. What makes the plot of this movie so entertaining is that the band of criminals meet during a police lineup that unsurprisingly nails the wrong guy to the crime.

Eyewitness identifications or police line-ups are a part of the criminal justice system about which people get upset quite often because of the unreliability of eyewitness identifications and the abuse of process that plagues the system. Police line-ups can be photo line-ups or in-person line-ups, such as the one made famous in the movie.

Senate Bill § 923

Beginning next year, on January 1, 2020, the California Penal Code will be amended pursuant to Senate Bill § 923 to require all police and prosecutors in the state to adopt basic rules for phone line-ups and live (in-person) lineups with eyewitnesses. The exact guidelines are still under development. The California legislature however, defined specific parameters and considerations that must be contained in the new procedures.

The rules created and adopted by California law enforcement and state prosecutors are as follows:

  • As close in time as the crime is committed, ask the eyewitness for a description of the perpetrator first, before showing the eyewitness any photos or people;
  • Prohibit the investigating police officer or detective from knowing who the suspect is or where the suspect is positioned in the line-up, whether photo or in-person;
  • Advise the eyewitness that the suspect may or may not be in the line-up, whether photo or in-person, and that he or she should not feel compelled or obligated to make an identification;
  • Prohibit the investigating police officer or detective from saying something that could influence the eyewitness’s decision; and
  • If the eyewitness is able to make an identification, ask the eyewitness to assess his or her confidence level in the identification, and record the eyewitness’s response word-for-word.

This bill was signed into law by former California governor Jerry Brown and was a part of a series of significant changes to California’s penal code. At the heart of the changes to the line-up procedure is the overwhelming wrongful convictions based on bad eyewitness identifications. By creating a streamlined and uniformed process for conducting police line-ups, the legislature hopes to decrease wrongful convictions based on misidentification of the suspect. Continue reading

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Most people’s contact with police occurs in their cars. Drivers routinely get stopped and cited for traffic and moving violations. Sometimes people are stopped because their vehicle matches a description of a vehicle of interest in a police investigation, or at a sobriety checkpoint during the holidays, or at the site of a car accident. No matter the occasion for the stop, there are certain behaviors that are acceptable and others that you should avoid. What follows are tips on how to handle a police stop in your car in California.

If you are stopped in your car, DO:

  • DO show your license, registration, and proof of insurance when asked by the police officer if you were driving the vehicle.
  • DO keep your hands on the wheel and let the police officer know what you are doing. For example, “I’m going to reach for my wallet to get my drivers’ license out.”
  • DO say, “I do not consent to a search.”
  • DO sign your ticket if you are given one and asked to sign it. Otherwise, you may be arrested.
  • DO take a breathalyzer and participate in any DUI tests unless you are willing to risk the suspension of your license.
  • DO ask if you can park your car in a safe place or have a licensed driver take it away, if you are arrested, to avoid towing and impoundment fees.

If you are stopped in your car, DO NOT:

  • DO NOT physically resist a search. Say, “I do not consent to a search.”
  • DO NOT refuse to sign a ticket. Remember, you can be arrested for not doing so.
  • DO NOT search for your license or registration until asked. It may look as if you are trying to hide something.
  • DO NOT disrespect the officer. Although you have a constitutional right to do so, it could lead to your arrest.
  • DO NOT attempt to bribe the police.
  • DO NOT play music loudly when the police walk up to your car.
  • DO NOT have any objects hanging from your rearview mirror or dark tinted windows. It may give police a reason to pull you over.

The Boertje Law Firm Fights for You

If you have been arrested and charged with a crime in San Diego, you can face either a misdemeanor or felony charge along with heavy fines and years of imprisonment. Contact a qualified San Diego Criminal Defense Attorney who can help mitigate penalties today and explain your legal rights and responsibilities. Available 24/7, the Boertje Law Firm represents clients at any stage of the criminal case and for any crime charged — violation, misdemeanor, or felony. Continue reading

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Entering a guilty plea in a criminal case goes beyond the pronouncement of the word, “guilty.” What follows is a discussion of the different types of plea options in California examining the implications of invoking each option.

The California Penal Code provides for six possible pleas to an indictment for information. The three most common pleas are “not guilty,” “guilty,” or “no contest.” Less common are a former judgment of a conviction or acquittal of the offense charged, once in jeopardy, and not guilty by reason of insanity. CPC Section 1016. This post will focus on the first three, or the most common pleas.

How Should I Plead?

To determine which plea option is appropriate for your case, carefully consider the recommendation of your criminal defense attorney. Not only does the criminal defense attorney know the court and its practices in your jurisdiction, but he or she will also be able to share insights on how similar cases were resolved.

“Not Guilty” vs. “Guilty”

When you enter a plea of “not guilty” and a plea deal is not accepted or offered, your case goes to trial before the judge or a jury of no more than 12 people. All other plea options, like “guilty” and “no contest” skip the trial and proceed to sentencing.

“Guilty”’

The accused person admits to committing the crime and allows the judge to determine the sentence. The jury trial is skipped when an accused person enters a guilty plea.

“No Contest”

The accused person neither admits or denies guilt, but acknowledges that the evidence is sufficient to convict should the case go to trial. The jury trial is skipped when an accused person enters a “nolo contendere” plea.

The Role of the Criminal Defense Attorney

The criminal defense attorney is often able to obtain a more favorable deal if you decide to accept a plea. A criminal defense attorney is also able to make sure that everything is done properly, and the correct process is utilized to dispose of your case. Lastly, the criminal defense attorney will help you understand the full consequences of a guilty plea in your particular case.

What to do if You are Charged With a Crime in San Diego

Guilty pleas have an impact outside of the courtroom. It is important for accused persons to discuss the benefits of settling a criminal case and understand the impact of a conviction on their employment options, housing opportunities, gun possession licenses, and voting rights. Continue reading

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Encounters with police or other law enforcement officials can be scary. Some individuals are treated fairly when questioned or detained by the police, while others are not, and remember their experiences quite negatively. The following will provide some practical information regarding your rights when you interact with the police.

If You are Stopped by a Police Officer

First, understand what a police officer’s job is, regardless of whether your stop is fair or unfair. If the police have reasonable suspicion that you have committed a crime or are in the process of committing a crime, then they are required to investigate.

If you are stopped for questioning, DO:

  • Ask the police officer, “Am I free to go?” If the police officer says yes, then you can leave. If the officer says no, ask him or her to explain why he or she is detaining you.
  • Remain silent, as is your right. Say, “I want to remain silent.” Do not start answering questions and then stop. It is best not to answer any questions. You must provide your name, date of birth, and address, but nothing more.
  • Tell the police officer you do not consent to a search. The police officer will search you upon arrest or as part of the investigation into your alleged crime. Nonetheless, you can say, “I do not consent to a search.”

If you are stopped for questioning, DO NOT:

  • Act or speak disrespectfully toward the police officer.
  • Run away or physically resist a “pat-down” or search. Simply say, “I do not consent to a search.” Be aware that you will be searched despite your objection.
  • Lie to the police. When they ask for your name and address, provide your name and address, not your sister’s or cousin’s or made up name. After you provide this basic information, you can remain silent and say, “I want to remain silent.”
  • Discuss your citizenship or immigration status with anyone but your criminal defense lawyer.

Keep in mind that the police are allowed to lie, intimidate, and bluff. Even if you do not strike a police officer while you are being questioned after a stop, spitting on a police officer is an assault and can be charged as resisting arrest, too.

Do Not Go it Alone

Most people with contacts in the criminal justice system are first-time offenders. For many accused people, it may be the first and only criminal case they have in their lifetime. Understanding your rights and the steps involved to resolve a criminal case brings with it peace of mind during a turbulent time for you and your loved ones. Continue reading

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The unauthorized use, or even possession, of someone else’s personal identifying information can result in charges of identity theft. Identity theft is a crime that occurs when someone uses another person’s personal information to pose as the person in order to obtain goods, services, or something of value, like credit.

According to 2018 Identity Fraud: Fraud Enters a New Era of Complexity from Javelin Strategy & Research, in 2017, there were 16.7 million victims of identity fraud, a record high that followed a previous record the year before.

A common identity theft scenario might involve calling someone and claiming to be a representative from the bank or IRS. During the call, a person is asked to verify his or her financial and identifying information, like a mailing address, date of birth, bank account number, or social security number. That information is used then, to make unlawful withdrawals from the person’s bank account.

Identity Theft in California

In California, the law against identity theft is found in Penal Code Section 530.5. Under the Penal Code, identity theft is obtaining and using another person’s personal information for an unlawful or fraudulent purpose, as follows:

  • Obtaining and using another person’s information without their consent for an unlawful purpose;
  • Obtaining and using another person’s information without their consent to commit fraud;
  • Selling, transferring or conveying another’s personal information without their consent with the intent to commit fraud, and
  • Selling, transferring or conveying another’s personal information without their consent knowing that the information will be used to commit fraud,

Identity Theft Penalties

Identity theft is a wobbler offense in California. This means that it can be charged as a felony or a misdemeanor depending on the facts of the offense and the accused person’s criminal history. A misdemeanor conviction will result in up to one year in county jail, a fine of up to $1,000, or both. A felony conviction will result in up to three years in state prison, a fine of up to $10,000 or both.

Examples of Identity Theft

Examples of identity theft include:

  • Stolen checks;
  • Stolen ATM cards;
  • Fraudulent change of address;
  • Social security number misuse;
  • Passport misuse;
  • Driver license number misuse; and
  • False civil and criminal judgment.

Continue reading

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One of the most shocking revelations when a person is arrested for a crime and is being booked in jail is that they do not have a right to make that one phone call. It seems wrong on many levels because for years you may have seen and heard on television shows and movies that a person can make a call from jail to a family member or friend.

The reality is that there is no constitutional right to use a phone when you are booked into jail. Police departments that permit telephone calls do so as a courtesy. Most if not all of the police departments that permit calls record them.

Nothing is Private

Jails or detention facilities that permit telephone calls record the inmates’ calls. In fact, before an inmate is connected to whomever he or she may be calling, a preliminary recorded message informs both ends of the conversation that the telephone call will be recorded. Despite the clear warning, many inmates still talk about criminal acts, actions, knowledge, or involvement.  

Who is Listening?

Everyone involved in your criminal prosecution has access to and can listen to all of your jailhouse conversations. Whatever information collected that can help the prosecutor convict you will be used against you and shared with the presiding judge in your case. This affects culpability and sentencing. Many times, your attorney, the only person in the equation interested in defending you, will be the last to know you made an incriminating statement to someone else complicating your defense and ability to mitigate any penalties.

Individuals charged with domestic violence, for example, often speak to family members or the complaining partner or spouse, in violation of the no contact order of protection in an effort to pressure the partner or spouse to drop the charges or not appear in court. These activities, if recorded, are most certainly used against the charged individual in the existing case and to support charges of witness tampering or violation of a protective order.

If you are able to make a call from jail, do not discuss your case with anyone but your lawyer.

Hire a San Diego Criminal Defense Lawyer

If you have been charged with a crime in California, you can face misdemeanor or felony charges along with heavy fines and years of imprisonment. Contact a qualified and experienced  San Diego criminal defense lawyer who can help you mitigate potential penalties and put a difficult chapter of your life behind you. Continue reading

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San Diego, CA 92101
Phone: (619) 229-1870Fax: (760) 230-5888Toll Free: (888) 476-0901Email: dboertje@boertjelaw.com
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1808 Aston Ave #235
Carlsbad, CA 92008
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