California criminal defense attorney

September 26, 2018

Mental Illness and Crime in California

The idea that there is some relationship between mental illness and crime is a popular theme when violent crimes are sensationalized in the media. People with mental illness live everywhere. So, it is unsurprising that some individuals accused of committing crimes in California also suffer from mental illness.

Mental Illness and Crime

According to a study conducted by David B. Kopel and Clayton E. Cramer, only a small minority of seriously mentally ill people commit violent crimes. However, close examination of mentally ill patients reveals the following:

Mentally ill patients comprise a large fraction of the jail and prison population;
Mentally ill people are disproportionately victimized by violent crime;
Some forms of mental illness increase the risk that a person will perpetrate a violent crime;
Untreated severe mental illness is significant in homicide cases; and
On a month to month basis mental illness treatment is more expensive in a hospital rather than prison.

San Diego Mental Health Collaborative Court (MHCC)

Since November 2016, San Diego county has offered a mental health collaborative court program to assist incarcerated people successfully reenter the community at the end of their jail or prison term. Assessments begin while the incarcerated person is still in jail and services start as soon as the individual is released.

A team of court personnel, social workers, nurses, psychiatrists, and counselors work with the incarcerated person between the ages of 18 and 59 who have been involved in or are transitioning out of correctional facilities. The individual receives a personalized treatment plan, medication management, peer support counseling, a housing subsidy, and educational or vocational services and training.

Individuals are referred to the program directly by the California Department of Corrections and Rehabilitation. To be eligible for the program, the incarcerated person must be:

18 or older;
Probation eligible
A U.S. citizen or contain lawful resident or temporary resident status;
Mentally competent;
Diagnosed with a serious mental illness;
Voluntarily participate in the program; and
Non-serious criminal charge.

Charged With a Crime in California?

A criminal case usually starts with a police arrest report. The prosecutor then decides what criminal charges to file. Some cases go to a grand jury for a preliminary indictment, where a jury decides if there is enough evidence to proceed. If you or someone you know is facing criminal charges in California, contact a San Diego Criminal Defense Attorney.

California offers individuals with mental illness programs in court, correction facilities, and post-release. Discuss your case with a San Diego Criminal Defense Attorney today. Continue reading

September 13, 2018

Identity Theft Crimes and Penalties in California

by David M. Boertje

Identity theft is a crime in California. Identity theft relates to the deliberate use of someone else’s name and identifying information to obtain a financial benefit. Criminal identity theft is a separate crime and relates to using another person’s name and identifying information resulting in a criminal conviction record being created in that person’s name. This post will discuss identity theft crimes.

What is Identity Theft?

California Penal Code 530 is the section of the criminal law code that deals with identity theft crimes. San Diego police and the district attorney’s office have specialized units that investigate, arrest, and charge individuals accused of identity theft crimes. A growing state and national issue, identity theft crimes are aggressively prosecuted at both the state and federal level.

Identity theft or fraud describe crimes in which someone wrongfully obtains and uses another person’s personal data in some way that involves fraud or deception, most often for economic gain. Identity theft is a federal and state offense.

Federal identity theft charges are often accompanied by other crimes. They are identification fraud, credit card fraud, computer fraud, mail fraud, wire fraud, or financial institution fraud.

What are the Criminal Penalties for Identity Theft Charges?

In California, identity theft crimes are penalties punishable by up to three years of state prison, restitution to the victim, court costs and fines, and post-release parole supervision.

The federal identity theft crimes listed above are felonies and can result in up to 30 years of imprisonment in a federal detention or correctional center.

Charged Under California’s Identity Theft Laws? Hire a San Diego Criminal Defense Attorney

A criminal case usually starts with a police arrest report. The prosecutor then decides what criminal charges to file. Some cases go to a grand jury for a preliminary indictment, where a jury decides if there is enough evidence to proceed. If you or someone you know is facing identity theft charges in California, contact the San Diego Criminal Defense Attorney.

California offers pretrial diversion programs for first-time offenders as an alternative to prosecution. Eligibility depends on age and prior criminal record. Criminal charges under the pretrial diversion program are dismissed if the person successfully completes court mandated programs and conditions within a specified time frame. Continue reading

August 17, 2018

DNA Profiling in California: Overturning Wrongful Convictions

by David M. Boertje

Since 1989, 200 people have had their convictions overturned in California because they were wrong. In a major study conducted by UC Berkeley School of Law, researchers found that:

California leads the nation in exonerations as defined by the National Registry of Exonerations with 120, surpassing Illinois (110), Texas (100), and New York (100);

Since 1989, courts have exonerated or dismissed convictions against 214 Californians. Reasons include official misconduct, insufficient evidence, findings of innocence, ineffective defense, and legal error;

The vast majority of these wrongfully convicted individuals served time in state or federal prison before their convictions were thrown out, collectively losing 1,313 years of their freedom;

40% of individuals in the dataset were initially sentenced to 20 years or more in prison, including many who received life, life without parole, or death sentences before their convictions were overturned;

African Americans have been wrongfully convicted at a much higher rate than people of other races and that the majority of wrongful convictions occur in just a few counties.

Rampart Police Scandal

In late 1990 the Los Angeles Police Department was involved in widespread police corruption scandal in the Communities Resources Against Street Hoodlums (CRASH) anti-gang unit. More than 70 police officers were charged with misconduct. The misconduct included unprovoked shootings and beatings, planting of false evidence, stealing and dealing narcotics, perjury, and obstruction of justice, among other crimes. The UC Berkeley School of Law study also found that:

Individuals framed in the Los Angeles Rampart police scandal of the late 1990s account for 25% of the wrongful convictions in the dataset (53 people thus far; news reports estimate the total number of exonerated individuals at greater than 100;)

Excluding the Rampart cases, all of which were due to official misconduct, major factors contributing to these wrongful convictions include:
- perjury or false accusation (42% of the cases);
- official misconduct by police or prosecutors (39% of cases);
- mistaken eyewitness ID (26% of cases);
- inadequate or ineffective defense counsel (19% of cases); and
- DNA evidence (fewer than 6% of the cases).

This was the final installment of the series DNA Profiling by Law Enforcement in California.

Have You Been Arrested in San Diego, California?

There is no greater injustice than being convicted of a crime you did not commit. If you or someone you know was wrongfully convicted, contact San Diego Criminal Defense Lawyer David Boertje to understand your legal rights. Continue reading

August 10, 2018

DNA Profiling in California: Criminal Suspects

by David M. Boertje

This is the fifth post in a continuing series about the use of DNA profiling by law enforcement in California. The focus in this segment is the DNA collection of criminal suspects or people arrested and charged for a crime but not found guilty or have not pled guilty to criminal charges. Check back next week for the final segment of the series about overturning wrongful convictions.

California is often at the forefront of criminal law. A place where it is a clear leader is the collection of DNA samples from criminal suspects. The American criminal law system functions with the assumption that an individual is innocent until proven guilty. While the use of DNA evidence for crime solving is one of the most important tools available to law enforcement, requiring the submission of DNA at the arrest stage reverses the assumption of guilty until proven innocent.

What is an Arrest?

Individuals arrested or taken into police custody and charged with a felony crime are subject to DNA collection in California. An arrest in California is the “taking [of] a person into custody, in a case and in the manner authorized by law.” (California Penal Code Section 834). In practical terms, custody means that the individual is not free to leave when he or she wants.

Adults Arrested for Any Felony Offense are Subject to DNA Collection

Prior to November 3, 2004, adults arrested for murder, voluntary manslaughter, a felony PC 290 sex offense, or an attempt to commit one of those crimes were subject to DNA collection. On January 1, 2009 all that changed. The new law requires all adults arrested for any felony offense to be subject to DNA collection. This also includes any person that is the subject of a “direct file” homicide complaint. The law requires the suspect to submit DNA as part of the criminal case.

When is DNA Collected?

DNA samples of criminal defendants are collected at the booking phase. The booking phase is when identifying information is collected along with fingerprints and photographs and occurs immediately following the arrest and before the person is placed in jail or sees a judge. Continue reading

August 3, 2018

DNA Profiling in California: Juvenile Offenders

by David M. Boertje

This is the third post in a series on the use of DNA profiling by law enforcement in California. The focus here is on the DNA collection of juvenile offenders.

Sometimes referred to as “Section 602 proceedings,” after the California law governing delinquency proceedings, juvenile court is not a part of California’s criminal justice system. Instead, juvenile court is considered a civil proceeding where cases get “adjudicated.” Most juvenile offenders are housed in county facilities close to their home where they can keep in contact with their family and have access to social services. These juvenile offenders, depending on their charges, may be required to submit a DNA sample as part of the resolution of their juvenile delinquency case.

Whose DNA Gets Collected?

June 15, 2018

Felony Arrest in California: What to Expect (Part V)

by David M. Boertje

This is part five of a six-part series on what to expect in California if you are arrested and charged with a felony. Prior posts are available at Step One: Pre-Arrest Investigation, Step Two: Arrest, Step Three: Arraignment and Bail, and Step Four: Pretrial Proceedings. What follows is an explanation of a felony trial.

Step Five: Trial

If a criminal case cannot be resolved in a plea negotiation or settlement, the case proceeds to trial for determination of guilt. A defendant can receive a trial by jury or a trial by court also known as a bench trial. At the conclusion of either trial, a verdict is reached and it is communicated to the accused person. The judge or jury tells the defendant that he or she is guilty or not guilty.

In a trial by jury, 12 community members listen to testimony from various people. Among the people who can testify are the victim, eyewitnesses, law enforcement personnel, medical doctors, forensics experts, and the defendant. A defendant may continue exercising his or her right to remain silent and not testify at trial. Ultimately, the decision to testify at trial is one made by the defendant’s attorney and the defendant. In addition to listening to the trial testimony from witnesses, the jury also examines evidence, makes factual determinations, and decides whether the defendant is culpable – guilty or not guilty.

In a bench trial, the judge makes all the decisions of the case. He or she listens to the evidence to decide whether the defendant is guilty or not and makes all decisions regarding the law and criminal procedure at issue during the trial.

Post-Trial Motions

If either side is not satisfied with the results of the trial by jury or bench trial, post-trial motions are available to address trial issues. A motion is a formal request to the court to address an issue that arose at trial. Motions can be made by the defendant or state prosecutor. One common post-trial motion, often filed by the defense, is a motion for a new trial. There are certain permissible reasons to obtain a new trial. There can be jury misconduct, an error of law by the court, or new evidence, to name a few of the permissible reasons. Post-trial motions must be made prior to the sentencing hearing. At sentencing, the trial judge assesses the punishment and penalties the defendant will receive.

Check back next week to read the six and last installment of this series – Step Six: Sentencing. Continue reading

June 8, 2018

Felony Arrest in California: What to Expect (Part IV)

by David M. Boertje

We continue the series on what to expect following a felony arrest in California. What follows is an explanation of pre-trial proceedings.

Phase 4: Pre-trial Proceedings

Many felony arrests are resolved at the pre-trial phase of criminal prosecution. Although the accused person is required to attend all court conferences unless excused by the Superior Court Judge, a criminal defense attorney has many tools available to resolve the case at this stage. Common tools are court appearances (conferences and hearings), waivers, motions (requesting court to resolve a dispute about the evidence or charges between the defense and prosecution), discovery issues, and plea bargains or negotiations.

Court Appearances: Preliminary Hearing, Readiness Conference, or Felony Disposition Conference

Following the arraignment, the next most important appearance is the preliminary hearing, known as a “prelim” or “probable cause hearing.” During the preliminary hearing, two issues are before the court: Is there probable cause to believe that a crime was committed; and if so, is there probable cause to believe that the defendant is the person who committed the crime. While rare, the Superior Court Judge may dismiss the charges against the accused person at this point and no further action will be required. More commonly, however, if both questions are answered in the affirmative, the Superior Court Judge will rule that the accused person must “answer for the charges.” This means that the criminal case is sent to the trial court for further pretrial proceedings, like the readiness conference or felony disposition conference.

At the readiness conference the prosecution makes an offer to the accused person to resolve the case before any other activity in the case happens. In exchange for pleading guilty, the prosecution usually offers a reduction in charges or lower sentencing recommendations. Usually negotiated in the judge’s chambers, if resolvable, the criminal defendant accepts the plea and pleads guilty to the charges or reduced charges. If not resolved, the criminal matter continues on the pre-trial track and further proceedings like waivers and motion practice occur.

Waiver of Speedy Trial Right

If you choose to fight the charges, California Penal Code states that the prosecution must bring the case to trial within 60 days of your arrest. At the readiness conference, if the offer is not accepted, the criminal defendant often waives the right to a speedy trial because it is advantageous to his or her defense. The result is that a trial takes a long time to schedule and ultimately resolve. When you waive your right to a speedy trial, the timing of the case is no longer important.

Pre-trial Motions

Pre-trial motions are a set of requests made to the trial judge, by either side, to help reduce the issues for trial. The motions include Motion to Suppress Evidence, Motion to Dismiss Information, Motion for Speedy Trial, Motion to Sever Counts or Charges, and Motion to Compel Discovery. Each of these motions have a purpose and must be made at certain times in the process or the ability to make the motion is waived because the motions are time-limited.

From a defense perspective, there are three powerful motions that can be made during the pretrial phase of the case – the motion to set aside information, the pitchless motion, and the motion to suppress. In a motion to set aside the information, the defense askes the court to dismiss one or more of the criminal charges that have been lodged. A pitchless motion asks the court for permission to review the arresting or investigating police officer’s personnel file. Defense attorneys are looking for prior complaints, excessive force, biases, or other police misconduct to taint the arresting or investigating police officer’s credibility. Lastly, a motion to suppress evidence asks the court to exclude from consideration all illegally obtained evidence. If these motions are successful, they are instrumental in resetting plea negotiations and may lead to the dismissal of all charges because of lack of evidence or credibility concerns

Discovery

Discovery in a criminal proceeding is a phase in which the defense and prosecution exchange evidence regarding the criminal case. Neither party may hide or withhold information from the other party and then attempt to present it later at trial. There is an exception for newly discovered evidence. There are strict rules and time-limits for the exchange and presentment of evidence in criminal proceedings. Continue reading

June 1, 2018

Felony Arrest in California: What to Expect (Part III)

by David M. Boertje

This post is a continuing series on what to expect following a felony arrest in California. The first two posts reviewed the pre-investigation and arrest phases. The next step is the arraignment and bail phase or custody determination.

Step 3: Arraignment and Bail

After arrest and booking, an accused person is brought before a Superior Court Judge for an arraignment. An arraignment is the accused person’s initial appearance in court and must occur within 24 hours of the person’s arrest. During the arraignment, the accused person learns of the charges filed against him or her by the prosecution. The accused person is read his or her rights and enters a plea or answer to the charges levied a by stating the words, “not guilty” or “guilty” when asked to answer.

Once the charges are levied and a plea entered, a custody determination is made. Usually, people are asked to pay bail or post a bond. In California bail amounts are determined annually by a schedule and set by each county. Click here for the 2018 San Diego County Bail Schedule. The purpose of a custody determination hearing is to assess whether the accused person is a flight risk. Bail is insurance to make sure the accused person returns to court on future dates. The amount of bail is determined by the seriousness of the crime, ties to the community, and prior criminal record, among other factors. The accused person will be asked to pay a certain amount of money or be released on his or her own recognizance for no money.

Bond Explained

If the accused person cannot pay the entire bail amount, he or she may seek the services of a bail bondsperson. Bail bondspersons post or pay the entire bail amount for the accused person and typically charge 10% of the bail amount as a fee for providing bond services to the accused person. The charge is also their fee and is generally not refunded, even if the underlying criminal case results in a dismissal. If you fail to appear as directed by the court at any future court date, all of the bail amount may be forfeited and you may be remanded into custody during the pendency of the criminal action.

Bounding Over

Arraignments are handled by any judge in any criminal court. If the accused person is before a lower court judge at time of arraignment and is being charged with a felony or the misdemeanor charge is upgraded to a felony charge, the case will be “bound over” to the Superior Court for a felony arraignment. A plea is entered again and there is an opportunity to review the initial custody determination. The bail amount may be increased or decreased depending on the circumstances of the case or any new developments that come to light after the first arraignment.

If you have not hired a lawyer before your arraignment, the court will provide you with an opportunity to obtain counsel before your next court date. Continue reading

May 8, 2018

Research Suggests No Link Between Crime and Immigration

by David M. Boertje

As Attorney General Jeff Sessions prepares to sue the state of California over its so-called “sanctuary state” policies, which prevent local authorities from complying with some requests by federal law enforcement agents, research suggests that crime and immigration may not be correlated. In fact, research shows that immigrants may commit fewer crimes overall. While crime rates in California remain low, some types of crime – notably, violent crime – have begun to see an upswing in recent years.

Attorney General Sessions, along with President Trump’s administration, have routinely linked crime with immigration, especially unlawful immigration. According to President Trump, “Many aliens who illegally enter the United States… present a significant threat to national security and public safety.” As California moves to protect its residents living in the state without proper documentation, its politicians disagree with the President that illegal immigrants are more likely to cause crime or commit crimes.

In the debate between the President and the country’s most populous state, evidence appears to back California’s position. In an analysis by the San Diego Union-Tribune, the results of three studies showed that immigrants committed less crime. According to one study, which analyzed incarceration demographics in 1980, 1990, and 2000, native-born individuals are anywhere from two to five times more likely to become incarcerated than immigrants. Speculating about the causes, the conservative-leaning CATO Institute said the severity of punishments, including likely deportation for minor crimes, may be the reason for the lower crime rate among immigrants.

California, a state flush with immigrants, is currently enjoying a historically low crime rate. However, violent crime is increasing throughout the state – a full 3.7% in just the last year, according to the newspaper. At 444 instances of violent crime per every 100,000 California residents, this is still a marginally low number – and a far cry from the rate of 1,104 violent crimes per 100,000 residents seen in the state when crime peaked in 1992. Some critics have retorted that the low crime rate is more likely caused by crime that increasingly goes unreported or criminal justice reform, which decriminalizes some types of formerly criminal behavior.

In contrast to the violent crime rate, California’s property crime rate fell roughly 3% last year. San Diego did not mirror the state’s crime trend with both the violent crime rate and property crime rate both dropping last year. Only Los Angeles County and Kern County saw an increase in both crime rates.

As further evidence that immigration does not cause an uptick in crime, the San Diego Union-Tribune cites the relative safety of border cities. If immigrants caused more crime, then cities with more immigrants, such as those on the border, should have higher crime rates. According to the newspaper, the opposite is true. Border cities are generally safer – both San Diego and El Paso, Texas are some of the safest cities in the country. Continue reading

May 3, 2018

Crimes Against the Elderly on the Rise in San Diego

by David M. Boertje

Crimes against the elderly are increasing at a disturbing rate in San Diego, California. In 2016, the last year with data available, the violent crime against elderly San Diego residents increased 13%. This accounts for 780 violent crimes against the vulnerable senior citizens living in San Diego – 14 homicides, 24 rapes, 205 robberies, and 537 aggravated assaults, according to CBS 8. In total, elder abuse cases, which include other types of elder abuse such as financial abuse and mental suffering, increased by 39% between 2015 and 2016.

The rise in elder abuse is especially problematic as San Diego increasingly becomes a destination for retirees. According to CBS, the number of San Diego residents over the age of 65 is expected to increase by 23% by 2050. Currently, only 13% of San Diego County residents are over the age of 65.

Because more elderly residents could mean more elder abuse, San Diego is proactively trying to protect this vulnerable group of people. The District Attorney’s office, responsible for prosecuting crimes, gathered several government agencies, including the Aging and Independent Services, and created the “San Diego County Elder and Dependent Adult Abuse Blueprint.”

The Elder and Dependent Adult Abuse Blueprint is meant to identify the unique needs and challenges faced by the elderly. According to Sheriff William Gore, these unique considerations include various health challenges, such as dementia or Alzheimer’s, as well as any other related disorders or cultural issues. Then, the local government’s plan-of-action will implement “best practices” for handling these problems by looking at how other local governments and states handle the same issues.

San Diego County urges anyone who believes they may be a victim of elder abuse, or knows of someone who may be a victim, to call Adult Protective Services at 800.510.2020. In 2017, the hotline received 14,700 referrals and handled almost 10,000 cases. According to Adult Protective Services, this represents an increase in the number of callers, though the number of callers in previous years was not available. According to the agency, financial abuse was the most common form of elder abuse. Financial abuse occurs when an elderly person’s property or assets are being misused – typically through fraud, trickery, force, or threats of force. Mental suffering and physical abuse were listed as the second and third most common complaints, according to the agency.

Discussing the disturbingly high rate of elder abuse in San Diego and the government’s comprehensive response, District Attorney Summer Stephan told CBS News, “Our society will be judged on how we treated our most vulnerable, including our children and our seniors.” Continue reading