California criminal defense attorney

November 29, 2018

Prostitution Crimes

Prostitution is illegal in the majority of states in America, including California. Often referred to as the “world’s oldest profession,” at its most simple definition, prostitution is the exchange of sex for money. People are divided as to whether prostitution is a victimless crime, as sex workers often endure serious physical, financial, drug, and sexual abuse. Others, especially in states that permit prostitution, like Nevada, argue that it is a job like any other.

California’s Prostitution Laws

Prostitution is the exchange of sex for money or other form of payment. California laws define prostitution as a lewd act requiring physical contact of a sexual nature, sexual conduct, or sexual intercourse between two people. The sex worker is often the person charged with prostitution crimes.

California’s Solicitation Laws

Solicitation is an offer to pay money for sex. The john or client is often the person charged with solicitation crimes.

California’s Pandering Laws

Pandering is the act of arranging a sex act between a sex worker and client for a fee or cut of the amount charged. The panderer is called a pimp or madame and is often charged with pandering crimes.

Defenses to Prostitution Charges

Law enforcement agencies throughout the country set up sting operations to round up prostitutes and their clients. Every couple of months numerous arrests for prostitution and solicitation charges make the media, with over a dozen people arrested in a sting. Individuals charged with prostitution often rely on the defense of entrapment by an undercover police officer if their arrests were part of a sting operation by law enforcement officials.

Minors can no longer be charged with prostitution crimes with the passage of SB 1322, which decriminalized prostitution for individuals under 18. These individuals are instead referred to child welfare services.

Charged With a Prostitution Crime in California?

Prostitution and solicitation crimes are considered nuisance crimes, that lower the standards of a community. They make a big splash because prominent people often get arrested for solicitation. While jail sentences tend to be short, many times the sex workers themselves are repeat offenders, and their penalties increase with each arrest. Pandering charges tend to be felonies and carry long jail terms. If you face prostitution, solicitation, or pandering charges in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate the penalties. Continue reading

November 2, 2018

Crime in California

by David M. Boertje

Criminal behavior in California is defined by law and contained in the state’s statutes. If a person engages in actions the state has determined are criminal, he or she will be prosecuted in criminal court and possibly be convicted of the crime.

People today are well-informed and aware of the criminal justice system through what they see on TV and in movies, although they may not have much personal experience with it. True crime stories are highly publicized and have armchair jurors making judgments about the guilt or innocence of accused people. So, let us go over the basic of criminal charges in California.

There are four main types of crime:

Crimes against the person: Personal crimes are considered crimes against the person. They result in physical or mental harm to another person. Examples of personal crimes are assault, battery, false imprisonment, kidnapping, homicide, and rape.
Crimes against property: Property crimes are considered crimes against property. Things, rather than people, are harmed or another person’s right to use or enjoy property is taken away. These include larceny, robbery, burglary, arson, embezzlement, forgery, false pretenses, and receipt of stolen goods.
Inchoate crimes: Incomplete crimes are called inchoate crimes. These offenses were started by the perpetrator, but were not completed. The word attempt is often added to the underlying offense, like attempted homicide or attempted rape. In addition to attempt, these crimes also include solicitation and conspiracy.
Statutory crimes: Certain behavior by itself is not illegal, but state laws make it illegal. A good example of this is alcohol-related crimes, like driving under the influence of alcohol. Drinking by itself is not a crime. It only becomes a crime when the person tries to drive while under the influence. This type of behavior is called a statutory crime.

Have You Been Charged with a Crime in California?

Penalties for criminal convictions depend on the seriousness of the crime. The more serious crimes, like kidnapping and robbery, carry a year or more in prison. Misdemeanors are less serious and carry less than a year in jail. Both also carry monetary fines. If you face criminal charges in California, consult a qualified San Diego criminal defense attorney who can help mitigate your penalties. Continue reading

October 11, 2018

When can the DA Charge Someone as an Accomplice?

by David M. Boertje

Anyone who encourages, facilitates, or aids in the commission of a crime can be arrested, charged, convicted, and sentenced with the same crime as the person who actually committed it. Known as aiding and abetting or accomplice liability, this California charge catches all crimes, whether felony or misdemeanor, and any participation, whether the person committed the act constituting the offense or just aided and abetted in the commission of a crime. Aiding and abetting is not a separate crime.

For example, Nathan, Mateo, and Logan plan to rob a jewelry store. Each plays a different role. Nathan draws a diagram of the display case and safes. He gives the drawing to Mateo. Logan drives Mateo to the jewelry store and waits out front in the getaway car. Mateo actually goes inside the store, takes the jewelry, runs out of the store, and jumps in Logan’s car. The two of them drive off.

While only Mateo stole the jewels, all three could be charged with armed robbery because Mateo as the direct perpetrator entered the jewelry store and committed an armed robbery. Nathan and Logan are liable as aiders and abettors even if they did not know Mateo had the gun with him when he robbed the store.

Nathan can not put forth a defense that he was not present during the armed robbery because by drawing the diagram of the display cases and safes, he had more than knowledge of the planned robbery – he was involved in planning it and did nothing to stop it.

A new California law will redefine accomplice liability in felony murder cases. Check back next week for an in-depth look at Senate Bill 1437.

Charged Under California’s Aiding and Abetting Laws?

Under California law, if you aid and abet a person who actually committed a crime, you could face the same exact penalties, meaning a prison sentence. Aiding and abetting is not a crime in itself, instead it imposes criminal liability on the action of helpers. If you help someone commit a crime, you will be charged with the same crime as the person who actually committed the crime. Contact a San Diego Criminal Defense Attorney to discuss your defense and mitigating circumstances. Continue reading

September 26, 2018

Mental Illness and Crime in California

by David M. Boertje

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