California criminal defense attorney

August 3, 2017

No Shackles for Pretrial Detainees in Court

In a 6-5 opinion (United States v. Sanchez-Gomez), the 9th U.S. Circuit Court of Appeals just found the San Diego District Court’s 2013 shackling policy for pretrial defendants unconstitutional- “likening the court’s policy to treating inmates “like a bear on a chain.” While it is a significant ruling, the opinion is moot for the San Diego criminal court system because it no longer has the same restraint policy from 2013. The San Diego federal court had enacted the policy after the U.S. Marshals Service cited safety concerns due to understaffing and an uptick in violence. Federal Defenders of San Diego, a non-profit which provides public defense for defendants, sued over the policy on behalf of four people charged with crimes such as illegal re-entry, drug importation, and misuse of a passport.

U.S. District Chief Judge Barry T. Moskowitz decided to defer to the marshals on security, allowing the default policy to be the use of five-point restraints — leg and hand shackles connected by a belly band — during routine hearings. Now, overturning the lower court, the 9th Circuit ruling would only allow for shackling if it would serve a compelling purpose. The majority opinion found that “a blanket policy applied to all defendants infuses the courtroom with a prison atmosphere.” Rather, the higher court noted that each defendant must be assessed on a case-by case basis on whether they should be shackled on both the hands and feet. The judges noted that the “constitutional liberties” of defendants must be defended.

Your Constitutional Rights

It is widely accepted that pretrial detainees have the same rights as convicted prisoners.

You have the right to be treated with dignity and respect in a courtroom. While the U.S. constitution does not explicitly use these words, the 14th Amendment guarantee to due process denotes that even defendants have the right to fairness, dignity, respect, and privacy within our criminal justice system. This concept of human dignity is one that has been refined by the courts in its interpretation of the constitution. The Supreme Court in Deck v. Missouri held that the use of visible shackles during jury proceedings would prejudice the jury against the defendant. The recent 9th Circuit ruling clarified the scope of the right to dignity to pretrial proceedings.

Your are also presumed to be innocent until found guilty. See Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978). The 9th circuit clarifies that shackling before a defendant is even convicted or sentenced weakens that presumption. Continue reading

July 14, 2017

Big Changes Recommended for California’s Traffic Court

by David M. Boertje

According to California Supreme Court Chief Justice Tani Cantil-Sakauye, the over four million traffic tickets handed out to the state’s drivers each year should no longer be criminal charges. If other lawmakers agree with her, California drivers would spend less time in court and would no longer face fines of up to $300 and possible license suspensions for failing to show up for a hearing.

A panel called the Commission on the Future of California’s Court System has recommended this traffic ticket proposal in an attempt to improve Californian’s interactions with the judicial system. Ms. Cantil-Sakauye wants the Judicial Council to study and report on the proposals by September in the Fall.

The traffic proposals are the latest response to the slew of driver suspensions brought on indirectly by the court system’s financial deficits. California courts have been padding their budgets by adding surcharges to traffic tickets — $490 to the standard $100 fine for a minor violation. When drivers miss payment deadlines, they face additional penalties and license suspensions. A statewide report in 2015 found that 4.2 million Californians had their licenses suspended between 2006 and 2013 for failing to pay traffic fines and penalties. Poor people were hit the hardest.

Under this proposal, traffic infractions would be moved to the civil court system. If a driver fails to show up in court, the judge can decide whether the law had been violated, but he or she could no longer impose a fine of up to $300 for nonappearance or suspend the driver’s license. However, the proposal would not eliminate license suspensions for failing to pay fines and penalties for the original offense. The proposal would need to be approved by the state legislature and the governor.

State senator Robert Hertzberg (D-Van Nuys) has a new bill, SB185, that would prevent the state from automatically suspending licenses of drivers unable to pay fines for minor traffic tickets and would require courts to base fines on drivers’ ability to pay

Legal Implications

By switching out of the criminal law system into a civil one, it is now easier for the state to prove a violation. For criminal cases, prosecutors have to prove guilt “beyond a reasonable doubt.” The switch to a civil system means prosecutors only need to prove guilt by a “preponderance of evidence,” meaning that over 50% of the evidence points to the defendant’s guilt. Continue reading

July 5, 2017

How Will Police Decide What Role Race Played in The University City Shooting?

by David M. Boertje

In a tragic turn of events, seven adults were shot at a University City apartment complex pool party earlier this month. One woman named Monique Clark was killed. Witnesses say that 49-year-old Peter Selis, a resident at the upscale La Jolla Crossroads complex, never even left his pool chair when he opened fire on a birthday party. The question left in everyone’s mind is whether Selis was motivated by race, something that the witnesses and survivors of the shooting believe to be true. All the victims of the mass shooting were people of color – four black women, two black men, and one Latino man.

The three police offers who arrived at the scene shot and killed Mr. Selis. The preliminary investigation revealed that Mr. Selis is a car mechanic at a Ford dealership, and a 2015 bankruptcy filing illustrated that he was under crushing debt.

Hate Crimes

According to the FBI, a hate crime is a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Hate crimes are the only criminal case in which prosecutors are required to prove a perpetrator’s motive at trial. Typically, the defendant’s mens rea, or criminal intent, is all that is needed to prove guilt. This means that the perpetrator’s state of mind must be an element of the crime; he or she must have taken action intentionally to pursue a criminal result. For example, if a gunman opens fire on a crowd, prosecutors must prove that he intended to pull the trigger (the action) and shoot people to harm them (the criminal result). With hate crimes, prosecution must prove that the perpetrator had the mens rea to shoot people, but that he or she was also motivated by the victim’s race, gender, or religion.

As a result, hate crimes are extremely difficult to prove even if the crime of shooting is considered by some to be a ‘slam dunk’ case. The mere difference between the race of the offender and the victim in and of itself, absent of any other objective bias indicators, is unlikely to result in a conviction. Usually there must be more evidence to examine the surrounding circumstances. This may include statements the suspect made prior to the crime, which do not exist in the case of Mr. Selis.

A total of 84 “hate crime events” were reported in 2016 in San Diego. Continue reading

May 9, 2017

55 Indicted in Massive North County Heroin and Meth Takedown

by David M. Boertje

Earlier this year, San Diego police arrested dozens of people believed to be amongst North County San Diego’s biggest criminal gun and drug dealers in a massive takedown. In total, 55 men and women were charged in 10 federal indictments that allege heroin and methamphetamine trafficking, along with illegal gun possession, money laundering, robbery, theft, assault, and burglary. By March 1st, 46 out of the 55 suspects were in custody.

The arrest was part of a year-long investigation involving wiretaps, surveillance, and 150 cops. Acting U.S. Attorney Alana Robinson says many of the defendants are connected to drug traffickers in Tijuana (most likely the Sinaloa cartel). Mexican drug cartels then used San Diego gang member as distributors of their heroin.

It is reported that eight defendants currently remain at large, two of which are believed to have fled to Mexico. One of them is Yadira “Pini” Villalvazo, who prosecutors identified as the leader Tijuana operation, and imported and distributed heroin in North County to send tens of thousands of dollars back to Mexico. Authorities said the investigation also targeted meth traffickers.

Heroin Laws in California

The possession and sale of heroin is still a crime in California even though there have been a couple reforms that would steer the penalties for first-time offenders towards rehabilitation instead of jail. In 2001, California voters passed Proposition 36, the Substance Abuse and Crime Prevention Act (SACPA). SACPA mandates that those arrested for non-violent drug offenses be offered the opportunity for treatment instead of jail time. Prop 47, passed in 2015, made possession of heroin a misdemeanor for first time offenders and many other cases. Penalties can include a year in jail and a $1,000 fine.

However, it is a felony if you have a prior conviction for possession or if you also have a record for other serious felonies such as manslaughter or a sex crime. See CA Health and Safety Code § 11350. Possession for the sale of heroin remains a felony no matter what, and it is punishable by three to five years of imprisonment and a fine up to $20,000. See CA Health and Safety Code § 11351. You are not eligible for the drug diversion program if you have this conviction.

Selling or transporting heroin is probably the most serious of drug crimes, punishable by up to 25 years in prison. The number of years you face depends on the amount you are convicted of selling or transporting. Continue reading

April 14, 2017

Bill Would Amend California’s HIV Criminal Statutes

by David M. Boertje

It is reported that legislation will be introduced that will update California’s laws criminalizing HIV. It would make it so that a person could not be prosecuted for intentionally transmitting the virus if his or her sex partner tested negative for HIV. This comes at a time in which health officials throughout Southern California are reporting alarming increases in STDS, particularly syphilis, gonorrhea, and chlamydia, which are also part of a national epidemic.

According to the Centers for Disease Control and Prevention, STD rates reached a record high. While officials do not know the definitive cause for such high rates, they include medical and social factors ranging from a lack of adequate screening to decreased fear of curable STDs. Specifically, Orange County reported cases of gonorrhea were up 75% from 2011 to 2015. Syphilis cases jumped 80%, and chlamydia increased 14%. The California Department of Public Health say the highest STD rates are found among young people, African-Americans, and gay and bisexual men, according to the state.

California Has Strict HIV Disclosure Laws

Under current California Law, it is a felony if you fail to disclose to your sexual partner that you are HIV positive with the specific intent to transfer the virus to him or her.

Pursuant to California Health and Safety Code § 120291(a),“Any person who exposes another to the human immunodeficiency virus (HIV) by engaging in unprotected sexual activity when the infected person knows at the time of the unprotected sex that he or she is infected with HIV, has not disclosed his or her HIV-positive status, and acts with the specific intent to infect the other person with HIV, is guilty of a felony punishable by imprisonment in the state prison for three, five, or eight years.”

Another law on the books targets sex workers who are HIV-positive. If a prostitute is convicted of solicitation, he or she faces up to 16 months in prison.

Legal Defenses

Proving intent to infect someone with HIV is extremely difficult. You cannot be prosecuted if you did not know you were HIV positive, or even if you have never even been tested. Criminal statutes punishing HIV transmission have been held not to violate the Constitution’s equal protection clause because these laws punish voluntary conduct rather than the status of being HIV positive.

Lastly, just because you are not criminally liable does not mean you cannot be held civilly liable for damages in civil court. Continue reading

April 6, 2017

LAPD Tries to Suppress Crime without Alienating South L.A.’s Black Residents

by David M. Boertje

This past summer, the Los Angeles Police Department’s elite Metropolitan Division flooded high-crime, predominantly African American and Latino communities in unmarked police cars, stopping drivers with paper license plates, tinted windows, or broken tail lights as a pretext to search for illegal guns and find dangerous criminals. The operation was part of an emergency operation in South L.A. While terrorizing its residents, there is evidence that the strategy paid off. During the six-month operation, the LAPD Metro Division seized 300 guns and the number of killings in the area stabilized. It is reported that half of Los Angeles’ violent gun crimes occur in South L.A.

According to the Los Angeles Times, which interviewed many of South L.A’s residents, the Black residents felt deeply resentful over how often they are pulled over and the way they are treated by some police officers. A recent survey funded by the LAPD confirmed what many already knew: Black residents are much less likely than other residents to view cops as honest or trustworthy.

The LAPD now faces a conundrum: They want to crack down on crime, but they also want to build ties with historically marginalized communities, and not alienate law-abiding citizens.

Pretextual Searches are Legal

Pretext, in both civil discrimination cases and criminal law cases, generally refers to a reason that covers up other true motives or intentions. Pretextual stops (ie. traffic stops) are often used by police to initiate a stop and search of people they suspect to be involved in criminal activity. This means police will stop you for an innocuous ‘violation,’ such as a broken headlight, and then proceed to investigate you on a separate and unrelated criminal offense.

Because automobiles and traffic flow are so heavily regulated, police officers have wide discretion (called prosecutorial discretion) as to whom they stop and ticket for a traffic violation. Not only are police able to make traffic stops based on countless legitimate ‘offenses,’ they also get to decide whom they will ticket for traffic offenses or investigate.

Judges have repeatedly sided with police on pretextual searches, and courts have generally ignored a cop’s subjective motivation while evaluating the legality of their conduct. The Supreme Court has held that if a cop has a valid legal basis for detaining a driver, the stop is valid no matter what the officer’s subjective purposes might be. See Whren v. U.S., U.S. Sup. Ct. 1996; Arkansas v. Sullivan, U.S. Sup. Ct. 2001. Continue reading

March 10, 2017

New California Laws You Need to Know for 2017

by David M. Boertje

Every new year, California Governor Jerry Brown sifts through hundreds of bills sent to his desk and signs into law a slew of legislative changes in the criminal law sector for the state. In 2016, Brown saw 1,059 bills come forward, 898 of which he signed into law. He also vetoed 159 and let two become law without signing them. Here are the key laws that will be enacted in 2017 that affect the criminal law sector.

Assault Weapons

As part of a legislative package toughening gun regulations, Senate Bill 880 and Assembly Bill 1135 sought to close a loophole for guns with reloading devices called “bullet buttons.” While California already prohibits the sale and possession of assault weapons (defined as those with magazines that can be detached without disassembling the gun), “bullet button” devices quickly release spent magazines to get around the ban. As of the new year, it is now illegal to sell semi-automatic, centerfire rifles or semi-automatic pistols that do not have a fixed magazine and also have one from a list of specific features in California.

Changes in Sex Crime Laws

Senate Bill 1322 also took effect at the start of the new year. It prevents law enforcement from charging those under 18 years of age with prostitution or loitering with the intent to commit prostitution and was intended to protect victims of sex trafficking from criminal prosecution. Senate Bill 1129 further removes the mandatory minimum sentencing penalties imposed for repeat prostitution offenders who are 18 years of age or older. This law will give judges more discretion in sentencing on a case by case basis as opposed to hardline penalties.

However, while some criminal reform laws have made things more lenient on certain offenders, other laws, like Assembly Bill 2888 ensures that certain rape cases have mandatory minimum prison sentences that are not suspendable. This was a direct reaction to the lenient sentencing of convicted Standford rapist Brock Turner. Lastly, Assembly Bill 27 will classify all forms of rape as a violent felony.

Uber and Lyft

Companies including Uber and Lyft can no longer hire drivers who are registered sex offenders, have been convicted of violent felonies, or have had a DUI conviction within the last seven years.

Date Rape Drugs

Senate Bill 1182 makes the possession of date rape drugs like Roofies with intent to commit sexual assault a felony instead of a misdemeanor. Continue reading

March 3, 2017

Bill Cosby’s Attorney Files for Change of Venue

by David M. Boertje

Bill Cosby’s criminal defense team filed a motion for a change of venue out of Montgomery County for his criminal trial stemming from a sexual assault charge. Cosby was charged with a 2004 drugging and sexual assault of a Temple University employee. His attorneys are claiming that the extensive media coverage has biased potential jurors in the area, and that Cosby will not receive a fair trial. In other words, they are saying that the media coverage has led to an atmosphere which is “likely to produce prejudice” at Cosby’s trial.

Cosby’s attorneys cite numerous local and national media publications which they allege have smeared their client. The filed motion also claims that Cosby was used as a “political pawn” in the contentious District Attorney race between former DA Bruce Castor and current DA Kevin Steele. Specifically, Steel ran a 30-second ad attacking his political rival Castor for failing to prosecute Cosby.

Cosby’s motion did not recommend a new venue, but attorney Brian McMonagle asked Common Pleas Judge Steven O’Neill to either grant the request or hold a hearing for the change of venue. Cosby is scheduled to go to trial in June, with numerous issues still outstanding in the case. However, multiple hearings are expected ahead of the trial.

What is a Motion for Change of Venue?

There are two basic requirements that must be met before a court can hear a case. The first is jurisdiction, which refers to a court’s authority to decide legal issues that affect the rights of the parties involved, and the second is which court is the best location to hear the case (where a case may be heard).

“Venue” in a criminal case is generally defined as the court that is assigned to hear the matter. Defendants do not have the right to a county of his or her choice; venue usually relates to where the crime occurred. It is one’s constitutional right to receive a fair trial, although the ability to change a venue is not a constitutional right in itself. A defendant can request for a change of venue if there is a reasonable likelihood that he or she cannot receive a fair trial in the original venue.

Each jurisdiction has its own specific requirements for filing for a motion of change of venue. These requirements can be referred to as the rules of civil procedure. See relevant civil procedure forms for California here. Continue reading

January 6, 2017

New California Law Prohibiting Employers from Asking about Juvenile Criminal Records Takes Effect January 1

by David M. Boertje

A new law that prohibits employers in the state of California from asking about a job applicant’s juvenile criminal records is set to take effect January 1of the new year. Assembly Bill (A.B.) No. 1843 amends Section 432.7 of the California Labor Code to prohibit employers from asking about or considering one’s juvenile records or involvement in the juvenile system if it did not result in a conviction. It also would bar employers from using the information as a condition of employment.

In other words, it will soon be illegal for an employer to ask a job applicant about or consider “information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.”

Currently, the California Labor Code prohibits private and public sector employers from asking a job applicant to disclose information on an arrest or detention that did not result in a conviction or a pretrial diversion program, or an expunged record. AB. 1843 expanded these prohibitions.

California Governor Jerry Brown signed A.B. 1843 into law in September of 2016. Proponents of the bill have claimed that it would reduce the chances of a minor, especially minors from communities of color, from falling back into the justice system, since prior criminal history is a huge barrier to getting a job.

Sealing or Expunging Juvenile Records in California

Despite common misperception, juvenile records are not automatically sealed once you turn 18. While juvenile records are not public records unlike adult criminal records, they are still accessible until a formal order from a judge seals and destroys them.

In California, juvenile arrest records include every report and court record related to criminal activity you were involved in as a minor. This includes arrest reports, exhibits, and probation reports. Expungement (sealing) of juvenile records means that they will no longer be accessible to anyone and in alot of cases, destroyed. It has the effect of making it like the arrest or conviction never happened.

In order to qualify for expungement of juvenile records, you must be 18 years of age, and have not been convicted of a crime that involved moral turpitude as an adult. You must also not have pending civil litigation against you, and the court must be able to conclude that you have been rehabilitated. Continue reading

December 29, 2016

Eldest Bundy Son Wants Hearing to Challenge Detention Status

by David M. Boertje

Ryan Bundy, the eldest son of Cliven Bundy and member of the clan involved in the armed occupation of Malheur National Wildlife Refuge in Oregon has asked for a hearing to challenge his detention status in a Nevada jail. He claims that he poses no risk for flight and poses no threat to the public.

He and his brother Ammon Bundy were transferred to Nevada after they and the six accomplices involved in the standoff were acquitted by a jury in their Portland, Oregon trial. The Bundy family now awaits a second criminal trial for their 2014 armed standoff against Bureau of Land Management (BLM) agents on their father’s ranch in Nevada.

Ryan is serving as his own attorney for the trial in Nevada, just as he did during his federal trial in Oregon. Ryan and his brother Ammon Bundy both refused earlier this month to enter a federal courtroom in Las Vegas for a lengthy pretrial and date-setting hearing before a different magistrate judge. They, along with their father Cliven Bundy, are among the 17 people facing 16 felony charges including conspiracy, obstruction of justice, extortion, weapon, assault on a federal officer, and making criminal threats. The trial for the first six defendants is set to begin on February 6, 2017.