California criminal defense attorney

May 9, 2017

55 Indicted in Massive North County Heroin and Meth Takedown

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.

December 23, 2016

Bail System is Next Target of California Criminal Justice Reform Efforts

by David M. Boertje

Adding to the already long list of criminal justice reforms enacted in 2016, it is reported that for next year, California lawmakers plan to make it a top priority to reform the system through which judges award criminal bail, saying courts across the state are “punishing the poor for being poor.”

Assemblyman Rob Bonta and Sen. Bob Hertzberg said they plan to introduce bills stating the Legislature intends to enact laws that will reduce the number of people detained before trial and address the racial and economic disparities in the bail process. It is still under deliberation what the details of these bills will be. The lawmakers have put together a broad coalition of organizations and lawmakers to tackle the issue, but they predict that the insurance and bail industry lobby will be reform’s biggest opponents.

The bail system has seen unprecedented momentum towards reform. In October of 2015 a lawsuit was filed against the state of California alleging that the current fixed bail scheduled system is unconstitutional and does not provide equal opportunities for wealthy and poor incarcerated individuals. San Francisco’s attorney general Dennis Herrera has already come out publicly against California’s bail system.

December 16, 2016

Huge Online Crime Network Broken Up

by David M. Boertje

U.S. and European authorities just announced they have dismantled “Avalanche,” a worldwide computer network that criminals have used to steal hundreds of millions of dollars from online banking customers around the world. The network enabled crime networks to send various types of spam and malicious software to banking customers who would open these messages and have their computers become infected with malware. The malware installed would then allow criminals to steal the bank account emails and passwords. With this information the criminals were able to transfer money from the victims’ accounts to various other worldwide accounts. According to Europol, over 1 million emails were sent out. This happened in the U.S. and 180 other countries.

Europol says it spent four years investigating the case with the help of the U.S. Department of Justice, FBI, and ESET, a global security company based out of San Diego. ECET has been reportedly helping law enforcement for years.

What is Money Laundering?

December 9, 2016

California Supreme Court: Prop. 47 Applies to Plea Deals

by David M. Boertje

In the latest court case involving Prop. 47, the California Supreme Court recently held that the voter-approved ballot measure that reduced penalties for certain drug and property crimes from felonies to misdemeanors, applies to prisoners convicted under plea deals. The panel unanimously held that Prop. 47 did not create an exception for prisoners whose sentences are based on plea deals that included the dismissal of more serious charges, therefore those convicted are eligible for Prop. 47’s benefits.

The case arose from a Los Angeles County case in which prosecutors agreed to a deal that dismissed a robbery charge and allowed the defendant to plead guilty to a lesser charge of grand theft in exchange for a six-year sentence. Prop. 47 reduced that grand theft charge to a misdemeanor, so the defendant petitioned for a lower sentenced for that already-pled down conviction. Prosecutors argued that they were entitled to have the original charges reinstated if such prisoners chose to seek a reduced sentence because those prisoners would otherwise be able to unfairly escape their sentence, “their part of the plea deal — and get an added benefit to which they were not entitled.” They further argued that they were entitled to the six-year sentence the defendant agreed to as part of his plea deal, and that they should be allowed to cancel the plea bargain in response to his petition.

Most cases and many felony ones are resolved by plea agreements rather than going to trial. Legal experts said the court’s decision will have limited impact because most trial courts in the state have been extending Proposition 47’s benefits to inmates with plea deals even before Thursday’ ruling.

Plea Deals for Felonies

A plea bargain is an agreement between a defendant and a prosecutor, in which the defendant agrees to plead guilty or no contest in exchange for the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence (which is usually a more lenient sentence). For those facing felonies, this is usually the preferred alternative than facing a jury trial for a crime that carries a much higher prison sentence.

After you have been charged, you must first plead “not guilty” in your first court appearance. You are required to answer to the charge of your original crime either way. From there, the prosecutor will typically want to negotiate to avoid trial, and lighten his work load. It is recommended you have an experienced attorney negotiate out your felony for you. Continue reading