California criminal defense attorney

March 3, 2017

Bill Cosby’s Attorney Files for Change of Venue

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

December 7, 2016

U.S. Marshalls File Probable Cause Statement Against Ammon Bundy’s Lawyer

by David M. Boertje

In a bizarre end to an already-bizarre criminal case, a group of six U.S. marshals surrounded the criminal defense attorney who defended Ammon Bundy, tackled him, and stunned him with a taser. The marshals have now filed a probable cause statement to justify their actions. In a statement filed in the U.S. District Court in Portland, the marshals give their explanation of why they took the actions they did, although their statement does not mention that a stun gun was used on Mumford.

Back in October, in a stunning loss for federal prosecutors, Ammon Bundy, his brother Ryan Bundy, and five of their followers were acquitted from their federal conspiracy charges connected to their armed occupation of Malheur National Wildlife Refuge in Oregon. It is reported that after the jury returned the not-guilty verdict, Mumford stood before U.S. District Judge Anna J. Brown and demanded that his client be released from custody immediately. He continued to yell and argue as the judge told him that Nevada still had a hold order on Bundy. Evidently that was when Mumford was tackled an tased.

A judge in Washington has been assigned to handle the citation against Mumford, who was cited for failing to follow a federal officer’s direction (a federal order) and disturbance at the end of the trial. The probable cause statement that was filed stated that Mumford was yelling so loud that people could hear him outside the courtroom, and his physical responses were pre-assault indicators consistent with someone preparing for a physical altercation.

What is Probable Cause?

Probable cause is generally defined as the reasonable belief based on the facts articulated, that a suspect has committed the crime. Probable cause must exist for a law enforcement officer to make an arrest without a warrant, search without a warrant, or seize property in the belief the items were evidence of a crime. It is a 4th Amendment requirement necessary before police make an arrest, get a warrant, or make a search.

A probable cause statement, also known as an affidavit of probable cause, is a a sworn statement, typically made by a police officer, that outlines the factual justification for why a judge should allow for an arrest or search warrant. If probable cause is found in the case of Mumford, then the U.S. Marshals had a legal right to seize Mumford and take him into custody. Continue reading

November 30, 2016

California Just Legalized Recreational Marijuana: Here is What Will Happen Next

by David M. Boertje

This past election, California voters chose to join the ranks of their northern neighbors Oregon and Washington, along with Alaska, Colorado, and Massachusetts, to legalize the use of recreational marijuana. California Proposition 64, the California Marijuana Legalization Initiative (also referred to as the Adult Use of Marijuana Act), is the product of a long-fought ballot initiative. It is effective immediately, which means November 8 was the law’s date of passage.

Proponents of the ballot initiative have argued that drug charges disproportionally affect Hispanic or African-American communities, which have an arrest rate of 35% and 350% more often than whites, respectively. Additionally, California is predicted to earn $1 billion in from tax revenues. Most of that will be set aside for youth programs, cleaning up environmental damage caused by cannabis growers, and California Highway Patrol programs.

What Prop 64 Does

November 23, 2016

Leaders of Oregon Wildlife Refuge Standoff are Acquitted of Federal Charges

by David M. Boertje

In a stunning loss for federal prosecutors, a jury has acquitted the leaders of the 41-day occupation and standoff at Malheur National Wildlife Refuge in Oregon. The Portland jury acquitted Bundy, his brother Ryan Bundy and five others of conspiring to impede federal workers from their jobs at the Malheur National Wildlife Refuge, 300 miles southeast of Portland. The jury could not reach a verdict on a single count of theft for Ryan Bundy. Currently, Ammon Bundy remains in jail because he still faces charges for the armed standoff at his father Cliven Bundy’s ranch in Nevada two years ago. The Bundys and their clan had been charged with federal conspiracy to prevent federal employees from doing their jobs by occupying the refuge.

This defeat for the prosecution was especially unexpected given the circumstances and the fact that three of the defendants chose to represent themselves without an attorney. Additionally, one juror was dismissed from the trial after another juror and defendant Ammon Bundy’s defense attorney accused him of being biased, since is a former employee of the Bureau of Land Management, the agency involved in the Nevada standoff. The dismissed juror was replaced with a replacement juror. US Attorney Daniel Bogden in Nevada, however, said the acquittals in Portland should have no effect on the currently pending Las Vegas case for the armed standoff.

Juror Misconduct in California

In a California jury trial, there are a variety of reasons a juror may be excused or discharged from a trial ranging from death, illness, or if the juror becomes too emotionally involved or impartial to participate. While these things do not rise to the level of misconduct, California law defines misconduct as any conduct that conflicts with the judge’s instructions as to how they should perform their duties. Examples include, but are not limited to:

Speaking to people or other jurors about the case,
Discussing the case with a fellow juror while out of session,
Concealing personal beliefs that could influence impartial deliberations, and
Refusing to deliberate.

Jury misconduct triggers a new trial if it leads to incurable prejudice. The judge has the ultimate discretion to determine whether a juror has engaged in misconduct. He or she has the duty to investigate allegations.

Remedies

If misconduct is found, a judge may discharge the tainted juror, discharge the entire jury, declare a mistrial, or admonish the jury. Continue reading

November 18, 2016

California Attorney General Investigating Wells Fargo on Allegations of Criminal Identity Theft

by David M. Boertje

A month after the national news broke that 5,300 Wells Fargo employees were fired for opening two million phony accounts, the California Department of Justice just announced it is investigating the bank on allegations of criminal identity theft over the creation of these accounts. The California DOJ sent over a search warrant to Wells Fargo’s San Francisco headquarters on October 5. The New York Times, through a public records request, has discovered that California Atty. Gen. Kamala Harris, in the final weeks of a run for U.S. Senate, has joined the growing list of public officials and agencies investigating Wells Fargo for the scandal.

Harris’ office has demanded the bank turn over the identities of California customers who had unauthorized accounts opened in their names, information about fees related to those accounts, the names of the Wells Fargo employees who opened the accounts, the names of those employees’ managers and emails, and other communication related to those accounts. The search warrant says that there is probable cause to believe Wells Fargo violated two sections of the state penal code — one outlawing identity theft, and the other outlawing the unauthorized use of personal information. Both are felonies.

It is unclear whether Harris will be pursuing criminal charges against individual bank employees or the bank itself. Federal regulators had revealed last month that bank employees had been secretly creating unauthorized bank and credit card accounts without their customers’ permission or knowledge since 2011. The phony accounts earned the bank boosted fees and sales figures to make the bank more money and to make employees bonuses. The bank has agreed to pay $185 million in fines along with refunding their customers $5 million. $50 million of those fines were paid out to Los Angeles County.