California criminal defense attorney

August 26, 2016

Numbers Show Increase in Assaults Against San Diego Police Officers

While the nation is on edge from the high profile killings of unarmed citizens and police in Dallas and Baton Rouge earlier this year, the San Diego Police Department (SDPD) is currently trying to investigate whether a shooting death of Officer Jonathon DeGuzman, 43, was a deliberate act. It is reported that DeGuzman and a cohort stopped someone in the Southeast part of San Diego, which ended in a shootout. DeGuzman died in the hospital.

At the same time as tensions between citizens and police are high, statistics obtained by KGTV San Diego show that between January 2013 and July 2015, the numbers of assaults on officers increased. According to the news report, there were 252 assaults in 2013 and 319 in 2014. From January 2015 to July 2015, there were 254 reported assaults on officers, which is more than half of the assaults in all of 2013. The report was intended to identify the situations that are currently most dangerous for cops, and can be found here. However, other national studies shed doubt on KGTV’s study, concluding that fatal shootings of officers have actually decreased over the previous few decades

Crimes Against Police (“Peace”) Officers

As one could imagine, crimes against police officers are not treated like any other crime, even if the attacker did not know the victim was a police officer. San Bernadino County, for example, has its own “Crimes Against Peace Officers Prosecution Unit” dedicated to prosecuting crimes against police.

Under CA Penal Code § 148(a)(1), it is a misdemeanor punishable by one year imprisonment and a $1,000 fine just to resist arrest or ‘impede’ an officer from doing his job. Moreover, you can be charged with assault on a peace officer under CA Penal Code § 241(c) for threatening harm. It is a crime punishable by one year imprisonment and a fine of $2,000.

It is a first-degree attempted murder charge punishable by a minimum 15-year sentence (and up to a life sentence) if the crime is committed against a peace officer. Lastly, it is an aggravated penalty to kill a cop trying to fulfill his police duties in California. It is also punishable by the death penalty. Continue reading

August 24, 2016

New Article Sheds Light on Sexual Harassment and Assault on Women in Trucking Industry

by David M. Boertje

Riverside, California, is home to the West Coast terminal of trucking company CRST, located just off Interstate 215, where a woman named Cathy Sellars has filed a lawsuit against CRST for sexual harassment. Over the last 20 years, hundreds of women have brought gender discrimination lawsuits against the trucking industry. It is reported by the EEOC, that an average of one of six of those claims involved race-based harassment.

The trucking incident is still currently 95% male. The few women in the industry allegedly suffered from everyday harassment, from catcalling to rape. Sellars reportedly suffered instances of sexual harassment, assault, and intimidation from her trainer during her first few weeks as a truck driver for CRST. She says she reported the incidences of harassment with human resources for CRST on the phone, and called her trainer’s dispatcher, but failed to get the help she needed. She also says she would be catcalled at the truck stop, with the on-duty terminal manager at Riverside ignoring the behavior of male drivers.

Catcalling and Sexual Harassment: Free Speech, or a Crime?

While it is obvious that sexual assault (grabbing, flashing) is a serious crime, most states vary on public comments and gestures. Some have considered catcalling protected under the first amendment if it does not arise to a true threat. Simply put, it is not a crime to be a rude person. In other states however, behavior like catcalling is illegal under the broad legal definition of “lewd conduct.” In California, catcalling and verbal sexual harassment can still be considered a crime by way of different laws. The state has more protective laws against gender-based harassment, and currently has six laws that protect against verbal harassment:

Disorderly conduct- this includes explicit sexual comments or solicitations or obscene gestures. See CA Code, Title 15, Chap. 2 § 647.
Any harassment at adult education schools– including loitering or catcalling on campus. See CA Code, Title 15, Chap. 2 § 647(b).
Harassment on public transportation– See CA Code, Title 15, Chap. 2 § 640.
Vagrancy near a school- including loitering near campus. See CA Code, Title 15, Chap. 2 § 653(b).
Public nuisance- this includes those who routinely harass passerbys at the same street corner. See CA Code, Title 10, §370-372.
Unlawful assembly- California law defines this as whenever two or more persons assemble together for an unlawful or lawful act, in a boisterous or tumultuous manner. See CA Code, Title 11, §407-409.

August 3, 2016

Exonerated Man Thanks San Diego Lawyers, Law Students

by David M. Boertje

In 1993, California man William Richards was convicted and sentenced to 25 years for killing his wife Pamela. During the 23 years he spent behind bars, Mr. Richards has always maintained his innocence. For years San Diego-based California Innocence Project lawyers and California Western School of Law students worked to exonerate him. Back in 1993, Pamela was found dead by her husband when he arrived home from work. Her head had been crushed by a cinder block. The police who investigated the case did not find any footprints other than their own, and no defensive wounds on Richards, even though Pamela was missing a fingernail from scratching someone. The bloodstains on Richard’s clothing and shoes corroborate his statements that he had found his wife dead and held her in grief.

Justin Brooks, director of the California Innocence Project, took on Richard’s case because he felt there were too many unsolved questions of the crime if Richards had to withstand three trials in order to be convicted. Richard’s conviction had come in his third trial, based on the expert testimony of a dental expert.

It is reported that at least 16 law students from San Diego have worked on his case. Now age 66, penniless, homeless and without relatives, Richards is staying at the Riverside County home of a former student who worked on his case to try to get his life back on track. He was greeted and hugged by a law student who worked on his case when he was released from prison.

July 29, 2016

The Pre-Med Student Who Found Prince Dead Could Face Drug Charges

by David M. Boertje

Andrew Kornfeld, the son of the California addiction specialist who was hired to treat the late singer Prince, could face criminal charges for possessing a prescription drug (Suboxene), which is used to help kick opiate addiction. Kornfeld was at Prince’s estate when the singer was found dead in an elevator. Kornfeld was the one who made the 911 call. Kornfeld was on the scene in his capacity as a consultant for his father’s California outpatient addiction clinic, Recovery Without Walls.

The drugs were taken into possession by the Carver County Sheriff’s Office, as they are considered a controlled substance in Minnesota. According to criminal Defense lawyers, the Minnesota Good Samaritan law does not protect Kornfeld from drug charges because he had those drugs prior to Prince’s death. In Minnesota, possessing Schedule III controlled substances like Suboxone without a prescription is punishable by up to five years in prison and a $10,000 fine.

Can I Get in Trouble for Being a Good Samaritan?

July 27, 2016

Authorities Can Not Force the Homeless Off the Street

by David M. Boertje

While the act of being homeless itself is not an official crime, many cities have begun dealing with the issue of homelessness by way of “neutral” laws that criminalize the poor or discourage them from camping out on city streets. Over the past several years San Diego has been no stranger to the controversy as exploding rents, unaffordable housing, and a lack of resources have pushed more and more people out into the streets. With the near-perfect weather and laid back West Coast lifestyle, the city draws thousands of homeless people per year.

San Diego does not know what to do with the influx of people and homeless encampments. In Sherman Heights and Logan Heights for example, some locals have praised the installation of jagged rocks under the Sherman Heights underpass to discourage people from sleeping and camping out there. Others feel that the blame should be on officials and their lack of political will to provide low-income and homeless housing in an effort to solve a problem that is not going away.

So, what is the city doing? Homelessness itself may not be a crime, but common elements of homelessness can be.

July 8, 2016

Lawyers for the Bundys Worry Fear Partial Jury

by David M. Boertje

In the ongoing saga of the Malheur wildlife refuge occupation in Oregon, defense lawyers for Ammon Bundy and his crew are generally concerned that the jury will not be impartial. Prior to this, they have also accused federal judge Jennifer Navarro in Nevada of being biased and have tried to disqualify her from overseeing the case.

Andrew Kohlmetz, an attorney who represents defendant Jason Patrick, one of the refuge’s occupiers, had requested a change of venue for the September 2016 trial and asked a federal judge Wednesday to approve funding for an analysis of the media attention the case received and, possibly, a survey of community attitudes. The two requests would total almost $130,000. Kohlmetz states that the media attention this case has garnered may have biased potential jury members.

U.S. District Court Judge Anna Brown in Oregon seemed inclined to request the funding request until a thorough jury selection process is done to provide more information. She does not believe that jury members from Portland will be too “liberal.” It is reported she would like a jury comprised of residents from all over Oregon to represent diverse mindsets.

California Juries and the Jury Selection Process

In our criminal justice system, being judged by a ‘jury’ of our “peers” is amongst one of the most heralded constitutional rights. Juries are mentioned in the fifth, sixth, and seventh amendments in our Constitution. The theory was that an impartial jury would lead to the most just results in every case.

Who is Eligible?

In the U.S., any citizen over the age of 18 is eligible to serve on a jury. However, they must understand and speak English. They must live in the Court’s jurisdiction with a valid government issued ID, but cannot be on active military duty. Juries are randomly selected from various lists including voter registries. An individual cannot be summoned more than once a year.

In California, trial juries are generally made up of 12 jurors. But in civil trials and in criminal cases involving a misdemeanor, there can be fewer than 12 jurors if both sides agree to it.

Rooting out Bias

An important part of jury selection involves asking the court to dismiss certain candidates. After a potential juror is asked a series of screening questions, the attorney can request to dismiss him/ or her “for cause,” meaning he or she expressed some bias. These requests are unlimited. Alternatively, an attorney can also exercises a “peremptory challenge,” to a candidate meaning he or she does not have to state a reason for striking the person. There are only 6-20 requests allowed.

Lawyers are not allowed to veto prospective jurors based on their race, religion, or ethnicity. If they are suspected of doing so, the opposing party will likely file what is known as a “Wheeler motion,” meaning the entire jury will be dismissed and a new panel will be ordered. Continue reading

July 6, 2016

Woman in Florida Uses Fake California ID to Cheat System

by David M. Boertje

According to police, a woman in North Miami Beach, Florida was arrested at a nightclub and was using someone else’s Driver’s license to cheat the system. On the night of April 17th, the suspect was allegedly being disruptive and even pushed bouncers at the G5ive club. She also allegedly pushed an officer when police arrive at the scene. When she was taken into custody, she gave a fake driver’s license with the name and address of a woman who lives in Los Angeles, California. She was fingerprinted, but the fingerprints would only confirm her identity if she had a prior criminal history.

As a result, this woman has since paid bail and left the area under the California woman’s name. She also did not show up on her court date, which resulted in a letter being sent to the California address. The true victim in this case called the police and stated she has never even been to Miami.

Prosecutors said she fooled everyone with the fake driver’s license. In this case, officials are asking for the public’s help in identifying her. Unless this is cleared up, the victim of the identity theft will now have to carry a letter with her at all times in case she is ever stopped by authorities to prove that she has never in fact committed a crime.

It is a Crime to Use a Fake Driver’s License or ID

Under California Penal Code § 470(b), it is a crime (either a misdemeanor or felony) to display or possess any fake ID with the intent to commit a forgery or fraud. The legal definition of displaying a fake ID also consists of the following elements:

You possessed/displayed a government issued ID card such as driver’s license, social security card, or passport;
That ID card was altered, counterfeited, reproduced, or forged;
Your knew it was a fake ID.

Specifically, teenage minors under the age of 18 who are caught with a fake ID face a fine of $250 and 24-32 hours of community service and a one-year suspension of their driver’s license. Continue reading

July 1, 2016

Three Men Found Guilty of Conspiring to Join ISIS

by David M. Boertje

In a story that made national news, a federal jury has found three men guilty of plotting to join the terrorist group ISIS and commit murder overseas. Guled Omar, 21, and Mohamed Farah, 22, were found guilty on all charges, while the third man, Abdirahman Daud, 22, was only found guilty on all terror counts, but not of lying to a grand jury. They face life imprisonment.

Back in 2014, it was reported that at least 15 Somali-American men have traveled to Syria from Minnesota to join the Islamic State of Iraq and Syria (ISIS). These three men were amongst nine Minnesota men arrested since 2014 for allegedly plotting with the terrorist group. Six have already pleaded guilty to conspiring to travel to Syria to join ISIS. The family members of the three suspects in this case insist that they are innocent. None of the men have prior criminal convictions, and the Somali community in Minnesota claim that they were just young, impressionable teenagers who were trying to talk ‘tough.’

What Exactly are You Charged With if You Join ISIS?

June 24, 2016

The Bundys Argue Their Rights are Being Violated

by David M. Boertje

Ammon and Ryan Bundy have filed for an administrative hearing over what they claim are ‘deplorable and unconstitutional’ conditions. According to the document filed by their attorneys, the Bundys argue that their first amendment rights are being violated because they are not free to assemble nor practice their mormon religion by engaging in religious activities or wear religious garments. They further allege that they are “being denied access to materials and resources reasonably required to defend their respective cases.” Perhaps more surprisingly, the Bundys are also alleging a violation of the second amendment rights because guns are not allowed in jails for prisoners. According to Oregon Public Broadcasting, they are considering suing the Multnomah County Sheriff’s Office to get possession of their weapons.

Rights of Prisoners

It is obvious that prisoners have fewer rights and freedoms while incarcerated. Some rights, however, are still guaranteed by the U.S. Constitution. The eighth amendment prohibits conditions for prisoners that would be considered “cruel and unusual” punishment, although that term was not clearly defined at the time of the Constitution’s signing. Generally, any type of treatment that would reasonably be considered inhumane and in violation of basic human dignity would violate constitutional law.

Prisoners are also supposed to enjoy certain first amendment protections, such as the freedom of religion. However, they do not have the same level of rights as free citizens. Rights such as ‘protesting’ or ‘assembling’ may be restricted under Rational Basis Review. This just means that there is a “valid, rational connection” between the prison regulation and the legitimate government interest put forward to justify it. Such regulations are not considered unconstitutional as long as the regulations apply to all inmates in a neutral fashion.

Lastly, all inmates at the state and federal level have the right to:

Be free from sexual harassment and assault;
Be free from racial segregation (unless deemed necessary for the safety of prisoners); and
Receive adequate medical care.

Unfortunately many of these freedoms are violated regularly. Continue reading

June 15, 2016

Prop 47 to Blame for the Crime Surge in California and Las Vegas

by David M. Boertje

It is reported that crime rates in the state of California more than doubled in California’s major cities in the first half of 2015, violent crime rose by double digits, and property crimes also spiked. According to the FBI data, California’s crime rate is now on the rise after decades of decline.

In the neighboring city of Las Vegas, there has been a reported 66 homicides just this year– up from the 29 homicides in 2015. In Las Vegas specifically, Metro Police Sheriff Joseph Lombardo has stated that there has been an influx of people arrested– mostly with gang ties from California. Robberies, home invasions, and sexual assaults have risen by 22% in the city.

While there are no hard statistics linking the crime to Prop 47, both metro police in Las Vegas and law enforcement in California are blaming Prop 47, which was signed into law in late 2014. Most murder suspects in California also have ties to Las Vegas, so it is not surprising that they would flee to Sin City. Due to the efforts of a joint operation between LAPD and Nevada authorities, 27 parolees who have fled to Las Vegas have been arrested and also returned to California.

What Prop 47 Did

Last year the California Supreme Court also held that Prop 47 applied to minors. Proponents of the criminal reform law say that Prop 37 was intended to reduce sentences and increase investments in drug treatment for low-level offenders, particularly those with drug addiction. By doing so, they were also increasing the space in prisons for the truly violent criminals. The law had also reduced sentences for gun thefts and possession of date-rape drugs and changed a number of property crimes from felony to misdemeanors.

Not Going as Planned?

Opponents have claimed that the effects of Prop 47, which were supposed to increase social services for people, have not had the intended effect. The law does not take into account one’s criminal record, so dangerous people with violent records have been let out early to commit more crimes. For example, under the current law one cannot be charged with a felony as long as he or she steals property worth less than $1,000. This is the case no matter how many times he or she commits the crime.

That being said, it is likely that the legislature may amend the law in the near future to account for some of these things that opponents are claiming to be the cause in the increase in crime rates. Continue reading