California criminal defense attorney

November 23, 2016

Leaders of Oregon Wildlife Refuge Standoff are Acquitted of Federal Charges

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.

October 14, 2016

Convicted Low-Level Felons Could Get Voting Rights in California

by David M. Boertje

A new proposed bill in the state of California, A.B. 2466 now sits on Governor Jerry Brown’s desk for his approval. The bill would redefine who is entitled to register to vote, with the intent of restoring voting rights for the many ex-offenders within the state.

Today, racial minorities remain disproportionately excluded from voting as a result of the documented bias in drug law enforcement and sentencing. The “war on drugs” and subsequent decades of mass incarceration have blocked millions of people out of the electoral process. In California prisons, three out of every four men are either African American, Latino, or Asian American. African Americans, who comprise less than 7% of California’s voting-age population, currently represent 28% of those who cannot vote because of felon disenfranchisement.

Voting rights in the rest of the country depends on the state law. For example, two states, Maine and Vermont, allows felons to vote while behind bars. Fourteen states restore voting rights after a prisoner has been released from prison.

September 28, 2016

Animal Activist Goes to Trial for Giving Thirsty Pigs Water

by David M. Boertje

An animal rights activist by the name of Anita Krajnc, 48, is being tried in Canada for criminal mischief because she gave water to thirsty pigs at a traffic stop.

Back in November 2015, Krajnc was charged with criminal mischief after clashing with the driver of a tractor-trailer transporting pigs to the slaughterhouse. She and her fellow protestors tried to give the thirsty pigs water as they were stopped at a traffic light on the way to the Fearmans Pork processing plant. The Ontario based hog farmer, Eric Van Boekel, who owned the pigs, filed a police complaint the next day. He claimed he was concerned for the safety of his product the animal rights protesters, who sometimes crowd near the large transport vehicles when they are stopped in traffic. Krajnc is the founder of an animal rights group called Toronto Pig Save. The video that went viral online shows her approaching the driver first to ask him to give the pigs water, since it was such a hot day.

Several online petitions numbering in the hundreds of thousands of signatures have already sprung up in Krajnc’s defense. Krajnc faces a maximum of six months in jail or a $5,000 fine if convicted, and she has pleaded not guilty.

Difference Between Criminal Mischief and Disorderly Conduct

Under California law, CA Penal Code § 594(a), criminal mischief, or malicious mischief, refers to the act of intentionally damaging, graffiti-ing or defacing property. You will be charged with criminal mischief/malicious mischief if you intentionally deface or destroy another person’s property without his or her permission. It does not involve taking another’s property, which is considered theft. A key element of the crime is intentional behavior, and not accidental behavior.

The majority of malicious mischief cases are prosecuted as misdemeanors punishable by a fine up to $10,000 and one year in jail if the amount of property damage is under $10,000. If property damage is under $400, the crime is punishable by up to $5,000 in fines.

Disorderly conduct in almost every jurisdiction, is like a catch-all charge for those crimes that do not have a specific statute covering it. While disorderly conduct laws significantly differ amongst states, the crime is mainly known as “disturbing the peace.” This encompasses any behavior that causes other people alarm, anger, annoyance, or causes them to engage in unlawful activity. California categorizes disorderly conduct offenses into five categories:

General disorderly conduct which includes public intoxication,
Fighting, noise, and offensive words,
Rioting,
Disturbing the peace on a school campus, and
Refusing to disburse such as during a protest.

September 21, 2016

Accused Charleston Shooter Dylan Roof Beaten in Jail

by David M. Boertje

Last month, it was reported by CNN that the unsympathetic Dylann Roof, the accused shooter in Charleston, was attacked and beaten on his way to the shower in Charleston County Detention Center. Roof made headlines last year when he was arrested for his racially motivated massacre of nine black churchgoers at Charleston’s Emanuel AME Church in North Carolina.

Although he is currently in protective custody, Roof, 22, was vulnerable because only one guard was in the area and he was fetching toilet tissue for another inmate. That allowed another inmate, 25-year-old Dwayne Stafford, to run down the stairs from his cell into the protective custody unit and sucker punch Roof. It is reported the detention officer quickly responded and separated the two. There were no weapons involved, and the injuries Roof faced were minor – bruising on the face and back.

It is not surprising that the nature of his crimes make Roof vulnerable to attacks, and that is why he is under protective custody in the prison where he awaits trial. His murder trial is set to start at the end of January, and there are already three federal courtrooms dedicated to it. Roof currently faces nine counts of murder, three counts of attempted murder, and gun charges.

What is Protective Custody?

Protective custody in prison is a type of imprisonment intended to protect an inmate from harm, either from outside sources or other prisoners. Inmates have the right to request protective custody if they believe that the environment they are living in is harmful to their well-being. They can make this request at any time if they feel their physical safety threatened. Corrections officers then keep the inmate making the request locked up and unable to leave until the request is granted. The request may be granted if officials decide that the inmate is truly at risk. Once ‘protected,’ an inmate is typically segregated from the rest of the prison population.

Ideally, inmates under protective custody are housed in a stand-alone unit, with their own eating facilities, shower areas, recreation yards, and visiting rooms. Doctors and staffers visit the unit so the prisoner does not have to travel. Protective custody units have numerous cameras and guards, and can have anywhere from 10 to 100 inmates. Continue reading

August 26, 2016

Numbers Show Increase in Assaults Against San Diego Police Officers

by David M. Boertje

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.