California criminal defense attorney

December 23, 2022

When an Angry Ex Accuses You of Child Abuse

You survived a miserable divorce and thought you had made it through the worst of it—but you could not have been more wrong. After a nasty custody battle that gave you limited visitation, now your ex is accusing you of the worst thing imaginable: hurting your own children. Your life has been turned upside down, and you know things can get much, much worse. Now, more than ever, you need a tough, no-nonsense criminal defense attorney fighting for your rights.

Criminal Penalties

In addition to the obvious damage to your relationship with your children, you are facing some serious penalties if convicted of these crimes:

Child Neglect: If you are found guilty of neglecting your children while they are in your care—failing to provide proper food, shelter, supervision, and so forth, you could face a year in the county jail, on top of $2,000 in fines.
Child Abuse: Intentionally inflicting physical harm on children is a serious matter, and a guilty verdict could put you in prison for six years, in addition to fines as high as $6,000.
Child Molestation: When children suffer sexual molestation at the hands of an abuser, that abuser could go to prison for eight years for each act of molestation.
Continued Sexual Abuse: When convicted of three or more acts of sexual abuse of a child, an abuser could go to prison for 16 years.

Defending the Case

Defending child abuse cases can be tricky because emotional testimony by a hysterical ex is convincing, especially if there is physical evidence to indicate the possibility of abuse. Sometimes children are manipulated by a vengeful parent or are eager to please that parent, ultimately sharing fabricated stories that they have no idea will destroy your life. The truth is society is eager to protect children and will frequently find a defendant guilty on the slimmest of evidence. That is why it is critical that you take immediate steps to protect yourself:

Do not speak to anyone, including the family, friends, and the police, about the charges without having your attorney present.
Do not have anything on social media that might present you as anything short of a model citizen and loving parent.
Share details of all child visits with your attorney, as well as the history of your relationship with your ex.
Help your attorney to gather a list of personal references—preferably those who have seen you interacting with your children.
Cooperate fully with Child Protective Services and their investigation.
Do not contact your ex or your children in an effort to understand the charges or convince them to drop them.

December 16, 2022

The Challenges for Transgender People in Lock Up

by David M. Boertje

Most transgender people can tell you that they have suffered discrimination and harassment for as long as they can remember. This, in itself, is a problem. But perhaps even more concerning is when cruelty and mistreatment come from the very authority figures who are entrusted to protect and defend them.

Fears of Police

The statistics are disturbing: Almost six in 10 transgender individuals are reluctant to seek out law enforcement assistance when they need it. That is because members of the transgender community – particularly trans people of color – feel that they are often profiled and harassed by police.

Incarceration

Unfortunately, the persecution does not end after transgender people are arrested and locked up. The rates of exploitation and violence are dreadful—with physical and sexual attacks by fellow prisoners occurring at 10 times the rate of other inmates. Even less palatable is the fact that they are assaulted by staff at five times the rate of other inmates. On top of these attacks, transgender inmates report long periods in solitary confinement and the denial of essential medical attention. In total, more than one-third of transgender individuals report having been raped while in prison—and that number is thought to be on the lower side of reality.

Housing Issues

One of the biggest challenges for transgender people upon incarceration is the fact that they are nearly always housed based on their gender assignment at birth, not their current identity. Transgender women are thus locked up with men, which puts them at substantial risk of rape and other violent acts. Even when they request to be relocated to women’s facilities, these women are usually denied transfers. This is despite laws requiring states to evaluate placements on a case-by-case basis and to consider where inmates would feel the safest. In fact, only about a dozen of the nearly 5,000 transgender people currently in state prisons are housed based on their lived gender identity.

Federal Laws

Along with asking trans people where they would feel safest, federal law requires an interview twice yearly thereafter These inmates’ concerns and their experiences with violence are supposed to be weighed as officials make housing determinations. The Prison Rape Elimination Act (PREA) is intended to protect all prisoners and specifically transgender people, who are at the highest risk of violence. States who refuse to comply are supposedly at risk of losing significant federal funding—but it does not seem to play out as intended. Some believe that is because specific benchmarks are not laid out, giving states the leeway to do as they please. Continue reading

December 1, 2022

Which is Better: a Settlement, a Bench Trial, or a Jury Trial?

by David M. Boertje

When facing criminal charges, the possibility that the case will be settled before you ever make it to court is very high. The National Association of Criminal Defense Lawyers (NACDL) reports that fewer than 3% of criminal cases ever make it to trial in this country. That is true for both state and federal charges. What happens instead? In the majority of cases, a plea agreement is reached, allowing defendants to accept lesser charges in exchange for a reduced sentence and/or other concessions. Even so, every criminal defendant is guaranteed the right to a trial by a jury of their peers, and that option is available regardless of the charges. In some situations, defendants waive that right in favor of a bench trial where a judge determines the outcomes. Which option is best?

Understanding a Plea Deal

There is no single correct answer to that question. Every case is different, and a defendant must carefully weigh the opportunities and possible consequences of each with the counsel of a trusted defense attorney. Some of the issues that should be considered if a plea bargain is offered include:

When a defendant agrees to a guilty plea, it will likely result in a more bearable sentence than in the worst-case scenario of a guilty verdict, so if the prosecution has a strong case, it may be worth considering;
Trials can be extremely expensive, when you add up attorneys fees and court costs;
If you plead guilty, it will put a stain on your record, which could have long-term consequences in terms of employment, housing, relationships, and more;
The potential of a not-guilty verdict and escaping penalties altogether may be promising.

Bench Trial or Jury Trial?

In the event you do decide to move forward with a trial, are your chances better with a jury or a bench trial? While it is definitely impossible to know for sure, there are some factors worth taking note of:

If the case is high-profile, it may be difficult to find impartial individuals to serve on the jury.
Some judges have a past record that gives a clue about how they rule in particular types of cases. Are you looking at someone who has a record of lenience or someone who throws the book at defendants in similar cases?
If your case relies strongly on highly technical issues, they may be beyond a jury’s understanding, whereas a judge understands the intricacies of the law. It is possible that an objective judge who is accustomed to applying the facts to the law will give you a better shot at justice.
If the facts of the case are inflammatory, a jury might be influenced by juicy, though immaterial, factors that a judge would be able to ignore.
On the other hand, are there mitigating facts that might make you seem more sympathetic to a jury but that a judge would consider inconsequential based on other factors?

November 25, 2022

Criminal Charges for Retail Theft

by David M. Boertje

Traditionally the holidays are a time when retailers experience an escalation in retail theft. Whether it is a case of beer or a pearl necklace, the law sees it all the same. Shoplifting costs retailers, insurance companies, and consumers every single day. And if you are caught in California, you will be the one to pay the price. That is why finding an experienced local criminal defense attorney would be a good move right about now.

Prevention

Retailers take the theft of their merchandise seriously and are doing whatever they can to put a dent in retail theft. In addition to providing employees with better training so they can spot shoplifters, many retailers are hiring undercover personnel who pretend to be shopping while keeping an eye out for would-be thieves. Technology is helping, too. As everyone knows, cameras are everywhere these days, tracking the movements of customers and of thieves. Pricier items may be under lock and key and often contain tags that set off alarms in the event of a theft.

If You Have Been Stopped for Shoplifting

Let’s say that you have been stopped by a store employee who thinks you have been trying to lift something without paying. What should you do? For starters, let’s talk about what you should not do:

Never try to talk your way out of it.
Do not attempt to explain, argue, or physically resist a store employee, security staffer, or police officer.
Do not give your personal information to store employees.
Never sign anything.

Instead, here is what you should do:

If a bonafide police officer questions you, tell them your name.
Ask to speak to your attorney straight away.
Say nothing to managers, loss prevention individuals, or anyone else.

After an Arrest

The number one rule following an arrest is this: Keep your mouth shut. You should have been advised of your Miranda rights. Say nothing beyond expressing your desire to speak to your attorney.

California Penalties for Shoplifting

Shoplifting, which is defined as going into a business that is open intending to steal merchandise worth $950 or less, is taken seriously in California. Offenders could wind up in jail for as long as six months, on top of having to pay fines up to $1,000 and pay restitution to the store owner. And that is for simply attempting to steal something—whether or not you are successful. If the theft involves merchandise valued at more than $950, charges of grand theft can result, which could mean up to three years behind bars and $10,000 in fines. Naturally, repeat offenders could see the penalties increase. Continue reading

November 18, 2022

When Police Show Up at Your Door

by David M. Boertje

Let’s say you are home glued to the television when you are startled by a knock on the door. You are not expecting company and are stunned when you look through the peephole and see a couple of police officers outside your door. What in the world are they doing there? You are about to find out.

Knock and Talk

So, you open the door, and the very friendly officers ask if they can come in to ask you a few questions. This is a rudimentary investigative technique police legally use to get their foot in the door with you—literally. Since you have not done anything wrong, you reason that there is no reason to deny them a little chat. The truth, though, is that although you can talk if you really want to, there are a slew of reasons that you should never, ever allow police to enter or search your home or property without a warrant. They could use that chat time to informally eye your place and try to find something they can use against you later. It does not matter how innocent you are. Don’t do it.

Fourth Amendment Rights

Assuming they do not have a warrant, the police cannot conduct a search without your consent. Do not consent: Even if they say it will be better for you if you cooperate, even if they indicate they will just go get a warrant anyway, even if they imply that you could be arrested if you do not cooperate. The Fourth Amendment of the Constitution is clear: You are protected from unreasonable searches. That means that no warrant and no consent equals no search.

It is Just a Friendly Chat, Right?

Now you understand that under no circumstances will you consent to a search, but what is wrong with answering a few questions? Absolutely nothing. But do not invite them into the house. Instead, step out onto the porch to talk. Why? Because there is every possibility that police are there looking for evidence. If they are eyeballing your home as you chat, who knows what will catch their eye? They may fixate on something that gives them probable cause to conduct a full-fledged search. In truth, if they showed up without a warrant, they likely do not have the evidence necessary to really get a warrant. Requesting to take a look around is part of their routine and their right. Politely declining is your right. Not only will it prevent a search in the immediate situation—but it will also give your lawyer ammunition to use in your defense if you wind up in a courtroom based on the encounter.

But There is Nothing Illegal in Your Home!

You may be thinking, there is nothing that could possibly pique the interest of an officer anywhere in your home! Why all the fuss about refusing entry to officers? Let ‘em in; have a looksie! There is nothing in your teenager’s room; nothing in your bathroom trash can; nothing in your spouse’s underwear drawer! You’ve never had a guest inadvertently leave anything the cops might find interesting. Well, come to think of it, you really can’t be 100% certain that nothing would be noteworthy to a law enforcement officer. The point is you have nothing to gain by letting the police look at your place. Nothing. Conversely, who knows what could go wrong and what you might have to lose? Continue reading

November 11, 2022

Avoiding Holiday Lockup and Long-Term Effects

by David M. Boertje

For many, the holidays are a time of togetherness and celebration. Regrettably, not everyone has the opportunity to enjoy those wonderful family dinners and city lights. Sometimes allegations of criminal activity get in the way of the festivities.

Arrests During the Holidays

As most people know, arrests do not drop off simply because the holidays are ahead. Instead of getting locked up and suffering other penalties, you can enjoy the joy of the season by staying out of trouble with the law. Some of the common reasons people get arrested during the holidays include the following:

Drinking and Driving: We all know there are ample prospects for partying between Thanksgiving and New Year’s Eve. But getting a DUI is no way to enhance your holiday joy! If you are stopped with a blood alcohol limit of .08 or higher, you are pretty much assured of a night in jail, with costly additional penalties as a bonus. Assuming you do not injure or kill anyone, it could be a relatively short stay, but additional consequences will last long beyond the night of the arrest. So use your head: don’t drink and drive!
Family Violence: Financial pressure, demands from extended family, and infuriating crowds everywhere you go — it can all get to be more than a little challenging. The stress of it all can lead to clashes among family members.
Airport Contraband: For those who travel during the holidays, be sure you do not bring anything that will get you in trouble with the TSA, and make sure you know the laws in any state you visit. TSA does not permit marijuana at all—so do not bring it on the plane. And guns are never allowed in carry-on luggage. Be careful what you pack.
Porch Pirating: With the increased online shopping during the holidays, porch pirates are ever tempted to steal merchandise, even during broad daylight. But with all the doorbell cameras out there, getting caught is easier than ever. Plus, law enforcement place dummy packages to bait thieves. So, whatever you do, stay off of strangers’ porches.
Shoplifting: For those who wish to boost their holiday haul without paying for the merchandise, there is a real risk of being seen by the many cameras around these days, not to mention undercover security personnel and others. Retail theft is a major problem during the holidays, and in California, it can result in significant jail time.

October 14, 2022

Why Provide a Defense in Cases of Atrocious Crimes?

by David M. Boertje

People often wonder why anyone would choose to defend individuals who are accused of the most appalling of crimes. Sure, it is reasonable that a strong defense ought to be mounted for minor incidents like smoking pot, illegal protesting, or maybe even something like shoplifting. But what about kidnapping, rape, or murder? Why should people accused of these kinds of monstrous crimes be protected with zealous efforts by criminal defense attorneys?

The Constitution

To begin with, the United States Constitution entitles everyone to an attorney and a defense. Period. These rights are not rescinded when the indictments make the public nauseous. In America, thank goodness, a prosecutor must prove a case beyond any reasonable doubt. This is a good thing on many fronts. Specifically, allegations and charges are oftentimes flat-out wrong. The presumption of innocence, along with other important principles, is cherished by every defendant—regardless of the nastiness of the crime in question.

Benefits for Everyone

And here is another point worth noting: The connection between government and governed is tenuous in terms of balance. When a strong defense is mounted, it pushes the prosecution toward a more accurate and unbiased push for justice. Despite the sentiments that compel the quest for guilt and vengeance, our justice system requires a rational and impartial look at the evidence of any given case. It demands that officials behave in transparent and conscientious ways and that they follow conventional techniques and practices. When just one step in the quest for justice is botched or manhandled, the promise of a judicial system that works for the people is lost—not just for a particular defendant—but for all of us.

It Beats Vigilantism

To be sure, atrocious crimes feed the furies of the public. If not for a principled pursuit of justice, communities might alternatively feel the need to mete out justice without the benefit of trial, judge, and jury. How much better, then, to provide the elements needed to seek the truth and deliver justice with temperance and dispassionate calm?

A System in Need of Repairs

Certainly, no one argues that the justice system in the United States is perfect—far from it. Suggested improvements have been tossed around for years, including examining the alternative justice courts, putting an end to cash bail systems, and providing more treatment programs to address addiction and mental health disorders. Undeniably, services to prepare convicts for an honest life outside of prison are lacking, and do not reduce recidivism rates to the degree we would like to see. But with all the discussions of potential improvements and adjustments to the system, there is one thing you will never hear in the United States: a call to eliminate defense attorneys, even for the most monstrous of crimes. That is because in America we rely on defense attorneys to balance a system that could otherwise tilt misguidedly toward guilty verdicts, ignoring innocence time and again. As the system stands, that happens enough already. Continue reading

October 7, 2022

Governor Newsom’s Order on Rap Music in Court

by David M. Boertje

If you are on trial for a serious crime, you can find some solace in the fact that courts have rules at both state and federal levels related to the relevancy of any and all evidence presented at trial. That means photos, witnesses, physical evidence, and more must be deemed reliable and pertinent before it gets in front of a jury. Does that mean that only prescient information gets to the jury? You might think so, but that is not always the case.

Case in Point

One recent case exemplifies a problem that is becoming increasingly common. It surrounds a 17-year-old boy who found himself sentenced to life in prison based on circumstantial evidence. There were no witnesses to the crime, and there was no physical evidence. So, what convinced the jury that he was guilty? The lyrics of a rap song he had written were central to the conviction, despite the fact that they were difficult to understand and certainly open to multiple interpretations.

Bias?

“I shot the sheriff…” crooned Bob Marley. No prison for him. Jimi Hendrix sang that he “caught her messin’ round town, yes I did, I shot her…” and was never even interviewed by police about the lyrics or murder. And when Bob Dylan sang about seven dead people in the Ballad of Hollis Brown, no one fretted he might be a murderer in our midst. The fact is, there are hundreds of thousands of popular songs from every genre that talk about acts of violence. Those lyrics are viewed as art, the songs a thread woven through American culture. Why, then, has rap music gotten such a bad rap? It has got to be nothing short of bias.

Legislation Necessary

The music industry has taken note of the bias against rap music, particularly in the aftermath of a RICO (Racketeer Influenced and Corrupt Organizations) indictment against famous rapper Young Thug in Georgia. The Grammy-award winner’s lyrics have been used against him in court, as prosecutors claim them to be overt acts. California is one state that is listening to the protest against using rap lyrics in criminal trials.

California Puts a Stop to Prejudicial Courtroom Antics

Governor Newsom says that all artists deserve to be able to create without being afraid their lyrics will be used against them in court—and he signed a bill into law saying as much. No longer can prosecutors use lyrics without the court thoroughly examining the research on that particular form of expression and considering racial bias. California is blazing the trail for more fair, impartial outcomes in a court of law. Continue reading

September 16, 2022

Should Juveniles be Charged as Adults?

by David M. Boertje

Hundreds of years ago all convicted criminals were housed together, regardless of gender, age, or mental illness. Prisons were filled with a mix of them all, until somebody recognized that there was a problem with the system in 1825. That is when New York House of Refuge was established with the goal of educating and rehabilitating juvenile offenders. It was not until 1899, however, that the first juvenile court was established meant to deal just with those under the age of 18. But there was unequal treatment of juveniles, and after much ado, Congress ultimately passed legislation—the Juvenile and Delinquency Prevention Act—in the mid-1970s to try to level things out. Nowadays we often hear that many juveniles should be tried as adults. Quite often those cries are heard, and now over 10,000 prisoners under the age of 18 are serving time in adult prisons across the country. What are the justifications for and against such a move?

Arguments Against Trying Juveniles as Adults

Opponents of such a move have several strong arguments to explain their position:

Parents do not have to take any responsibility: When kids commit serious crimes, parents should be held accountable to some degree, such as by being ordered to find proper counseling, care, and rehabilitation opportunities.
There is no benefit: Nobody wins when children, who should be getting education and rehabilitation, are simply locked up. Furthermore, it does not meet family court’s standard of acting in the child’s best interest.
Criminal activity is more likely again: When juveniles are treated like adults, they are less likely to get the help they need to change their lives, and a life of crime becomes more likely.
Punishment options are limited: The juvenile court system can order things like curfews and counseling, but the range of options in adult court is not geared toward young offenders.
Suicide risk increases: Juveniles in adult prisons are usually put in solitary confinement until they are old enough to join the general population, which makes them 40 times more likely to commit suicide.
A jury of peers is not possible: Every jury will consist of adults, even though the defendant may be just 9 or 10 years old.
Sealing records is harder: It is much more difficult to seal an adult criminal record, making it more difficult to make a fresh start.
Young brains are underdeveloped: Juveniles’ brains have not developed completely, meaning their decision-making abilities are inadequate. Based on neurobiology alone, it is unfair and unfitting to hold them to the same standards we hold adults.

Arguments in Favor of Trying Juveniles as Adults

Proponents of treating kids as adults in the justice system are equally passionate in their arguments:

It teaches accountability: Some families just do not teach accountability, and it is left to society to pick up the slack. Serious crimes deserve serious penalties.
Juvenile courts are too lax with serious criminals: When juveniles are given the toughest sentence possible in a juvenile court, they could be out in their neighborhoods again by the time they are 18 (or 21 or 25 in some states). About 300 people are killed by children every year. Neighborhoods and communities deserve protection from all violent predators, regardless of their age.
Actions should have consequences: If a serious crime is committed, the age of the offender should not matter. Society demands justice, and there is no way around it..
They will have access to more programs: Adult prisons offer vocational and mental health programs that are bigger and better than what the juvenile system offers, along with programming for mental health, addiction, and learning disabilities.

September 9, 2022

What Makes a Good Criminal Defense Lawyer?

by David M. Boertje

When you are up against criminal charges, you need an attorney by your side who is both ethical and willing to fight for the best possible outcomes for you. At The Law Office of David M. Boertje, our clients know we will go to bat for them, with several key principles guiding our decisions:

We treat every single defendant with respect and dignity, and we speak frankly and honestly;
We work to ensure that legal procedures are adhered to and defendant’s rights are protected;
We fight for access to diversion programs in lieu of jail time whenever it is an option;
We fight to ensure that minor defendants are treated like children, not thrust into the adult criminal justice system;
We endorse restorative justice, not purely criminal consequences;We insist that forensic evidence is dealt with properly (and call it out when it is not) and that expert testimony is challenged for biases and/or misinterpretations;
We shoot for treatment programs, not punishment, when mental illness or addiction is a factor;
We fight aggressively against signs of racial and gender disparities;
We strive to hold law enforcement accountable for their actions and mistakes.
We enter any plea bargain negotiations with the goals of fairness and just outcomes, and agree only with client consent.

Protecting Your Rights

The Constitution and the Bill of Rights guarantee every criminal defendant the right to just treatment. No matter the alleged crime, every defendant is entitled to the following:

Fifth Amendment Protections: Anyone who has watched cop shows on television knows that the Fifth Amendment gives you the right to remain silent—but there is lots more to it. The Fifth also ensures that serious felony cases cannot be prosecuted unless, after a preliminary hearing, a judge determines that there is enough evidence to hold a trial or after a grand jury has issued an indictment. Defendants are also protected from double jeopardy, which means after you are found not guilty in a trial, you cannot be charged again by the state for the same crime. Finally, the Fifth Amendment provides for economic liberty, which is important in property issues like eminent domain.
Sixth Amendment Protections: Defendants are entitled to a speedy, public trial in front of a jury of impartial peers. The idea is that that indefinite detentions will not occur. Defendants are also guaranteed the right to an attorney.
Eighth Amendment Protections: Defendants are protected from extreme outrageous bail requirements and/or fines, and are shielded from cruel and unusual punishments.