california criminal law

October 11, 2024

Stay Out of Legal Trouble Related to Voting

Even though you thought you were just being patriotic when you chatted up fellow voters, now you have been arrested and charged with voter intimidation. What is voter intimidation, and what should you do about these charges?

Voter Intimidation

U.S. code defines voter intimidation as any combination of coercion, threats, or intimidation of someone else in an attempt to interfere with that person’s right to vote for the federal position or candidate of their choice. It is a federal offense and could land offenders behind bars. But what does voter intimidation look like in practice? Some examples include:

Obstructing someone’s access to a polling place;
Using verbal or other threats in or around a polling site;
Questioning, pursuing, or otherwise disrupting voters;
Grilling a voter about their voting authorization, including questioning their citizenship and/or criminal record;
Lying about or misconstruing the rules related to voting requirements in an effort to dissuade people from even attempting vote;
Soliciting personal information from potential voters in phone calls, flyers, or in person.

Who Can Be Poll Watchers?

Poll watchers oversee polling sites and ballot counting locations with the goal of keeping election work honest and transparent. In California, these individuals:

Sets up/closes down polling locations;
Protects voting equipment/ballots;
Helps voters understand voting rights;
Must be a legal permanent resident of U.S. citizen;
Could be a high school student who meets these qualifications:

Is a U.S. citizen;
Has a GPA of 2.5 or higher;
Has permission from their parents/guardians.

Restrictions on Poll Watchers and Election Observers

Although poll watchers are allowed to observe the behavior of both voters and officials, they are prohibited from certain activities. Clearly, they are not allowed to intimidate or threaten voters. Additionally, they cannot:

Interfere with the voting process;
Promote any political position, candidate, or party;
Wear campaign paraphernalia or clothing;
Wear law enforcement, private security, or peace officer uniforms;
Physically touch voting materials, furniture, or equipment;
Converse with election officers;
Without permission, attempt to enter a secure area;
Speak with voters about their vote or their eligibility within 100 feet of a polling site;
Talk to workers or otherwise interrupt the work in the central counting location;
Challenge the process or decisions made by election officials;
Photograph or video voters coming and going from polling places.
Look at a voter’s ballot, choices, or personal information.

Penalties for Voter Intimidation

If found guilty of interfering with the work of election officers or voters who are exercising their legal right to cast a ballot, section 1170 of the Penal Code allows for imprisonment for up to three years. The same goes for tampering with voting materials or equipment and attempting to discourage someone from voting. Continue reading

October 4, 2024

When Domestic Violence Victims Have Had Enough

by David M. Boertje

A woman confided in her brother about her husband’s threats and abuse. They mulled over various ways to eliminate her abuser, who had dragged her through dog feces, gripped her hand in order to break the glass she was holding, causing the shards to slice her hand, pulled her hair, and punched her. Worse yet, he had threatened to murder their two children when she left him once. The woman had twice called the police to report the domestic violence but discovered that officers appeared unwilling to do anything more than advise the couple to work out their problems. That led the woman’s brother to take matters into his own hands, and after some friends lured his sister’s abusive husband to a remote site, he shot and killed the man. Both the abuse victim and her brother went to prison with life sentences. That was in 1984. The brother died in prison. The woman is still there.

The Castle Doctrine

Four decades later, not a lot has changed when it comes to women killing their abusers. The castle doctrine– a 17th-century law that embraced its European homeland– gives any man the right to protect himself and his property—which includes his wife and children– when attacked. When not within the confines of his home, conversely, a man was expected to retreat when attacked. But that all changed in 1876 with the development of the true man doctrine. It stated that a “true man” would never retreat from a conflict. This developed into states creating stand your ground laws in 2005. Such laws give people in some states the right to defend themselves in their homes, cars, hotel rooms, and so forth when under attack, as well as in public spaces. However, in California, public spaces are a different matter, and retreating is required if lethality is not necessary. At any rate, these laws were not written to apply to domestic violence situations because both individuals in a home have the right to be there. In other words, one can protect oneself from dangerous threats originating from outside the home but not from those spewing up inside, where victims of domestic violence are at the greatest risk.

July 26, 2024

Could You Be Deported for Committing a Crime?

by David M. Boertje

For non-citizens living in the United States, following all laws is crucial. While it is true that the idea of incarceration and fines is upsetting to anyone, things can get much more problematic for immigrants who lack U.S. citizenship. That is because, in certain situations, criminal activity could result in deportation. The rules set out by the Immigration and Nationality Act could lead to a hasty, unplanned exit from America (or inadmissibility) for non-citizens.

Non-Citizens

There are three types of individuals, all of whom are in the country legally, but none of whom qualify for a U.S. passport, and none of whom are citizens of the United States:

Dreamers: Undocumented individuals who entered the country as children when they were under the age of 16, who have been here for five or more years but who are under the age of 31, and who have had no serious criminal convictions and are in school, are high school graduates, GED holders, or have performed military service.
Temporary residents: Foreign nationals and their spouses and children who are here on a work or education visa;
Permanent residents, who have green cards and who live and work in the U.S. legally.

Problems That Could Lead to Deportation

A number of issues could result in deportation:

Compliance Failures: Discounting the requirements to comply with a change of address registration or the falsification of any documentation related to visas, permits, or entry documentation could lead to deportation.

Crimes of Moral Turpitude: Crimes of Moral Turpitude are crimes that society has deemed intolerable because they violate recognized rules of morality. Two criteria must be met in order to result in deportation:

The crime of moral turpitude was committed within five years of being admitted to the U.S. (or within ten years for someone who has permanent resident status);

The crime has a maximum criminal penalty of one year or more behind bars.

Drug Charges: Drug charges (unless there is a single charge related to having 30 grams or less of marijuana for personal use only); being an addict or user of drugs (outside this marijuana exclusion);

Firearms Charges: Using, trading, buying, selling, or carrying a firearm, device, or accessory that could be destructive and that is in violation of state or federal law;

Aggravated Felonies: Any conviction of an aggravated felony;

High-Speed Flight: Participation in a high-speed flight from an immigration checkpoint;

Domestic Violence: Violating a protective order, as well as any conviction of stalking, domestic violence, child abuse, neglect, or abandonment;

Falsely Claiming U.S. Citizenship: Falsely representing oneself as a U.S. citizen to receive a benefit;

Illegal Voting: Voting in any local, state, or federal election for a constitutional provision, regulation, ordinance, or individual; Continue reading

May 27, 2022

What Factors Affect Witness Credibility in a Criminal Case?

by David M. Boertje

When the prosecution is making their case against a defendant who is charged with various crimes, they may make use of witness testimony as part of their strategy. Some witnesses can be extremely credible and make it an uphill challenge for the defense to overcome. Other times, the believability of a witness can be questioned, and a talented criminal defense lawyer will know how and where to find inconsistencies to potentially make their testimony less impactful on the defendant’s case.

When you have been arrested for a crime in San Diego or the surrounding areas, the best way to go about combating such charges is to do so with effective and competent legal counsel. For the majority of his professional life, the San Diego criminal defense attorney David M. Boertje has been representing aggrieved individuals accused of crimes and fighting to secure the best possible outcomes for them. When a case goes to court, getting a “not guilty” verdict is always the goal. But, when this does not seem likely, having charges reduced or negotiating a fair plea agreement could be appropriate alternatives.

When is a Witness’s Testimony Credible?

Ultimately, credibility comes down to what the jurors believe when they hear a witness speak. During a trial, witness statements can be quite powerful for either the prosecution or the defense. Yet, not every witness called is going to deliver a compelling story that sways the jurors to believe in their credibility.

The way that a witness comes off, their personality, the consistency of their statements, their background, if they have a criminal past, their connection to the case, and more can all go into what makes up a trustworthy witness or one who is suspect.

Some key factors that go into the credibility of a witness include:

Can the witness benefit financially from the outcome of the case?
Does the witness exhibit, or can be shown to have any type of bias or prejudice?
Does the witness have certain disabilities or limitations that may have hampered their ability to fully hear or see an event?
Does the witness have a drug or alcohol problem and did they have either in their system at the time they claim they heard or saw something?
Do they have a clear and consistent memory of the events that took place or do they often struggle to remember what happened when questioned?
Is the witness’s behavior consistent with truth telling?
Has the witness said different things at different times about an event in question?

Even if a witness is completely honest, there is no way to tell how each juror will interpret what they say. This is especially true because to some extent, people all have varying amounts of different subconscious biases. For example, it could be that one juror may not be as trustful of men with blue eyes and blonde hair simply because of an experience they had with someone of the same characteristics in their past. Continue reading

January 29, 2021

Parolees Able to Vote in California Per Updated 2021 Legislation

by David M. Boertje

The year 2020 was a volatile one, and now that it has come to an end, there are high hopes for a better and much more stable 2021. Across the country and in the state of California, new laws and regulations are going to take effect. Some of the new legislation is directly influenced by what we experienced during the pandemic. The world’s new normal includes considerations for COVID as well as other potential strains and viruses that could emerge.

What are the New California Laws for 2021?

The following are some of the new 2021 California laws that have taken effect as of January, 2021:

Every employer who finds out that their employees have been exposed to COVID-19 has 24 hours to tell them.
Choke holds and carotid holds will not be used by law enforcement and are banned.
Parolees who were not able to vote due to their criminal history will now be able to legally vote in California.
Any individual serving time for a felony in a California prison who assisted with fighting the wildfires could have their felony charges expunged when they complete their sentence. This will be determined on a case-by-case basis and depends on the details of the crime committed. Those who do have the privilege of expungement will have an increased ability to become a professional firefighter.
Companies with greater than 25 employees will have to pay their employees a minimum of $14 per hour, and companies with under 25 employees will have to pay a minimum of $13 per hour.
Every California company must hold the jobs of its employees for up to 12 weeks to allow unpaid leave in the event of a childbirth or family emergency.
Companies that have headquarters in California and that are publicly held must have a director installed from an “underrepresented community.”
Insurance companies must notify their customers about any reduction in coverage and they also must confirm acknowledgment from their customers that they received the updated information. Customers must put their recognition of communications in writing.
Automobile brake pads that have more than 5% of copper materials will no longer be manufactured in the state.
Hospitals must have a stockpile of three months’ worth of personal protective equipment. Hospitals must also make sure that their healthcare workers use the equipment.

December 4, 2020

What You Can Do About Your California Criminal Record

by David M. Boertje

Having a criminal history can impact you both personally and professionally, no matter where you are located in the country. There are varying levels of punishments and long-term implications based on the type of crime you committed and its severity. For instance, there are convictions that can keep you from obtaining a professional license or make you lose a professional license you legitimately earned. Other crimes may limit your ability to vote or buy and own a firearm. Those with a criminal past often have a difficult time just obtaining gainful employment even after they serve their time.

There is no doubt about it, Californians with any amount of criminal history face more obstacles to achieving their life goals than those without a criminal history. Luckily, there are options that can help an ex-convict gain some relief from their criminal past. Working with an experienced and resourceful San Diego criminal defense attorney is a convenient way to learn more about what your options are regarding how to better manage your criminal record. If you are able to make adjustments to your record, you could greatly impact the trajectory of your life.

What Options are Available to Reduce the Impact of a California Criminal Record

Your convictions will be a stain on your record that will be visible by many organizations and businesses that require background checks. Due to their presence on your record, it is likely that you will face many limitations impacting your ability to get ahead in life and to live your life in peace. It is only natural to be concerned about the challenges you have to endure after you leave prison. When you just want to move on with your life, it is also reasonable to want to know if there is anything you can do to mitigate these implications.

California criminal laws say that records with information on arrests or detentions, dispositions, as well as personal identification will stay on your record until you reach the age of 100. That is a very long time. Criminal convictions never go away. Potentially, if your conviction happened when you were a minor, you may have options to hide that conviction.

Even if you were arrested but not convicted, this incident will stay on your record and be visible. The good news is that under California criminal laws, any arrest charges where there was no conviction or where the charges were thrown out cannot be held against you. While organizations or businesses may be able to see these charges on your records, they cannot deprive you of services or employment because of them.

How Can I Have My California Criminal Record Cleaned?

When you want to explore options that may be available to help you clean your record, the best thing to do is to discuss the unique details of your situation with David M. Boertje, a California criminal defense lawyer. Depending on the type of convictions you have and the details that surround them, it may be possible to have these charges removed or expunged from your record. Continue reading

February 14, 2020

Is California Going to Put an End to Using Cash for Bail?

by David M. Boertje

The Los Angeles Times is reporting that Public Defender Chesa Boudin announced that no more cash bail would be used in criminal cases in San Francisco. This will mean that defendants will no longer have to pay to obtain pretrial release. A “risk-based” system will be used instead to define the need for a defendant to be placed in jail prior to trial.

Is this really a newsworthy story in California, the state that has already passed a law ending cash bail? It is. While California did pass the legislation, Senate Bill 10, for the ending of cash bail, it has not taken effect yet. The legislation was signed in August of 2018 by Governor Jerry Brown. The legislation was written to replace the old cash-based system with a new system putting the responsibility for determining jail time for defendants awaiting trial on the judge. For former Gov. Brown, signing this legislation was a personal victory as he was a vocal critic of cash bail saying it was a “tax on poor people” in 1979.

Senate Bill 10 and similar legislation being brought up by Boudin, are yet another way that California is leading the nation in criminal justice reform efforts. Advocates of these reforms say that requiring money for bail perpetuates already difficult racial and economic strains that exist within the criminal justice system. That a monetary bail system only works for the wealthy who can afford it.

Could Senate Bill 10 Have a Negative Impact on California’s Economy?

Los Angeles is the largest jail system in the United States. California makes up a significant portion of the bail market, meaning that those who work in the bail industry could be out of work. This has led to a national coalition of bail agency groups coming out to fight against the bill and try to have it overturned. They were successful in that they acquired enough signatures to be on the November 2020 ballot.

Eliminating the cash bail system means that for now, it stays in limbo until the residents of California vote its fate. The outcome of the bill is unknown. There are polls that suggest there is quite a division amongst voters on whether or not to put an end to the cash bail system.

Not only does the bill have opposition from the bail industry, but the ACLU of California has their doubts about the alternative. They fear that when a judge gains so much power, there will be an increase in defendants put behind bars. For those in San Francisco though, changes to the bail system will happen independently of how the vote in the state turns out in November. It is up to the D.A. to decide which policies they approve and will enforce for pretrial jail time. 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