criminal defense

September 4, 2015

Won Battle, Lost War in Cell Phone Search Case

Last year, in a historic ruling, the U.S. Supreme Court ruled in Riley v. California that law enforcement must obtain a warrant to search cell phones. This historic opinion changed police protocol across the nation and set a strong precedent supporting privacy in a technological era.

Many of you must be wondering what happened to David Leon Riley, who had moved to suppress evidence during his criminal trial regarding his gang affiliation, which was acquired via his cell phone. Riley had been convicted for his connection to the 2009 shooting in San Diego’s Skyline neighborhood. Riley’s attorney is once again petitioning the U.S. Supreme Court arguing the lower court reconsider his case because the lower court had ordered Riley to remain in prison to serve out the rest of his 15-year-to-life sentence.

The 4th District Court in California specifically found that while the phone’s photographs were improperly seized and admitted as evidence, the error was not important enough to have affected the final verdict.

August 28, 2015

California Court Holds Proposition 47 Applies to Minors

by David M. Boertje

Late last week, California’s 4th District Court of Appeal ruled that Proposition 47 – the voter-approved measure that reclassifies certain petty crimes from felonies to misdemeanors – applies to minors in the same way it does to adults. It has been found in the past that Prop. 47 caused a noticeable drop in California’s incarceration rate. In light of this ruling, juvenile defendants charged with particular crimes previously classified as felonies should now only face misdemeanor charges, and some juvenile offenders may be able to have their prior felony convictions retroactively changed to misdemeanor convictions.

Background on Proposition 47

Proposition 47, the “Reduced Penalties for Some Crimes Initiative,” was approved by California voters last November. Unless a defendant has prior convictions for particular violent or gun-related crimes, Proposition 47 mandates that he or she be sentenced to a misdemeanor instead of a felony for the following seven petty crimes:

June 3, 2015

San Diego Lawmakers Attempt to Address School Threats in Legislation

by David M. Boertje

Last month, District Attorney Bonnie Dumanis came out in public support of the new bill authored by State Sen. Marty Block (D- San Diego), SB 456, which would distinctly make it a misdemeanor crime for someone to threaten to fire a firearm on private and public school campuses. The bill was originally introduced in February. In the last two years alone, Dumanis states that the number of students suspended and expelled for making a terrorist threat in San Diego County has risen 35 percent, from 62 in 2011-12 to 84 students in 2013-14, according to data from the state Department of Education. More than 130 threats to schools in the San Diego Unified School District were made over the past three years. Statewide figures also show an increase, but at a slower rate than the San Diego School District.

Under current law, those types of crimes are charged under Penal Code 422, a generic charge for someone making a criminal threat. Specifically, the current Penal Code requires that one caused a “reasonable fear” within the person(s) threatened. If the bill becomes law, a school firearm threat, for example, would become a specific crime subject to a fine of up to $1,000 and up to a year in county jail. The new law would remove the fear requirement and require those convicted to pay for any reasonable emergency response costs incurred by the public agency responding to the threat.

June 1, 2015

California Lawmakers and SDPD Try to Address the 20 Bills Aimed at SDPD

by David M. Boertje

Police agencies across the country have begun outfitting officers with the cameras as an attempt to regain the public’s trust back, and the SDPD is no exemption. However this is not enough. Last month, on April 30th SDPD was involved in yet another fatal shooting of an unarmed man, Fridoon Zalbeg Rawshannehad. The officer’s body cam was shut off prior to the shooting for unexplained reasons, and the incident is still being investigated by SDPD’s homicide unit. In the interim, the SDPD is still struggling to explain the shooting of an unarmed citizen, Victor Ortega, three years ago. In that case, Judge Burn’s denied SDPD’s motion to dismiss the lawsuit due to the inconsistencies of officer testimony.

Meanwhile, at least 20 proposals to regulate body cameras worn by cops, revamp the prosecution of deadly force cases, and impose other measures were made in the wake of national high-profile killings by police, and have been debated by California lawmakers. In Sacramento alone, legislators have introduced at least five measures pertaining to body cameras, including one that would establish grant funding to pay for the equipment, another proposing guidelines for data storage and one that would address how footage would be subject to public records laws.

May 27, 2015

Senate Bill 603 Introduced to Prevent Defendants from Cross-Examining their Victims

by David M. Boertje

The Senate Committee on Public Safety recently held a hearing at the end of April on Sen. Ben Hueso (D- San Diego) and the San Diego County District Attorney’s Office’s proposed bill. Senate Bill 603, which is currently making its rounds through the California legislative process in Sacramento, would require a court to conduct a hearing in cases in which the defendant is acting as his own attorney to determine whether someone else, most likely a standby lawyer, should be appointed to question the victims. Under SB 603, a judge would have to determine whether the victim would be traumatized further by being cross examined by the defendant. That kind of finding would be allowed only in certain kinds of cases, such as rape and sexual assault, as well as in felony charges of stalking, domestic violence, elder abuse or child abuse.

The sponsored bill was prompted by a San Diego woman named Jessica. Jessica says she was traumatized for the second time when the man who sexually assaulted her questioned her in court. The attack happened near the Old Town bus station back in March 2013. Jessica said a man dragged her behind a cafe and assaulted her. He chose to represent himself (pro se) during his trial.