San Diego criminal defense attorney

February 2, 2023

Forensic Bias in Criminal Cases

When there are questions about the veracity of conclusions in a court case, it is reassuring to have forensic evidence to support inferences and assumptions, isn’t it? After all, there is no arguing with science! Actually, it may surprise you to know that researchers have found plenty to question about scientific conclusions in general and forensic evidence in particular.

The Question of Context

One huge issue as it relates to forensic evidence is the context of that evidence. We all know that context can influence the interpretation of any given fact. For instance, if a red-headed woman was seen breaking a window, and you see a red-headed woman coming around the corner from the building where that window was broken, the context of the situation could lead you to conclude that the woman you now see was responsible for the break. The same is true for forensic scientists. If, for example, a crime scene investigator collects evidence and then examines it in the lab, it is logical that impressions of that crime scene will influence assumptions going forward. If another detective shares information about a suspect, it might lead the forensic scientist toward bias in the evaluation, interpretation, analysis, and conclusion of any evidence studied.

Cascading Bias

Exposure to information and materials related to a particular crime can demonstrably impact a scientist’s interpretation and thoughts regarding forensics. One mistaken impression can then cascade throughout other phases of the investigation. The failure to isolate information that individuals consider can lead to what is referred to as a bias snowball. That snowball can send biased reasoning throughout multiple phases and people involved in a case, resulting in the inadvertent effort to prove a particular theory.

rather than simply allowing the facts to lead to a conclusion. For instance, consider the impact of determining the relevance of a particular piece of evidence. It may be quite difficult to differentiate between items of significance and those of no import at all. Let’s say, for example, that a cigarette butt is found in the street near a dead body. Is it a piece of trash or a clue? Would knowing that the key suspect is not a smoker influence an examiner’s evaluation of the evidence? It is not far-fetched to believe that it could. When an examiner is responsible for both studying and integrating various lines of evidence, the chances for error in terms of cascading bias increase.

A Serious Problem

The issue of bias has been described by researchers as both pernicious and generally unrecognized by those in the criminal justice field. Truly, this puts into question the reliability of so-called expert witnesses who testify to forensic conclusions and makes one wonder why it is that these kinds of errors related to bias are not being aggressively addressed by the criminal justice community. Continue reading

February 11, 2022

Can the Police Lie to You During an Interview?

by David M. Boertje

Being aggressively questioned by the police can be stressful and intimidating, to say the least. Even if the alleged crimes that you are being asked about are those that you do not know anything about or have any involvement in perpetrating, police interrogations are quite draining and can be traumatic.

This is why having an experienced and aggressive defender on your side is so important. What you say to the police can and will be used against you if it benefits their case. When you have a seasoned criminal defense lawyer with you during a questioning session, you will have the legal counsel you need to best protect your rights and keep you from unknowingly putting yourself in legal jeopardy.

In San Diego, David M. Boertje is a San Diego criminal defense attorney who is dedicated to protecting individuals that are accused of crimes. David Boertje has extensive experience helping the aggrieved with the highest quality legal counsel and a resume that includes successfully handling thousands of criminal cases.

Lying and Law Enforcement

Police officers are trained to get the most information out of people they suspect either know about or were involved in the commission of crimes. This is their job and many officers do it very well. As such, police officers can engage in tricky tactics that are meant to confuse, dishearten, and pressure people into talking to them and answering their questions.

One of the things that an officer may do when they are interviewing you is lie. While this may seem unlawful, it is actually an acceptable practice. The reason that an officer will do this is to maneuver you into making an incriminating statement or providing details that implicate you and others for alleged crimes.

If you are brought in for questioning, it is critical that you do not go alone, but rather that you have the assistance of a lawyer. The San Diego felony defense attorney at the Law Offices of David M. Boertje can advise you of your rights and help you through a police interview so that you are safeguarded from saying something that harms your case.

It is not uncommon for a person to incriminate themselves even when they are completely innocent. One example is giving a false confession to a crime. This happens more than you may think. You are especially vulnerable to having this and more happen to you if you do not have an attorney by your side during a police interview.

It is not just lying that you have to be concerned about when you are interviewed. Police may attempt to scare you. They could make threats that prompt you to give them information or say something that is not true out of fear. Continue reading

April 9, 2021

Is it Possible to Have Your Bail Reduced in San Diego?

by David M. Boertje

It is possible to be released after an arrest in California without having to spend time waiting in jail until your official court date. Under the law, if you are booked by the authorities for a crime, you would have to sit in jail until your court date. Given that it could take months from the time you were arrested to get your day in court, you might be looking at a long time behind bars before you are even given the opportunity to argue your innocence. Bail is a way that defendants can avoid having to spend this time in jail waiting for their trial and instead, be released with the promise that they will return when their court date arrives.

If you have the funds to pay for your bail, you will be “granted bail.” This means that the court will take your money and you will be allowed to leave. A defendant’s ability to get a bail set in California largely relies on a judge’s discretion. A judge can decide if a defendant deserves bail and how high the amount should be. While a judge will refer to the California bail schedule to start their calculations, they will then assess a defendant’s situation to raise or lower the amount. Some details that the judge will examine are:

The type of crime committed
The seriousness of the crime
The defendant’s ability to post bail
The defendant’s criminal background

How Can You Get Your Bail Reduced in California

Even though a judge will likely assess your ability to pay bail, that does not necessarily mean that the amount they assign to you will be low or affordable based on your means. Regardless, it may simply be an impossibility to pay almost any bail amount if your current financial situation is not in good shape. When you are given bail and it is inconceivable that you will be able to pay, you can apply for a reduction.

When a request for a reduction in bail is made, the courts are required by law to look at specific factors to determine if a new bail amount is warranted. These include:

How serious the crime was and if the defendant is believed to pose a threat to the public.
The criminal history of the defendant.
If it is believed that the defendant will show up for their court date.
The amount of harm that was inflicted on the victim.
If there was a firearm or deadly weapon used in the crime.
The presence of a controlled substance in relation to the crime.

September 18, 2020

Laura Rodriguez Found Dead Outside of San Diego

by David M. Boertje

On August 28 at 12:30 a.m., Chula Vista police were called about a body in the street. When they arrived at the scene, 33-year-old Laura Rodriguez was found dead. Her body was located near Shasta and 2nd street, 10 miles south of San Diego. According to Chula Vista Police Department Lt. Dan Peak, Rodriguez was found naked with head trauma. Lt. Peak said that her death was suspicious.

Rodriguez is survived by two daughters aged 12 and 14. A GoFundMe page has been established to raise money for her funeral expenses. The page has accumulated close to $18,000, surpassing its goal of $16,000. According to the GoFundMe page, Rodriguez enjoyed hiking and biking and was a dedicated mother. She was a person who cared about others and was always there to help those in need.

Investigators indicated that they did not find any evidence that Rodriguez was the victim of a hit-and-run accident. Her body was also void of gunshot wounds or stabbing injuries. Officers who arrived at the scene did attempt life-saving measures to save the young woman but to no avail. She was pronounced dead at the scene.

Rodriguez’s brother, Daniel, identified his sister as the victim during an interview with Fox San Diego. He asked anyone with information to please contact the police. A local resident has said that he heard the noise of an engine revving prior to Rodriguez’s body being discovered. A tow truck took a gray Chevy from the crime scene.

San Diego Violent Crime Rate

In 2018, the San Diego general crime rate was 1.3 times lower than the national average. That year, San Diego’s violent crime rate was 211.3 while the national average was 207.3 making it notably higher than much of the country. This is a significant increase from 2017, when the city’s violent crime rate was 8.6 times smaller than the national average’s violent crime rate. San Diego’s crime rate was 70.4% higher than in other cities in the country. For the past five years, the city of San Diego’s violent crime rate has been trending up while property crimes have been decreasing.

Violent crime includes homicide, rape, aggravated assault, and robbery. In just the first half of 2019, San Diego law enforcement reported on average 31 violent crimes every day.

August 28, 2020

Steve Soto Charged with Vandalism and a Hate Crime After Shooting at a Business

by David M. Boertje

A man is facing a plethora of charges after he shot a BB gun at a business in Oceanside. The man was identified as Steve Soto, 23, of Carlsbad. Soto allegedly drove to Bliss Tea & Treats at approximately 7:10 p.m. and fired a BB gun at the business, which resulted in a shattered window. The cost of the damage was estimated at over $1,800.

The business had signage posted that they were owned by black people and that they were in solidarity with the Black Lives Matter movement. Using surveillance footage, San Diego detectives were able to identify the vehicle that Soto was in when he shot at the business. Eventually, that footage helped the authorities arrest Soto.

Soto is facing vandalism and hate crime charges for his actions. Additionally, he also is looking at assault with a deadly weapon for a prior offense in which he used his BB gun to shoot another man. The criminal complaint states that both incidents have also added two misdemeanor counts of discharging a BB gun in a grossly negligent manner to the list.

Soto pleaded not guilty to all of the charges during his arraignment. The owners of Bliss Tea & Treats served him with a protective order requiring him to keep his distance from them, and the victim who was shot in the May incident also received a protective order against Soto. Soto is being held in custody and will be going back to court this month.

After the news came out about the incident, a GoFundMe page was created for the shop. The page successfully raised over $3,000 for the owners of Bliss Tea & Treats to put toward fixing the damage caused by the shooting.

Is a BB Gun Considered a Weapon in California?

In California, PC 245(a) makes it illegal to assault another party using a deadly weapon or any type of tool that is not a gun. The law does identify BB guns as an instrument, not a firearm. This is so because PC 16700 dictates that BB guns are not considered real guns, but rather imitation guns. Despite not being considered a real gun, they are still considered a weapon when they are used to commit an assault on another person. When you intend to cause another person harm by shooting your BB gun, and the BB pellets connect with a victim causing injuries, you could be looking at an assault with a deadly weapon charge in California.

December 26, 2018

Strong Arm Robberies

by David M. Boertje

This time of year, there is an uptick in muggings, when someone is attacked and robbed in public. It can happen as a person enters his or her home, walks out of a restaurant, steps off the bus, or walks through a mall parking lot. Robbery is the taking of property from another person against his or her will by fear or force. The force may involve a weapon, such as a gun or bat, or physical force, like pushing the victim, punching the victim, or kicking the victim. Robbery in California is considered a serious and violent offense. Almost always charged with a felony, the highest crime classification in the state, individuals convicted of robbery face years in state prison.

Robbery Law in California

Under the California Penal Code at Section 211, anyone who purposefully steals someone else’s property by using force or fear will be convicted of robbery. The use of force can be pushing, hitting, slapping, grabbing, or any non-consensual contact. Fear includes any verbal act, such as threats of harm, conditional threats, and non-verbal threats like lifting up a shirt to show a gun.

An individual can be charged with first-degree robbery in California if the victim is a person performing his or her duties as an operator of a bus, taxi, cable car, street car, or any other vehicle used for the transportation of people for hire; the passengers of such vehicles; people in an inhabited residence; or a person using an ATM. A conviction of first-degree robbery can result in up to nine years in state prison.

Second degree robbery charges will follow if the accused person takes something that does not belong to him or her, in the presence of another person, and without the victim’s consent, and the accused person used force or fear and deprived the victim or owner of personal property. A conviction for second-degree robbery can result in up to five years in state prison. Continue reading

November 9, 2018

Does the Weather Impact the Crime Rate?

by David M. Boertje

For a long time, hot weather has been associated with crime, particularly in cities throughout the U.S. Temperatures have been on the rise in American cities and around the world, with the last two years registering some of the warmest temperatures on record. For example, for decades the trend has been that in colder months fewer people are murdered.

The weather does not cause crime. Crime is caused by people’s actions. The rising temperature affects people differently. Hot weather either sends people out to cool down or in to cool off. Minor inconveniences can quickly escalate to an argument and then to violence because heat tends to make people physically uncomfortable. Feelings of irritability and anger are higher when the temperature is higher.

2017 Crime Rates in the United States

Every year, the Federal Bureau of Investigations (FBI) releases statistics of crime rates in America. The violent crime rate seems to have peaked in 2016. 1,250,162 violent crimes were reported in 2016. In 2017, the number decreased to 1,247,321 violent crimes. Violent crimes are against people and include murder and manslaughter, rape, robbery, and aggravated assault.

San Diego Violent Crime Rates are Down

San Diego is a city with approximately 1.42 million inhabitants and ranks as one of the top 10 most populous cities in the country. Of all the most populous cities in America, San Diego ranks as one of the safest cities when it comes to violent crime. In 2017, according to the FBI, the police investigated 5,221 violent crimes. Ahead of San Diego are San Jose, New York, San Antonio, Phoenix, Los Angeles, Dallas, Philadelphia, Houston, and Chicago. The most violent crimes occurred in the cities of Chicago, Houston, and Philadelphia.With respect to property crimes, San Diego had the second lowest rate with 18.4 crimes reported per 1,000 residents.

Have You Been Charged with a Felony Crime in California?

Felony crimes are the most serious criminal offenses in California. The penalties include long prison terms, and repeat offenders may face life imprisonment for future crimes. If you have been charged with a felony crime in California, consult a qualified San Diego Criminal Defense Attorney who can help mitigate penalties and prison sentences. Continue reading

July 19, 2017

California Lawmakers Consider Bill that Ends Lifetime Registration for Certain Sex Offenders

by David M. Boertje

In Alameda county, California lawmakers are considering a contentious bill that would end lifetime registration for certain sex offenders. The lawmaker who introduced the bill, Nancy O’Malley, and the District Attorney of Alameda County’s intent is to save the state money, since it is extremely expensive to monitor sex offenders.

Senate Bill 421 would reorganize the sex offender registry into a tiered system and group existing registered offenders into three categories based on the severity of their crimes. A certain number of offenders would be dropped from the list as soon as 2018. “There are people who are still registering who are now 80 years old and they register every year because when they were 18 years old they exposed themselves, there’s injustice in some of that,” says Ms. O’Malley.

The bill passed the state Senate’s Committee on Public Safety on last month. Proponents of the new bill say that lightening the work load of law enforcement will give them more time to focus on high-risk offenders that actually need monitoring.

Currently, a state tax force has 2,500 sex offenders to keep track of. There is currently an estimated 104,000 registered sex offenders statewide.

Potential Changes in California’s Sex Offender Registry

Most U.S. states already have a tiered system for sex offenders. But under current California law, all sex offenders have to register with law enforcement for the rest of their lives, no matter if they committed a nonviolent misdemeanor crime like indecent exposure (ie. urinating in public) or a violent felony rape.

If passed into law, S.B. 421 would create a tiered system for sex offenders:

Tier 1: Misdemeanor or non-violent sex offenders would have to register for 10 years. This encompasses situations like when a young college student has too much to drink and exposes him or herself publicly.
Tier 2: Convicts who committed serious or certain violent offenses would have to remain on the list for 20 years.
Tier 3: Violent high-risk sex predators will remain on the list for the rest of their lives. This includes sex offenders who violated Megan’s Law.

A sex offender’s removal from the registry would not be automatic. Offenders who qualify for removal would still have to petition the court and have their application reviewed by their local district attorney, who has to consider factors like the risk of re-offending. Continue reading

July 5, 2017

How Will Police Decide What Role Race Played in The University City Shooting?

by David M. Boertje

In a tragic turn of events, seven adults were shot at a University City apartment complex pool party earlier this month. One woman named Monique Clark was killed. Witnesses say that 49-year-old Peter Selis, a resident at the upscale La Jolla Crossroads complex, never even left his pool chair when he opened fire on a birthday party. The question left in everyone’s mind is whether Selis was motivated by race, something that the witnesses and survivors of the shooting believe to be true. All the victims of the mass shooting were people of color – four black women, two black men, and one Latino man.

The three police offers who arrived at the scene shot and killed Mr. Selis. The preliminary investigation revealed that Mr. Selis is a car mechanic at a Ford dealership, and a 2015 bankruptcy filing illustrated that he was under crushing debt.

Hate Crimes

According to the FBI, a hate crime is a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Hate crimes are the only criminal case in which prosecutors are required to prove a perpetrator’s motive at trial. Typically, the defendant’s mens rea, or criminal intent, is all that is needed to prove guilt. This means that the perpetrator’s state of mind must be an element of the crime; he or she must have taken action intentionally to pursue a criminal result. For example, if a gunman opens fire on a crowd, prosecutors must prove that he intended to pull the trigger (the action) and shoot people to harm them (the criminal result). With hate crimes, prosecution must prove that the perpetrator had the mens rea to shoot people, but that he or she was also motivated by the victim’s race, gender, or religion.

As a result, hate crimes are extremely difficult to prove even if the crime of shooting is considered by some to be a ‘slam dunk’ case. The mere difference between the race of the offender and the victim in and of itself, absent of any other objective bias indicators, is unlikely to result in a conviction. Usually there must be more evidence to examine the surrounding circumstances. This may include statements the suspect made prior to the crime, which do not exist in the case of Mr. Selis.

A total of 84 “hate crime events” were reported in 2016 in San Diego. Continue reading

March 17, 2017

Soaring Number of Computers Hijacked for Ransom

by David M. Boertje

It has been reported by the San Diego Union Tribune that the amount of computer extortion crimes has significantly increased. Victims are getting notices that they have downloaded a virus and will have to pay X amount to ‘get rid of it.’ Victims are accidentally downloading ransomware. Hackers load malicious software onto people’s computers via emails, decoy ads, bogus news stories, and code embedded through websites. They then charge money to “remove” this ransomware. It is a form of extortion.

According to Special Agent Chris Christopherson, who investigates cyber crimes out of the FBI’s field office in San Diego, it is “entirely possible that we’ll have far in excess of $1 billion in losses” worldwide related to ransomware.” The final tally for 2016 has not been completed yet. The FBI claims that every hour, about 4,000 computers around the world become infected with ransomware. This is an exponentially larger problem for the city of San Diego, which faces daily attacks against its 14,000 desktop and laptop computers.

According to cyber experts, many victims never report the extortion because they feel ashamed for getting duped, or are worried that others will know they visited a pornography website or some other questionable page. Others do not know where to report the attack and doubt that law enforcement will investigate the incident.

Lately, there is increasing concern about the innovations seen in ransomware software. The new codes will offer to decrypt infected victim’s computers as long as they are willing to ‘infect someone else’ in their contact list.

Internet Crime

Internet crime is a blanket crime that generally describes fraud crimes involving the use of the internet or computers. These encompass fraudulent schemes carried through email, “phishing” (using email to obtain sensitive information), or accessing a computer or its data without permission.

In order to convict someone of internet fraud under federal law (18 U.S. Code § 1343), prosecutors have to prove that the defendant intended to commit fraud and that he or she used electronic communication to further that scheme. A conviction of internet fraud under the federal wire fraud statute is punishable by up to 20 years of imprisonment and a hefty fine.

Other criminal laws implicated in cyber crimes are identity theft statutes and credit card fraud (as they pertain to phishing schemes). Continue reading