San Diego criminal defense attorney

April 29, 2015

Francis Pusok and Walter Scott Illustrate the Continued Need to Preserve the Right to Film

As if the recent current events surrounding Eric Garner and Michael Brown were not enough, this month saw two more high profile cases detailing police misconduct and brutality which made national news. In South Carolina, the tasering and shooting of Walter Scott occurred as he was running away from the police was shot on a cell phone by a bystander named Feidin Santana. In our own San Diego, a local NBC affiliate chopper captured the brutal beating of Francis Pusok in the desert. Both instances would not have come to light had a third party not captured it with a camera.

As the public’s trust in police dwindles, citizens are taking matters into their own hands by increasing their use of cellphone recordings as a means to advance some accountability. As police begin to feel more uneasy about this increased use of cell phone and camera recordings, many citizens are finding themselves in hot water for recording their own interactions with police, or police interactions with another third party. This is not the first time the issue of a citizen’s right to record police has come up, and it certainly will not be the last.

What Does the U.S. Constitution Say About Recording Police?

April 22, 2015

Unprecedented Criminal Case on New Revenge Porn Law

by David M. Boertje

On Friday, April 3rd, 28 year old San Diego man Kevin Bollaert was convicted in the San Diego Superior Court and sentenced to 18 years for 27 counts of identity theft and extortion via California’s newly enacted revenge porn law. Additionally, he was ordered to pay $10,000 in restitution. Although Bollaert is not the first to be convicted under California’s new law, his steep sentence is unprecedented. Specifically, Bollaert ran a revenge porn website (called Yougotposted) which allowed vengeful ex-husbands and boyfriends to post nude photos of their ex-girlfriends and link them to the women’s personal social media accounts. Bollaert, a Web developer, posted the pictures and then charged women from $300 to $350 to have the pictures removed. Prosecutors alleged that over 10,000 photos from California and other states were posted on Bollaert’s website between Dec. 2, 2012, and Sept. 17, 2013.

Bollaert faced a maximum of 20 years. In explaining his punishment, the judge noted that he stacked the sentencing terms based on the multiple victims. The hearing took all day, and eight women testified on how they were damaged by Bollaert’s actions. This was the first case of its type in the country, and California was the first state to prosecute someone for posting humiliating pictures online. Above all else, this case is more about online harassment, threats, and extortion.

New Legislation

April 20, 2015

What Does Domestic Violence Have to Do with the Family Dog?

by David M. Boertje

Well, the answer is everything. Courts and the public opinion are increasingly viewing the family pet and other companion animals as family members, and the legal trend of covering pets in domestic violence (DV) protective orders are expected to increase. This trend responds to the evidence that 71% of women entering the shelter system have reported that their abusers injured, killed, or threatened to injure the family pet as a revenge mechanism. It has also been irrefutably proven that there is a link between domestic violence, child abuse, and animal abuse. Even if you know you would never hurt an animal, the stigma of these facts are likely to subconsciously affect a law enforcement official’s perception of you if you have been accused of domestic violence.

California Domestic Violence Law vs. Animal Cruelty

Under California law, police are nearly always required to arrest any man or woman accused of spousal abuse or domestic violence—whether or not the suspect is guilty. The victim may then thereafter file for a protective order (also called a “restraining order”) to keep someone from contacting, calling, harassing or touching them. In addition, California law explicitly covers the family pet in restraining orders in cases of domestic violence. See CA FAM § 6320 – 6327. Specifically, the statute states that:

April 3, 2015

Complaint Alleges SFPD Officer Broke City Law While Investigating With FBI

by David M. Boertje

Recently, two civil rights groups (the San Francisco branch of the Council on American-Islamic Relations and the Asian Law Caucus) filed a federal lawsuit against the San Francisco Police Department alleging that a police inspector not only violated department rules and city law whilst working with the FBI’s Joint Terrorism Task Force, but the SFPD also failed to report it. The two groups, which represent Arab, Middle Eastern, Muslim and South Asian communities, specifically claim that Sgt. Inspector Gavin McEachern violated software engineer Sarmad Gilani’s civil rights back in July 2014. In that instance, the FBI’s Counterterrorism unit approached the plaintiff’s workplace at Google and asked him a handful of questions regarding his travel plans, personal blog, and political expressions on social media. None of those questions actually had anything to do with a criminal investigation, because Sarmad Gilani had not committed a crime.

The groups are specifically concerned over the violations of Gilani’s privacy guaranteed by Article 1, Section 1 of the California Constitution, as well as the laws and policies of the City and County of San Francisco and, as applicable to the police department, that department’s policies and procedures. They also filed a federal Freedom of Information Act request on Gilani’s behalf to obtain discovery over the subsequent travel issues Gilani had due to the investigation(s) on him.

The Use of the Federal Freedom of Information Act (FOIA) for Criminal Cases

March 23, 2015

Gang Conspiracy Case Defendant Says ‘They’ve Got the Wrong Guy’

by David M. Boertje

In the beginning of this month, a group of 15 young people from Lincoln Park, San Diego, who were alleged to be part of the notorious Lincoln Park gang, were charged with criminal conspiracy related to two dozen local shootings within San Diego County. The San Diego County District Attorney’s Office (“DA”) charged the group for nine different gang-related shootings under CA Penal Code 182.5. One of the defendants, Aaron Harvey, 26, was arrested for murder, but maintains that he is innocent. Specifically, he was not involved in the shootings, but in this case the DA’s office claims that Harvey promoted the crimes by posting gang-related affiliations and threats on social media pages, and benefited from the ‘crime’ by gaining “street credibility.” Another defendant, local rapper “Tiny Doo,” whose lyrics reflect gang activity, is headed to trial.

As of now, five of the 15 defendants had their charges dropped at a hearing. There is still some confusion as to why the charges were dismissed for some defendants but not others and whether the judge can still dismiss charges for the remaining defendants. Harvey, who has no prior criminal conviction, now faces life in prison. He still maintains he is not part of a gang.

What is Criminal Conspiracy?

March 16, 2015

The Police Want Me to Voluntarily Go Down to the Station to “Answer Some Questions.” What Do I Do?

by David M. Boertje

Imagine that you are about to sit down with your family for dinner, and somebody knocks on the door. It is the police, and they were hoping you would go down to the station to “answer” some questions about a homicide next door. You think nothing of it, because you are just trying to be a good member of the community by giving as much information as you can, as to any noise or suspicious activity you may have seen. Scenarios like this play out daily. Sometimes there is a genuine need for help in a case, and sometimes it is a ploy to coerce a confession. Police often ask people for voluntary statements for various matters- sometimes one is a “person of interest” in a crime, or simply an eyewitness to an event or a crime.

In the case of ‘persons of interest,’ one should never voluntarily go down to the police station, because anything you say may be used against you, or to charge you. While you may think that because you are innocent and that you should go down to the station to ‘clear your name,’ keep in mind that the reason police ask persons of interests or people they suspect to voluntarily go to the station is because they do not have enough information to arrest them, take them into custody, or to charge them, and they are trying to get more information in order to do so. In order for the police to charge you with a crime, they must have probable cause, which is defined as the reasonable belief based on the facts articulated, that you have committed the crime. Do not give them this probable cause. If you are requested to go down to the station, respectfully decline and inform them that you want to speak to an attorney first.

At the Station

March 6, 2015

Motions to Seal Vs. Motions To Expunge: What’s The Difference?

by David M. Boertje

Because criminal records are public records, those with prior convictions need to know that there are certain circumstances which may qualify them to get their records “wiped.” These vessels by which one’s records can be cleaned vary depending on the type of crime and state law involved.

Expungements

Expungements are defined as the legal process of cleaning up one’s criminal record. They are a good option to put your prior conviction behind, as it involves the court reopening your case, withdrawing your plea or guilty verdict, dismissing the charges, and re-closing the case without a conviction. Legally speaking, a successful motion for expungement has the effect of dismissing a prior criminal conviction, and you can therefore claim in future job interviews, housing applications, etc. that you do not have a conviction on your record. California Penal Code Section 1203.4 authorizes the most common kind of expungement relief that exists in California (ie. cases in which probation was part of the sentence, cases in which there was no probation, felonies in which you only served time in county jail, and cases where a felony conviction was reduced down to a conviction). In order for an expungement to take place, your lawyer will have to file a formal document in court requesting that they take a specific action (the expungement motion). This motion must be filed at the court where you received your sentencing and given to the prosecutor that handled your case, and must claim in good faith that you are now living an upright and honest life.

March 4, 2015

The Prosecutor Wants me to Take a Polygraph Test! What Do I Do?

by David M. Boertje

What Exactly is a Polygraph Test?

In tv shows and movies, polygraphs (or “lie detector tests”) are often painted as mechanisms by which a defendant “gets off” or proves his or her innocence. Polygraphs are machines that hook up to a person to measure their physiological indicators such as perspiration and heart rate. It was once thought that when a person tells a lie, their heart rate and blood pressure change to indicate so. However, what many people do not know, is that polygraph tests are generally unreliable (ie. there are “false positives” or negatives), and their use has decreased. For example, if a person is nervous simply by virtue of taking a lie detector test, their heart rate will increase regardless and their test results will be inconclusive, rather than “passing.” Polygraphs may also be fooled if one is just able to control their physiological responses.

Rules on Polygraphs