Unintended, Unforeseen, and Unbelievable
Consequences of Sex Offense Convictions
1. PowerPoint Presentation
2. Outline of Sex Sentencing, 290 Registration, and
Related Issues
3. "SVP Cases You May Need to Know"
By
Laura Arnold
An Appellate Lawyer’s
Dream Come True – A
Trial Lawyer’s Worst
Nightmare …
… the Unintended, Unforeseen, and
Unbelievable Collateral
Consequences of Sex Offense
Convictions
Punishment
Also Punishment
Sex offender registration
is “regulatory,” not
punitive.
The “Mere” lifelong duty to register w/o
hope of relief … is NOT Punishment
… for state and federal ex post facto analysis.
People v. Castellanos (1999) 21 Cal. 4th 785, 799
[“sex offender registration does not constitute
punishment for purposes of ex post facto analysis,
because the Legislature did not intend such
registration to constitute punishment and the
provision is not so punitive in nature or effect that it
must be held to constitute punishment despite the
Legislature's contrary intent”]
Mendoza-Martinez factors
• [w]hether the sanction involves an affirmative
disability or restraint
• whether it has historically been regarded as a
punishment
• whether it comes into play only on a finding of
scienter
• whether its operation will promote the traditional
aims of punishment--retribution and deterrence
• whether the behavior to which it applies is
already a crime
• whether an alternative purpose to which it may
rationally be connected is assignable for it; and
• whether it appears excessive in relation to the
alternative purpose assigned.
Nor is it punishment …
… for purposes of state and federal cruel
and unusual punishment analysis.
In re Alva (2004) 33 Cal. 4th 254
“punishment has a different and broader meaning under
the Eighth Amendment than it does for purposes of ex
post facto, double jeopardy, and other constitutional
provisions.”
(Castellanos at p. 801, J. Kennard, concurring.)
How come it feels so
much like punishment?
P.C. 290.46 (“Megan’s Law”)
Dissemination of Personal Information,
Photograph, and Residence Via the Internet
Smith v. Doe (2003) 538 U.S. 84
[ASORA’s registration, notification and internet dissemination
requirements not “punishment” for federal Ex Post Facto]
BUT SEE … Doe v. Alaska (2008) 189 P.3d 999
[ASORA is so “punishment” for purposes of State’s
Ex Post Facto clause]
Doe v. Brown (2009) 177 Cal. App. 4th 408
[internet notification is not a “penalty or disability” of a
conviction b/c 290 status survives expungement
Also noteworthy (and hopefully prophetic) …
• “Widespread dissemination of offenders’ names,
photographs, addresses, and criminal history serves not
only to inform the public but also to humiliate and
ostracize the convicts.” (Smith at p. 109, concurring
opinion of J. Souter.)
• The “widespread public access” attendant to internet
publication has “a severe stigmatizing effect” and is
“punitive”. (Smith at pp. 111-112, concurring and
dissenting opinion of Justice Stevens.)
• ASORA’s internet dissemination provision “exposes
registrants to profound humiliation and community-wide
ostracism” and “calls to mind shaming punishments once
used to mark an offender as someone to be shunned.”
(Smith at pp. 115-116, dissenting opinion of Justice
Ginsburg.)
Sex Offenders:
Punishment/Parole
AB 813
2011
Jessica’s Law
Proposition 83
2006
2007
2008
2009
2010
Chelseas’s Law
AB 1844
2010
Sex Law Timeline
2011
Sex Crimes
AB 1243
Pending
2012
CASE ACT
Proposition 35
2012
P.C. 3003.5, subd. (b) and (c)
2,000 ft. residency restriction
In re E.J. (2010) 47 Cal.4th 1258
People v. Mosley (2010) 188 Cal.App.4th
1090, revw. granted 1/26/2011 (S187965)
In re Pham (2011) 195 Cal.App.4th 681
In re William Taylor (2012) 209 Cal.App.4th 210,
revw. granted 1/3/2013 (S206143)
In re E.J. – Ex Post Facto
• PC 3003.5, subd. (b), as applied to
affected parolees released after 11/8/2006
– does not violate statutory prohibitions against
retroactive penal laws, and
– does not even implicate the ex post facto
clause of the state or federal constitutions
b/c it prohibits the independent, postconviction act
of establishing a residence in a prohibited area
and does not punish for the underlying sex
offense.
P. v. Mosley – Sixth A
Does the discretionary imposition of lifetime sex offender registration,
which includes residency restrictions that prohibit registered sex offenders
from living "within 2000 feet of any public or private school, or park where
children regularly gather" (Pen. Code, §3003.5, subd. (b)), increase the
"penalty" for the offense within the meaning of Apprendi v. New Jersey
(2000) 530 U.S. 466, and require that the facts supporting the trial court's
imposition of the registration requirement be found true by a jury beyond a
reasonable doubt?
Does Penal Code section 3003.5, subdivision (b), validly create a
misdemeanor offense subject to violation by all persons required to
register for life pursuant to Penal Code section 290 et seq., regardless of
their parole status?
If not, does that section nevertheless operate to establish
the residency restrictions as valid conditions of sex offender registration?
In re Taylor – other CON rights
• Does the residency restriction of Penal
Code section 3003.5, subdivision (b),
when enforced as a mandatory parole
condition against registered sex offenders
paroled to San Diego County, constitute
an unreasonable statutory parole condition
that infringes on their constitutional rights;
i.e. rt. to intrastate travel, rt. to privacy,
substantive due process?
Mosley Court’s analysis
“We conclude, based on our analysis of the salient
Mendoza-Martinez factors, Jessica's Law's residency
restriction has an overwhelming punitive effect. It
effectuates traditional banishment under a different
name, interferes with the right to use and enjoy real
property near schools and parks, and subjects housing
choices to government approval like parole or probation.
It affirmatively restrains the right to choose a home and
limits the right to live with one's family. It deters
recidivism and comes close to imposing retribution on
offenders. While it has a nonpunitive purpose of
protecting children, it is excessive with regard to that
purpose.”
Mosley’s relief
• The Court vacated the order requiring the
defendant to register under the
discretionary provision of the Act (section
290.006).
• In other words, since the residency
restriction which attaches to the duty to
register is punishment, the duty to
register, itself, is punishment!
Chelsea’s Law (September 9, 2010)
• Increased penalties for forcible sex crimes
involving minors; i.e. PC 220, 261, 264.1, 286,
288(c)(2), 288a(d), 289
• “One Strike Law” penalty increased from 15 to
life to 25 to life (PC 667.61)
• No change for nonviolent sex crimes involving
minors 288(a), 288(c)(1), 288.5, 286(b), (c)(1)
and (d), 288a(b)(1) or (2), 288(c)(1), 289(h), (i)
and (j), 261.5, 285, 647.6, 243.4
• LWOP sentences for violent sex crimes against
minors under enumerated circumstances.
• 15 to life changed to 25 to life
Avoiding Life Sentences
• Knowing the Sex
Pitfalls
• Understanding PC
§§667.6 and 667.61
• Challenging Sex
Registration
•Uncharged
Conduct/ Victims
•Multiple Victims
•Multiple Acts
•Movement of Victim
•Age of Victim
•Force or Duress
•Priors
•Bodily Harm
•Residential
Burglary
•Creepy Stuff
•SVP risk
Watch Out
At least
one
predicate
offense and
all on same
victim/sam
e occasion?
Ye
s
Discretionary
full-term,
consecutive
sentencing
(c)
Ye
s
Do you
have a
requisite
predicate
offense?
(e)
No
Sentence with
PC §§
1170/1170.1
Ye
s
At least 2
predicate
offenses with
separate
victims or
separate
occasions?
Ye
s
Mandatory fullterm,
consecutive
sentencing
(d)
Sentencing pursuant to Penal Code §667.6
Predicate Offenses for §667.6
1. Rape by force,
violence, duress,
menace or fear of
immediate and
unlawful bodily injury
2. Spousal rape by force
3. Rape, spousal rape,
or sexual penetration
in concert
4. Forcible Sodomy
5. §288(b)
6.
7.
8.
9.
10.
Continuous sexual
abuse of a minor*
Forcible oral
copulation
Forcible sexual
penetration
Assault to commit a
specified sexual
offense under §220
As a prior
conviction, offense
committed in
another jurisdiction
that includes all
elements of an
offense in this
subdivision
One-Strike Sex Law
§667.61
1
•Qualifying current offense?
2
• Triggering circumstances?
• If so, how many?
3
• Age of victim?
Generally
• 25-to-life for any listed offense under one
or more circumstances specified in (d), or
two or more circumstances listed in (e)
• 15-to-life for any listed offense under one
of the circumstances specified in (e)
If the victim is under age 14
• LWOP for any listed offense, except
§288(a), under one or more circumstances
listed under (d) or two or more
circumstances listed under (e)
• If the offender is a juvenile, the
punishment is 25-to-life
• 25-to-life for any listed offense under one
circumstance listed in (e)
If the minor victim is over age
14
 LWOP for any listed offense, except 288(a)
& (b) and 288.5, under one or more
circumstances listed under (d) or two or
more circumstances listed under (e)
 If the offender is a juvenile, the punishment
is 25-to-life
 25-to-life for any listed offense, except
288(a) & (b) and 288.5 under one
circumstance listed in (e)
Qualifying Current Offenses
1. Rape
2. Spousal rape
3. Rape, spousal rape,
or forcible sexual
penetration in
concert
4. §288(b)
5. Forcible sexual
penetration
6. Forcible sodomy
and forcible sodomy
in concert
7. Forcible oral
copulation and
forcible oral
copulation in concert
8. §288(a)
9. §288.5
Triggering Circumstances (d)
1.
2.
3.
4.
Previous conviction for
(c) offense
Kidnapped victim and
movement substantially
increased risk of harm
above that inherent to
offense
Inflicted aggravated
mayhem or torture of
victim or another
During a 1st degree
burglary committed with
intent to commit (c)
offense
5.
6.
7.
Violation of rape in
concert, forcible
penetration, or forcible
oral copulation and
circumstances in (2),
(3), or (4) present
Personal infliction of
great bodily injury on
victim or another
Personal infliction of
bodily harm on victim
under 14 years of age
Triggering Circumstances (e)
1. Kidnapping
2. During commission
of burglary
3. Personally used
dangerous or deadly
weapon or firearm in
commission
4. Multiple victims in
current case
5. Tying or binding
victim or another
6. Forcibly
administered
controlled substance
to victim
7. Rape/Forcible
penetration in
concert, sodomy in
concert, or forcible
oral copulation in
concert AND
commits any act as
described in 1, 2, 3,
5, or 6
How it gets really bad…
• Greatest punishment wins §667.61(f)
• Cannot §1385 subdivision (d) or (e)
circumstances
• Dual use of a prior for a §667.61(d)(1)
circumstance and to impose Prop. 8
prior allowed
• Dual use of a prior for a §667.61(d)(1)
circumstance and as strike prior allowed
Double Jeopardy
654
Ex post facto
• If your jury convicts on some
counts/findings but hangs on others
– Brown (2010) 187 Cal.App.4th 1511
– Carbajal (2011) 197 Cal.App.4th 32, review
granted 10/12/11
• §654 for Same Enhancement: Wooten
(2012) 209 Cal.App.4th 737
• Ex Post Facto: Gray (2011) 199
Cal.App.4th
167,
review
granted
Mandatory probation terms for sex
offenses requiring registration
• Sex offender management program of at
least one year
• Waiver of psych/patient privilege
• Fifth waiver and mandatory polygraph
testing
Parole consequences
• Much longer parole period for qualifying
convictions
– Lifetime parole for specified sex
offenses involving a V younger than 14,
resulting in a life sentence
– 10 year parole period (instead of 5) for
P.C. 667.5 “violent felony” sex offenses;
i.e. PC 288(a)
– 20 year parole period for specified
forcible sex offenses involving a minor
under the age of 14
• No entry to a park where children gather (w/o
parole agent’s permission) by those convicted
of felony requiring registration in which V was
< 14.; i.e. 261, 262, 264.1, 269, 286, 288a,
288(b)(1), 288.5, 289.
• Mandatory SO tx and polygraph testing for
paroled 290 registrants
• Mandatory waiver of psychotherapist/patient
privilege
• Mandatory Fifth Amendment waiver
Proposition 35 –Californians
Against Sexual Exploitation Act
• Must provide list of all Internet service
providers and Internet identifiers
– Includes electronic e-mail addresses, user
names, screen names
– Must update within 24 hours upon any
change
• January 11, 2013: District court enjoined the
Attorney General and law enforcement
agencies from collecting this information until
the lawsuit challenging these provisions is
decided
WHAT’S NEXT??
Special license plates for PC 290
registrants?
SB 1163, introduced 2/6/08
Signs posted in yard saying,
“A Sex Offender Lives Here!”?
(Commentary: A sex offender’s scarlet letter, CNN, 4/14/08)
Painted curbs at sex offender’s home?
(Should Sex Offenders’ Homes be Marked?
Houston News, 4/11/08)
Can I make the old “sex offense”
conviction DISAPPEAR …
by stipulation?
by writ petition?
by moving to specifically enforce
the plea agreement?
Can I do something about my
client’s duty to register?
at sentencing on his sex offense?
postconviction, by stipulation, or by
moving to specifically enforce the plea
agreement?
by writ petition – mandamus or habeas?
P v. Hofsheier (2006) 37 Cal. 4th 1185
If mandatory registration is not required
upon conviction for unlawful sexual
intercourse (P.C. 261.5), then requiring it
for voluntary oral copulation with a minor
(PC 288a) violates the Equal Protection
Clause, because there is no rational basis
for treating these similarly situated
offenders dissimilarly.
Application of Hofsheier
• Registration applies to offense of which client
was convicted, NOT of which he woulda’,
coulda’, or shoulda’ been convicted .
• Conviction can’t have been for a “violent” sex
offense or for an offense which contains a
different “intent” than P.C. 261.5; i.e. 288(c)
or 647.6.
• Hofsheier issue can be raised at PH&S or
raised postconviction via mandamus petition.
Hofsheier (cont.)
• EPC argument has been extended to
invalidate mandatory registration based on
nonforcible oral cop by jail/prison inmate
(People v. Ruffin (2011) 200 Cal.App.4th
669.)
• Logical extensions of Hofsheier have yet
to be explored
• PC 290.46 – Megan’s Law publication
• PC 290.5 – Ineligibility for PC 290 relief
notw/standing dismissal and certificate of
rehabilitation
QUESTIONS?
Contact Laura Arnold @
(619) 338-4706, or
[email protected]
Sex Sentencing, 290 Registration, and Related Issues
PART ONE – One-Strike and No-Strike Sex Laws
I.
Qualifiers for life exposure
A. Multiple Victims
B. Multiple Acts
1.
Penal Code §667.6(d): Reasonable opportunity to reflect upon his or
her actions and nevertheless resumed sexually assaultive behavior
2.
People v. Jones (2001) 25 Cal.4th 98: Certain break of time or
change of place not required
C. Movement of victim
1.
Kidnapping – more dangerous for child (out of mom’s earshot)
D. Age of victim
1.
People v. Cornett (2012) 53 Cal.4th 1261: “ten years of age or
younger” means “under eleven” in sex crime statute.
2.
Sex with child 10 years or younger Penal Code §288.7
a.
25-to-life term for adult who has sexual intercourse or
sodomy with child 10 or younger
b.
15-to-life term for adult who engages in oral copulation or
sexual penetration with child 10 or younger
3. Determinate triads change if victim under 14
E. Force or Duress
1.
Must consider whether defendant is a family member, living in
house with child, age difference, size discrepancy, nature of
relationship
2.
People v. Rouse (2012) 203 Cal.App.4th 1246, review granted
5/23/12: Duress defined as “grudging acquiescence” where 10 yearold child alone in the house with defendant without “aid or defense.”
Potentially makes every violation of 288(a), a violation of 288(b).
F. Penetration or Oral copulation
G. Priors
1.
Penal Code §667.71: Habitual sex offender 25-to-life punishment
statute.
H. Bodily Harm
1.
Penal Code §288(a)(i)(1): §288(a) + bodily harm = life with parole
2
2.
Bodily harm = any substantial physical injury resulting from the use
of force that is more than force necessary to commit the offense
3.
Author of Bill defined bodily harm as “a wound or external or
internal injury whether of minor or serious nature.”
I. Residential Burglary
1.
Penal Code §220(b): Assault with the intent to commit rape,
sodomy, oral copulation, or a violation of §264.1, §288, or §289
during the commission of a residential burglary = life with the
possibility of parole.
2.
People v. Sparks (2004) 28 Cal.4th 71: entry into bedroom with
requisite intent constitutes burglary.
3.
In re M.A. (2012) 209 Cal.App.4th 317: Entryway closet constitutes
a room for burglary purposes.
J. Creepy stuff
1.
Enhancements: weapons (§12022.3(a)), vulnerable victim (§667.9),
daycare worker (§674), pornography(§667.15), committing sex
offense with defendant knowing he or she is HIV-positive
(§12022.85), sex offenses committed with minor for money (§675)
a.
2.
II.
For any violation of 667.6, no limit on the number of
enhancements that can be imposed – each shall be a full and
separately served term (§1170.1(h); People v. Crooks (1997)
55 CA4th 797, Does not matter if same occasion.)
Binding, forcible administration of drugs
2 Major Sentencing Provisions
A. Penal Code §667.61
1.
Requisite offenses - All forcible sex crimes except §288(a) and
§288.5
2.
(d) factors
a.
Previous conviction for forcible sex crime
i.
b.
Kidnapping
i.
c.
People v. Hammer (2003) 30 Cal.4th 756: §288(a)
prior qualifies even if defendant was granted
probation.
People v. Luna (2012) 209 Cal.App.4th 460: Plain
kidnapping enough, does not have to be with intent to
do sex act.
Inflicting mayhem or torture in the commission
3
3.
4.
d.
Offense committed during res burg committed w/intent to
commit forcible sex crime
e.
Personal infliction of GBI
f.
Personal infliction of bodily harm on a victim under age 14
(e) factors:
a.
Kidnapping
b.
During commission of a burglary
c.
Personal use of weapon
d.
More than one V
e.
Tying or binding V
f.
D administered CS against V’s will
g.
Pending urgency legislation, AB 1243 amends to include
personal infliction of GBI as a factor
Sentencing
a.
b.
c.
Generally
i.
25-to-life for any listed offense under one or more
circumstances specified in (d), or two or more
circumstances listed in (e)
ii.
15-to-life for any listed offense under one of the
circumstances specified in (e)
If the minor victim is under 14:
i.
LWOP for any listed offense, except §288(a), under
one or more circumstances listed under (d) or two or
more circumstances listed under (e).
ii.
If the offender is a juvenile, the punishment is 25-tolife.
iii.
25-to-life for any listed offense under one
circumstance listed in (e)
If the minor victim is over age 14:
i.
LWOP for any listed offense, except §§288(a) & (b)
and 288.5, under one or more circumstances listed
under (d) or two or more circumstances listed under
(e).
ii.
If the offender is a juvenile, the punishment is 25-tolife.
4
iii.
25-to-life for any listed offense, except §§288(a) & (b)
and 288.5 under one circumstance listed in (e).
B. Penal Code §667.6: full-term, consecutive stacking
1.
Predicate offenses: all forcible sex crimes except §288.5
a.
2.
3.
People v. Maharaj (2012) 204 Cal.App.4th 641: Penal Code
§269 included in requisite offenses
At least one predicate offense and all acts on same victim and same
occasion
a.
People v. Goodliffe (2009) 177 Cal.App.4th 723: Jessica's
Law loophole where subdivision (c) is inapplicable to a
defendant convicted of committing an enumerated offense
against one victim and a non-enumerated sex offense against
a separate victim on a separate occasion
b.
Discretionary full-term, consecutive sentencing
At least two predicate offenses on separate victims or separate
occasions
a.
Mandatory full-term, consecutive sentencing
b.
Goodliffe : must have two requisite offenses
PART TWO-LIFE AFTER THE PLEA (Assuming Success re: Part One)
I. The Probation Report
A. Penal Code §1203e – Facts of Offense Sheet
B. SARATSO score: Those who administer the test can access “all relevant
records,” even if sealed (PC §290.07)
1.
Juvenile records
2.
1017 reports
3.
Psychological records
4.
Treatment reports
C. Don’t take SARATSO score at face value
1.
Scorer error – know the coding rules
2.
If there’s no trained scorer in your office, hire an expert.
D. Criminal history
E. Victim Pattern (past and present) and Victim’s Level of Sexual
Development
5
1.
Document this whenever possible and get it into the probation report
or include in prison packet (exhibit to SIM)
II. Community Supervision for Registered Sex Offenders
A. Must enter and complete an approved sex offender management program
B. Must participate in polygraph examinations as part of sex offender
management program
C. Must waive any privilege against self-incrimination
1.
Statements made before, after and during polygraph are admissible
in probation revocation proceedings.
2.
Poly results are admissible in civil commitment proceedings (i.e.
SVP).
D. Must waive any psychotherapist-patient privilege to enable communication
between sex offender management professional and probation officer
E. If the SARATSO score is high:
1.
client’s probation restrictions are more intensive
2.
police may disseminate information about client to neighbors and
workplaces. (P.C. 290.45)
3.
client may be subject to residency restrictions while on
probation/parole
4.
client will be GPS’d (P.C. 1202.8(b).)
5.
client will need to be aware of SVP potential if he is ever committed
to prison (for any offense)
F. Object to Overbroad and Unreasonable Non-mandatory Conditions, e.g.:
1.
No Contact W/Minors
a.
including D’s own children
b.
including prohibition against dating, socializing, or forming a
romantic relationship w/anyone with physical custody of a
minor
c.
including prohibition against attending religious services if
minors may be present at the facility
d.
including prohibition against being within 100 yards of any
place where minors regularly congregate (i.e. schools, parks,
malls, bus stops)
2.
Internet, PC, & cell phone prohibitions
3.
Blanket residency restrictions; i.e. P.C. 3003.5(b), local ordinances
restricting residency
6
III.
4.
Blanket restrictions on travel
5.
Blanket employment restrictions; i.e. “The defendant may not accept
any employment which requires him to enter a private residence.”
What’s In Store for a Client Committed to Prison – Parole
A. Know and Advise re: length of Parole Period
1.
Common Periods of Parole
a.
3 years (up to 4) – most felonies
b.
5 years (up to 7) – felony sex offenses listed in 667.5, subd.
(c), offenses between 7/00 and 10/1/11
c.
10 years (up to 15) – felony sex offenses listed in 667.5, subd.
(c) (V>14), and “life sentence” felony sex crimes convictions
(667.61, 667.71), offenses committed after 1/25/2010
d.
20 years, 6 months (up to Life) – 667.5(c) felony sex offenses
(V<14) committed after 1/25/2010
e.
5 or 7 years (up to Life) – Murder (1 or 2), PC 209(b)
w/intent to commit a specified sex offense, 667.51(c), 667.71
(V<14), or 667.61, subd. (j), (l), or (m)
2.
No Early Discharge for RSO’s.
3.
MDD = ADD, plus extension for any time in custody on revocation or
at large
B. Anticipate Extensive Special Conditions of Parole, Including:
1.
2.
Residency restrictions
a.
P.C. 3003.5(b) (2,000 feet from schools and parks
b.
P.C. 3003(g)
c.
Local Ordinances Restricting Residence
Special Conditions of Parole – NOTE: IT IS VERY DIFFICULT
TO SUCCESSFULLY CHALLENGE THESE ON HABEAS DUE
TO ADMINISTRATIVE EXHAUSTION REQUIREMENTS
a.
GPS Monitoring (active vs. passive)
b.
Laws and conditions restricting “presence”
c.
No internet or computer
d.
No contact with minors, including their own children,
grandchildren, etc.
7
IV.
What’s In Store For A Client Committed To Prison – The SVPA
A. Every CDCR inmate is screened
B. Every CDCR inmate with a qualifying conviction or adjudication for a
SVO is screened by DMH
C. Criteria for Civil Commitment
1.
2.
3.
A single qualifying conviction (or juvenile adjudication)
a.
“violent” doesn’t mean violent (if V <14)
b.
“substantial sexual conduct” is not required
c.
foreign convictions count
d.
not limited to least adjudicated elements in determining
whether a conviction qualifies
A “mental disorder”
a.
most commonly paraphilias; i.e. Pedophilia, Sexual Sadism,
“Paraphilia, NOS-Nonconsent”
b.
BUT other disorders, including mental retardation,
personality disorders and substance abuse dependence or
abuse may be enough
A “serious and well-founded risk” of predatory sexually “violent”
reoffense
a.
“Serious and well-founded” doesn’t mean “high”
b.
“Likely to reoffend” doesn’t mean “likely” to reoffend
c.
Actuarial Risk Assessment
d.
Dynamic Risk Assessment
PART THREE-LIFE AFTER COMPLETION OF PROBATION OR PAROLE
DISCHARGE (Assuming Success re: Parts One & Two)
I.
Direct Consequences of 290 Registration Requirement
A. Megan’s Law Internet Website
1.
Offenders’ personal identifying information, photograph, conviction
information, residence address and SARATSO score will be posted on
Internet
2.
Some RSO’s Aren’t Posted; i.e. PC 314 (misd. or felony); PC 311.1,
311.2, 311.3, 311.4, 311.10, or 311.11 (misdemeanor); PC 243.4
(misdemeanor); PC 290.006 (discretionary registrants); PC 290.008
(juvenile offenders)
3.
Some RSO’s Are Eligible, Upon Application, for Exclusion:
8
a.
PC 243.4(a) (felony)
b.
PC 647.6 (former section 647a) (misd)
c.
A felony violation of Section 311.1, subdivision (b), (c), or
(d) of Section 311.2, or Section 311.3, 311.4, 311.10, or
311.11 if the person submits to the department a certified
copy of a probation report filed in court that clearly states that
all victims involved in the commission of the offense were at
least 16 years old at the time of the offense.
d.
An offense for which the offender successfully completed
probation or is currently on probation, providing that the
offender submits to the DOJ a certified copy of an official
court document that clearly demonstrates the following:
e.
2.
i.
V was D’s child, stepchild, or grandchild, and
ii.
Crime did not involve oral copulation or penetration,
and
iii.
During the period of probation, the offender wasn’t
incarcerated for a probation violation or convicted of
another crime resulting in a sentence to county jail or
state prison.
No person shall be excluded unless he/she has submitted to
the DOJ documentation sufficient for the DOJ to determine
that he or she has a SARATSO risk level of low or moderatelow.
In addition to duty to register residence address, locations regularly
frequented, etc., RSO’s must provide police with all internet service
providers and all internet identifiers.
a.
Includes electronic e-mail addresses, user names, and all
screen names
b.
RSO must update any change within 24 hours
c.
Punishable per PC 290.018
d.
Requirement has been temporarily enjoined statewide; Doe v.
Harris class action pending in N. District CA (ACLU No.
Cal. & Electronic Frontier Foundation)
3.
SAFE Task Force (audits and community notification)
4.
State laws and local ordinances restricting residence and “presence” of
RSO’s; NOTE: Local “presence” restrictions are pre-empted by
state regulation of the “field” of sex offender management,
supervision, and control.
5.
Exclusion from nearly all community-based resources and services
a.
Shelters
9
b.
Drug/Alcohol Treatment programs
c.
Licensed Mental Health Placements
6.
Ineligible for “affordable housing” subsidies
7.
Exclusion from virtually every law which lessens punishment (i.e. PC
4019, AB 109, Prop. 36 (2012))
PART FOUR -KNOWING WHO’S ELIGIBLE FOR RELIEF + OBTAINING IT
I.
Some RSO’s Are Eligible for Relief from the Duty to Register,
Including:
A. Those convicted of misdemeanor offenses requiring SO registration or
felony wobblers with successful completion of probation; i.e. PC 314,
243.4, 647.6, PC 286(b)(1), PC 286(e), PC 288.2, PC 288.4, PC 288a(b)(1),
PC 288a(e), PC 289(h), PC 311.1, 311.2, 311.3, 311.4
1.
Requires BOTH PC 1203.4 dismissal AND certificate of
rehabilitation.
2.
Period of Rehabilitation (P.C. 4852.03)
a.
Generally, 10 years from person’s discharge from custody
after completion of sentence or upon release on parole or
probation, whichever is sooner.
b.
Exception: 7 years for PC 314, 311.1 (People v. Schoop
(December 27, 2012) Cal.App.4th (Docket No. A134793),
311.2(b), (c), or (d), 311.3, or 311.10
c.
No incarceration since release from custody or release on
probation (whichever is sooner) and not currently on
probation (or parole) for the commission of any felony
d.
Satisfactory evidence of five years continuous residence in
CA immediately prior to the filing of the petition
e.
Has lived an honest and upright life since offense, sobriety
and industry, good moral character, law-abiding
B. Some juvenile offenders
1.
Non-707(b) offenses, i.e. PC 288(a), w/sealing order
2.
Honorably Discharged former DJJ wards
C. Discretionary registrants (290.006)
D. Child porn offenses
E. Erroneously assessed foreign convictions
1.
Many individuals with convictions from other jurisdictions or military
adjudications are made to register in California (probation, parole,
etc.) prior to any legal assessment having been completed by the DOJ
10
2.
There are situations in which a foreign conviction or military
adjudication does not require registration
3.
These cases MUST ALWAYS be assessed by a lawyer who is
knowledgeable about sex offender registration laws and the standards
for assessing foreign convictions.
F. Offenses comparable to statutory rape or nonforcible oral cop in jail or
prison; i.e. PC 286(b)(1) or (2), (e); PC 288a(b)(1) or (2), (e); PC 289(h) or
(i)(NOTE: only offenses committed on or after 10/10/99)
11
SVP Cases You May Need To Know 1
I.
SVP’S HAVE NO RIGHTS UNDER THE FIFTH OR SIXTH
AMENDMENTS, BUT THEY ARE ENTITLED TO DUE PROCESS
AND ESTOPPEL AND STUFF
A.
“Good” Cases 2
1.
THE ADMISSION OF UNRELIABLE HEARSAY VIOLATES DUE
PROCESS
If the hearsay is unreliable, “a significant portion of the foundation of the
resulting SVP finding is suspect. (People v. Otto (2001) 26 Cal.4th 200,
211.)
2.
UNRELIABLE HEARSAY CANNOT BE ADMITTED, EVEN AS
FORMING THE BASIS FOR AN EXPERT’S OPINION
A trial court may not admit an expert opinion based on information
furnished by others that is speculative, conjectural, or otherwise fails to meet
a threshold requirement of reliability. As our Supreme Court has stated,
“any material that forms the basis of an expert’s opinion testimony must be
reliable. [Citation.] For ‘the law does not accord to the expert’s opinion the
same degree of credence or integrity as it does the data underlying the
opinion. Like a house built on sand, the expert’s opinion is no better than the
facts on which it is based.’ ” C/A held that parole agent’s report detailing
charges of child molestation was not sufficiently reliable to be considered or
admitted. People v. Dodd (2005) 133 Cal.App.4th 1564, 1569
1
Credit goes to Al Menaster’s This Week’s Cases for the droll rendition of facts and
holdings of most of the cases summarized herein. This list is not comprehensive and is
not a substitute for independent research.
2
Very few published SVP cases can be fairly characterized as “good” cases. I use the
quotations to indicate that they are “good,” relative only to the BAD cases.
3.
AFTER SVP WINS TRIAL, ESTOPPEL PREVENTS SUBSEQUENT
ATTEMPTS AT SVP COMMITMENT ABSENT EVIDENCE OF
MATERIAL CHANGE IN CIRCUMSTANCES
Respondent beats SVP commitment petition and is released on parole.
Commits a technical violation of parole, which results in imprisonment after
revocation, and new SVP case is filed. C/A holds that prior jury
determination that he is not an SVP is relevant and admissible in later SVPA
proceeding. Moreover, under collateral estoppel principles, DA can’t
relitigate the prior jury finding with respect to the same individual. To
establish probable cause, DA must show a change of circumstances, i.e., that
despite the fact the individual did not possess the requisite dangerousness in
the earlier proceeding, the circumstances have materially changed so that he
now possesses that characteristic.
Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1060
4.
HEARSAY RULE SORTA’ STILL APPLIES IN SVP CASES
“The rule which allows an expert to state the reasons upon which his opinion
is based may not be used as a vehicle to bring before the jury incompetent
evidence. [Citation.] ... [I]t [is] proper to prohibit doctors ... from detailing
the contents of reports they ... relied upon. [Citation.] ... As in [People v.]
Odom [ (1980) 108 Cal.App.3d 100, 166 Cal.Rptr. 283], the psychiatric
records relied upon by [appellant's experts] Sharma were inadmissible
except to explain that they **491 relied on the reports in reaching their
conclusions.” (People v. Young (1987) 189 Cal.App.3d 891, 913, 234
Cal.Rptr. 819.) Experts can properly and credibly place before the jury the
matters they relied upon and the nature of those matters without testifying to
the specific details of the documentary entries not otherwise admitted into
evidence.” Of course, all of it is admissible on cross-examination, and on
re-direct, once that door has been opened.
People v. Dean (2009) 174 Cal.App.4th 186, 201
5.
NO RIGHT TO SELF-REPRESENTATION FOR SVP’S
People v. Fraser (2006) 138 Cal.App.4th 1430.
6.
EC 352 APPLIES IN SVP PROCEEDINGS (WHEW!)
We take the good with the bad, especially when it’s this good. Section 352
prohibits the introduction of misleading, prejudicial evidence which lacks
probative value. Even in an SVP case! Here, over defense objection, DA
and prosecution experts made a big deal about client’s alleged
unsubstantiated travels to Thailand, a well-known destination for those
interested in having sex with children. (And I thought it was just the good
food!) C/A finds there was no EC 352 balancing done at all, finds prejudicial
error, and actually reverses the SVP commitment. On the other hand, Dr.
Padilla’s scintillating testimony about how DMH killed his recidivism
research on released SVP’s b/c they didn’t particularly care for the low
numbers was found to be properly excluded under Section 352. Note: His
testimony about his findings in the research was allowed.
(People v. Paniagua (2012) 209 Cal.App.4th 499.)
7.
PROSECUTORIAL MISCONDUCT IS NOT OKAY – EVEN FOR SVP
CASES
Misconduct warranted reversal where prosecutor:
• told jurors, during closing, that they were “going to have to explain”
their verdicts, and that if their families, friends, coworkers, and
neighbors learned they had returned a verdict for the defendant they
would say “Oh, wow” and ask further questions.
• proposed to jurors that they conduct a conversation with an imaginary
friend explaining that, by their verdict, they loosed a dangerous
predator on the public
• argued that defendant would be “the unluckiest child molester in the
world” if his only victims were the ones known to the prosecution
because “all the experts testified that sex crimes go unreported,”
where there was nothing in the evidence to suggest that the
Respondent had committed other crimes.
• Improperly referred to the proximity of schools to Respondent’s
mother's house, as well as the fact that if released defendant would be
living with his mother and would not be under the supervision of
parole
• argument that the jurors had been “groomed” and manipulated by
defendant's testimony at trial
• cross-examined a defense expert with facts of other particularly
aggravated SVP cases in which the expert had testified for the defense
to inflame passion or prejudice of the jury.
• asked argumentative questions of a psych tech
• impugned Respondent’s counsel’s character, by referring to counsel
as “deceptive”
(People v. Shazier (2012) 212 Cal.App.4th 520)
B.
Bad Cases
1.
SEXUALLY VIOLENT OFFENSE CAN BE PROVED W/HEARSAY
The Sexually Violent Predators Act expressly allows the People to prove
that Respondent has committed sexually violent offenses through hearsay
evidence, including victim hearsay statements contained in probation
reports. Admission of such hearsay evidence at the probable cause hearing
does not violate due process, because the defendant has the opportunity to
challenge the evidence.
People v. Howard (1999) 70 Cal.App.4th 136
2.
HEARSAY FROM PROBATION REPORTS CAN BE ADMITTED
WITHOUT VIOLATING DUE PROCESS
“The most critical factor demonstrating the reliability of the victim hearsay
statements is that Otto was convicted of the crimes to which the statements
relate. This factor will nearly always be present in an SVP proceeding
because the SVPA requires conviction “of a sexually violent offense against
two or more victims.” (§ 6600, subd. (a)(1).) Thus, a prerequisite to
considering the presentence report is a conviction for the crime to which the
hearsay statements relate. As a result of such a conviction, some portion, if
not all, of the alleged conduct will have been already either admitted in a
plea or found true by a trier of fact after trial.” People v. Otto (2001) 26
Cal.4th 200, 211
3.
SVP RESPONDENT HAS RIGHT TO TESTIFY OVER HIS COUNSEL’S
OBJECTION (People v. Allen (2008) 44 Cal.4th 843)
4.
REALLY CRAZY SEXUALLY VIOLENT PREDATORS
What happens when someone the state claims is a sexually violent
predator (SVP) is incompetent to stand trial on whether he's an SVP?
Due process bars proceeding against a guy who's crazy in a criminal
proceeding. Ah, but SVP is civil, right? Back in '09 our own Jack
Weedin won this issue in the C/A. But the Supremes granted review. And
now we lose, 5-2. Suspending SVP proceedings would defeat the very
purpose of the law. And might endanger public safety. Huh? Do these
folks not get it at all? Incompetent defendants don't walk, they get
locked up in state mental hospitals until they recover, then they come
back for a trial. Same here.
Moore v. Superior Court (2010) 50 Cal. 4th 802, 829.
5.
OK FOR DMH EXPERTS TO TESTIFY ABOUT WHETHER
RESPONDENT MEETS STATUTORY CRITERIA, INCLUDING
“LIKELY TO REOFFEND” – DOESN’T INVADE PROVINCE OF THE
JURY (People v. Lowe (2012) 211 Cal.App.4th 678.)
II.
PROCEDURES MATTER … SOMETIMES
A.
Good Cases
1.
POST-PC RESPONDENTS CAN ASK TO BE HOSPITALIZED AND
TREATED PENDING THEIR TRIALS – COURT’S DISCRETION
(People v. Ciancio (2003) 109 Cal.App.4th 175.)
2.
UNLAWFUL CUSTODY REQUIRES DISMISSAL UNLESS BASED ON
GOOD FAITH MISTAKE OF LAW OR FACT
An SVPA commitment petition was filed a day after the inmate had been
scheduled to be released from custody at the expiration of a 45–day hold
under section 6601.3. In opposing the inmate's motion to dismiss the
commitment petition, the DA argued the inmate's unlawful custody resulted
from a good faith mistake of law or fact. The trial court granted the motion
to dismiss and found the unlawfulness of the inmate's custody resulted from
a delay on the part of the DMH in conducting evaluations, not from a legal
or factual mistake. (Id. at pp. 309–310.) The Court of Appeal, affirming
dismissal of the commitment petition, concluded the DMH's increased
workload following the passage of Jessica's Law (§ 6604) in 2006 did not
amount to a mistake of law or fact and was “something that the [CDCR] and
[DMH] could have anticipated and prepared for.” Dismissal affirmed.
People v. Superior Court (Small) (2008) 159 Cal.App.4th 301
3.
DUE PROCESS REQUIRES THAT CONFINED RESPONDENT BE
BROUGHT TO TRIAL … EVENTUALLY
Chronic, systematic post-deprivation delays in SVP cases that only the
government can rectify must be factored against the People. While delays
based upon the uncontrollable unavailability of a critical witness may be
justifiable (citation), post-deprivation delays due to the unwillingness or
inability of the government to dedicate the resources necessary to ensure a
prompt SVPA trial may be unjustifiable. Just as “unreasonable delay in runof-the-mill criminal cases cannot be justified by simply asserting that the
public resources provided by the State's criminal-justice system are limited
and that each case must await its turn” (citation), post-deprivation pretrial
delays in SVPA proceedings cannot be routinely excused by systemic
problems, such as understaffed public prosecutor or public defender offices
facing heavy caseloads, underdeveloped expert witness pools, or insufficient
judges or facilities to handle overcrowded trial dockets. Case dismissed.
People v. Litmon (2008) 162 Cal.App.4th 383, 403 [76 Cal.Rptr.3d 122,
138]
B.
Bad Cases
1.
SEXUALLY VIOLENT PREDATORS AND GETTING TWO
EVALUATIONS
It is amazing how willing the system is to fudge on all the rules to
hammer folks the system believes did not follow all the rules. Take
sexually violent predators (SVP), for example. The SVP law
requires the DA to obtain evaluations from two psychotherapists
saying the def. is an SVP before filing an SVP petition. Didn't
happen here. Defense wins, right? Guess you didn't read my first
sentence. This C/A finds the failure to comply with the law doesn't
require dismissal. Sure, when the petition was filed, a challenge
could have been brought. But this could all be fixed by getting the
evaluations eventually.
People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122
2.
PROBABLE CAUSE HEARINGS AREN’T MUCH HELP TO THE
RESPONDENT
CSC resolves issues related to the scope and substance of the probable cause
determination required by section 6602, subdivision (a): (1) superior court
must determine, at PC hearing, whether a reasonable person could entertain
a strong suspicion that the petitioner has satisfied all the elements required
for a civil commitment as an SVP; and (2) the phrase “likely to engage in
sexually violent predatory criminal behavior upon ... release,” as it appears
in section 6602, subdivision (a), requires the superior court to determine
whether the potential SVP presents a serious and well-founded risk of
committing sexually violent criminal acts that will be of a predatory nature;
and (3) court must consider the offender's amenability to treatment when
making this determination. Yippee!
Cooley v. Superior Court (2002) 29 Cal.4th 228
3.
SEXUALLY VIOLENT PREDATORS AND DISMISSAL OF
CONVICTIONS
Latest Sexually Violent Predator (SVP) outrage. This def. got
his prior dismissed in Texas under the equivalent to PC 1203.4. Can
that prior be used as a predicate prior for an SVP commitment?
Yep, say the Supremes, since SVP isn't penal, and 1203.4 only
excuses a def. from penal consequences. Hey, we're not punishing
SVP folks, we're, get this, protecting them. Right.
People v. Vasquez (2001) 25 Cal.4th 1225
4.
SEXUALLY VIOLENT PREDATOR EXTENSION HEARINGS AND
GOOD FAITH MISTAKES OF LAW
I don't report all the sexually violent predator (SVP) cases, partly
because we already know the outcome of these cases: we lose. This one,
though, I have to declare the outrage of the week. The DA files a
2-year extension and wins. They then do this wacko thing where they ask
that the 2-year extension be judicially declared to be a lifetime
commitment. Of course the judge does so. In Whaley (160 CA4th 779), we
secured a rare win, the C/A having some trouble with just changing 2
years to life by a wave of the magic wand. In light of Whaley, the life
term here was striken and the DA filed another 2-year extension
petition. Oopsie, now it's untimely. Wait, there's an exception (isn't
there always?) for good faith mistake of law. Of course, the C/A says
that the DA's mistake here was a good faith mistake. Why? Well, the
trial judge ruled in their favor! So the compliant judiciary, signing
off on outright nonsense, allows the DA to screw up and get bailed out,
because, after all, they acted in good faith. Right?
Langhorne v. Superior Court (2009) 179 Cal.App.4th 225
5.
IT’S ALL GOOD FAITH UNTIL SOMEONE SAYS OTHERWISE AND
EVEN THEN, IT’S FINE
CSC holds that SVP petitions filed while Respondents were in “unlawful
custody” due to invalid 45 day-hold for SVP evaluations (pursuant to illegal
regulations) are just fine. CDCR’s reliance on its own invalid regulations
constituted a “good faith” mistake of law, because no published opinion had
yet held the regulations invalid. Tsk, tsk, tsk, CDCR. Don’t let it happen
again … or do. Whatever.
In re Lucas (2012) 53 Cal.4th 839
III.
PATIENT-THERAPIST PRIVILEGE DOESN’T MATTER MUCH IN
SVP CASES
1.
SEXUALLY VIOLENT PREDATORS AND THE
PSYCHOTHERAPIST-PATIENT PRIVILEGE
In a Sexually Violent Predator (SVP) prosecution the
psychiatrists typically use mental health records from the treating
folks at Atascadero. The def. claims this violates his privacy. The
C/A dismisses that, saying this is a minimal invasion overcome by
the compelling interest of saving us from these predators. The def.
also argues that this violates the psychotherapist-patient privilege.
The C/A relies on EC 1024, which codified Tarasoff (17 C3d 425),
creating an exception to the privilege where the therapist reasonably
believes the def. is a danger. These guys are SVPs, after all, and
thus are dangers, right? Wow.
People v. Martinez (2001) 88 Cal.App.4th 465
2.
SEXUALLY VIOLENT PREDATORS LOSE AGAIN
Does the DA have the right of access to the def.'s mental health
treatment files? Yes, and yes. The Supremes make short shrift of
the arguments to the contrary here, as though we have our nerve even
making them. Anyway, the holding states that the DA has the right to
confidential treatment information to the extent such information is
contained in an updated mental evaluation, so maybe we can limit the
DA a bit. Albertson v. Superior Court (2001) 25 Cal.4th 796
3.
SHOWING NECESSARY FOR A SUBPOENA DUCES TECUM
The DA wanted medical records of the defendants from the state
hospital in this SVP (sexually violent predator) case, so they just
issued subpoenas duces tecum (SDTs) for them. This C/A reviews the law
which requires a statement of materiality in an SDT. The DA simply said
that these materials were necessary. That's not enough; there has to be
a specific explanation of necessity, not conclusory stuff like this.
Michael B. (103 CA4th 1384) says there's no requirement of a showing of
relevancy in criminal cases. But if someone tries to quash your SDT,
you're going to have to make SOME showing of materiality. Rely on the
recent Kling case (77 CA4th 223) to insist that your showing be ex parte
to the court.
(Lee v. Superior Court (2009) 177 Cal.App.4th 1108.)
4.
DANGEROUS PATIENT EXCEPTION REQUIRES ACTUAL PROOF
In Tarasoff (17 C3d 425), the Cal. Supremes held that an otherwise
privileged communication between a patient and a psychotherapist could
be disclosed if the patient threatened someone and the therapist
reasonably thought disclosure was necessary to prevent serious harm.
This was codified in EC 1024 as an exception to the privilege; the court
calls this the "dangerous patient" exception. (As opposed to the
"dangerous court" exception.) This is a sexually violent predator (SVP)
case where the court found that the exception applied and permitted the
DA to SDT the defendant's mental health records from his therapy while
he was on parole. The C/A reverses. There was no showing that the
exception applied, the DA just claimed that it did. Surprisingly, the
mere claim of the DA was held by this C/A to be insufficient to justify
application of the exception.
People v. Gonzales (2011) 192 Cal.App.4th 152, review granted April 27,
2011 (Docket S191240.)
IV.
SVP CASES ARE CIVIL PROCEEDINGS, EXCEPT WHEN IT
MIGHT HELP OUR CLIENTS, AND THEN … NOT SO MUCH
1.
CIVIL DISCOVERY APPLIES IN SVP CASES, AND DEPOSITIONS
ARE AUTHORIZED People v. Superior Court (Cheek) (2001) 94
Cal.App.4th 980, 988
We keep hearing that the Sexually Violent Predator (SVP) law is
civil in nature, so retroactive application of it doesn't violate ex post
facto prohibitions, etc. So does civil discovery apply? As in
depositions? Incredibly, the DA here argues that SVP is actually
quasi-criminal because liberty is at stake, so civil discovery shouldn't
apply. So no aspect of criminal law that helps SVP defendants
applies, but no aspect of civil law that helps SVP defendants applies
either. This C/A can't quite swallow this one, and concludes that
civil discovery does apply. They stress depositions can be limited and
even quashed, and that the def. is limited to the issues presented in an
SVP proceeding.
2.
ALTHOUGH CIVIL DISCOVERY ACT APPLIES, RFA’S ARE NOT
ALLOWED IN SVP CASES (Murillo v. Superior Court (2006) 143
Cal.App.4th 730)
3.
NO SUMMARY JUDGMENT IN SVP CASES (Bagration v. Superior
Court (2003) 110 Cal.App.4th 1677.)
4.
SVP’S ONLY GET 6 PEREMPTORY CHALLENGES
(People v. Poulsom (January 31, 2013) ___ Cal.App.3rd ___; 2013 WL
365788)
5.
SVP PROCEEDINGS AREN’T REALLY CIVIL CASES, ESPECIALLY IF
IT WOULD MEAN THAT THE DA MIGHT LOSE
In 1978, Respondent had pled no-contest to PC 288. At that time, PC sect.
1016 prohibited the use of a no-contest plea in any civil action. DA seeks to
use this prior in a SVP trial. CSC says that SVP case isn’t a “civil
proceeding”, it’s just a “special proceeding of a civil nature.” Respondent
loses. (People v. Yartz (2005) 37 Cal. 4th 529.)
V.
VOLITIONAL AND EMOTIONAL IMPAIRMENT
1.
Back in 1997, the US Supremes upheld Sexually Violent Predator
(SVP) statutes against due process and ex post facto challenges.
(Hendricks, 521 US 346.) This time the Supremes rule that an
element the State has to prove in an SVP case is that the def. is
unable to control his behavior. It doesn't have to be complete or total
lack of control, difficult to control is enough, but it is an element of an
SVP prosecution. Kansas v. Crane (2002) 534 U.S. 407, 413
2.
The latest case from the US Supremes on sexually violent
predators (SVP) held that the State must prove, as an element, that
the def. is unable to control his behavior. They said it doesn't have to
be a complete or total lack of control, difficult to control is enough.
(Crane, 122 S.Ct. 867.) Of course, this jury wasn't told any of that.
No problem, says this C/A, what they were told implicitly so
instructed the jury. You know, the usual stuff: that the def. has a
diagnosed mental disorder making him a danger and predisposed to
commit sex acts. All we have to do is say that this is the same as
difficulty to control, and we fix any problem. Of course, we have a
little problem with honesty and integrity, but we hope you won't
notice that. People v. Williams (2003) 31 Cal.4th 757, 759-760
3.
SEXUALLY VIOLENT PREDATORS AND LACK OF CONTROL
Let's see, this is a sexually violent predator (SVP) appeal; see if
you can guess who loses. In Crane (534 US 407), the US Supremes
held that lack of control is an element of an SVP prosecution, though
the DA need not prove complete lack of control. Typically, the DA
only proves dangerousness. This C/A assures us that while
dangerousness alone isn't enough, the jury may infer lack of control
from proof of a mental abnormality and dangerousness, since this
shows the def. has a mental illness unlikely to be deterred by the
threat of criminal punishment, and this is sufficient evid. of lack of
control. They get to just say things, and that makes them so.
People v. Burris (2002) 102 Cal.App.4th
4. VOLITIONAL IMPAIRMENT FINDING SUPPORTED BY SUBSTANTIAL
EVIDENCE where:
• Respondent had been convicted of sexual offenses against young girls in the
past;
• Respondent had told psychologist that his risk of reoffending was “zero” ,
construed to mean that he was unlikely to avoid situations that could trigger
his offending behavior;
• Respondent had told an evaluator that he liked to walk in parks, and
• Respondent didn’t call his parole agent when he realized he was near a park
in violation of his SCOP.
(People v. Poulsom (January 31, 2013) ___ Cal.App.3rd ___; 2013 WL
365788)
VI. JURY INSTRUCTIONS
1.
NO UNANIMITY INSTRUCTION REQUIRED IN SVP CASES
Since SVP proceedings are civil in nature, even though some criminal
procedural protections apply, the rule requiring a unanimity instruction does
not apply in SVP civil commitment proceedings. (People v. Washington,
supra, 220 Cal.App.3d at 915–917, 269 Cal.Rptr. 668; Whitney, supra, 129
Cal.App.4th at pp. 1297–1298, 29 Cal.Rptr.3d 218; Kansas v. Hendricks
(1997) 521 U.S. 346, 364–365, 117 S.Ct. 2072, 138 L.Ed.2d 501; Hubbart v.
Superior Court, supra, 19 Cal.4th at p. 1174, fn. 33, 81 Cal.Rptr.2d 492, 969
P.2d 584; People v. Beeson (2002) 99 Cal.App.4th 1393, 1410, 122
Cal.Rptr.2d 384.) People v. Fulcher (2006) 136 Cal.App.4th 41, 59
VII. THE EQUAL PROTECTION CLAUSE APPLIES TO SVP’S, SORTA’
1.
REVERSAL OF COMMITMENT OFFENSE CONVICTION REQUIRES
RE-TRIAL AND RE-CONVICTION AND COMMITMENT TO PRISON Respondent’s conviction for felony resulting in prison commitment was
reversed on appeal for instructional error. CSC finds that, after reversal,
Respondent was similarly situated, for purposes of equal protection, to
someone who was not convicted and committed to prison and that no
rational basis exists for permitting him to be SVP’d when such a person
couldn’t be. If the People want to SVP after reversal of the commitment
offense conviction, they must first re-try and re-convict the defendant (and
presumably he would have to be sentenced to prison) on the underlying
commitment offense. (In re Smith (2008) 42 Cal.4th 1251.)
2.
DISPARITY IN BURDEN AND TERM OF COMMITMENT BETWEEN
SVP’S AND SIMILARLY SITUATED MDO’S AND NGI’S JUSTIFIED
BY DIFFERENCES IN DIAGNOSIS, QUALITY OF FUTURE
DANGEROUSNESS, AND TREATMENT NEEDS OF CLASSES OF
INDIVIDUALS
I can’t bear to summarize this case in writing. Just read it and move on with
your life. (People v. Mckee (2012) 207 Cal.App.4th 1325.)
VIII. WIC 6608 – NOT MUCH LAW … YET
• Person has to be civilly committed (not at hospital awaiting trial on
commitment petition) to petition for conditional release. (People v. Superior
Court (Rigby) (2011) 195 Cal.App.4th 857
• If 6605 annual eval. finds that conditional release or unconditional discharge
is warranted, trial court cannot dismiss 6608 petition as frivolous, but must
proceed as provided in WIC 6605. (People v. Landau (2011) 199
Cal.App.4th 31)
• Under 6608, SVP must allege facts that will show that he is not likely to
engage in sexually violent criminal behavior due to his diagnosed mental
disorder with supervision and treatment in the community, if that is the relief
he requests. (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1407.)
• Court actually has to consider the evidence presented before denying a WIC
6608 petition. (People v. Rasmuson (2006) 145 Cal.App.4th 1487.) In
support of his petition, Rasmuson presented the testimony of eight mental
health professionals, including three staff personnel from Atascadero where
he was incarcerated and received treatment, a psychologist on the DMH
expert panel that determines who is a SVP, two psychologists hired by the
DMH to evaluate appellant, a forensic psychiatrist and one clinical
psychologist who worked for Los Angeles CONREP and who wrote the
clinical evaluation protocol for SVP’s. All agreed that he would not be a
significant danger to the community if conditionally released and did not
present a “serious and well-founded risk” of reoffending. Each expert
emphasized differing reasons for his or her conclusion including, among
others, that Rasmuson (1) was taking antiandrogens, which virtually
eliminated his sexual arousal, dreams, and deviant sexual fantasies; (2) was
one of only a handful of patients who had completed all phases of treatment
at Atascadero despite significant peer pressure not to participate; (3) was a
model patient; (4) worked hard on relapse prevention; (5) recognized his risk
factors for reoffending; and (6) would be placed in the CONREP program,
which, because of its omnipresent supervision and monitoring, was virtually
“failsafe,” with a low recidivism rate. Half of the experts testified that his
conditional release was appropriate even if he was not taking antiandrogens.
Trial court denied the petition, without stating reasons. C/A reverses for
lack of substantial evidence to support the denial. “Given the reports of the
experts, to deny his petition was tantamount to concluding that no SVP who
has ever committed a prior serious sexual offense, regardless of how long
ago it occurred, can be conditionally released. Such a conclusion would
present serious constitutional issues. (See Foucha v. Louisiana, supra, 504
U.S. at p. 77, 112 S.Ct. 1780.)” Ya’ think??!!!