Sex Offender Laws

1. Sex Offender Laws The Containment Model and the Courts

2. Who am I? • Jeffrey Richardson • Senior Probation Officer • Riverside County Probation (Palm Springs Office) • Supervising Sex Offender Caseload since April 2012

3. Topics • The Containment Model • Case Law Basics • Case Law the Containment Model • AB1844 • Probation/Parole • Polygraphers • Treatment Provider/Therapist • Victim Advocate • Misc. Case Law

4. Overview of the Containment Model Probation/Parole Re-offense Offender Re-offense Treatment Provider Polygrapher Re-offense Re-offense Victim Advocate

5. Case Law Basic’s • Legal system is based on “Stare Decisis” (To stand by decided matters) • The policy of courts to abide by or adhere to principles established by decisions in earlier cases • Supreme Court decision’s must be followed by all lower courts.

6. Case Law Basic’s Cont… • Federal Appeals Court decision’s must be followed by all lower courts within it’s jurisdiction. • Decision's of the 9th Circuit Court must be followed by all federal courts in California, Nevada, Arizona, Oregon, Washington, Idaho, Montana, Alaska, and Hawaii. • The 4 California Federal District Courts serve as the trial courts for federal law offenses.

7. Case Law Basic’s Cont… • Federal Appeals Courts

8. Case Law Basic’s Cont… • California Supreme Court has the right to select which cases it will hear and it’s decision’s must be followed by all lower state courts. • California Appeals Courts is divided into 6 districts. • When an appeals court rules on a new legal issue, that decision in binding to all lower courts, statewide. • If another appeals court rules differently, lower courts can decide which rule to use until a higher court decides the issue.

9. Case Law Basic’s Cont… • California Appeals Courts

10. Case Law Basic’s Cont… • Courts are the final arbiter for legal questions. • Provide a guide for proper implementation of the containment model. • Case law tells a story, but can be difficult to find. • Published opinion’s more force than unpublished. • Names of those involved in cases, with the exception of the defendant, are omitted. • Of note, I am not a lawyer.

11. Case Law and AB 1844 • 5th Amendment Polygraph Waiver. • Psychotherapist-Patient Privilege. • Retroactive applicability of the Containment Model.

12. PEOPLE v. GARCIA • March 21, 2014 (Published). • Court of Appeals of California, Sixth District.

13. PEOPLE v. GARCIA Cont… • Garcia arrested after allegedly forcing his 9 year old cousin to orally copulate him. • Garcia plead to two counts of lewd conduct on a child under 14 and was placed on probation.  • Part of his terms and conditions of probation mandated he complete sex offender treatment pursuant to the containment model.

14. PEOPLE v. GARCIA Cont… • Garcia argued that Polygraph requirement violated his 5th amendment rights, was overbroad, and unreasonable. • Garcia also argued that waiving his psychotherapist-patient privilege violated his right to privacy, was overbroad, and unreasonable. • Question before the court: Do the conditions mandated by AB 1844 violate Garcia’s constitutional rights?

15. PEOPLE v. GARCIA Cont… • Answer: No. • Court found compelling incriminating statements was not unconstitutional, only using them in a criminal proceeding was. • Court also found the psychotherapist-patient privilege waiver requirement serves a legitimate state interest, therefore, is constitutional.

16. PEOPLE v. FRIDAY • March 27, 2014 (Published). • Court of Appeals of California, Sixth District.

17. PEOPLE v. FRIDAY Cont… • Friday plead no contest to possession of child porn. • Friday granted 3 years of probation and required him to attend sex offender counseling pursuant to the containment model. • Friday argued these conditions were unconstitutionally overbroad and violated his 5th amendments rights and his right to privacy.

18. PEOPLE v. FRIDAY Cont… • Question before the Court: Do the conditions mandated by AB 1844 violate Friday’s constitutional rights? • Answer: Yes and No. • Court found the condition requiring the waiver of 5th amendment rights was overbroad. “We hold only that the state may not require the waiver of "any privilege against self-incrimination" as a condition of probation.”

19. PEOPLE v. FRIDAY Cont… • Further, the court stated, “we construe the requirement of participation in polygraph examinations as allowing only questions relating to the successful completion of the sex offender management program, the crime of which defendant was convicted, or related criminal behavior.”

20. PEOPLE v. FRIDAY Cont… • Regarding the waiver of psychotherapist-patient privilege, the Court found, “We hold that defendant may constitutionally be required to waive the psychotherapist-patient privilege only to the extent necessary to allow the sex offender management professional to communicate with the supervising probation officer.”

21. PEOPLE v. DOUGLAS M. • October 24, 2013 (Published). • Court of Appeals of California, First District, Division Two.

22. PEOPLE v. DOUGLAS M. Cont… • September 8, 2006: In Shasta County, Douglas M. plead guilty to continuous sexual abuse of a child and lewd or lascivious acts on a child under age 14. Offenses occurred between July 2005 and March 2006. • December 14, 2006: Douglas M. placed on formal probation for 7 years. • April 2, 2009: Case transferred to San Mateo County.

23. PEOPLE v. DOUGLAS M. Cont… • October 19, 2012: Probation requested the court add additional conditions to Douglas M’s case, due to requirements of 1203.67 PC (Containment Model). The court agreed and added the conditions. • Douglas M. appealed the decision. • Question before the Court: Is 1203.67 PC to be applied retroactively to those whose offenses occurred before the passage of AB1844 (September 9, 2010)? • Answer: No.

24. PEOPLE v. DOUGLAS M. Cont… • Court ruled, “there is nothing in either the language of the statute or its legislative history clearly indicating a legislative intent for revised section 1203.067 to be applied retroactively to probationers whose crimes occurred before its effective date.” • “Moreover, to construe the statute as applying to those probationers would raise serious constitutional questions under the federal and state ex post facto clauses.” • The additional conditions of probation were stricken.

25. Case Law and Probation/Parole • Conditions of Probation/Parole • Counseling Directives • Probation Violations • Extending Term of Probation • Probation and Deportation

26. PEOPLE v. MOSES • September 20, 2011 (Partially Published) • Court of Appeals of California, Fourth District, Division Three.

27. PEOPLE v. MOSES Cont… • Moses was convicted of a single count of violating Penal Code section 288 PC. • Challenged numerous conditions of his probation as unconstitutionally overbroad and vague. • Question before the Court: Are these condition’s unconstitutional? • Answer: Yes to some, No to others.

28. PEOPLE v. MOSES Cont… • Court found that all the terms must include a knowledge requirement. • Court stated a probation condition cannot forbid someone of the right to marry. • Court struck term about having contact with pedestrians or drivers. • Upheld restrictions of hitchhiking.

29. PEOPLE v. CASEY • February 5, 2014 (Not Published). • Court of Appeals of California, Fourth District, Division Three.

30. PEOPLE v. CASEY Cont… • 2002: As a juvenile, Casey declared a ward after committing oral copulation and sodomy on another minor. • 2007: Casey plead guilty to having sex with a 15 year old runaway and placed on Formal Probation for 5 years. Not required to register. • Probation was subsequently violated and he was sentenced to 2 years in prison

31. PEOPLE v. CASEY Cont… • September 22, 2012: Casey released of PRCS in Orange County. • Required to complete a sex offender counseling program pursuant to the containment model. • January 2013: Casey’s probation was revoked as he failed his treatment program, cut off his GPS device, and failed to report to his probation officer. • February 7, 2013: Casey admitted to the violation and ordered to serve 120 days custody time.

32. PEOPLE v. CASEY Cont… • Casey argued requiring him to attend Sex Offender Counseling was unnecessary, overbroad, and unreasonable. • Question before the court: Are the conditions added in Casey’s case appropriate? • Answer: Yes. • Court found the requirement, “entirely appropriate for the probation department to require Casey to attend sexual offender treatment.” “We find nothing unreasonable or unconstitutional about these conditions.”

33. U.S. v. T.M. • June 4, 2003 (Published). • United States Court of Appeals, Ninth Circuit

34. U.S. v. T.M. Cont… • July 1996: T.M. pleaded guilty in federal court to one count of conspiracy to distribute and possess marijuana. • Probation report stated T.M., in 1961, faced criminal charges of molesting a fifteen-year-old girl and, in 1981, he was convicted of kidnapping an eight-year-old girl. He was required to register as a sex offender on this case.

35. U.S. v. T.M. Cont… • April 1999: T.M. admits to a probation violation for associating with a previously-convicted felon. • T.M. and the felon attempted to enter Alberta, Canada in February, 1999. At the border, T.M. and the felon identified themselves as clergymen who wanted to set up a charity to provide aid for "the needy children of Alberta." They were denied entry because of their past criminal convictions.

36. U.S. v. T.M. Cont… • T.M. sentencing was deferred for a mental health examination. • The evaluation concluded that T.M.'s behavior was consistent with that of an “untreated” sex offender The report recommended that the district court impose a number of conditions on T.M.'s probation geared toward preventing future sex offenses.

37. U.S. v. T.M. Cont… • February 2000: The district court ruled that T.M. was to continue on probation. • New conditions required T.M. to participate in sex offender treatment and to submit to risk assessment that could include polygraph examination.  • November 2001: Another violation is filed alleging T.M. associated with a felon in seeking to establish another children's charity, and that he possessed pornographic material

38. U.S. v. T.M. Cont… • March 2002: Court find’s T.M. in violation. • T.M. requested the counseling term be stricken. • The court denied his request and T.M. appealed • Question before the court is “whether the sex offender conditions of T.M.'s supervised release are reasonably related to protecting the public and preventing recidivism in light of T.M.'s history and the nature of his probation violations.” • Answer: No.

39. U.S. v. T.M. Cont… • Court found “the district court abused its discretion because the evidence does not establish such a relationship and we therefore require the elimination of those conditions.” • The Court found their was insufficient evidence to justify the granting of sex offender conditions.

40. U.S. v. JOHNSON • October 30, 2012 (Published). • United States Court of Appeals, Ninth Circuit

41. U.S. v. JOHNSON Cont… • Johnson pled guilty to knowing and unlawful possession of a firearm. • Was ordered to undergo a sexual offender assessment. • 1980: Johnson raped a nineteen year-old woman twice at knife point. Sentenced to nine years. • 1990: Johnson raped a fourteen year-old girl at gunpoint. Sentenced to thirteen years in prison. • Johnson appealed the imposition of the sex offender assessment.

42. U.S. v. JOHNSON Cont… • Question before the court: Does requiring a sexual offender assessment violate Johnson’s 5th amendment rights and is it reasonable? • Answer: Yes. • The Court found the term reasonable as his current offense involved a gun, the same as was used in his prior sex offenses. • In addition, a sex offender assessment is a “less significant restraint” on liberty.

43. PEOPLE v. JARED • January 30, 2013 (Not Published). • Court of Appeals of California, Fourth District, Division Three.

44. PEOPLE v. JARED Cont… • July 2010: Jared pleaded guilty to failing to register as a sex offender and drug possession. • Placed on probation, which included a general counseling term. • Jared’s probation officer required Jared to complete sex offender counseling.

45. PEOPLE v. JARED Cont… • Jared refused to attend counseling and denied committing his offense. • He submitted to a polygraph, but failed every question. • July 2011: Jared’s probation violated on the counseling term.

46. PEOPLE v. JARED Cont… • Jared agreed with Probation Officer’s assessment, but asked the Court to give him another opportunity due to his other good behavior’s. • Court found Jared in violation and sentenced him to 2 years and 8 months in prison. • Question before the Court: Did the trial Court abuse it’s discretion by ordering Jared to Prison?

47. PEOPLE v. JARED Cont… • Answer: No. • Evidence from Probation and the Polygrapher showed that Jared was a continuing danger to the community.

48. PEOPLE v. COOK • October 22, 2010 (Not Published). • Court of Appeals of California, First District, Division One.

49. PEOPLE v. COOK Cont… • Cook had a sexual relationship with a 13 year old girl. • January 5, 2009: Cook plead no contest to a charge of contributing to the delinquency of a minor. • Placed on formal probation for three years. • Required to attend counseling and to have no contact with minor’s. • June 9, 2009: Cook’s probation was violated for failing counseling and having contact with minor’s.

50. PEOPLE v. COOK Cont… • Cook stated there was nothing wrong with his sexual relationship and probation could not tell him who he could have contact with. • The trial court disagreed and Cook was sentenced to one year in jail. • Question before the court: Was the violation supported by the evidence? • Answer: Yes.