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Sex Offenses
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| If you have been arrested for a sex offense
- typically, a felony - or if you know someone who is being investigated
for a sex offense, you or they absolutely, positively need an attorney who
knows the law, who will pursue justice in your/their case, and who can and
will protect your or their liberty interests in a court of law. At the MAYO
LAW CLINIC we vigorously defend individuals who are being
investigated or who have been arrested for any number of sex offenses.
CALL US AT (530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION!
ABOUT SEX OFFENSES
Although California’s rape statutes are gender neutral, the criminalization of more subtle forms of sexual violence reflects a new view of women as “responsible, autonomous beings who possess the right to personal, sexual, and bodily self-determination.” (Berger et al., The Dimensions of Rape Reform Legislation, 22 L. & Soc’y Rev. (1988) 329, 330.) Thus, both courts and legislatures have expanded the concept of rape to include spousal rape, lesser degrees of rape, and what has been characterized as post-penetration rape. (See, e.g., McGill v. State (Alaska Ct.App. 2001) 18 P.3d 77, 84; State v. Siering (Conn.App.Ct. 1994) 644 A.2d 958, 962-963; State v. Robinson (Me. 1985) 496 A.2d 1067, 1070-1071; State v. Crims (Minn.Ct.App. 1995) 540 N.W.2d 860, 865.) In a rape charge, the government must prove the elements of a crime beyond a reasonable doubt (PC §1096; US Const., 14th Amend.). Consent May Be Withdrawn After Initial Penetration - In In Re John Z (2003) 29 C4th 756; 60 P.3d 183; 128 CR2d 783 ), a 6-1 decision, the California Supreme Court ruled that forcible rape (PC §261(a)(2)) was committed when the woman who, in fact, had consented to the initial penetration, evidently withdrew her consent after intercourse had commenced ("no reasonable person in defendant's position would have believed that [the victim] continued to consent to the act") and, thus, the intercourse was thereafter purportedly continued against her will. In the process, the Court also disapproved the holding in People v. Vela (1985) 172 CA3d 237, which case held to the contrary. Presumably, in a post-penetration rape case, the prosecution still has the burden of showing, beyond a reasonable doubt, that the victim clearly communicated withdrawal of consent and the defendant exercised some degree of force to continue. Moreover, a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape. (People v. Williams (1992) 4 C4th 354, 360; People v. Mayberry (1975) 15 C3d 143, 154-155.) To be acquitted, a defendant need only raise a reasonable doubt as to his reasonable and honest belief in consent. Thus, to convict in such a case, the government must prove the absence of such a belief beyond a reasonable doubt. Editor's Note: This is another Justice Ming opinion which, unfortunately, but not unexpectedly, simply fails to even address the issue of the victim's communication of consent withdrawal, or the issue of the defendant's reasonable or good faith mistake of fact regarding the issue of the victim's consent. Consent Not An Element For Unconscious Victim - In People v. Dancy (2002) 102 CA4th 21; 124 CR2d 898, the 6th DCA held that sexual intercourse with an unconscious person is criminal sexual offense (PC §261 Rape) regardless of any suggestion of real or hypothetical consent. Thus, the defendant here was not entitled to a consent defense even though the defendant claimed to have had sex with the victim previously while she was asleep and, evidently, she did not mind. In this instance, however, the victim was not actually asleep, but half-conscious because the defendant had beaten her up. The Court stated that, "a man who intentionally engages in sexual intercourse with a woman he knows to be unconscious is clearly aware that he is wrongfully depriving the woman of her right to withhold her consent to the act at the time of penetration." DNA Evidence Properly Admitted In People v. Smith (2003) 107 CA4th 646; 131 CR2d 230, the Court of Appeal held that in a forcible rape case (PC §261(a)(2)), the trial court properly ruled at the end of a pretrial motion concerning the admissibility of deoxyribonucleic acid (DNA) evidence, that the process of attributing distinct genetic profiles to multiple contributors of mixed source forensic samples, is generally accepted in the relevant scientific community. Hence, it met the Kelly/Frye test on admissibility of scientific evidence (testing). In People v Henderson (2003) 107 CA4th 769; 131 CR2d 255, the Court of Appeals held that the trial court properly concluded that capillary electrophoresis, the procedure used for analyzing the amplified deoxyribonucleic acid (DNA) fragments in this case, had gained general acceptance within the relevant scientific community. Hence, it met the Kelly/Frye test on admissibility of scientific evidence (testing). The Court also held that the added complication of analyzing a multiple source DNA sample did not affect the admissibility of the evidence, but, instead, was a consideration for the jury in weighing the evidence and determining the credibility and accuracy of the DNA test results.
Evidence of Prior Sexual Offense Admissible In People v. Pierce (2002) 104 CA4th 893; 128 CR2d 397, the Court of Appeal held that the charge of assault with intent to commit rape was a sexual offense which, under Evidence Code §1108, permitted evidence of a prior sexual offense to be admitted as "propensity" evidence. Here, the court held that assault to commit rape was a form of attempted rape (PC §§261, 664) and, thus, admissible under Evidence Code §1108. Continuous Sexual Abuse and Underlying Offenses - Multiple Convictions In People v. Torres (2002) 102 CA4th 1053; 126 CR2d 92, following People v. Johnson (2002) 28 C4th 240; 47 P.3d 1064; 121 CR2d 197, the appellate court held that appellant could not be convicted of both PC §288.5, and of multiple counts of other specific felony sex offenses committed against the same victim and in the same time period as the PC §288.5 count. Thus, the remedy for the failure to plead these offenses in the alternative, as required by PC §288.5(c), was to reverse the defendants conviction on the PC §288.5 count.
Prostitution - California's Definition In Wooten v. Superior Court (2001) 93 CA4th 422; 113 CR2d 195 (review denied 1/29/02) and unlike other states (i.e., Wisconsin and Arizona) the appellate court held that the criminal definition of prostitution requires that there be (i) a prostitute and (ii) a customer. Thus, where there are two (2) or more prostitutes engaged in lewd acts for money, and where the customer is merely a voyeur and does not participate in the lewd act, as a matter of law, there can simply be no criminal prostitution. In Wooten, supra, because the prosecution admittedly had no evidence whatsoever of any physical contact between the prostitutes and the customer, the court determined there could be no crime of prostitution. And, without the underlying crime of prostitution, there could be no evidence of either pimping or pandering of the defendant theater managers. Hence, the defendants in the Wooten case were entitled, as a matter of law, to have the trial court set aside the felony information (criminal complaint). Local Confiscation Laws In 1997 the City of Oakland got into the asset forfeiture act when it passed a vehicle forfeiture statute covering instances of prostitution solicitation and/or drug purchase solicitation and dubbed Operation Beat Feet, (so named because suspects have to hoof it after their arrests). That law was challenged, but in July, 2000, Oakland's local confiscation law was upheld in by a California appeals court ruling, Horton v. City of Oakland (2000) 82 CA4th 580; 98 CR2d 371. The challenge in Horton only raised the issue of state preemption, and did not raise any issues concerning the constitutionality of the ordinance. Distinguishing on the grounds that the City of Oakland's vehicle confiscation law applied to drug buyers (solicitors), the court determined that the local ordinance was not preempted by state law, since the ordinance did not conflict with H&S Code §11469, et seq., because state law did not reflect a clear indication of legislative intent to preempt other vehicle forfeiture regulations and, particularly, because state law was silent with regard to vehicles used by drug buyers (solicitors). The court also held that Oakland's ordinance did not conflict with VC §22659.5 because the passage of state legislation authorizing local communities to enact a pilot program for confiscating the vehicles of arrested Johns (solicitors of prostitution) did not constitute a clear indication by the state of an intent to occupy the entire legislative arena. Pimping, on the other hand, is committed by any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the persons prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person is the commercial exploitation of a prostitute. (PC §266h(a)). Pimping in California is a felony and an enhanced prison term attaches upon conviction if the prostitute in question is determined to be under the age of 16. As for multiple counts issue, see, People v. Lewis (1978) 77 CA3d 455, wherein a defendant charged with "pimping" over a 5-year period was held to a "continuous course" of conduct. Hence, the defendant, a "pimp", could not be charged with multiple counts of "pimping." Pandering is committed by a person who either (1) Procures another person for the purpose of prostitution, or (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute, or (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state, or (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate, or (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution, or (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. (PC §266(i)) Pandering in California is a felony and an enhanced prison term attaches upon conviction if the prostitute in question is determined to be under the age of 16. Solicitation is the act of requesting the services of a prostitute by the John. (PC §647(b)). Thus, all persons, including prostitutes and their customers, who solicit an act of prostitution, can be charged with a misdemeanor offense. LEWD AND LASCIVIOUS ACTS - INDECENT EXPOSURE Lewd acts, lascivious conduct and indecent exposure are usually charged as misdemeanor offenses in California. These offenses involve public sexual acts or the exposing of the genitals in a public place. Special statutory provisions regarding lewd and lascivious acts apply to defined caregivers at defined board and care facilities. ORAL COPULATION In People v. Murphy (2003) (4/15/03; 03 C.D.O.S. 3197; ___ CA4th ___) the Court of Appeals recognized that the Sixth Amendment of the U.S. Constitution guarantees a criminal defendant "the right . . . to be confronted with the witnesses against him." The right of confrontation ordinarily requires a face-to-face encounter. (Coy v. Iowa (1988) 487 U.S. 1012, 1016 ["We have never doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact"]; Ohio v. Roberts (1980) 448 U.S. 56, 63 ["The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial"]; see also Mattox v. United States (1895) 156 U.S. 237, 242-243.). In an oral copulation case by force or fear (PC§288a) and felony false imprisonment (PC §§236, 237), the Court of Appeals held that the defendant was denied his federal constitutional right of confrontation of a witness against him when the trial court consented to the prosecution's request to use a one-way glass without holding an evidentiary hearing to determine whether, and to what degree, the testifying victim's apparent anxiety was due to the defendant's presence rather than, for instance, the witness's general emotional fragility or the trauma of testifying in court or revisiting a past experience the witness would rather not recall. The Court went on to state that, "Even assuming that, in an appropriate case, the court might allow a testifying adult victim, who would otherwise be traumatized, to use a one-way screen to avoid seeing a defendant without violating the right of confrontation, we do not think a court may do so without making the necessary factual findings based upon evidence. In other words, a court may not, as the court did in this case, dispense with complete face-to-face confrontation merely upon a prosecutor's unsworn representation that defendant's presence was part of a distraught adult witness's problem. In our view, the court's ruling was not based upon an adequate "case-specific finding of necessity." (Maryland v. Craig(1990) 497 U.S. 836 at p. 855.) We are unable to say that the error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), especially since the pivotal issue was the alleged victim's credibility." But see, People v. Williams (2002) 102 CA4th 995; 125 CR2d 884 (review denied January 15, 2003) where the appellate court rejected the defendant's contention that he had been denied his rights to confront witnesses, to be present at trial and to due process of law, when the trial court allowed the prosecution to present the testimony of an extremely distraught adult victim prosecuting witness, who suffered from established physical and mental disabilities, to testify at trial by means of a prior videotape examination in lieu of a live examination during trial. In the Williams case, the victim's psychologist opined at a hearing that the victim "would not be able to testify in the courtroom situation where all parties were present" because "[t]he panic, anxiety and fear would overwhelm her." The victim was examined in courtroom out of the presence of the jury and the defendant. Defendant heard the victim's testimony from a wired detention cell and defense counsel was able to go to the detention cell and confer with appellant before ending his cross-examination. "The videotape was thereafter played for the jury with appellant present in the courtroom. The jury was not permitted to know that the witness was unable to testify in front of appellant." The videotape played for the jury was recorded while the witness was in the courtroom and examined and cross-examined by counsel, and while appellant was in a detention cell wired so he could hear the witness and communicate with his counsel. In Williams, the Court held that the trial court properly admitted into evidence and played for the jury the videotaped recording of a police interview of the prosecuting witnesses. The recording was admissible as a prior consistent statement (Evid. Code, §§1236, 791(b)) and not unduly prejudicial (Evid. Code, §352). The Court stated that neither the court in People v. Williams, supra, nor the People in this case (Murpohy) have identified any authority recognizing or establishing that the state has "transcendent" or "compelling" interest in protecting adult victims of sex crimes (versus protecting children) from further psychological trauma that might result from testifying face-to-face with a defendant. Moreover, the trial court in this case was not relying upon the state's interest in protecting adult victims but, instead, predicated its ruling on the state's interest in ascertaining the truth. (See §1044; see also Evid. Code, §765(a).) As articulated in Coy, supra, the governmental interest in discovering the truth historically and traditionally cuts the other way. BIGAMY, INCEST, AND CRIMES AGAINST NATURE Bigamy Penal Code §281 provides that every person having a husband or wife living, who marries any other person is a bigamist. In order to prove bigamy, it is not necessary to prove either of the marriages by the register, certificate, or other record evidence thereof, but the marriages may be proved by evidence which is admissible to prove a marriage in other cases (and when the second marriage took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge) However, bigamy does not extend to any person by reason of any former marriage whose husband or wife by such marriage has been absent for five (5) successive years without being known to such person within that time to be living, nor to any person by reason of any former marriage which has been pronounced void, annulled, or dissolved by the judgment of a competent court. Bigamy is a wobbler offense (may be charged as either a misdemeanor or felony) and is punishable by a fine not more than $10,000, or by imprisonment in a county jail, not exceeding one year or in the state prison. Also, every person who knowingly and willfully marries the husband or wife of another (i.e., the person marrying the bigamist knowing that he or she is a bigamist), in any case in which such husband or wife would be punishable as a bigamist, is punishable themselves by a fine of not less than $5,000, or by imprisonment in the state prison. Incest Penal Code §285 provides that persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison. Incest is thus a felony. In People v. Tobias (2001) 25 C4th 327; 21 P.3d 758; 106 CR2d 80, the California Supreme Court held that a minor (child under 18) who engages in consensual sexual relations with a parent is, unlike the parent, not guilty of incest (PC §285), rather, the minor is a victim and can never be a perpetrator or an accomplice to the parent’s crime. Moreover, the minor's consent to sexual relations with the parent does not change this fact, and the minor's testimony against the parent is not subject to the cautionary rules governing accomplice testimony. Crimes Against Nature - Sodomy PC §286 provides for the law against sodomy - the sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. In People v. Hughes (2002) 27 C4th 287; 39 P.3d 432; 116 CR2d 401, the California Supreme Court held that battery (any willful and unlawful use of force or violence upon the person of another) was a necessarily included offense to any forcible sodomy charge. EVIDENTIARY ISSUES - FOURTH AMENDMENT ISSUES In 1974 the Robbins Rape Evidence Law, Evidence Code (EC) § 782, was enacted by the California Legislature. This code section imposes a procedural limitation on certain impeachment evidence intended to be offered against the complaining witness (victim). EC §782 provides that for any prosecution for rape, spousal rape, aiding and abetting rape, sodomy, sex offenses against children, or for assault with intent to commit, attempt to commit, or conspiracy to commit any such offense (except where the alleged offense occurred in jail or prison), if evidence of the sexual conduct of the victim is offered by the defendant to impeach the credibility of the complaining witness under EC §780, a written motion has to first be filed and served by the defendant stating that an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness is proposed, together with its relevancy in impeaching the credibility of the complaining witness. The written motion must be accompanied by an affidavit in which the offer of proof is set forth. If the judge determines that the initial offer of proof (written motion) is sufficient, a separate hearing outside the presence of the jury is held in order to permit the cross-examination of the victim regarding the offer of proof made by the defendant. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to EC §780 (and impeachment evidence usually is highly relevant), and is not otherwise inadmissible pursuant to EC §352 (that its probative value is not outweighed by the probability of undue prejudice or the undue consumption of trial time), the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then cross-examine the complaining witness in front of the jury. The offer of proof is statutorily sufficient if the judge determines that the evidence, assuming it is as defendant claims, is relevant impeachment evidence. Limitations On Search Warrant In People v. Majors (2002) (an unpublished decision by the Fourth Appellate District Court of Appea)l, a case involving a defendant who was convicted of kidnapping for rape (PC §209(b)(1) - Count 1), kidnapping (PC §207(a) - Count 2), assault with the intent to commit rape (PC §220 - Count 3), and false imprisonment by violence (PC §§236, 237(a) - Count 4), and following the denial of his motion to suppress evidence (PC §1538.5), he pleaded guilty to rape of an unconscious person, oral copulation of an unconscious person and three counts of object rape of an unconscious person (PC §§261(a)(4); 288a(f); 289(d) - Counts 5 through 9). He was sentenced to a term of life in prison plus eight years. Over the dissenting Justice Benke, the majority held that the seizure and viewing of the videotapes was not authorized by the search warrant or the reasonable good faith belief of the police, or plain view exceptions to the search warrant requirement. Since the prosecution made no other contention that any other exception was applicable, the Court concluded that the defendant's suppression motion was incorrectly denied and he was entitled to withdraw his guilty plea to counts 5 through 9. Editor's Note: On March 19, 2003, the California Supreme Court granted review of the Majors case.
In 1998 the Legislature passed the DNA and Forensic Identification Data Base and Data Bank Act of 1998. The Legislature created the State's DNA databank for forensic identification analysis and as a useful law enforcement tool in identifying and prosecuting sexual and violent offenders. It was the intent of the Legislature to require DNA and forensic identification databank samples from those convicted of certain felony offenses described in PC §296(a) - essentially, murder, assualt with intent to commit mayhem, rape, sodomy and oral copulation; felony sexual battery, rape in concert with force/violence; felony sodomy; lewd or lascivious acts involving children; felony oral copulation; and penetration with a foreign object, all rather serious and/or violent felonies (i.e., the Convicted Felons databank). The law was enacted in order to clarify existing law and to enable the state's DNA and forensic identification database and databank program to become a more effective law enforcement tool, the purpose of which is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious detection and prosecution of individuals responsible for sex offenses and other violent crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly, abducted children. The Department of Justice, through its DNA Laboratory, is responsible for the management and administration of the state's DNA database and databank identification program, as well as for liaison with the FBI regarding the state's participation in a national DNA database such as the FBI's Combined DNA Index System (CODIS - that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide). The state's databank consists of blood specimens, saliva samples, and thumb and palm print impressions collected from qualifying offenders as soon as possible after conviction, or after a plea or finding of guilty, no contest, or not guilty by reason of insanity, or upon the disposition rendered in the case of a juvenile who is adjudged a ward of the court under W&I Code §602 for commission of any enumerated qualifying offenses, or when it is determined that a qualifying offender has not given the required samples. In Alfaro v. Terhune (2002) 98 CA4th 492; 120 CR2d 197 (review denied 8/21/02), the Court of Appeals upheld a challenge against the State's DNA collection process, holding that the non-consensual extraction of biological samples from the convicted felons (here, certain death-row inmates) used for identification purposes implicated both state and federal constitutional interests, but those convicted of serious crimes had a diminished expectation of privacy and the Act's intrusions were minimal. Also, the Act served a compelling governmental interests in terms of solving crimes accurately. There was no basis for excluding the inmates from the Act's valid purpose of solving crimes, as the legislature did not have to assume the inmates could not commit crime because they were sentenced to death. The law appropriately limited the use of the information obtained. The inmates' claim could be resolved as a matter of law on demurrer because they did not show the facially valid statute was unconstitutionally applied to them. Editor's Note: Just prior to the Alfaro decision, in April, 2002, the California Attorney General announced the opening of the DOJ's newest DNA lab in Richmond, CA. Funded through the Governor's Office of Criminal Justice Planning with some $46 million, and at a cost to construct of some $18 million, the new 68,000 square-foot DNA lab evidently uses the latest in scientific and robotics technology, as well as employs 141 scientists and staff. The lab houses the California DNA data bank, the California Cold Hit and the Missing Persons DNA programs. See Cold Hit Program. In May, 2002, with the backdrop of the opening of the State's new DNA lab, the California AG announced that the century mark (over 100 cold hits) had been obtained by the lab since 1994 and, obviously, the AG welcomed the Court of Appeals decision in Alfaro, supra. Evidence of Prior Sexual Offense Admissible (See Sexual Assault, above) In People v. Pierce (2002) 104 CA4th 893; 128 CR2d 397, the Court of Appeal held that the charge of assault with intent to commit rape was a sexual offense which, under Evidence Code §1108, permitted evidence of a prior sexual offense to be admitted as "propensity" evidence. Here, the court held that assault to commit rape was a form of attempted rape (PC §§261, 664) and, thus, admissible under Evidence Code §1108. Use of Uncharged Sexual Offenses In People v. Reliford (2003) 29 C4th 1007; 62 P.3d 601; 130 CR2d 254, the California Supreme Court ruled that when the prosecution seeks to introduce evidence of other uncharged sexual offenses committed by the defendant (Evidence Code §1108 evidence), CALJIC jury instruction 2.50.01 properly sets forth the law on the burden of proof for such evidence, and does not mislead the jury, as this evidence is only used for setting forth the defendant's disposition to commit the charged sex offense. The Supreme Court went on to state that in People v. Falsetta (1999) 21 C4th 903 it had rejected a due process challenge to Evidence Code §1108, which allows evidence of the defendant’s uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant’s disposition to commit such crimes. In Falsetta , supra, the Supreme Court found that the trial court there had properly declined to give defendant’s special limiting instruction and announced that “[i]n future cases, defendants may request an instruction based on revised CALJIC No. 2.50.01 (1999 rev.) [(6th ed. pocket pt.)], which contains language appropriate for cases involving the admission of disposition evidence.” (Falsetta, supra, at p. 922.) “Without passing on each specific paragraph, or considering issues not before us, we think revised CALJIC No. 2.50.01 adequately sets forth the controlling principles under section 1108.” SENTENCING ISSUES FOR CERTAIN FORCIBLE SEX OFFENSES
The enumerated sex offenses listed in PC §667.6 (c): PC §220 (sexual assault) with prior; §220 (sexual assault); §261(a)(2)-(3), (6)-(7) (forcible rape); §262(a)(1), (4)-(5) (forcible spousal rape); §264.1 (rape in concert); §286 (sodomy with force or threat, or under color of authority); §288(b) (child molestation with force); §288a (oral copulation with force or threat, or under color of authority); §288.5 (continuous child molestation); and §289 (a) (forcible rape or sodomy with foreign object). Pursuant to People v Thomas (1990) 218 CA3d 1477, attempts are not included. Although not specifically enumerated, PC §269 (aggravated sexual assault of a child) has been found to be subject to mandatory consecutive sentencing under PC §667.6(d) (People v. Jiminez (2000) 80 CA4th 286; 94 CR2d 884), and so is probably subject to PC §667.6(c) as well. Although attempted forcible sex crimes are not subject to this special sentencing scheme, they are subject to the special enhancements for weapons and great bodily injury contained in PC §12022.3 and §12022.8. Such a person is punishable by 25 years to life in prison, and may not be released on parole prior to serving at least 85 percent of the minimum term of 25 years. The statute provides that at the request of the prosecution, a habitual sex offender may be punished under an alternative punishment scheme. A defendant convicted under PC §667.71 is also subject to the 3- Strikes law if he or she has one or more qualifying prior convictions. (See, People v. Murphy (2001) 25 C4th 136; 19 P.3d 1129; 105 CR2d 387.) In Murphy, the defendant was charged with two counts of lewd and lascivious conduct with a child. He had one prior conviction of two counts of similar offenses. His two prior convictions were used repeatedly in order to elevate the terms for each of his present crimes to 25 to life under PC §667.71; and to triple each term to 75 to life under the 3- Strikes law (these terms were run consecutively to total 150 to life); and as a prior serious felony conviction under PC §667(a), to add another five years, for a total of 155 years to life. If a qualifying defendant has multiple offenses against a single victim, PC §667.71 may result in a longer sentence than would PC §667.61. The technique of sentencing some offenses under PC §667.6(c) or (d) and other offenses under §1170.1 (a) is commonly referred to as the box theory. (People v. Belmontes (1983) 34 C3d 335; 667 P.2d 686; 193 CR 882.) In the box theory, one box holds the terms for offenses sentenced under §1170.1(a), with the usual structure of a principal term and subordinate term(s) restricted to one-third the midterm. A second box holds the terms for the offenses sentenced under §667.6. The total sentence is the sum of the total terms in the two boxes (box theory applies even if a box contains only one offense). The Hardship-Duress Issue Many forcible sex crimes have a list of qualifying conduct, including force, violence, duress, menace, or fear of injury. Most of these crimes include in their definition of duress, the use of hardship to get the victim to submit. But forcible rape and spousal rape were recently re-enacted with the hardship language omitted. Last year, a Second District Court of Appeals decision, People v. Valentine, (2001) 93 CA4th 1241, 133 CR2d 748, held that it would be absurd to include hardship in some forcible sex crimes but not others, so it held that hardship must be removed as a basis for duress for all forcible sex crimes. Even more recently, in another appellate opinion, People v. Edmonton* (2002) 103 CA4th 557, 126 CR2d 836, the Third District Court of Appeals disagreed. In the context of a sexually violent predator (SVP) prosecution, the court purports to articulate the rule for all of these sex offenses. Essentially, the Edmonton court holds that the omission of hardship in forcible and spousal rape deletes it only for those offenses, and so, for all other qualifying sex crimes, the definition of duress, including hardship, is still there. In addition, the Court held that the trial court did not err in admitting actuarial instruments (RRASOR, PCLR, and Static-99) relied on by medical experts in forming their opinions as to defendant's mental state without subjecting the instruments to a Kelly-Frye review. *Editor's Note: In People v. Minsky* (2003) 105 CA4th 774; 129 CR2d 583, (modified February 20, 2003) the Court of Appeals for the Second District held that the threatened imprisonment of the victim's loved ones constituted "duress" for purposes of PC §§261, 288(a) and 289, even though the term "hardship" has been taken out of the definition of "duress" in PC §261 (rape). See related opinions in People v. Valentine, supra, and People v. Leal* (2003) 105 CA4th 833; 130 CR2d 374 (agreeing with Edmonton), which have differing opinions on the issue. Given the fact that the Court of Appeals found in Minsky that appellant's conduct constituted duress by threat of danger or retribution, under the rape statute, it held that it constituted duress under PC §§261, 288(a) and 289. On January 22, 2003 Edmonton was granted review by the California Supreme Court. Additionally, on April 16, 2003 the California Supreme Court granted review (and hold) of the Minsky opinion, supra, as it is now considering the issue of whether the element of "duress" includes within its definition the concept of "hardship" for forcible sexual offenses other than rape and spousal rape - Edmonton issues on review. Lastly, on April 23, 2003, People v. Leal, supra, was likewsie granted review by the California Supreme Court. Hence, none of these three cases are citable as legal authority. One Strike Sex Offenses (PC §667.61). This statute applies to persons convicted of one or more sex crimes specified in PC §667.61(c). Those crimes are: PC §261(a)(2) (forcible rape); PC §262(a)(1) (forcible spousal rape); PC §264.1 (rape, etc. in concert); PC §§286 or 288a (forcible sodomy or oral copulation); PC §288(a)(1) (lewd and lascivious conduct with child under age 14, unless defendant eligible for probation under PC §1203.066); PC §288(b) (forcible child molestation); and PC §289(a) (forcible penetration with foreign object). The statute is constitutional per People v. Crooks (1997) 55 CA4th 797. The statute does not apply to a conviction of PC §288.5 (continuous sexual abuse of a child). (See People v. Palmer (2001) 86 CA4th 440; 103 CR2d 301.) A person convicted of any of the above offenses is subject to a sentence of 25 years to life if one or more of the circumstances (major factors) specified in PC §667.61(d) exist, or if two or more circumstances specified in PC §667.61(e) (minor factors) exist. If a single PC §667.61(e) (minor factor) circumstance exists, the defendant is subject to a sentence of 15 to life. The PC §667.61(d) list of major factors includes:
The PC §667.61(e) list of minor factors includes:
The 15-to-life or 25-to-life sentence may be imposed only once per victim. If there are multiple victims, the specified sentence is imposed once for each separate victim. Terms for any other offenses committed during a single occasion are imposed as authorized under any other law, including PC §667.6, above (PC §667.61(g).) For purposes of this statute, single occasion is defined as occurring if there was a close temporal and spatial proximity between offenses. People v. Jones, supra (2001) 25 C.4th 98. This standard is different from the standard used to determine separate occasions for purposes of PC §667.6(c) and (d). In People v. Garza (2003) 107 CA4th 1081; 132 CR2d 831, the Court of Appeals held that the sentencing court's consecutive sentencing of the defendant for sex violations under PC 667.6(d) was justified because there were three separate occasions of sex acts: forcible oral copulations, fondling and digital penetration, followed by a series of forcible rapes, eventhough the offenses did not occur on separate occasions. The Court further held that the issue of an unauthorized sentence could be raised on appeal even if no objection was made by the defendant in the sentencing court. "‘[A] forcible violent sexual assault made up of varied types of sex acts committed over time against a victim, is not necessarily one sexual encounter." Similarly, the Court of Appeal in People v. Plaza (1995) 41 CA4th 377, 385, affirmed the trial court’s finding that sexual assaults occurred on ‘separate occasions’ although all of the acts took place in the victim’s apartment, with no break in the defendant’s control over the victim. (But see People v. Pena (1992) 7 CA4th 1294, 1316, [defendant’s change of positions between different sexual acts was insufficient by itself to provide him with a reasonable opportunity to reflect upon his actions, ‘especially where the change is accomplished within a matter of seconds’]; People v. Corona (1988) 206 CA3d 13, 18 [holding, after the respondent implicitly conceded the point, that the trial court erred in imposing consecutive sentences for different sexual acts when there was no cessation of sexually assaultive behavior ‘between’ acts].)” (People v. Jones, supra, 25 Cal.4th 98, 104-105.) In People v. Groves (2003) (decided on 3/20/03 - order published on 4/17/03; 03 C.D.O.S. 3219; 132 CR2d 744; ___ CA4th ___), simialr to Garza, supra, the Court of Appeals held that a defendant convicted of forced oral copulation, kidnapping and car jacking, could be sentenced to separate, albeit consecutive sentences, in a case involving, in part, two acts of forced oral copulation, one act within minutes of the other. The Court held that, by law - PC §667.6(d) - a trial court must impose a full consecutive term for each count of forcible oral copulation if the crimes involve the same victim on separate occasions. The trial court specifically found that the two offenses of oral copulation occurred on separate occasions within the meaning of this provision (PC §667.6(d)), even though the acts occurred within minutes of one another, concluding that the defendant had a reasonable opportunity to reflect on his actions between these two offenses but, nevertheless, resumed his sexually assaultive behavior. These facts were sufficient for the Court of Appeal since, the Court noted that the defendant could not be so sentenced unless he had already been convicted of the two counts of oral copulation (PC §288a). Moreover, the Court determined that its standard of review in this instance case was controlled by People v. Plaza (1995) 41 CA4th 377, 385; 48 CR2d 710, and California Rules of Court, Rule 4.426, Advisory Com. comment [no statement of reasons required for mandatory imposition of full consecutive term pursuant to §667.6(d)]; and California Rules of Court, Rule 4.406(b) [former rule 406, enumerating sentencing choices that require statement of reasons].) In Plaza, supra, the Court held a different standard of review than that of People v. Irvin (1996) 43 CA4th 1063; 51 CR2d 127, relying instead on Plaza, the Court of Appeal here held that it "must uphold the trial court's finding that the sexual offenses occurred on separate occasions within the meaning of this statute unless no reasonable trier of fact could have concluded so." After considering the matter, the Court here (similar to Garza, supra) decided that it need not require the specificity of the Irvin standard but, instead, could apply the Plaza rule. As to the issue of the trial court's findings, the Court of Appeal held that by statute, the trial court at sentencing was empowered to make the determination whether multiple sexual offenses occurred on separate occasions for purposes of imposing full consecutive terms. (PC §667.6(d) and California Rules of Court, Rule 4.426(a)(2).) These findings are typically based on burden of proof by a preponderance of the evidence. (People v. Levitt (1984) 156 CA3d 500, 515; 203 CR 276 [circumstances in aggravation].) The Court of Appeal held that the issue of burden of proof - beyond a reaonable doubt - (McMillan v. Pennsylvania (1986) 477 U.S. 79, 84-85; In re Winship (1970) 397 U.S. 358, 364), did not come into play, nor did the issue of the right to a jury determination (Apprendi v. New Jersey (2000) 530 U.S. 466; 120 S.Ct. 2348; 147 L.Ed. 2d 435). Finally, the Court determined that the sentencing scheme was neither cruel nor unusual. A defendant subject to PC §667.61 may not be granted probation, and may not receive more than a 15-percent credit against the prison sentence. (PC §667.61(j). The trial court may be required to obtain special findings from the jury as to the allegations that bring a defendant within this law. People v. Estrada (1997) 57 CA4th 1270; 67 CR2d 596. It has been held that a defendant can be subject to both this statute and the 3-Strikes law. People v. Ervin (1996) 50 CA4th 259; 57 CR2d 728 (disapproved on other grounds). In Ervin, the defendant received a life term under PC §667.61, which was then tripled under the provisions of the 3-Strikes law. The Supreme Court was to review this issue. See, e.g., People v Davis (review granted Aug. 25, 1999, S079736; superseded opinion at 71 CA4th 1492, but then dismissed on November 26, 2002 and remanded). The court cannot strike the allegation of a circumstance that brings the defendant within this section. People v. Espino (1997) 53 CA4th 92; 61 CR2d 350; People v. Estrada, supra, People v Espino, supra, distinguished People v. Superior Court (Romero) (1996) 13 C4th 497; 917 P.2d 628; 53 CR2d 789 (which grants the court in a 3-Strikes case the power to strike a strike in the interest of justice) and held that the legislative intent was clear that the court may not strike a circumstance under PC §667.61. This law permits multiple indeterminate terms for offenses against multiple victims on multiple occasions. People v. Desimone (1998) 62 CA4th 693; 73 CR2d 73. Consecutive indeterminate terms may be mandated under PC §667.6(d). See People v. Murphy (1998) 65 CA4th 35; 76 CR2d 130 and People v. Jackson (1998) 66 CA4th 182; 77 CR2d 564. On remand from the California Supreme Court in light of People v. Acosta (2002) 29 C4th 105; 52 P.3d 624; 124 CR2d 435, the Court of Appeals for the Fourth District concluded in People v. Snow (2003) 105 CA4th 271; 129 CR2d 314 (modified on 2/5/03) that upon a conviction for a current single underlying offense for violating PC §288a(c), coupled with true findings of the defendant's prior serious felony convictions, permitted the sentencing court to punish the defendant cumulatively under the One Strike and the Three Strikes laws; or cumulatively under both the habitual sex offender laws and the Three Strikes laws, but not under both the One Strike and the habitual sex offender sentencing laws. One of the two priors could be used to impose a sentence under PC §667.61 and also to triple the sentence received under Three Strikes. Defendant's sentence of 25 to life under PC §667.61 was properly tripled, and two 5-year enhancements under PC §667(a)(1) properly imposed. The 1998 amendment to PC 667.71 to remove provision giving the prosecutor the sole choice of sentencing schemes did not mean that both could be imposed. The amendment was done to alleviate the concern over the possible separation of powers problem. Thus, when a single act is punishable under multiple sentencing statutes, the appropriate procedure is to sentence the defendant under each of the alternative statutes and then stay execution of sentence on all but one of those statutes (People v. Deloza (1998) 18 C4th 585, 592 [where PC 654 applies, sentence for one conviction is to be imposed and sentence on the other is imposed and then stayed]; People v. Eck (1999) 76 CA4th 759, 762-764 [same approach used when the act subjects defendant to multiple enhancements statutes].) The statutory bar against multiple punishments for the same act is subject to the requirement that a defendant shall be punished under that provision that provides for the longest term of imprisonment. However, PC 654 does not apply to alternative sentencing schemes. (People v. Johnson (2002) 96 CA4th 188, 207-209; 116 CR2d 742 - disapproved on other grounds in People v. Acosta, supra); People v. Murphy (2001) 25 C4th 136, 154-156; 19 P.3d 1129; 105 CR2d 387.) Under circumstances in which the alternative sentencing schemes of PC 667.61 and PC 667.71 apply the sentencing court has the discretion to choose one of the sentencing schemes and then must strike or dismiss, rather than stay, the sentence under the other. (People v. Johnson, supra, at 208-209) In People v. Wutzke (2002) 28 C4th 923; 51 P.3d 310; 123 CR2d 447, the California Supreme Court held that a defendant, who claimed a "grandfatherly bond" with the victims, was properly convicted of sexually molesting the young granddaughters of the woman with whom he lived for many years. Defendant had no blood, legal, nor residential connection with the victims The issue was whether, under pertinent Penal Code provisions, defendant qualified as a “relative” of the victims, and may thus avoid the mandatory 15-year-to-life prison sentence otherwise applicable to his crimes. The Supreme Court said “no.” By a complicated intersection of the “One Strike” law (PC §667.61) and the statute restricting probation eligibility in lewd conduct cases (PC §1203.066), a person convicted of lewd conduct (PC §288) against multiple underage victims can both qualify for probation and avoid a mandatory indeterminate life term only if, among other things, he is a “relative” of the victim, or is “a member of the victim’s household who has lived in the victim’s household.” (PC §1203.066(c)(1). Defendant admitted he was not a “household member” because he did not satisfy the statutory requirement of having lived with the victims. (People v. Jeffers (1987) 43 C3d 984, 991-992; 741 P.2d 1127; 239 CR 886.) He therefore claimed exemption from One Strike sentencing treatment, and possible eligibility for probation, as a “relative” under PC §1203.066(c)(1). The trial court rejected this claim and imposed a One Strike sentence. The Court of Appeal reversed, holding the defendant was the victims' "relative" as a matter of law, because they shared a close quasi-familial relationship at the time of the crimes and ordered resentencing on that ground. As explained, the Supreme Court held that expanding the definition of a “relative” to include molesters who claim nothing more than an emotional bond with the victim defies common usage, and contravenes the history of the applicable sentencing schemes. Such a construction of “relative” in PC §1203.066(c)(1) would also swallow the adjacent “household member” provision, which was clearly intended as the catchall for “nontraditional and quasi-familial” ties. Hormonal chemical treatment (medroxyprogesterone) may be ordered in certain cases involving a conviction or convictions for specified sex offenses against a victim who is under age 13. Upon a second conviction, the court is required to order the hormonal chemical treatment (medroxy-progesterone). However, a defendant who voluntarily undergoes a permanent, surgical alternative to hormonal chemical treatment is not subject to medroxyprogesterone treatment. (PC §645(e). Persons convicted of specified sex offenses are also not eligible for probation except in unusual cases where the interests of justice would best be served if the person is granted probation. (PC §1203.065(a)). Thus, any person who is convicted of violating paragraph (2) of sub. (a) of PC §261, §264.1, §266h, §266i, or §266j, sub. (a) of §289, of committing sodomy or oral copulation in violation of §286 or §288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, or of violating sub. (c) of §311.4, is not a very likely candidate for probation. Indeed, the California Legislature has flatly ruled out probation in cases of convictions for a violation of paragraph (7) of sub. (a) of PC §261, sub. (k) of §286, sub. (k) of §288a, or §220 for assault with intent to commit any of the following: rape, sodomy, oral copulation, or any violation of §264.1, sub. (b) of §288, or §289. (PC §1203.065(b)). When probation is granted under PC §1203.065, the court must specify on the record and must enter on the minutes, the circumstances indicating that the interests of justice would best be served by the disposition (probation). FEDERAL SEX OFFENSES
CHILD PORNOGRAPHY Recently, the U.S. Attorneys office for Northern California announced that an individual convicted of 10 counts of sex-related offenses involving four minor females between the ages of 15 and 17, received a 60 year prison sentence. The charges in that instance included four counts of production of child pornography, four counts of attempting to entice a minor to engage in unlawful sexual conduct, one count of receipt of child pornography shipped across state lines and one count of interstate transportation of a minor with intent the minor engage in unlawful sexual conduct, all in violation of Title 18, United States Code, §2422(b), §2423(a), §2251(a) and §2252(a)(2). Even assuming credit for good behavior, the defendant in that case would not be eligible for release until he had served 51 years of his 60 year sentence. The sentence was imposed by U.S. District Court Judge Jeremy Fogel in San Jose. In U.S. v McCoy (2003) 323 F.3d 1114, the Ninth Circuit held that the federal statute, 18 USC §2252(a)(4)(B), which prohibits possession of child pornography made with materials that have traveled in interstate commerce, is unconstitutional as applied to simple intrastate possession of visual depiction(s) that have not been either mailed, shipped, or transported interstate, and which material(s) are not intended for interstate distribution, or for any economic or commercial use, including exchange of the prohibited material for other prohibited material. In U.S. v. Etimani (2003) (4/21/03; 03 C.D.O.S. 3274; ___ F.3d ___), the Ninth Circuit held that under 18 USC §3509, which sets forth procedure for alleged child victim to testify outside physical presence of defendant via two-way closed circuit television, the television monitor must be called to the child’s attention and be readily visible from where he or she is seated, but that it does not have to be in his or her direct field of vision while he or she is facing forward. In addition, the Court agreed with the district court that the defendant could not be sentenced to mandatory life imprison-ment under the “two strikes” provision of 18 USC §2241(c) inasmuch as the defendant previously had pled no-contest in a California state court to “lewd and lascivious conduct upon a child.” The district court ruled that the government failed to establish that the defendant’s California conviction involved a “sexual act” — as opposed to “sexual contact” — as defined by federal law. The Ninth Circuit agreed that the prior conviction was not shown to qualify as a “first strike” for purposes of 18 USC§2241(c). SEXUALLY VIOLENT PREDATOR - CIVIL COMMITMENT
The court in Cooley, supra, went on to hold that the phrase likely to engage in sexually violent predatory criminal behavior upon . . . release, as it appears in W&I Code §6602(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 that the superior court must consider the offender's amenability to treatment when making this determination. Finally, the Cooley court held that although it would ordinarily apply the standard of review used in appellate review of criminal preliminary hearings, in this instance remand to the superior court was appropriate since the entire superior court proceeding was infected with error because the expert evidence presented by both the district attorney and the defendant failed to consider whether potential sexual violence would be predatory in nature and all the experts applied the wrong definition of likely. The Cooley court determine that it would therefore be improper under the circumstances to uphold any factual findings made by the superior court, or to independently review the record to make our own factual findings. In People v. Hurtado (2002) 28 C4th 1179; 52 P.3d 116; 124 CR2d 186 (as modified on Oct. 30, 2002), the California Supreme Court answered the question left open in People v. Torres (2001) 25 C4th 680, 686, fn. 2; 22 P.3d 871; 106 CR2d 824, infra, that is, that before a defendant can be committed or recommitted under the Sexually Violent Predators Act (Welf. & Inst. Code, §6600, et seq. (SVPA)), the trier of fact must find, beyond a reasonable doubt, that the defendant is likely to commit sexually violent predatory behavior upon release. Thus, the judge or jury trying the case must determine not only whether the defendant is likely to “engage in sexually violent criminal behavior” (§6600(a)), but also whether that behavior is likely to be directed "toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.” (§6600(e).) In People v. Torres (2001) 25 C4th 680; 22 P.3d 871; 106 CR2d 824, the issue before the Court concerned whether the determination as to whether a person was a "sexually violent predator" had to be based upon a finding by the trier of fact at trial that the defendant's prior sexual crimes involved "predatory acts," which were statutorily defined as acts against a stranger, a casual acquaintance, or someone cultivated for the purpose of victimization (§6600(e).) The Supreme Court held that the trier of fact did not need to make such a finding. In People v. Burris (2002) 102 CA4th 1096; 126 CR2d 113, the appellate court held that due process protection forbids the civil commitment of a recidivist sexually violent offender (SVP) unless he lacks control of his sexually violent behavior. (Kansas v. Hendricks (1997) 521 U.S. 346; 117 S.Ct. 2072; 138 L.Ed.2d 501.) It also held that the recidivist SVP who, due to a mental disorder, is unlikely to be deterred by the risk of criminal punishment, lacks control in the legally required sense. The Burris court held that it did not matter whether the person does or does not want to commit the act. In People v. Otto (2001) 26 C4th 200; 26 P.3d 1061; 109 CR2d 327, the California Supreme Court held that in the case of a prisoner who pled no contest to four felony counts of lewd and lascivious conduct on a child less than 14 years of age in violation of PC §288(a), his plea admitted the truth of the victim's statements and he stated that the factual basis for his plea was contained in the police reports. The question presented on appeal was whether §6600(a)(3), which permitted the details of predicate offenses to be proven by documentary evidence in an SVP commitment proceeding, allowed the admission of multiple hearsay that did not fall within any exception to the hearsay rule, and if so, whether reliance on that evidence violated the prisoner's right to due process. The Court found that: (1) the only reasonable construction of §6600(a)(3) was that it allowed the use of multiple-level hearsay to prove the details of the sex offenses for which the prisoner was convicted; and (2) the use of multiple-level hearsay did not deprive the prisoner of his right to due process under the standard set for in Morrissey v. Brewer (1972) 408 U.S. 471, 481. In People v. Vasquez (2001) 25 C4th 1225; 25 P.3d 1090; 108 CR2d 610, the California Supreme Court held that an out-of-state (Texas) prior sex offense conviction which had been expunged under a statute similar to California's PC §1203.4, did not shield the defendant from qualifying under the SVP Act, as the Texas statute did not expunge or erase a person's felony conviction from the record, but only restored to the person certain civil rights lost as a result of the felony conviction. Therefore, a conviction set aside under the Texas statute could support invocation of civil restrictions imposed for the public's protection rather than as punishment of the individual. The purpose of defendant's SVP Act commitment was to protect others from the possibility of defendant's future harmful conduct, rather than to punish him for past crimes. The parties here stipulated that the Texas criminal proceeding resulted in a conviction for an offense in another state containing all the elements of a listed California offense, pursuant to §6600(a) and (b). Hence, the trial court did not err in admitting evidence of defendant's Texas conviction. In People v. Cheek (2001) 25 C4th 894; 24 P.3d 1204; 108 CR2d 181, the Supreme Court held that the SVP Act provides for civil commitment for a renewable two-year term of criminal defendants who, after serving their prison term, are found to be “sexually violent predator[s].” (§6604.) Once so committed, a defendant is entitled to an annual review of his or her mental condition. (§6605.) Unless the defendant waives the right to petition for conditional release to a community treatment program (§6608), the superior court annually must conduct a “show cause hearing” to determine whether “probable cause exists to believe that the committed person’s diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged.” (§6605(c).) If the court finds probable cause, it orders a trial, by jury if requested, to determine if the defendant should be discharged. (§6605(c)-(d).) At issue here was the meaning of the phrase “show cause hearing” in §6605. The prosecution contended that this is nothing more than a “paper hearing,” involving only the scrutiny of mental health reports and other pertinent documents. But the Court of Appeal, agreeing with the defendant, held that the defendant has the right to call witnesses and to cross-examine the state’s witnesses at the hearing. The Court granted review because of a conflict between that decision and the Court of Appeal’s decision in People v. Herrera (1998) 66 CA4th 1149. The Supreme Court concluded, as the Court of Appeal did, that a defendant at a "show cause" hearing under §6605, has a right to present oral testimony, including expert testimony, and to cross-examine the authors of adverse medical reports. SEX REGISTRATION In order for the State of California to continue receiving federal anti-drug abuse funds and purportedly to protect the public from repeat violent sex offenders, the California Legislature has made sex offender registration statutes comply with the provisions of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program contained in the federal Violent Crime Control and Law Enforcement Act of 1994 (42 USC §14071). Sex registration by convicted felons has (as seen below) become a true hot-bed of criminal action on behalf of law enforcement up and down the State of California. Lifetime registration as a sex offender is controlled by PC §290 and just recently, by PC §290.01 (as of October 28, 2002). A sex offender (anyone convicted of any enumerated offense in a state, federal and/or military court) as those offenses are specified in PC §290(a)(2), or who has been ordered to register as a sex offender by a court, must register annually with the local chief of police or with the sheriff if there is no city police department. In the event that a person has been convicted of one or more of the specified sex offenses under PC §290(a)(2) in any state, federal and/or military court, and should that person be student of any university, college, community college, or other institution of higher learning, or is, with or without compensation, a full-time or part-time employee of that university, college, community college, or other institution of higher learning, or is carrying on a vocation at the university, college, community college, or other institution of higher learning, for more than 14 days, or for an aggregate period exceeding 30 days in a calendar year, shall, in addition to the registration required by PC §290, register with the campus police department within five working days of commencing enrollment or employment at that university, college, community college, or other institution of higher learning, on a form as may be required by the Department of Justice. Changes of Address/Name – PC §290(f)(1)-(3), provides that every person who is required to register as a sex offender under PC §290 and who later changes his or her residential address or his or her name, shall inform in writing within five (5) working days, the law enforcement agency or agencies with which he or she last registered of the new name, address and/or location of the registered person. In addition, pursuant to PC §290(a)(1)(A), that same person also must, within five (5) working days, register with the chief law enforcement officer of the jurisdiction into which the person moves. Such changes of address even include jail or prison in the event the person was incarcerated. Make no mistake about it, if a registered sex offender moves or changes his or her name, he or she has an affirmative duty to promptly notify in writing both the law enforcement agency or agencies with which he or she last registered, as well as the new law enforcement agency for the new residential address. Editor's Note: See, People v. Britt, below, on the issue of District Attorneys' ability to file multiple prosecutions (one for each county) for failing to do so! Multiple Residences or No Residence PC §290 also makes it mandatory that a person promptly register with the police if they acquire a second residence, even if that residence is a transient motel or hotel. Further, registration for certain sex offenders is required even if the offender has no residence at all (PC §290(a)(1)(A). In a recent appellate case, the 1st DCA held in People v. Edgar (2002) 104 CA 4th 210; 127 CR2d 662, that it was error on the part of the trial court not to instruct a jury that in order to be convicted of failing to register at multiple residences (even a transient hotel), the government had to prove the defendant possessed actual knowledge of the duty to register as a result of acquiring the new, albeit temporary, residence. Further, the court determined that this failure to properly instruct the jury was not “harmless error,” rather, it was prejudicial and, thus, called for reversal of the conviction. Multiple Prosecutions For Failure to Register In People v. Britt (2003) 107 CA4th 8; 131 CR2d 709, the 3rd District Court of Appeals held that pursuant to PC §290(f)(1), when a registered sex offender changes his or her residence in California, the person must, within five (5) working days, provide written notification of the change to the law enforcement agency with which the person was last registered. Pursuant to PC §290(a)(1)(A), that same person also must, within five (5) working days, register with the chief law enforcement officer of the jurisdiction into which the person moves. The question posed in Britt, supra, was whether a registered sex offender who fails to notify both law enforcement agencies of the person’s change of address when he or she moves from one county to another, can thereafter be prosecuted in one county for the failure to notify law enforcement that the person was leaving the county, and then be prosecuted separately in the other county for the failure to register in that county when the person took up residence there. The Court answered this question in the affirmative, holding that multiple prosecutions may be had (i.e., one in the old county and one in the new county). The Court reasoned that this is so due to the fact that a person necessarily has two separate intents and objectives in violating both subdivisions (a) and (f) of PC §290, and each crime is a separate continuing act that is not so interrelated with the other act as to come within provisions of PC §654 - the statutory bar against multiple prosecutions for the same act. Forgetting to Register - Is No Defense In People v. Barker (2003) 107 CA4th 147; 131 CR2d 801, the Court of Appeals held that if one forgets to do something (here, annually register as a sex offender), that person has willfully failed to perform the act that he or she has forgotten. The Majority opinion in Barker relied on an earlier holding in People v. Cox (2002) 94 CA4th 1371; 115 CR2d 123, holding that read in combination with CALJIC No. 1.20 instruction on willfulness, the trial court's general intent jury instruction, CALJIC No. 3.30, did not mislead the jury. Thus, simply forgetting to timely register is no defense to a PC §290 charge. The dissent (Justice Pollack), however, claimed that "merely forgetting to do an act does not equate with intentionally and willfully refusing to do it." [citation] and, further, reliance on Cox, supra, would act to eliminate the critical element of willfulness from the statute involved in this case, and would disregard the legislative history as well as the language of that very statute; it would also misconstrue controlling authority of the California Supreme Court and, with all due respect, distort fundamental principles of CA criminal law. The strident dissent went on to state that, "If permitted to stand, I believe this decision will plant disturbing confusion into an important field of law, as well as work a grave injustice in this case." Forgetting to Register - Is A Defense Interestingly, in People v. Moss (2003) 5/23/03; 03 C.D.O.S. 4345; ___CA4th ___) (Justice Davis dissenting), the Third District Court of Appeal disagreed with Cox and Barker, supra, (taking dissenting Justice Pollack's position) holding that, "genuinely forgetting to comply with a sex offender registration requirement is a defense to the charge of violating subdivision (g)(2) of section 290." Editor's Note: The Barker case started out as a three-strikes case, but the sentencing court struck nine of the defendant's priors, and eventually sentenced defendant Barker to nine (9) years in prison for the act of forgetting to timely register (i.e., within five (5) days of his birthdate) as a sex offender. Both Barker and Cox are moronic simpleton opinions written by knee-jerk reationary justices (as is Justcie Davis' dissenting opinion in Moss, surpa.) Further, Tehama County Judge Dennis Murray is a complete idiot inasmuch as Mr. Moss forgot to register by one week, and the bona fide evidence of his forgetfulness was ruled inadmissible by Judge Murray. This is exactly what we don't need, a Judge who imprisons a person who forgets to annually update his sex registration by one week, which ruling ends up costing tax payers hundreds of thousands of dollars (if not millions). In People v. Garcia (2001) 25 C4th 744; 23 P.3d 590; 107 CR2d 355, a jury convicted defendant of willfully failing to register as a sex offender (PC §290(a)(1), (g)(2)). In his defense, the defendant claimed he was unaware of the registration requirement, but the jury obviously didn't believe him. On appeal, he unsuccessfully argued that the trial court erred in failing to instruct the jury that a conviction for willful failure to register requires proof of actual knowledge of the registration requirement. The Supreme Court agreed with the defendant that PC §290 requires a showing that the defendant actually knew of the registration requirement, and that the trial court erred in failing to so instruct. However, the Supreme Court also found the error to be of the ubitquitous "harmless error" type under the circumstances of the case (Chapman v. California (1967) 386 U.S. 18, 24; People v. Hagen,(1998) 19 C4th 652, 671 967 P.2d 563; 80 CR2d 24; People v. Flood (1998) 18 C4th 470, 502-503; 957 P.2d 869; 76 CR2d 180; cf. Neder v. U.S. (1999) 527 U.S. 1, 19.) Certificate of Rehabilitation The exception to lifetime sex offender registration is the obtaining a certificate of rehabilitation, upon which event most, but not all sex offenders, shall be relieved of any further duty to register under PC §290 if not in custody, on parole, or on probation. The certificate of rehabilitation shall not relieve persons described in PC §290.4(a)(1) of the duty to register under §290, and shall not relieve a person of the duty to register under §290 for any offense subject to that section of which he or she is convicted in the future. In those instances, only a full governor’s pardon will relieve such a person of the duty to annually register. In Smith v. Doe (2003) 537 U.S. ___, the U.S. Supreme Court reversed the Ninth Circuit once again, this time upholding Alaska's rigorous sex offender registration laws against a Constitutional Ex Post Facto law challenge. The Court held that the State's efforts in creating the legal regime were civil in nature and, thus, could not violate the prohibition against Ex Post Facto laws. Megan’s Law The U.S. Supreme Court ruled that in Conn. Dept. of Public Safety v. Doe (2003) 537 U.S. ___, that the states can publish detailed information about certain convicted sex offenders including their names, addresses, photographs and descriptions, and can publish this information on the Internet, for all those who have already served their jail sentences. The argument by the sex offenders was a procedural due process argument to the effect that the 5th Amendment to the U.S. Constitution expressly prohibits the state or federal governments from depriving any person of “life, liberty or property without due process of law.” Thus, the anonymous petitioner’s contend that they must first be afforded a court hearing so as to determine the risk, if any, that the sex offenders who have served their prison sentence may re-offend. Absent such a court hearing, the argument is that the state or federal government may not utilize “Megan’s law” (named after the later Megan Kanka, a 7-year old slain New Jersey child) to publish this type of information. The Supreme Court reversed the Second Circuit, upholding "Megan's law" against such a procedural due process challenge, stating that because due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme. Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. (citing, Paul v. Davis (1976) 424 U.S. 693. But even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact—that he is not currently dangerous—that is not material under the statute. Cf., e.g., Wisconsin v. Constantineau (1971) 400 U.S. 433. As the State's Website explains, the law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Unless respondent can show that the substantive rule of law is defective (by conflicting with the Constitution), any hearing on current dangerousness is a bootless exercise. Here, the respondent expressly disavowed any reliance on the substantive component of the Fourteenth Amendment’s protections, and maintained that his challenge was strictly a procedural one. The Court went on to hold that States are not barred by principles of “procedural due process” from drawing such classifications. (citing, Michael H. v. Gerald D. (1989) 491 U.S. 110, 120, a plurality opinion). Such claims “must ultimately be analyzed” in terms of substantive due process. Because the question is not properly before the Court, the Court did not express any opinion as to whether the State’s law violated substantive due process principles. Obviously, all sex offenses, whether charged as a felony or as a misdemeanor, are serious accusations and can result in substantial prisons sentences. Therefore, if you have been arrested for a sex offense – typically, a felony – or if you know someone who is being investigated for a sex offense, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty interests in a court of law. As stated above, at the MAYO LAW CLINIC we vigorously defend individuals who are being investigated or who have been arrested for any number of sex offenses. CALL US AT (530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION! |
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