Sex Offender Laws
The Containment Model
and the Courts
Who am I?
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Jeffrey Richardson
Senior Probation Officer
Riverside County Probation (Palm Springs Office)
Supervising Sex Offender Caseload since April 2012
Topics
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The Containment Model
Case Law Basics
Case Law the Containment Model
 AB1844
 Probation/Parole
 Polygraphers
 Treatment Provider/Therapist
 Victim Advocate
Misc. Case Law
Overview of the
Containment Model
Probation/Parole
Offender
Treatment
Provider
Polygrapher
Victim Advocate
Case Law Basic’s
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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.
Case Law Basic’s Cont…
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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.
Case Law Basic’s Cont…
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Federal Appeals Courts
Case Law Basic’s Cont…
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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.
Case Law Basic’s Cont…
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California Appeals Courts
Case Law Basic’s Cont…
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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Published opinion’s more force than unpublished.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.
Case Law and AB 1844
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5th Amendment Polygraph Waiver.
Psychotherapist-Patient Privilege.
Retroactive applicability of the Containment Model.
PEOPLE v. GARCIA
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March 21, 2014 (Published).
Court of Appeals of California, Sixth District.
PEOPLE v. GARCIA Cont…
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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.
PEOPLE v. GARCIA Cont…
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Garcia argued that Polygraph requirement violated
his 5th amendment rights, was overbroad, and
unreasonable.
Garcia also argued that waiving his psychotherapistpatient 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?
PEOPLE v. GARCIA Cont…
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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.
PEOPLE v. FRIDAY
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March 27, 2014 (Published).
Court of Appeals of California, Sixth District.
PEOPLE v. FRIDAY Cont…
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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.
PEOPLE v. FRIDAY Cont…
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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.”
PEOPLE v. FRIDAY Cont…
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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.”
PEOPLE v. FRIDAY Cont…
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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.”
PEOPLE v. DOUGLAS M.
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October 24, 2013 (Published).
Court of Appeals of California, First District,
Division Two.
PEOPLE v. DOUGLAS M.
Cont…
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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.
PEOPLE v. DOUGLAS M.
Cont…
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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.
PEOPLE v. DOUGLAS M.
Cont…
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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.
Case Law and Probation/Parole
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Conditions of Probation/Parole
Counseling Directives
Probation Violations
Extending Term of Probation
Probation and Deportation
PEOPLE v. MOSES
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September 20, 2011 (Partially Published)
Court of Appeals of California, Fourth District,
Division Three.
PEOPLE v. MOSES Cont…
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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.
PEOPLE v. MOSES Cont…
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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.
PEOPLE v. CASEY
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February 5, 2014 (Not Published).
Court of Appeals of California, Fourth District,
Division Three.
PEOPLE v. CASEY Cont…
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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
PEOPLE v. CASEY Cont…
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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.
PEOPLE v. CASEY Cont…
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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.”
U.S. v. T.M.
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June 4, 2003 (Published).
United States Court of Appeals, Ninth Circuit
U.S. v. T.M. Cont…
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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.
U.S. v. T.M. Cont…
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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.
U.S. v. T.M. Cont…
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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.
U.S. v. T.M. Cont…
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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
U.S. v. T.M. Cont…
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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.
U.S. v. T.M. Cont…
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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.
U.S. v. JOHNSON
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October 30, 2012 (Published).
United States Court of Appeals, Ninth Circuit
U.S. v. JOHNSON Cont…
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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.
U.S. v. JOHNSON Cont…
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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.
PEOPLE v. JARED
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January 30, 2013 (Not Published).
Court of Appeals of California, Fourth District,
Division Three.
PEOPLE v. JARED Cont…
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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.
PEOPLE v. JARED Cont…
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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.
PEOPLE v. JARED Cont…
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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?
PEOPLE v. JARED Cont…
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Answer: No.
Evidence from Probation and the Polygrapher
showed that Jared was a continuing danger to the
community.
PEOPLE v. COOK
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October 22, 2010 (Not Published).
Court of Appeals of California, First District,
Division One.
PEOPLE v. COOK Cont…
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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.
PEOPLE v. COOK Cont…
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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.
PEOPLE v. COOK Cont…
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Court found Cook, “repeatedly manifested his
apparently intractable unwillingness and inability to
successfully pursue counseling as ordered.”
UNITED STATES v. HILGER
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August 26, 2013 (Published).
United States Court of Appeals, Ninth Circuit.
UNITED STATES v. HILGER
Cont..
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2007: Hilger convicted on child pornography
charges.
January 2011: Hilger is granted supervised release.
March 2012: Hilger arrested after he admitted to
having unauthorized contact with minor’s, including
exposing himself.
Court found Hilger violated his probation and
sentenced him to 2 years in prison.
UNITED STATES v. HILGER
Cont..
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Question before the court: Can a probation
violation rest only on the uncorroborated
confession of the defendant?
Answer: Yes.
Court found criminal proceedings require this rule,
but probation violations do not.
Adequate evidence was presented to justify the
violation.
PEOPLE v. LARRISON
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August 6, 2009 (Not Published).
Court of Appeals of California, Third Appellate
District, Butte
PEOPLE v. LARRISON Cont…
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May 2006: Larrison plead no contest to forcible
lewd act upon a child.
Placed on probation for 8 years.
November 9, 2007: Probation submits marginal
progress report. Larrison ordered to search for
employment.
February 8, 2008: Probation violated for failing to
look for work. Court reinstated and again ordered
Larrison to search for employment.
PEOPLE v. LARRISON Cont…
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April 30, 2008: Probation revoked as Larrison was
terminated from the sex offender treatment.
Was sentenced to 7 years and 4 months in prison.
Larrison argued his probation should not have been
revoked as he was unable to pay for treatment.
PEOPLE v. LARRISON Cont…
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Question before the Court: Did the trial Court
abused its discretion in the case?
Answer: No.
Defendant’s probation was primarily violated due to
his failure to look for work.
Had he done this, his termination for treatment
most likely would not have happened.
PEOPLE v. MINOR
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September 8, 2010 (Published).
Court of Appeals of California, Third District,
Butte.
PEOPLE v. MINOR Cont…
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August 2004: Minor plead no contest to unlawful
sexual intercourse with a minor.
Placed on formal probation for 3 years.
Minor required to complete sex offender
counseling.
During his probationary period, Minor was enrolled
in four separate sex offender programs.
August 2007: Minor’s probation officer requested
probation be extended for 2 years.
PEOPLE v. MINOR Cont…
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The Court granted the request and Minor appealed.
Question before the court: Was extending Minor’s
probation proper?
Answer: Yes.
Minor’s rights were less than if he was facing a
probation violation.
PEOPLE v. RODRIGUEZ
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June 20, 2012 (Not Published).
Court of Appeals of California, Second District,
Division Six.
PEOPLE v. RODRIGUEZ
Cont…
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1991 – 1996: Rodriguez repeatedly sexually abused
his two stepdaughters, both of whom were under
the age of 14.
April 5, 1998: Rodriguez pled guilty to five counts
of committing a lewd act on a child under the age
of 14. Placed on formal probation for 5 years.
October 22, 1998: Rodriguez deported to Mexico.
January 21, 1999: Rodriguez’s probation revoked
and warrant issued.
PEOPLE v. RODRIGUEZ
Cont…
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July 28, 2010: Rodriguez attempts to legally re-enter
the US. Arrested and appeared in Court.
Probation was revoked and he was sentenced to 11
years in prison.
Question before the Court: Did the court abuse it’s
discretion as his violation was not willful?
Answer: No.
PEOPLE v. RODRIGUEZ
Cont…
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Rodriguez argued his deportation made impossible
for him to report to probation and attend
counseling.
Court disagreed, ruling Rodriguez knew of his
requirements, was capable of completing them, and
instead chose not to do them.
Case Law and Polygraphers
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5th Amendment Issues
Sexual History Polygraphs
Maintenance Polygraphs
Instant Offense Polygraphs
U.S. v. ANTELOPE
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January 27, 2005 (Published).
United States Court of Appeals, Ninth Circuit
U.S. v. ANTELOPE Cont…
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Antelope was caught by undercover agents
purchasing child porn.
He plead guilty to possession of child porn and
placed on probation for 5 years.
Was required to complete sex offender counseling,
which included polygraph testing.
Antelope’s probation was violated after he refused
to answer questions in a full sexual history
polygraph.
U.S. v. ANTELOPE Cont…
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Antelope was sentenced to 30 months custody time
and 3 years probation.
Upon release, he again refused to take the
polygraph and was sentenced to an additional 10
months custody time.
Question before the court: Were Antelope’s 5th
Amendment Rights violated?
Answer: Yes.
U.S. v. ANTELOPE Cont…
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The Court found Antelope’s risk of selfincrimination was real, as the polygrapher was likely
to report admitted crimes to authorities for
prosecution.
The government and district court consistently
refused to “recognize that the required answers may
not be used in a criminal proceeding" against
Antelope.”
“we hold that the revocation of his probation and
supervised release violated his Fifth Amendment
right against self-incrimination.”
U.S. v. LABELL
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July 29, 2013 (Not Published).
United States District Court, N.D. California.
U.S. v. LABELL Cont…
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Label plead guilty to Travel with Intent to Engage
in Illicit Sexual Conduct.
February 2006: Label was sentenced in to 51
months’ imprisonment and five years of supervised
release.
He was required to complete sex offender
counseling, including polygraph.
Label’s probation was violated three separate times
for possessing pornography.
U.S. v. LABELL Cont…
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Label was scheduled to take a polygraph concerning
his viewing of pornography and contact with
minor’s.
Label refused to answer question regarding his
viewing pornography.
A violation of probation was filed for his refusal to
answer the questions.
Question before the court: Was the violation of
probation valid?
U.S. v. LABELL Cont…
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Answer: No.
Label argued, though the questions concerned noncriminal conduct, follow up questions could,
“furnish important links in a chain of evidence
supporting a prosecution for, say, possession of
child pornography.”
“Fifth Amendment does (permit Label to stay
silent), so long as the hypothetical follow-up
question and attendant risk of prosecution is not
"remote, unlikely, or speculative.”
PEOPLE v. ORMSBY
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October 10, 2008 (Not Published).
Court of Appeals of California, First Appellate
District, Division Five
PEOPLE v. ORMSBY Cont…
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Jury convicted Ormsby of committing a lewd act
upon a 14-year-old child more than 10 years
younger and was granted probation.
Required to complete sex offender counseling,
including polygraph.
Ormsby was terminated from counseling and his
probation was violated as he denied committing his
offense.
Court ordered instant offense polygraph.
PEOPLE v. ORMSBY Cont…
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December 19, 2006: Polygraph exam conducted.
When asked about his offense, Ormsby invoked the
5th.
Court revoked Ormsby’s probation and sentenced
him to 2 years in prison.
Question before the court: Did Ormsby have the
right to invoke the 5th amendment?
Answer: No.
PEOPLE v. ORMSBY Cont…
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“Here, there was no “real and appreciable danger of
self-incrimination” — the possibility of
incrimination was speculative at best. As a result,
appellant's invocation of the privilege against selfincrimination was not valid.”
“these questions did not subject appellant to the
risk of incrimination because he had already been
convicted.”
Case Law and Treatment
Providers
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Psychotherapist-Patient privilege
Treatment Program Rules
Terminating from Treatment
PEOPLE v. PETERSON
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January 15, 2010 (Not Published).
Court of Appeals of California, Third Appellate
District, Shasta.
PEOPLE v. PETERSON Cont…
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March 2001: Peterson plead no-contest to
possession of child pornography and two counts of
oral copulation.
Granted 3 years formal probation.
Required to complete a sex offender program.
Peterson met with the therapist, who informed him
he would have to admit to his offense, or be
terminated from the program.
Peterson initially admitted, but later recanted.
PEOPLE v. PETERSON Cont…
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October 2002: A probation was filed when
Peterson was terminated from counseling.
Peterson was allowed to withdraw his plea and his
charges were reinstated.
In the re-trial, the judge allowed Peterson’s
statements to the therapist to be used, if he decided
to testify.
He was found guilty and sentenced to 10 years in
prison.
PEOPLE v. PETERSON Cont…
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Question before the Court: Was it proper for the
Court to allow Peterson’s statements in the re-trial.
Answer: No.
Court found that as the defendant had been mislead
regarding his plea, thus his statements to the
therapist were involuntary.
By allowing these statements to used to impeach
Peterson, he was denied he right to testify on his
own behalf.
PEOPLE v. ROWE
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December 18, 2012 (Not Published).
Court of Appeals of California, Fourth District,
Division Two.
PEOPLE v. ROWE Cont…
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1991: Rowe pleads guilty to committing first degree
sodomy (Oregon).
Sentenced to 5 years in prison.
While on parole, he was required to attend sex
offender counseling.
2011: Rowe was found guilty on two counts of
forcible lewd acts on a child under 14.
Court allowed Rowe’s statement is therapy to be
used in the trial.
PEOPLE v. ROWE Cont…
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Question before the court: Was the
psychotherapist-patient privilege violated?
Answer: No.
Under Oregon law, therapists were allowed to
disclose privileged communications with parole.
As such, his communications were not considered
privileged.
U.S. v. LAST STAR
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January 9, 2014 (Not Published).
United States Court of Appeals, Ninth Circuit.
U.S. v. LAST STAR Cont…
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No details of offense provided.
Last Star’s probation was violated when he was
terminated from sex offender counseling for
possessing sexually stimulating material.
Last Star argued the section of the contract with the
sex offender counseling program forbidding him
from viewing sexually stimulating material was too
vague.
Court found Last Star violated his probation.
U.S. v. LAST STAR Cont…
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Question before the court: Was the contract term
too vague?
Answer: Yes.
The Court stated that the treatment provider failed
to properly inform Last Star of what was considered
inappropriate material for him to possess.
“It failed to give Last Star sufficient and specific
notice of what type of materials he was prohibited
from possessing.”
PEOPLE v. POEHLER
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April 18, 2012 (Not Published).
Court of Appeals of California, Third District,
Tehama.
PEOPLE v. POEHLER Cont…
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2005: Poehler molested a 9 year old female family
member.
In Court, Poehler pled guilty to committing lewd
conduct with a child.
Placed on probation for 5 years
Required to complete sex offender counseling.
2010: Proehler’s probation was violated for viewing
pornography and voyeur activities towards his
sister.
PEOPLE v. POEHLER Cont…
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At sentencing, Poehler’s therapist testified his poor
behavior in therapy and deemed him a “medium to
medium-high” risk for re-offense.
The Court revoked probation and sentenced
Poehler to state prison.
Question before the Court: Did the Court abuse its
discretion by sentencing Poehler to State Prison?
Answer: No.
PEOPLE v. POEHLER Cont…



Poehler argued that in viewing pornography, “he
hurt no one.”
Court disagreed and found that possessing
pornography was a, “serious breach of probation.”
“The condition served the interests of reformation
and rehabilitation by removing defendant from an
influence that may be a contributing factor in the
commission of sex offenses.”
PEOPLE v. PITTS


January 17, 2014 (Not Published).
Court of Appeals of California, Fourth District,
Division Two.
PEOPLE v. PITTS Cont…





January 4, 2011: Pitts plead guilty to committing a
lewd and lascivious act upon a child under the age
of 14 years.
Pitts was placed on probation for 5 years.
July 25, 2012: Pitt’s admitted to violating his
probation by not enrolling in counseling as directed.
December 2012: Pitts was referred by probation for
sex offender treatment.
Pitts attend one group session and never returned.
PEOPLE v. PITTS Cont…





Pitts reported his work schedule made it impossible
for him to attend classes.
March 15, 2013: Pitt’s probation was violated for
failing to attend sex offender counseling.
The Court sentenced Pitts to 6 years in Prison.
Question before the court: Was Pitt’s violation
justified?
Answer: Yes.
PEOPLE v. PITTS Cont…



Pitts argued he had to work to afford the classes,
but the classes were only available during his work
hours.
The Court found that, regardless, he was still
required to attend and he chose not too.
“The fact that defendant had a conflict in his
schedule because of his work schedule is irrelevant
to this analysis. Defendant knew he needed to
attend his counseling sessions; he did not attend.”
PEOPLE v. PITTS Cont…

“Defendant had ample opportunity to attend
counseling sessions for the privilege of being on
probation, instead of prison. The evidence was
sufficient to support the trial court's conclusion that
defendant violated the terms and conditions of his
probation.”
PEOPLE v. MARSHALL


October 19, 2012 (Not Published).
Court of Appeals of California, Third District,
Shasta.
PEOPLE v. MARSHALL Cont…





April 2008: Marshall pleaded no contest to
annoying or molesting a child.
Placed on Probation for 3 years.
Required to complete sex offender counseling.
Due to Marshall’s suicidal ideation, he was directed
by his therapist to report to mental health for
services.
Despite being directed on 5 separate occasions,
Marshall never submitted proof of attempting to
obtain mental health services.
PEOPLE v. MARSHALL Cont…



November 2010: Marshall admitted to a violation of
probation for failing complete sex offender
counseling.
January 2011, Marshall’s probation was violated for
failing complete sex offender counseling and other
offenses.
The Court revoked Marshall’s probation and
sentenced him to state prison.
PEOPLE v. MARSHALL Cont…




Question before the Court: Was Marshall's
probation violation proper?
Answer: Yes.
Marshall argued, “There was no evidence offered at
(Marshall's) hearing that he had been offered
services at Shasta County (only to later decline).”
The Court disagreed, stating, “Contrary to
defendant's claim on appeal, his failure to
meaningfully participate in the Cedar Rose Program
was well-established by the evidence.”
PEOPLE v. MARSHALL Cont…


“(The therapist) told defendant no fewer than five
times to get mental health treatment for his suicidal
ideations. Defendant failed to get the treatment.”
“This lackadaisical approach to obtaining treatment
in no way qualifies as “meaningful” participation in
a sex offender treatment program.”
Case Law and Victim Advocate

Victim Restitution
PEOPLE v. HOGG


November 26, 2013 (Not Published).
Court of Appeals of California, First District,
Division Two.
PEOPLE v. HOGG Cont…





Hogg plead guilty to annoying or molesting a child
under 18 years of age.
Court ordered $80,000 in victim restitution for
mental health services.
Hogg requested to see victim’s mental health
records to dispute the amount of restitution
ordered.
The Court rejected his request and Hogg appealed.
Question before the Court: Did Hogg have the
right to review the victim’s records?
PEOPLE v. HOGG Cont…



Answer: No.
Hogg argued the order was unlawful because having
the records, “might shed more light on why the
victim sought treatment, specifically, whether and
to what extent appellant's criminal conduct caused
her need for the treatment for which she sought
restitution.”
State law forbids the disclosure of victim’s mental
health records.
PEOPLE v. HOGG Cont…

In addition, “None of the circumstances in this case
prevented the trial court from applying the law to
the evidence and making a well-supported
restitution order without obtaining the victim's
mental health treatment records.”
PEOPLE v. BARRIERE


August 8, 2013 (Not Published).
Court of Appeals of California, First District,
Division Two
PEOPLE v. BARRIERE Cont…





December 3, 2009: Barriere was convicted of 15
various counts, including child molestation, assault,
and weapons possession.
Sentenced to 99 years in Prison.
November 4, 2011: Court ordered $1,000,000 in
non-economic damages to the victim.
Question before the court: Was the restitution
order proper?
Answer: Yes.
PEOPLE v. BARRIERE Cont…



Barriere offered numerous reasons for why the
restitution order was invalid.
The court rejected each argument and upheld the
restitution order.
“The restitution order in this case “does not shock
the conscience or suggest passion, prejudice or
corruption on the part of the trial court.”
PAROLINE v. U.S.


April 23, 2014 (Published).
United States Supreme Court
PAROLINE v. U.S. Cont…



Paroline was convicted of possession of child
pornography.
He admitted to possessing between 150 and 300
images of child pornography, which included the
victim, “Amy”.
Amy sought $3 million in lost income and about
$500,000 in future treatment and counseling costs.
PAROLINE v. U.S. Cont…



The trial court ordered no restitution, as “the
Government had failed to meet its burden of
proving what losses, if any, were proximately caused
by Paroline’s offense.”
The appeals court found, “each defendant who
possessed the victim’s images should be made liable
for the victim’s entire losses from the trade in her
images.”
Paroline was ordered to pay $3.4 million to Amy.
PAROLINE v. U.S. Cont…




Question before the Court: Are those convicted on
possessing child porn liable for all the victim
restitution owed to a victim?
Answer: No.
The Court split the difference between the trial and
appeals courts.
“District Courts should use discretion and sound
judgment in determining the proper amount of
restitution.”
Misc Case Law



Local Ordinances
Non-290 PC Registration
Retroactive Registration
PEOPLE v. NGUYEN


January 10, 2014 (Published).
Court of Appeals of California, Fourth District,
Division Three
PEOPLE v. NGUYEN Cont…




Nguyen was a registered sex offender living in
Orange County.
September 2012: Nguyen entered a local park, in
violation of local ordinances.
The district attorney filed misdemeanor charges,
which were thrown out by the trial Court.
Question before the court: Are local ordinances
restricting sex offenders access to public parks legal
under California law?
PEOPLE v. NGUYEN Cont…



Answer: No.
By state law, local ordinances are forbidden when
they deal with areas of the law already regulated by
the State.
Nguyen argued that as the State Legislature already
passed laws forbidding where sex offender’s are
allowed to be, local cities and counties are
forbidden to do so.
PEOPLE v. NGUYEN Cont…

The Court concluded the state legislature has
enacted comprehensive laws “regulating the daily
life of sex offenders,” and thus, “preempts the
county's efforts to restrict sex offenders from
visiting county parks.”
PEOPLE v. KING


June 11, 2007 (Published).
Court of Appeal of California, Second District,
Division Two
PEOPLE v. KING Cont…




July 2002: King pled no contest to unlawful sexual
intercourse with a minor.
Granted 5 years probation and ordered to register
as a sex offender for only the term of his probation.
March 8, 2006: King is charged for failing to
register under 290 PC.
King plead guilty and was sentenced to 120 days in
custody, but reserved right to challenge his 290 PC
charges.
PEOPLE v. KING Cont…





Question before the court: Can King violate 290
PC, when he is required to register as only a term of
probation?
Answer: No.
290 PC mandates lifetime registration.
If someone is to register for the duration of their
probation, this is not pursuant to 290 PC.
“Since appellant was not "ordered ... to register
pursuant to this section,” “He did not violate
section 290 by failing to register.”
DOE v. HARRIS


July 1, 2013 (Published).
Supreme Court of California
DOE v. HARRIS Cont…




1991: Doe plead nolo contendere to lewd and
lascivious acts upon a child under the age of 14.
Was granted probation and ordered to register.
When required to register, the law stated
registration information would only be available to
law enforcement.
This changed with the passage of Megan’s Law,
which the legislature specifically stated was
retroactive.
DOE v. HARRIS Cont…



Question before the court: Was Doe’s plea
agreement violated when his sex offender status
was made available to the public?
Answer: No.
“In sum, the rule in California is that a plea
agreement's reference to a statutory consequence
attending a conviction,” “Does not give rise to an
implied promise that the defendant, by pleading
guilty or nolo contendere, will be unaffected by a
change in the law.”
MACIEL v. CATE


September 25, 2013 (Published).
United States Court of Appeals, Ninth Circuit
MACIEL v. CATE Cont…





1986: Maciel was convicted of various sex offenses
and sentenced to 42 years in prison.
The court did not order sex registration or a parole
term.
2008: Maciel is released from custody.
Parole informs him of his parole and sex offender
registration obligations.
His parole was subsequently violated and he was
sent back to prison.
MACIEL v. CATE Cont…



Question before the court: Were the parole and sex
offender requirements imposed on Maciel proper?
Answer: Yes.
The Court found, “parole and registration
requirements are imposed by law and are not
subject to the sentencing court's discretion.”
PEOPLE v. VELASQUEZ


August 9, 2011 (Not Published).
Court of Appeals of California, Fourth District,
Division Two.
PEOPLE v. VELASQUEZ
Cont…






1990: Velasquez plead guilty to sexual battery.
At the time of the plea, sexual battery was not a
registerable offense.
1995: Sexual battery became a registerable offense.
1997: Velasquez was sent to prison on a non-sexual
case.
1998: Velasquez is paroled and notified of his duty
to register.
He registered regularly until 2008, when he was
charged with failure to register.
PEOPLE v. VELASQUEZ
Cont…





Velasquez challenged his registration requirement as
a violation of his old plea bargain.
The trail court agreed and dismissed the charges.
Question before the court, did requiring Velasquez
to register violate his plea agreement?
Answer: Yes.
“The promise that he would not have to register as
a sex offender was significant in the context of the
entire plea bargain, and thus the promise must be
fulfilled.”
Contact Information
 Jeffrey
Richardson
 Senior Probation Officer
 Riverside County Probation
 jdrichar@rcprob.us