Criminal Defense & Prosecution

Criminal Cases and Forensic Psychological Services

What you will find on this page

Competency to Stand Trial

Criminal/Insanity Evaluations

Mitigation and Sentencing

Risk Assessment & Dangerousness

Stoll Evaluations per People v. Stoll

Mental Health Diversion

Psychosexual Assessments

Sex Offender Evaluations

Juvenile and Youthful Offenders

Criminal defense and prosecution

Competency to Stand Trial (PC §1368)

The Sixth Amendment to the Constitution guarantees all citizens the right to a fair trial when accused of a crime and to know and understand the nature of the accusations made against them. A defendant must understand the nature and purpose of the legal proceedings against him and be able to effectively cooperate and assist counsel in his or her defense. To understand the proceedings, a defendant must be able to comprehend the charges against him and the penalties if convicted. To cooperate and assist counsel, he/she must be able to plan a legal strategy, be able to recall and relate pertinent facts and events, including his motives and actions at the time of the offense, and testify on his/her own behalf and to challenge prosecution witnesses. Section 1367(a) of the California Penal Code provides the following standard for incompetence to stand trial: “A defendant is mentally incompetent for purposes of this chapter if, as a result of a mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” PC 1368 evaluations address whether this defendant facing these charges in light of the existing evidence, anticipating the substantial effort of a particular attorney, within a relationship of known characteristics.

Our Evaluation:

  • Review of legal records – police report, complaint/information, RAP sheet
  • Review of medical records – jail mental health records, outpatient, and state hospital mental health records
  • Clinical interview of the defendant
  • Mental status examination of defendant
  • Administer psychological testing, and if indicated malingering testing (exaggerating or feigning symptoms of mental disability/impairment/disorder)
  • Consultation with attorney to understand reasons for declaring a doubt on the defendant’s competency
  • Review of Alienist Court Reports
  • Written Report

Report Includes:

  • Opinion on the defendant’s understanding of the nature of the criminal proceedings and ability to assist counsel in the conduct of a defense in a rational manner.
  • Opinion on questions relevant to the client’s capacity to refuse psychiatric medications and pertaining to the need for a court order permitting the involuntary administration of antipsychotic medication.
  • Mental disorder diagnosis and the severity of any disability, defect, or impairment.
  • If it was opined that a person was incompetent to stand trial, the potential for restoration to competency will be addressed.
  • List of side effects and expected efficacy of treatment.
  • Provide possible alternative treatments.
  • Opinion on whether the defendant is competent to make decisions regarding antipsychotic medications.

Expert testimony is also provided when requested in Competency to Stand Trial cases.

Criminal Evaluations – Pre-Adjudication

Criminal Responsibility/Insanity (PC §1026)

The insanity defense is one of the most controversial criminal defense strategies, but ironically it is one of the least successful. In fact, only one-tenth of 1% of all felony cases (i.e., 1 out of every 1,000 cases) involves defendants pleading insanity and, of those, only one quarter win acquittals. The determination regarding whether a person is guilty of a criminal act is contingent on their mens rea or “guilty mind.” The insanity defense originates from the notion that particular mental diseases or defects can interfere with a person’s ability to form mens rea, as required by the law. People v. Nash (1959) declared, “It is fundamental to our system of jurisprudence that a person cannot be convicted for acts performed while insane.” Insanity is a legal concept, not a clinical one, which present unique challenges for forensic psychologists evaluating defendants in insanity cases. The paramount goal of insanity evaluations is a comprehensive reconstruction of the defendant’s functioning at the time of the offense. Typically, an evaluation of the defendant’s sanity involves the evaluation of their mental state at the time of the alleged offense and a reconstruction of the defendant’s thought process and behavior before and during the alleged crime.

California Penal Code (PC) §25(b) states,

“In a criminal proceeding….in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.”

Based on this language, California follows what is known as the M’Naghten standard when determining whether someone meets the criteria for Not Guilty by Reason of Insanity.

Our Evaluation:

“The foundation for insanity evaluations is the systematic use of interview methods for the establishment of retrospective diagnoses, prominent symptoms, and psychological impairment.” – Richard Rogers, PhD ABPP

  • Review of legal and mental health records
  • Conduct comprehensive interview & mental status examination of the defendant
  • Administer psychological testing to evaluate the defendant:
    • Psychopathology testing
    • Assess feigning or malingering
  • Conduct collateral interviews with family members, friends, and mental health clinicians
  • Determination of whether a defendant’s mental or emotional state at the time of the alleged offense meets the threshold requirement for a mental disease or defect
  • Comprehensive written report, which renders an opinion on whether the defendant was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense

We are also available to review police reports and medical records without interviewing the defendant in order to assist attorneys in determining whether a PC 1026 sanity defense should be explored.

Expert testimony is also provided when requested in Criminal Responsibility/Insanity cases.

Mitigation & Sentencing

Psychological Mitigation

Assessment of the Role of Mitigating or Aggravating Factors on Case-Specific Behavior and Sentencing Mitigation

More than 90% of all court cases settle before going to trial. In many cases, psychological reports can serve as an integral factor in connection with plea bargaining or for the purposes of mitigation during the sentencing phases of a case. We specialize in evaluating psychological factors and identifying cognitive and psychiatric impairments that directly contributed to behaviors during the alleged offense. We provide comprehensive forensic evaluations to help attorneys develop legal arguments, analyze cases, and gain additional insight into their clients’ behavior and mental status.

Even in situations where the defendant’s mental disorder does not meet the criteria for a not guilty by reason of insanity (NGI) defense, the defendant’s state of mind at the time of the alleged offense, as well as a history of a mental disorder and other psychological factors can be used in sentencing mitigation. A forensic evaluation and report is an important element in presenting evidence for sentence mitigation. A mitigating factors psychological evaluation can assist in plea negotiation and assists the defense attorney and the court in understanding factors that affected the defendant’s judgment, perception, or intent in committing the offense. These findings are offered to the court in an effort to reduce the severity of the sentence. The evaluation may also include a risk assessment and treatment recommendations of how treatment and what type of treatment may reduce the likelihood of recidivism. “Mitigating factors” refer to information about a defendant or the circumstances of a crime that might tend to lessen the sentence or the crime with which the person is charged. This may include developmental injuries or deprivations that predisposed the defendant to commit a crime or could reduce their culpability.

Our Evaluation:

  • Review of legal records (e.g., police records, witness statements, complaints, RAP sheet)
  • Review of medical and historical records (e.g., academic/educational records, mental health records)
  • Clinical interview of the defendant
  • Collateral interviews with family or mental health clinicians
  • Psychological testing
  • Assessment of malingering, if necessary
  • Assessment of the defendant’s state of mind leading up to, during, and following the offense based on an interview with the defendant and collateral information/records
  • Diagnostic impressions
  • Risk assessment
  • Summary of relevant mitigating and/or aggravating factors
  • Recommendations

Expert testimony is also provided when requested in mitigation cases.

Mitigation for Youthful & Young Adult Offenders in Capital Cases

Acting as an expert witness, forensic psychologists are hired as teaching experts in capital cases to help educate the jury on mitigating factors. Mitigation, also known as “mitigating factors,” is evidence the defense presents in the sentencing phase of a capital trial (i.e., death penalty case) to provide reasons why the defendant should not receive a death sentence. The death penalty is intended only for “the worst of the worst” crimes. The Supreme Court has ruled that in deciding between the death penalty and life in prison, the jury may consider any mitigating evidence a juror finds relevant. The jury is instructed to weigh the mitigating factors presented by the defense against the aggravating factors presented by the prosecution. Pursuant to PC 190.3, in determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.

(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

If the jury determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

Our Role as Teaching Expert/Expert Witness in Capital Case Sentencing:

Using a descriptive & illustrative Power Point presentation, we present evidence and research to the jury on the mitigating factors of age and any other circumstance, as outlined in PC 190.3(i) and (k):

  • Youth & Early Adult Brain Development
  • Youth as Mitigation & Racial Injustice in the Criminal Justice System
  • Adverse Childhood Experiences (ACES)/Traumas
  • How Lack of Intervention & Treatment Matters
  • Culpability & Appropriate Punishment for Youth & Young Adults

We present scientific evidence to the jury which demonstrates that:

  • Youths’ ability to make mature judgments is less developed than adults
  • Youths are more vulnerable to negative influences from the environment (e.g., friends, gangs, crime, substances, violence)
  • Youths’ brains and characters are not yet fully developed
  • Adverse Childhood Experiences (ACES) lead to crime
  • ACES interrupt healthy brain and social development in youth

When a youth does not receive intervention or treatment this:

  • Affects all areas of their development
  • Affects decision their making
  • Increases risk-taking
  • Impacts their ability to consider the consequences of their behavior

Early interventions can serve as preventative measure for future risk behavior and crime. We also educate the jury on the racial disparities that exist in our criminal justice system. Racial factors significantly influence criminal justice system decision-making, resulting in disparate conviction rates, wrongful convictions, and levels of punishment (including capital punishment) across racial groups in the United States. Finally, we argue to the jury that youth are not worthy of significant punishment when compared to adults due to immature brain development, ACES/trauma, & lack of intervention.

Stoll Evaluations – People v. Stoll (1989)

In People v. Stoll (1989) the Supreme Court ruled that a defendant could present expert opinion of good character to show non-commission of a crime. The court found that the legislature implicitly endorsed lack of deviance as a relevant character trait in a lewd and lascivious conduct case. The absence of a “disposition” tends to prove that defendant has not committed the crime. Criminal defendants are authorized to use character evidence, including expert opinion, to prove conduct in conformity with character as allowed by Evidence Code section 1102. People v. Stoll, supra at 1159. Stoll also recognizes that no precise legal rules dictate the proper basis for an expert’s journey into a patient’s mind to make judgements about his behavior. The courts have permitted an expert to rely on standardized psychological tests to reach an opinion on a mental state at the time acts were committed.

Expert testimony of the defendant’s personality has been admitted to prove that defendant was not likely to commit certain acts in the future. Expert opinion that the defendant shows no obvious psychological or sexual problem is circumstantial evidence which bears on whether he committed sexual acts upon children and is admissible character evidence on his behalf.

Our Evaluation:

  • Clinical interview with the inmate including comprehensive psychosexual history
    • Early Sexual Experiences
    • Other Sexual Interests
    • Masturbation/Fantasies
    • Pornography Use
  • Assessment deception, denial, minimization and use of justifications
  • Acceptance of responsibility and accountability for behavior
  • Motivation and amenability for treatment
  • Level of treatment and supervision need
  • Mental status examination on the inmate
  • Review of discovery and legal records including police reports, probation officer reports, abstract of judgment, criminal history (RAP sheet), and felony complaint.
  • Actuarial risk assessment – Static-99R
  • Dynamic risk assessment – Stable-2007 or Violence Risk Scale – Sexual Offense Version (VRS-SO)
  • Assessment of protective and individual risk factors
  • Diagnosis, if any
  • Treatment recommendations
  • Supervision recommendations
  • Written Report
  • Consultation with the attorney

Expert testimony is also provided when requested in Stoll cases.

Diversion

Mental Health Diversion (PC 1001.36)

 California’s Mental Health Diversion law/program allows criminal defendants to receive mental health treatment when they are accused of a crime. This law diverts defendants from the criminal justice system into mental health treatment versus facing charges and possible conviction on those charges. The main requisite for this program is that the defendant’s mental disorder played a significant role in the charged offense. In order to determine if this was the case, a qualified mental health professional evaluates the defendant and provides opinions on the various criteria set forth in P.C. 1001.36

(A) The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

(B) The court is satisfied that the defendant’s mental disorder was a significant factor in the commission of the charged offense. A court may conclude that a defendant’s mental disorder was a significant factor in the commission of the charged offense if, after reviewing any relevant and credible evidence.

(C) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment.

(D) The defendant consents to diversion and waives the defendant’s right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment.

(E) The defendant agrees to comply with treatment as a condition of diversion.

(F) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate. Mental health diversion under Penal Code 1001.36 lasts a maximum of two (2) years. It can consist of inpatient or outpatient treatment. If the defendant successfully completes the treatment program, at the end of the diversion period the court will dismiss the charges. A defendant is considered to have successfully completed a program when he or she:  

  1. Has substantially complied with the requirements of diversion.
  2. Has avoided significant new violations of law unrelated to the defendant’s mental health condition, and
  3. Has a plan in place for long-term mental health care. 

Our Evaluation:

  • Consultation with the defendant’s attorney.
  • Clinical interview with the defendant.
  • Collateral interviews with a family member or treatment provider in order to gather information about the defendant’s history of mental illness and treatment.
  • Review of discovery and legal records including police reports, criminal history (RAP sheet), and complaint.
  • Review of medical and mental health treatment records.
  • Psychological testing, when indicated, to assess for mental disorders.
  • Comprehensive written report providing opinions on qualification for mental health diversion.
  • We then provide treatment recommendations and propose a comprehensive treatment plan. If the defendant successfully completes treatment, the criminal charges will be dismissed. Expert testimony is also provided when requested in Mental Health Diversion cases.

Risk Assessment

Offenders with Mental Health Disorder Evaluations (PC 2962)

In 1986, the California Legislature enacted the Mentally Disordered Offender (MDO) Law. According to Penal Code PC 2960 and its related sections, the dual purpose of this law is to:

  1. protect society from certain prisoners with dangerous, treatable mental disorders and;
  2. to provide treatment for those prisoners.

The MDO law, now referred to as OMD, allows for the California Department of Corrections and Rehabilitation (CDCR) and The California Department of State Hospitals (DSH) to provide mental health treatment to those with severe mental health disorders prior to, during, and even after their parole.

  1. The inmate has a severe mental health disorder as defined in PC Section 2962(a).
  2. The inmate committed a PC Section 2962 qualifying crime.
  3. The severe mental health disorder was one of the causes of or was an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison.
  4. The prisoner has a severe mental health disorder that is not in remission or cannot be kept in remission without treatment.
  5. The prisoner has been in treatment for the severe mental health disorder for 90 days or more within the year prior to the prisoner’s parole or release.
  6. By reason of their severe mental health disorder the prisoner represents a substantial danger of physical harm to others.

Our Evaluation:

  • Review of legal records
  • Review of medical records – jail medical records, CDCR medical records, outpatient, and state hospital medical records
  • Review of CDCR Central File (C-file)
  • Clinical interview of the defendant
  • Mental status examination of defendant
  • Consultation with attorney
  • Written Report

Expert testimony is also provided when requested in OMD cases.

Psychosexual Assessments and Sex Offender Assessments

Psychosexual evaluations can be an effective tool for providing a scientific basis for determining whether a person is unlikely to re-offend, a person’s amenability to treatment and rehabilitation, and their proclivity for certain types of offenses. Psychosexual evaluations aid in plea negotiations, help determine trial strategies and can be a significant mitigating factor during sentencing.

Psychosexual evaluations are routinely performed to:

  • Identify deviant sexual behavior patterns
  • Evaluate the risk level of sexual and non-sexual recidivism
  • Recommend the type of treatment options most beneficial to the client
  • Identify specific risk factors that should be targeted during treatment

A psychosexual evaluation is intended to identify the specific treatment needs of the client and to propose a treatment plan to meet those needs. In many cases, based on the risk assessment conducted the evaluation can establish the client’s low risk to the community, amenability to treatment, and the likelihood of success in specialized sex offender treatment. The evaluation also enables attorneys to establish that the client does not have a long history of offensive behavior and show that the offense they are charged with is an isolated event.

Sex Offender Risk Assessments

All sex offender evaluations or psychosexual evaluations include a detailed risk assessment that includes use of actuarial and dynamic risk instruments as well protective factors. Recidivism rates are not uniform across all sex offenders and most sexual offenders never go on to commit another sexual offense. First time sex offenders are significantly less likely to sexually re-offend than are those with previous sexual convictions. In addition, for those sex offenders who have re-offended, the longer they remain in the community offense-free, the less likely they are to re-offend sexually. Research has shown that cognitive-behavioral treatment for sex offenders is associated with reductions in sexual offense recidivism rates.

In cases where the client does not show sexual deviance or any other paraphilic condition, our reports include information arguing against sex offender registration as supported by empirical research. This empirical research shows that sex offender registration and notification laws can impede an offender’s attempts at community reintegration efforts and potentially contribute to an increased likelihood for recidivism (Levenson and Tewksbury, 2009). Growing bodies of research highlight the adverse effects of sex offender registration and notification laws. Specifically, registered sex offenders reported having lost housing and jobs as a result of registration, having been physically threatened or harassed, property damage, economic hardship, and numerous psychosocial consequences, such as depression, feelings of shame, isolation, and guilt (Mercado, Alvarez, and Levenson, 2008).

Sexually Violent Predator Evaluations (WIC 6600)

Pursuant to Welfare and Institutions Code Section WIC §6600 a “sexually violent predator” is a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.

Welfare and Institutions Code Section WIC §6600 defines a “sexually violent offense” as one that involves force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person or threatening to retaliate in the future against the victim or any other person. To assist in evaluating the risk of sexual re-offense, we utilize two kinds of long-term risk indicators. Together these two kinds of assessments allow a baseline evaluation of the offender’s long-term risk. In order to understand how his risk factors compared to others who have sexually recidivated, we use two primary assessments.

Static risk assessment instruments use aspects of demographic and criminal history information to assess three broad dimensions that contribute to risk. These are the offender’s history of sexual criminal behavior, the offender’s history of general criminal behavior, and age. Risk indicators reflecting these three dimensions are summarized using an actuarial risk assessment instrument, the Static-99R, which provides group estimates of sexual recidivism.

Second, we assess dynamic risk factors (i.e., a long-term vulnerability, changeable risk factors; those characteristics, circumstances, and attitudes that can change throughout one’s life) via the STABLE-2007 or Violence Risk Scale – Sexual Offense Version (VRS-SO). Dynamic risk factors are sometimes called Need factors since their assessment of them indicates the appropriate focus of treatment needed to reduce risk. Dynamic risk factors add incremental predictive validity relative to Static-99 and so function as external risk factors.

Next, we consider the offender’s individual risk and protective factors. Finally, we describe whether or not the offender’s risk assessment led me to conclude he does not represent a serious and well-founded risk of engaging in sexually violent predatory criminal behavior in the future.

Our Evaluation:

  • Clinical interview with the inmate including comprehensive psychosexual history
    1. Early Sexual Experiences
    2. Deviant/Unusual Sexual Behaviors & Interests
    3. Masturbation/Fantasies
    4. Pornography Use
  • Assessment deception, denial, minimization, and use of justifications
  • Acceptance of responsibility and accountability for behavior
  • Motivation and amenability for treatment
  • Level of treatment and supervision need
  • Mental status examination of the inmate
  • Review of discovery and legal records including police reports, probation officer reports, abstract of judgment, criminal history (RAP sheet), and felony complaint.
  • Review of CDCR Central File (C-file)
  • Review of medical and mental health treatment records (CDCR or Department of State Hospitals- Coalinga)
  • Actuarial risk assessment – Static-99R
  • Dynamic risk assessment – Stable-2007 or Violence Risk Scale – Sexual Offense Version (VRS-SO)
  • Assessment of protective and individual risk factors
  • Diagnostic impressions
  • Written Report
  • Consultation with the attorney 

Expert testimony is also provided when requested in SVP cases.

Psychosexual Assessments (PC 288.1)

Penal Code 288.1 requires a mental health evaluation for anyone “convicted of committing any lewd or lascivious act” against a child under age 14 before the court can release them on probation. The court cannot release the offender on probation until it has received and reviewed this report and can reasonably determine from the report that the offender no longer poses a danger to children and is unlikely to reoffend.

The PC 288.1 report includes:

  1. The circumstances of the offense.
  2. The defendant’s psychosexual history.
  3. Risk assessment.
  4. The emphasis of the evaluation is on whether the conduct is likely to recur, and whether the defendant continues to be a danger to other children.

If the court does order a report, it must be issued by either:

  1. A reputable psychiatrist, or
  2. A reputable licensed psychologist who has:
    1. A doctoral degree in psychology, and
    2. At least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders.

People v. Thompson (1989) 214 Cal.App.3d 1547, Cal. Rptr. 272 notes the following:

“It is clear from the language of section 288.1 that a report is not mandated in every lewd or lascivious act case… Only if the trial court is inclined to grant probation must a report be ordered. The obvious intent of the Legislature in enacting this statute was to protect society by requiring a psychiatric or psychological report insuring that defendant is a suitable candidate for probation. Where the court, as in this case, has no intention of granting probation, and the record supports such a denial of probation, a section 288.1 report is not mandated. In other words, if after reviewing all the facts, the pre-sentence report and the statements in mitigation and aggravation, the court does not feel that probation is proper, then there is no duty to request a section 288.1 report.” As such, even if the court does not order a report, an attorney can request a PC 288.1 evaluation. Our Evaluation:

  • Clinical interview with the inmate including comprehensive psychosexual history
    1. Early Sexual Experiences
    2. Deviant/Unusual Sexual Behaviors & Interests
    3. Masturbation/Fantasies
    4. Pornography Use
  • Assessment deception, denial, minimization and use of justifications
  • Acceptance of responsibility and accountability for behavior
  • Motivation and amenability for treatment
  • Level of treatment and supervision need
  • Mental status examination on the inmate
  • Review of discovery and legal records including police reports, probation officer reports, abstract of judgment, criminal history (RAP sheet), and felony complaint.
  • Actuarial risk assessment – Static-99R
  • Dynamic risk assessment – Stable-2007 or Violence Risk Scale – Sexual Offense Version (VRS-SO)
  • Assessment of protective and individual risk factors
  • Diagnostic impressions
  • Treatment recommendations
  • Supervision recommendations (Containment Model, polygraphy, phallometric assessment)
  • Written Report
  • Consultation with the attorney

Expert testimony is also provided when requested in PC 288.1 cases.

Removal From California’s Sex Offender Registry

California recently changed its sex offender registration requirements. Senate Bill 384 (SB 384)  is a bill that passed the California Legislature and was signed into law on October 6, 201. 

  • Prior to SB 384 all convictions for a sexual offense required lifetime registration as a sex offender
  • SB 384 replaced lifetime sex offender registration for all offenses with three tiers that are largely based on the severity of the underlying sex offense.
  • SB 384 established additional criteria for determining which tier a sex offender was assigned to.

The new law means that a sex offender registrant can file for termination of their sex offender registration requirement and be removed from the “Megan’s Law website.”

Three-tiered system:

  • Tier One, which carries a minimum of 10 years on the registry, is for lower level sex offenses like:
    1. Misdemeanor sexual battery (PC 243.4)
    2. Arranging to meet a minor for lewd purposes (PC 288.4)
    3. Indecent Exposure (PC 314)
  • Tier Two, which requires a minimum of 20 years on the registry, is for mid-level sex offenses like:
    1. Rape of an adult incapable of giving consent (PC 261)
    2. Incest PC 285
    3. Lewd acts with a minor under 14 years old (PC 288)
  • Tier Three, which requires lifetime registration, is for severe sex crimes like:
    1. Other rape cases (PC 261)
    2. Child human trafficking (PC 266)
    3. Oral copulation (PC 287)
    4. Sexual acts against a child under 10 years old (PC 287.7)

Tiers are designated in accordance with the criteria specified in Penal Code sections 290 through 290.024, et seq., the Sex Offender Registration Act, which includes registrable conviction(s) or adjudication(s) from California and non-California jurisdictions, risk assessment scores and levels, and other criteria. 

Mandatory minimum registration periods for individuals who were convicted of their registrable offenses

Tier One – May be eligible to be removed from the state sex offender registry after 10 years 

Tier Two – May be removed after 20 years

Tier Three – Risk Assessment Level: 20 years*

Tier Three – Subject to lifetime registration requirements

Can a tier three registrant petition for termination of their sex offender registration requirement?

If a tier three registrant is designated as tier three solely due to their risk level (“Tier Three – Risk Assessment Level”), which is well above average risk (formerly high risk) on the static risk assessment tool for sex offenders, at least 20 years from release from custody on the registrant’s registrable offense, the registrant may petition for termination of their sex offender registration requirement unless the conviction offense is listed in Penal Code sections 1192.7 or 288. If a person is designated as “Tier Three – Lifetime,” they may not petition for termination. 

Petitioning for termination of sex offender registration requirement in California

Registrants must initiate the petition process by completing the petition forms, requesting proof of current registration from their individual registering law enforcement agencies, filing their petitions, and serving copies of their filed petitions on the required parties. 

  • An attorney can assist in the petitioning process.
  • A psychological evaluation to present evidence to the court showing why you should no longer have to register is also recommended. 

Pursuant to PC 290.5 (3):

If the district attorney requests a hearing, the district attorney shall be entitled to present evidence regarding whether community safety would be significantly enhanced by requiring continued registration.

In determining whether to order continued registration, the court shall consider:

  • the nature and facts of the registerable offense; 
  • the age and number of victims;
  • whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours);
  • criminal and relevant noncriminal behavior before and after conviction for the registerable offense;
  • the time period during which the person has not reoffended; 
  • successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program;
  • and the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available.

Any judicial determination made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or any other evidence submitted by the parties which is reliable, material, and relevant.”

Our Evaluation:

  • Review of discovery and legal records including police reports, probation officer reports, abstract of judgment, criminal history (RAP sheet), and felony complaint.
  • Clinical interview with the inmate including comprehensive psychosexual history
    1. Early Sexual Experiences
    2. Deviant/Unusual Sexual Behaviors & Interests
    3. Masturbation/Fantasies
    4. Pornography Use
  • Assessment deception, denial, minimization and use of justifications
  • Acceptance of responsibility and accountability for sexual behavior
  • Summary of the nature and facts of the registerable offense 
  • Determination if any victim was a stranger at the time of the offense
  • Review of the age and number of victims
  • Criminal and relevant noncriminal behavior before and after conviction for the registerable offense
  • Appraisal of the time period during which the person has not reoffended while living free in the community
  • Review of medical and mental health treatment records 
  • Review of sex offender treatment records -a Sex Offender Management Board-certified sex offender treatment program
  • Current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments.
    1. Actuarial risk assessment – Static-99R
    2. Dynamic risk assessment – Stable-2007 or Violence Risk Scale – Sexual Offense Version (VRS-SO)
    3. Violence risk assessment – Level of Service/Case Management Inventory (LS/CMI)
  • Assessment of protective and individual risk factors
  • Written Report
  • Consultation with the attorney 

Expert testimony is also provided when requested in PC 290 Registration cases.

Child Pornography Evaluations

All child pornography offenses, including possession of child pornography, are extremely serious because they both result in perpetual harm to victims and seek to validate and normalize the sexual exploitation of children. Current research regarding sexual recidivism in child pornography offenders suggests that their rates for recidivism are low compared to other sexual offenders with contact offenses. In addition, child pornography offenders typically have a less extensive criminal history, score lower on psychopathy, score lower of measures of dynamic risk factors (e.g., impulsivity, offense-supportive attitudes), all of which are related to risk of re-offending.

Many judges across the country have determined that when a child pornography offender is non-violent, has no criminal history, and has no history of actual inappropriate interactions or contact with children, that a probationary sentence is appropriate (e.g., United States v. Autery; United States v. Stall; United States v. Prisel; United States v. Rowan; United States v Polito; United States v. Diaz; United States v. Meillier; United States v. Boyden; United States v. Evren).

A primary issue facing sentencing judges and policymakers is the extent to which offenders sentenced under the non-production child pornography guideline recidivate and, in particular, engage in new sex offenses (sexual recidivism) after reentering the community. Recidivism information is central to three of the primary purposes of punishment described in the Sentencing Reform Act – specific deterrence, incapacitation, and rehabilitation, all of which focus on the prevention of future crimes through correctional intervention.

The United States Sentencing Commission concluded that the non-production child pornography sentencing scheme should be revised to account for technological changes in offense conduct, emerging social science research about offender behavior, and variations in offender culpability and sexual dangerousness. The Commission recommended that three primary factors be considered when imposing sentences in non-production child pornography cases:

(1) the content of the offender’s child pornography collection and nature of the offender’s collecting behavior;

(2) the offender’s degree of involvement with other offenders, particularly in an internet community devoted to child pornography and child sexual exploitation; and

(3) the offender’s engagement in sexually abusive or exploitative conduct in addition to the child pornography offense.

Our Evaluation:

  • Clinical interview with the inmate including comprehensive psychosexual history
    • Early Sexual Experiences
    • Deviant/Unusual Sexual Behaviors & Interests
    • Masturbation/Fantasies
    • Pornography Use
  • Assessment deception, denial, minimization and use of justifications
  • Acceptance of responsibility and accountability for behavior
  • Motivation and amenability for treatment
  • Level of treatment and supervision need
  • Mental status examination on the inmate
  • Review of discovery and legal records including police reports, probation officer reports, abstract of judgment, criminal history (RAP sheet), and felony complaint.
  • Actuarial risk assessment – Static-99R
  • Dynamic risk assessment – Stable-2007 or Violence Risk Scale – Sexual Offense Version (VRS-SO)
  • Assessment of protective and individual risk factors
  • Diagnosis, if any
  • Written Report
  • Consultation with the attorney

Expert testimony is also provided when requested in Child Pornography cases.

Juvenile & Youthful Offender

Franklin and Youthful Offender Evaluations – PC 3051 & People v. Franklin (2016) Miller v. Alabama (2012)

Youthfulness factors are also known as the “Hallmark Features of Youth.” As the Miller and Franklin cases note, children are fundamentally different and substantially less culpable than adults. Developmental characteristics of children and adolescents include immaturity, impetuosity, and failure to appreciate the risks and consequences of their behavior. The court has recognized the transience of youthful recklessness and the juvenile offender’s greater capacity for change and prospects for rehabilitation. Miller requires the sentencing court to give due weight to the mitigation effect of background and environmental circumstances which may have contributed to the minor’s offense including the role of familial and peer pressures.

Youthful Offender/Franklin evaluation reports consider the Miller Factors, which are as follows:

Factor #1: Hallmark Features of Youth

Factor #2: Family/Home Upbringing

Factor #3: Circumstances of the Offense/Peer/Family Pressures

Factor #4: Incompetency of Youth

Factor #5: Capacity for Rehabilitation/Prison Behaviors

The purpose of having a mitigation evaluation at a Franklin Hearing is to provide a picture of the offender and youthful mitigating factors to be presented at a future parole hearing. In youthful offender evaluations, we provide a scientific review of the role of adolescent and young adult brain immaturity and neurodevelopmental factors in the commission of the instant offense. The brain immaturity of adolescents and neurodevelopmental factors dramatically reduce the adolescent’s degree of free choice when engaging in criminal behavior.

Transient immaturity factors may include:

  • Dysfunctional family dynamics
  • Trauma history and ACEs
  • Physical and emotional abuse, neglect/poverty
  • Community violence
  • Lead or other toxin exposure
  • Neurodevelopmental disorders
  • ADHD
  • Cognitive/Emotional immaturity
  • Dubstance use
  • Gang involvement

Early adversity has lasting impacts. An extensive body of research spanning several decades demonstrates the association of early traumatic experiences such as childhood abuse, neglect, and family dysfunction with a wide range of negative outcomes for children. Known as Adverse Childhood Experiences (ACES), negative outcomes include neurobiological changes, psychopathology/mental illness, high-risk health behaviors, physical health problems, lower socioeconomic attainment, and criminality including nonsexual and sexual violence.

In our reports we educate the court and board of parole hearings on the robust body of research indicating that the vast majority of juvenile and young adult offenders, including those who commit serious crimes, desist from criminal activity as they enter adulthood. Some degree of criminal and antisocial behavior is normal during adolescent years as a consequence of brain immaturity. We also utilize this research combined with a violence risk assessment, to provide an analysis of the defendant’s risk for re-offense.

Our Evaluation:

  • Review of legal records including prior parole hearing transcripts
  • Review of rehabilitation courses, certificates, vocational courses
  • Review of medical records
  • Review of CDCR Central File (C-file)
  • Clinical interview of the client
  • Mental status examination of client
  • Collateral interview with family and friends of the client
  • Consultation with attorney
  • Written Report addressing the five Miller Factors

Expert testimony is also provided when requested in Franklin cases.

707 Juvenile Transfer Evaluations

Section 707 of the California Welfare and Institutions Code provides for a fitness (transfer) hearing to determine if a juvenile offender should be transferred to face criminal charges in adult court. If the judge decides that the minor is “fit” for the juvenile system, the minor remains in juvenile court. If not, the minor is transferred to adult court. A minor tried in adult court faces the prospect of a lengthy sentence in adult prison with adult offenders. Pursuant to the passage of proposition 57 (The Public Safety and Rehabilitation Act of 2016), minors who may be subject to a motion of transfer jurisdiction to criminal court are those who either: alleged to have committed a felony when 16 years of age or older; or alleged to have committed an offense listed in section 707(b) at age 14 or 15. In making this fitness determination, the judge will look at five factors in order to determine whether the minor is likely to benefit from the rehabilitative services of juvenile delinquency court.

  1. Degree of Criminal Sophistication Exhibited by the Minor
  2. Can Minor be Rehabilitated Prior to the Expiration of the Juvenile Court’s Jurisdiction
  3. Minor’s Previous Delinquent History
  4. Success of Previous Attempts by the Juvenile Court to Rehabilitate the Minor
  5. Circumstances and Gravity of the Offense Alleged to Have Been Committed by the Minor

Juveniles are less capable of mature judgment than adults and more vulnerable to negative external influences. However, they also have a greater capacity for change and reform. Neuroplasticity refers to the potential for the brain to be modified by experience. There is growing consensus that there is considerable neuroplasticity in late adolescence, which suggests that there are opportunities for individuals to change.

Research demonstrates that juveniles are:

  • Less capable of mature judgment than adults
  • Less capable of self-regulation, less able to resist social and emotional impulses
  • Respond differently to perceptions of risk and reward
  • Less capable to foresee and take into account consequences
  • Less able than adults to control their impulses and consider the future consequences of their actions
  • Have more difficulty than adults in foreseeing the possible outcomes of their actions and regulating their behavior accordingly.
  • Attach greater value to the rewards than risk-taking

Juveniles are also more vulnerable to negative external influences:

  • Presence of peers make adolescents more likely to take risks and make risky decisions
  • Desire for peer approval and fear of rejection affect decision making
  • Engage in antisocial behavior to conform to peer expectations or achieve respect and status
  • More likely to commit crimes in groups

The vast majority of juvenile offenders grow out of antisocial activity as they make the transition to adulthood. Most juvenile offending is, in fact, limited to adolescence (i.e., these offenders do not persist into adulthood).

Our Evaluation:

  • Interview with the juvenile
  • Interview with informants – juvenile hall counselor, therapist, family
  • Review of legal records, educational records, and medical records
  • Psychological testing
    • Assessment of intellectual functioning
    • Assessment of psychopathology (mental illness)
    • Violence risk assessment – The Structured Assessment of Violence Risk in Youth – SAVRY
  • Written report including opinions on the five factors
  • Consultation with an attorney

Expert testimony is also provided when requested in Juvenile Transfer cases.

Vorwerk Forensic Psychology, Inc.

27525 Puerta Real, Ste. 300-223
Mission Viejo, CA
92691

 

(949) 892-9800
mv@vorwerkforensic.com