Cal. Code Regs. Tit. 9, § 4014 - Forensic Report

The Evaluator shall write a forensic report, which shall include the following sections.

(a) The Identifying Information section shall include: identifying data including the Individual's name, date of birth, CDCR number, California Information and Index (CII) number; the facility where the Individual is located; county of commitment; interview date; the date report was completed; earliest possible release date (EPRD); findings for Criterion A, Criterion B, and Criterion C; final outcome; and Evaluator name.

(b) The Notice of Evaluation section shall note the date the Individual was interviewed, the location of the interview, and the duration of the interview.

(1) This section shall indicate how the Evaluator used DECS, or other means if the DECS was not available, to determine whether effective communication was made, and whether any modifications or accommodations were needed and utilized for the face-to-face interview.

(2) This section shall include whether the Individual agreed to interview.

(3) This section shall indicate whether the Evaluator obtained informed consent from the Individual. The content of the informed consent procedure shall include a description of the purpose of the evaluation, the potential consequences of the evaluation outcomes, the reporting mandates of licensed psychologists or psychiatrists, and the potential use of non-identifying information from the submitted evaluations for program quality improvement projects. The reporting mandate includes, but is not limited to, any form of child abuse, neglect, or exploitation as required by the Child Abuse and Neglect Reporting Act, Penal Code sections 11164-11174.3 and the Elder Abuse and Dependent Adult Civil Protection Act, Penal Code sections 15600 et. seq.

(c) The Sources of Information section shall cite documents relied upon in the evaluation with document titles and dates, and origin of information.

(d) The Evaluation Procedures section shall include record review, clinical interview, mental status examination, and risk instruments utilized or risk factors considered.

(e) The Findings section shall have subsections each for Criterion A, Criterion B, and Criterion C.

(1) The Criterion A subsection shall provide an analysis and a conclusion as to whether the Individual has been convicted of a sexually violent criminal offense against one or more victims as enumerated in Welfare and Institutions Code section 6600.

(A) This subsection shall list the qualifying offenses or convictions and cite the source of the information.

1. A prior juvenile adjudication of a sexually violent offense may constitute a prior qualifying conviction if:

a. the juvenile was sixteen years of age or older at the time of the act;

b. the prior offense is a sexually violent offense specified in Welfare and Institutions Code section 6600, subdivision (b);

c. the juvenile was adjudged a ward of the juvenile court within the meaning of Welfare and Institutions Code section 6602; and

d. for the violent offense, the juvenile was committed to the Division of Juvenile Justice, a CDCR division previously known as the California Youth Authority (CYA).

2. A conviction that resulted in a finding that the person was a mentally disordered sex offender constitutes a prior qualifying conviction.

(B) For all qualifying offenses or convictions under one of the Penal Code sections listed in Welfare and Institutions Code section 6600, subdivision (b), and for each qualifying victim, the Evaluator shall describe facts of the qualifying offenses or convictions and indicate the following sexually violent elements: force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another individual, or threat to retaliate in the future against the victim or any other person. If facts of the qualifying offense or conviction are not available, the Evaluator shall make a reasonable attempt to obtain relevant information. Without other relevant facts, as to the qualifying offense or conviction, the Evaluator may rely solely on the Individual's recollection. The Evaluator shall discuss the validity and any limitation of the information relied upon and offered.

1. Force means to compel a person by physical means to overcome the will of that person. In determining whether force is present in the facts, consider all evidence as to whether the physical or mental state of the victim, including but, not limited to unconsciousness or intoxication, affected the ability of the victim to exert his or her will.

2. Violence means the application of physical force greater than what is necessary to accomplish the act.

3. Duress means the use of direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a person to perform an act or submit to an act to which he or she would not otherwise submit. In determining whether duress is present in the facts, consider the totality of the circumstances, including but not limited to the age, mental state, physical stature, maturity of the victim; the victim-perpetrator relationship; and specific characteristics of the perpetrator.

4. Menace means any threat, statement, or act which shows intent to inflict injury upon another person.

5. Fear means the apprehension of the victim of physical harm, dread, or awareness of danger. When determining whether fear is present in the facts, consider whether the victim is actually afraid, reasonably or unreasonably, and whether the Individual is aware of and exploits the fear of the victim.

6. Threats to retaliate in the future by means of inflicting future harm against the victim or any other person. In determining whether a threat to retaliate is in the facts, consider whether the victim or the other person has a belief that the Individual will execute the threat.

(C) Pursuant to Welfare and Institutions Code section 6600.1, if the victim of an underlying offense that is specified in Welfare and Institutions Code section 6600, subdivision (b), is a child under the age of 14, the offense shall constitute a "sexually violent offense" for purposes of Welfare and Institutions Code section 6600.

(D) The Evaluator shall conclude with a definitive, short-answer "Yes" or "No" whether the Individual has met Criterion A.

(2) The Criterion B subsection shall provide an analysis and a conclusion of whether the Individual has a DMD that predisposes the Individual to the commission of criminal sexual acts pursuant to Welfare and Institutions Code section 6600. The Evaluator shall determine whether the Individual has a DMD in accordance with the following standards and definitions.

(A) Diagnosed Mental Disorder (DMD) is defined as a congenital or acquired condition affecting the emotional or volitional capacity of the Individual that predisposes the Individual to the commission of criminal sexual acts to a degree such that the Individual is a menace to the health and safety of others. The future criminal sexual acts to which the Evaluator determines the Individual is predisposed need not be violent in nature.

(B) This subsection shall include diagnostic tools and literature upon which the Evaluator relied upon. The Evaluator shall reference consensus-based diagnostic tools from the professions of psychiatry or psychology, including but not limited to the Diagnostic and Statistical Manual of Mental Disorders or the International Classification of Diseases. The Evaluator may also consider additional evidence in the clinical or empirical literature that is relevant to the Evaluator's assessment of psychiatric diagnoses.

(C) This subsection shall include evidence of the nexus between the Individual's DMD, his or her emotional or volitional capacity, and criminal sexual acts.

1. Emotional capacity is defined as an understanding or appreciation of consequences. Impaired emotional capacity is a defective understanding or appreciation of consequences which may occur as the result of an intellectual or emotional impairment.

2. Volitional capacity is defined the ability to control behavior. Impaired volitional capacity is serious difficulty controlling behavior as demonstrated by an Individual's propensity to act impulsively or an Individual's failure to conform his or her behavior to the law despite the risk of criminal punishment. An absolute lack of control is not necessary to find impaired volitional capacity

(D) This subsection shall include the Evaluator's determination of whether the Individual has a DMD. To make that determination, the Evaluator shall review the Individual's background, including but not limited to the Individual's mental health history, medical history, and criminal history. The Evaluator may also consider the Individual's self-report and available records. It may include but is not limited to the following:

1. The Individual's developmental history, including but not limited to: early development, childhood and family dynamics, educational history, exposure to domestic or community violence, past trauma, and any history of emotional, physical, or sexual abuse or neglect;

2. The Individual's employment history, including but not limited to: legal employment, illegal means of earning income, work disciplinary issues, and military history;

3. The Individual's relationship history, including but not limited to: intimate relationships, current family relationships, and community supports;

4. The Individual's sexual history, including but not limited to: the sexual development, sexual relationship history, current and past sexual functioning or dysfunction, the nature of sexual fantasies and interests including atypical sexual interests or a paraphilia or paraphilic disorder, and if available, the results of sexual interest testing which may include, but is not limited to, penile plethysmograph, polygraph, or visual reaction time measures;

5. The Individual's psychiatric history, including but not limited to: current and past psychiatric diagnoses or symptoms, current and past history of psychiatric treatment, current and past history of sex offender treatment, and current and past history of substance abuse treatment;

6. The Individual's relevant medical history;

7. The Individual's substance use history, including but not limited to: the age of onset; duration of use; severity or frequency of use; effects of use on functioning, including but not limited to sexual functioning, cognitive process, affective regulation, propensity for violence, and impulse control; and other substance use criteria cited in professional consensus diagnostic manuals;

8. The Individual's juvenile and adult criminal history which may be based upon both the Individual's self-report and any available criminal history records that corroborate the Individual's self-report, including but, not limited to allegations; arrests; charges; convictions; violations of rules in institutions such as group home, jail, juvenile or adult correctional facility, or psychiatric hospital; and parole or probation violations. The Evaluator shall also note any limitations of the forensic evidence relied upon; and

9. When feasible, the Evaluator's mental status examination of the Individual. The Evaluator may supplement his or her mental status examination with a structured mental status instrument. The mental status examination shall include but, is not limited to consideration of the Individual's physical appearance, level of alertness, awareness of their surroundings, attentional capacities, cooperation, thought organization, mood and affect, behavior, memory functioning, ability to communicate, and approach to the interview or specific interview.

(E) This subsection shall include whether the Individual has met the criteria for a psychiatric diagnosis or a diagnosis under consideration and whether the diagnosis or diagnoses affect the emotional or volitional capacity of the Individual and predisposes him or her to the commission of criminal sexual acts to a degree such that the Individual is a menace to the health and safety of others. For the Evaluator to find that an Individual is a menace to the health and safety of others, a recent overt act while the Individual is in custody is not required.

(F) The Evaluator shall conclude with a definitive, short-answer "Yes" or "No" whether the Individual has met Criterion B.

(3) The Criterion C subsection shall provide an analysis and conclusion of whether the Individual, without appropriate treatment and custody, is likely to engage in sexually violent predatory criminal behavior as a result of his or her DMD. The Evaluator shall address Criterion C regardless of the Evaluator's conclusion of Criterion B.

(A) "Likely" means that as a result of a current mental disorder that predisposes the Individual to commit violent sex offenses, the Individual presents a substantial danger, which means a serious and well-founded risk. "Likely" does not require that the risk of re-offense must be higher than 50 percent or more likely than not. To assess the Individual's likelihood, the Evaluator may review all available forensic evidence, and relevant clinical information and use empirically-derived risk estimation tools or factors. There is no specific timeframe in considering the Individual's likelihood of engaging in sexually violent criminal behavior.

(B) This subsection shall also address whether the Individual's sexually violent offenses are likely to be predatory, using the definition of "likely" in subdivision (e)(3)(A), and the definition of "predatory" in Welfare and Institutions Code section 6600, subdivision (e). In determining whether sexual crimes are likely to be predatory, the Evaluator may also consider the Individual's prior sexual crimes that were not predatory.

(C) This subsection shall address whether the Individual is amenable to voluntary treatment. The Evaluator shall use his or her professional judgment to determine whether an Individual's expressed desire to seek supervision and treatment in the community without the SVP commitment is meaningful, sincere, and sufficiently addresses the Individual's risk. The Evaluator shall address whether the Individual can be safely treated in the community and consider the following factors to determine whether a proposed voluntary plan, if any, provides sufficient reduction of risk to reoffend:

1. The availability, effectiveness, safety, and practicality of community treatment for the Individual's particular DMD;

2. Whether, despite his or her DMD, the Individual retains volitional capacity to voluntarily pursue such treatment;

3. The intended and collateral effects of such treatment and the influence of those effects on a reasonable expectation that one would voluntarily pursue it;

4. The Individual's progress, if any, in any mandated sex offender treatment program in which the Individual has already participated; and

5. The Individual's expressed intent, if any, to seek out and submit to any necessary treatment, whatever its effects, and any other facts bearing on the credibility and sincerity of such an expression of intent.

(D) This subsection shall consider any factor relevant to whether, if free in the community without any conditions, supervision, monitoring, or mandatory treatment at the Department of State Hospitals, the Individual is a substantial danger to reoffend.

(E) The Evaluator shall conclude with a definitive, short-answer "Yes" or "No" whether the Individual has met Criterion C.

(f) The Conclusion section shall summarize the Evaluator's findings and provide a definitive, short-answer "Yes" or "No" as to whether the Individual meets the Criteria as a Sexually Violent Predator pursuant to Welfare and Institutions Code section 6600.

Notes

Cal. Code Regs. Tit. 9, § 4014

1. New section filed 1-15-2019; operative 4-1-2019 (Register 2019, No. 3).

Note: Authority cited: Sections 4005.1, 4027 and 4101, Welfare and Institutions Code. Reference: Sections 6600, 6601, 6602, 6603 and 6604.9, Welfare and Institutions Code; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888; People v. Torres (2001) 25 Cal.4th 680; and People v. Hurtado (2002) 28 Cal.4th 1179.

1. New section filed 1-15-2019; operative 4/1/2019 (Register 2019, No. 3).