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California Sex Crimes Involving Issues Of Consent – Part 2

Possible Early Parole for Non-Violent Sex Offenders

Just over five months ago, on Dec. 29, 2020, the California Supreme Court issued a landmark ruling which directly affected hundreds, if not thousands, of individuals currently imprisoned in state penitentiaries for sex crimes involving issues of consent. Specifically, the court that so long as force or the threat of force had not been part of the sex crime, the inmate would be eligible for early release.

The genesis of this decision originated four years earlier when California voters approved of a ballot allowing for potential early release for all non-violent prisoners. However, wardens across the state refused to provide this right to sex offenders because the wardens – supported by then-Governor Jerry Brown – believed without merit that the voters never intended to release even non-violent sex offenders pursuant to the new measure.

But fortunately, the supreme court ruled that the wardens – and Gov. Brown – were acting unconstitutionally because the ballot never included language explicitly rendering sex offenders ineligible. The court’s ruling certainly came as no surprise since all of the appellate courts had also held that such exclusion was unconstitutional and contrary to the voters’ wishes in passing the ballot.


Sex Registration for Sex Crimes Involving Consent – Three Tiers

Regardless of whether or not you are released from prison early – or even if you were never sentenced to any prison term – most likely you will be required to register as a sex offender.

California Sex Offender Registration laws are codified at California Penal Code section 290 and California Penal Code section 290.018 (Sex Offender Registration Act: Penalties for Violation).

Beginning this year, January 1st, these laws radically changes. Specifically, prior thereto, virtually every sex crime conviction, including misdemeanors, came with automatic lifetime registration on the Megan’s Law website (see:

Since then, fortunately, the state has divided sex offenses into the three tiers, each with their own mandatory registration period. The following three tiers include examples of the consent-related sex crimes identified above:

  • Tier One – Minimum Ten Years’ Registration
  • Tier Two – Minimum Twenty Years’ Registration
    • Rape – Intoxicated/Drugged Victim/Spouse (Penal Code sections §§ 261(a)(3), 262(a)(2))
    • Rape — Unconscious Victim/Spouse (Penal Code sections 261(a)(4), 262(a)(3))
    • Rape — Disabled Victim (Penal Code section 261(a)(1))
    • Rape — Fraud (Penal Code section 261(a)(5))
    • Oral Copulation – Intoxicated/Drugged Victim (Penal Code section 287(a), (i))
    • Oral Copulation — Unconscious Victim (Penal Code section 287(a), (f))
    • Oral Copulation — Disabled Victim (Penal Code section 287(a), (g))
    • Oral Copulation – Victim 13 Years or Younger (Penal Code section 287(c)(1))
    • Sexual Penetration with a Foreign Object – felony where victim is unconscious, intoxicated, drugged, or mentally or physical disabled (California Penal Code section 289)
  • Tier Three – Automatic Lifetime Registration
    • Sexual Battery (California Penal Code section 243.4(e)(1)) – felonies involving force)
    • Rape/Spousal Rape — Force, Fear, Threats (Penal Code section 261(a)(2), (6) & (7))
    • Sodomy — Force, Fear, Threats (Penal Code section 286(c)(2), (3), (k))
    • Sodomy – Intoxicated/Drugged Victim (Penal Code section 286(i))
    • Sodomy — Unconscious Victim (Penal Code section 286(f))
    • Sodomy — Disabled Victim (Penal Code section 286(g))
    • Oral Copulation by Force, Fear, or Threats (California Penal Code section 287)
    • Special Bulletin re Governor Newsom’s Approval of California Senate Bill 145 (SB-145)
    • On September 11, 2020, Governor Gavin Newsome approved California Senate Bill 145 (SB-145), which beginning on January 1, 2021, gave judges discretion to waive what was previously mandatory registration for all of the following consent-related sex crimes where the minor-victim was at least fourteen and the perpetrator was not more than a decade older than him/her:
    • Sodomy with a Person Under 18 Years of Age (California Penal Code section 286(b)(1))
    • Sodomy with Minor: Defendant 21 or Older (California Penal Code section 286(b)(2))
    • Oral Copulation with a Minor (California Penal Code section 287(b))
    • Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5)
    • Sexual Penetration of a Minor (California Penal Code section 289(h) & (i))


The New DA’s Special Directives regarding Sex Crimes

On December 7, 2020, on his first day in office, LA County’s new District Attorney, George Gascón, issued nine “Special Directives”, each of which promised progressive reforms as to how his office would henceforth prosecute certain cases, including sex crimes.


By far, the most controversial of these groundbreaking edicts was Special Directive 20-08 (“Sentencing Enhancements/Allegations”), which promised that the DA’s Office would no longer charge certain crimes as Strike offenses (California Penal Code section 667(a)&(b)); California Penal Code section 667.5 (“Violent Felonies”); and California Penal Code section 1192.7 (“Serious Felonies”), including sex crimes.


Mr. Gascón also promised therein that his office would no longer seek any other sentencing enhancements for any crimes, including sex crimes.

 As a result, most of the rank-and-file prosecutors working for him, as well as all LAPD officials and victims’ rights advocates, raised such a hue and cry that Mr. Gascón felt forced to back-peddle on S.D. 20-08 to mollify these critics. So, on December 18, 2020, he issued Special Directive 20-08.2 (“Amendment to Special Directive 20-08”), which now stated that line prosecutors would have discretion to pursue enhancements, including Strike enhancements, for the following consent-related sex crimes:

(1) Violation of Penal Code section 667.61, where you are now convicted at least a second time for the following:

(a) Forcible Rape (California Penal Code section 261(a)(2))

(b) Spousal/Marital Rape (California Penal Code section 262(a)(2))

(c) “Gang Rape” (Forcible Rape Act in Concert) or Sexual Penetration in Concert (California Penal Code section 264.1)

(d) Forcible Sexual Penetration (California Penal Code section 289)

(e) Sodomy through Force, Violence, or Fear (California Penal Code section 286(c))

(f) Sodomy in Concert (California Penal Code section 286(d)).


(2) Violation of Penal Code section 667.9 or Penal Code section 667.10, which both involve any of the foregoing crimes committed against an elderly person, someone is blind or deaf, a “developmentally disabled” person, or an individual who is paralyzed (so long as you knew or should have known of his/her condition);

(3) Violation of Penal Code section 675, which involves you committing any of the foregoing crimes while working as a “primary care provider in a day care facility”, and the victim was a resident-patient therein; and

(4) Human Trafficking violations, including:

(a) “Sex Trafficking” (California Penal Code section 236.1)

(b) “Pimping” (California Penal Code section 266h)

(c) “Pandering” (California Penal Code section 266i)

Personally, I believe that these clarifications were unnecessary as Mr. Gascon initially indicated that he would still allow some sex-crimes enhancements, such as the “one strike” sex crime enhancement (Penal Code § 667.61), to be prosecuted which can automatically result upon conviction in a 25-years-to-life in prison term.

Nevertheless, I certainly understand that he had to keep these critics at bay so he can continue doing his job – and thus far, I believe he has done an outstanding one. In fact, as I wrote in an earlier blog on this website, I never in my wildest dreams thought it was possible to have a District Attorney who truly desired progressive reforms.

Examples of Sex Crimes Involving Disputes Over Consent — Misdemeanors

Two Friends Get Three Months in Jail for Committing Sexual Battery on a Sleeping Friend

On or about March 9, 2016, two friends – Glendale’s Pedro Garcia (twenty-three) and Lincoln Heights’ Bryan Lizarraga (same) – went out at night with a handful of other individuals and apparently consumed prodigious amounts of alcohol at a bar.

Later, Garcia and Lizaone gave one of the females in their group a ride home, during which she passed out. While she was asleep, both men took turns sexually assaulting her while photographing themselves doing so.

The next morning, she woke up in their car, which was parked in front of Garcia’s residence. Somehow and sometime thereafter, the victim saw images of the incident on someone’s cell phone and called Glendale PD, who arrested the two men shortly thereafter.

Almost exactly one month later, on April 7th, both took nolo contendere pleas to a single misdemeanor for Sexual Battery (California Penal Code section 243.4(e)(1)).

As a result, they each received a three-month jail term, 48 months of formal probation, a four-year victim stay-away order, 52 weeks of sex-compulsion counseling, and lifetime registration.


Examples of Sex Crimes Involving Disputes Over Consent — Felonies

Owner & Operator of Drug Treatment Facility Gets 53 Years for Raping Drugged Clients

Over a 24-month period, from 2014 through 2016, Chris Bathum (age 43 at the beginning of this period) forcibly raped more than half-a-dozen women who were patients of several drug treatment centers he was running in L.A.

He would take these women – who were in their early 20s to their early 30s — to motel rooms, ply them with heavy drugs such as heroin and crystal meth, then have intercourse with them when they were passed out or too high to resist. He sometimes raped them in the actual treatment facilities, which were located on Melrose Avenue near Highland Avenue, and in Malibu.

Following a year-long joint investigation by the DA’s Office and the LA County Sheriff’s Dept., he was arrested and tried. In Feb. 2018 (almost four years after he first started raping the victims), a jury convicted him of more than thirty felonies, such as:

At trial, Bathum claimed each of the women had consented to intercourse, but the jury found that the women were incapable of legally consenting.

It remains unclear why it took so long for Bathum to be sentenced, accounting even for Covid-related delays, but in mid-July 2020 (almost two-and-a-half years after his conviction), he received almost fifty-three years in prison plus lifetime registration.

He also received two decades in prison for fraudulently bilking numerous insurance companies out of almost $180 million in payments for false bills relating to his rehab businesses. Specifically, he was convicted of numerous white-collar felonies, including:

Fortunately for Bathum, his 20-year sentence was ordered to run concurrently for his rape sentence – although at his age, which was 49 at sentencing – he will likely die in prison in any event from the 52-year term.


Los Angeles Man Received a Quarter-Century in Prison for Trafficking a NorCal Woman

In 2014, Mr. Okang Palmer (36), an L.A. resident, somehow befriended and romanced a woman who lived in NorCal and convinced her to move in with him on the promise of an intimate relationship. However, she soon found herself forced into prostitution after Palmer threatened her with violence and a firearm. Palmer also forced her to give him all the cash she earned from her sexual encounters.

In or about January or February 2015, the woman unsuccessfully tried to flee Palmer but he caught her, whipped her with a metal belt buckle, and scorched her with a lighter. Later that same night, Palmer drove her to an ER in Stockton, where she was treated and let go. It remains unclear whether she told the doctors about what Palmer had done to her because if she had, they would have been required to immediately call police and report the incident.

In any event, after Palmer returned her to his residence where they were living together, the woman once again tried to escape. This time she was successful, and later notified LAPD, who quickly arrested Palmer.

In October 2017, jurors at his trial rejected Palmer’s defense that the woman had consented to the sexual encounters and convicted him of the following felonies:

At the end of Nov. 2017, a judge handed Palmer a twenty-five-year term in a state penitentiary.


Ex-Jail Guard/LASD Deputy Gets Two Years in Prison for Having Sex with Female Inmates

Over a two-month period in 2017 (Aug. & Sept.), an LA Co. sheriff’s deputy named Giancarlo Scotti (thirty-one) working as a guard at the Lynwood jail for women repeatedly had sex with a at least half-a-dozen inmates there who were ages twenty-four to forty-two.

In one particular instance, he forced two inmates to simultaneously fellate him then afterwards had sex with both of them in the bathroom. In another instance, he forced a third inmate to fellate him while he stood in her cell.

It remains unclear how the investigation into his activities came about, but Scotti was eventually arrested by his own department, LASD.

When I use the word “forced”, it’s because the women could not legally consent to sex with a guard even if they otherwise wanted to engage in intercourse because of California law (see below). As such, Scotti had no defense to the charges.

As a result, in early Sept. 2019, he pled nolo contendere to half-a-dozen felony charges, as well as two misdemeanor charges, of Unlawful Intercourse with an Inmate (California Penal Code section 289.6(a)(2)).

On or about Sept. 25th of that same month, the judge gave him a 24-month-prison sentence. And, of course, Scotti was fired from the LASD.


What’s Coming Up in the Next Blog Article

In the next article, I’ll give examples of three extremely high-profile cases involving two celebrities – disgraced former movie mogul Harvey Weinstein and actor/producer/Scientologist Danny Masterson (That 70’s Show, Netlfix’s The Ranch) – and former Stanford University swim team member Brock Turner.

In addition, I give detailed summaries of numerous sex crimes cases I’ve handled over the years that involved issues of consent.

The Los Angeles Defense Attorney Law Firm (LADALF)

LADALF’s founding attorney Ninaz Saffari is now in her seventeenth year of defending individuals – adults and juveniles – against almost every type of sex crime on the books. Most of these crimes where the purported victim was an adult or a juvenile at least 16 years of age, have involved issues, elements, and defenses of consent.

For juvenile victims, her successful defenses based on “consent” resulted in a significant mitigation of the charges whereby the client was able to plead to a greatly reduced charge — for example, from “Gang Rape” (Forcible Rape Act in Concert) or Sexual Penetration in Concert (California Penal Code section 264.1) down to Unlawful Consensual Sex with a Minor (“Statutory Rape”) (California Penal Code section 261.5).