BILL NUMBER: AB 1438 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Linder
JANUARY 6, 2014
An act to amend Sections 290.5 and 4852.01 of the Penal Code,
relating to sex offenders.
LEGISLATIVE COUNSEL'S DIGEST
AB 1438, as introduced, Linder. Sex offenders: certificates of
rehabilitation.
Existing law requires a person who has been convicted of specified
sex offenses to register with local law enforcement authorities as a
sex offender. Existing law authorizes a person convicted of a felony
or a misdemeanor violation of certain sex offenses, the accusatory
pleading of which has been dismissed, to file a petition for
certificate of rehabilitation and pardon provided that the petitioner
has not been incarcerated since the dismissal of the accusatory
pleading, is not on probation for the commission of another felony,
and presents satisfactory evidence of 5 years residence in this state
prior to the filing of the petition. Under existing law, a petition
for a certificate of rehabilitation and pardon does not apply to a
person who, among other specified crimes, has been convicted of
willfully and lewdly committing any lewd and lascivious act upon the
body of a child who is under the age of 14. Under existing law, a
person convicted of certain sex offenses is not, upon obtaining a
certificate of rehabilitation, relieved of his or her duty to
register as a sex offender.
This bill, in addition, would make the provisions for obtaining a
certificate of rehabilitation inapplicable to a person who is
convicted of engaging in sexual intercourse, sodomy, oral copulation,
or sexual penetration with a child who is 10 years of age or younger
and would provide that such a person who has obtained a certificate
of rehabilitation is not relieved of his or her duty to register as a
sex offender.
Because certain sex offenders would be precluded from relief from
the duty to register with local officials, the bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 290.5 of the Penal Code is amended to read:
290.5. (a) (1) A person required to register under Section 290
for an offense not listed in paragraph (2), upon obtaining a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3, shall be relieved of any
further duty to register under Section 290 if he or she is not in
custody, on parole, or on probation.
(2) A person required to register under Section 290, upon
obtaining a certificate of rehabilitation under Chapter 3.5
(commencing with Section 4852.01) of Title 6 of Part 3, shall not be
relieved of the duty to register under Section 290, or of the duty to
register under Section 290 for any offense subject to that section
of which he or she is convicted in the future, if his or her
conviction is for one of the following offenses:
(A) Section 207 or 209 committed with the intent to violate
Section 261, 286, 288, 288a, or 289.
(B) Section 220, except assault to commit mayhem.
(C) Section 243.4, provided that the offense is a felony.
(D) Paragraph (1), (2), (3), (4), or (6) of subdivision (a) of
Section 261.
(E) Section 264.1.
(F) Section 266, provided that the offense is a felony.
(G) Section 266c, provided that the offense is a felony.
(H) Section 266j.
(I) Section 267.
(J) Section 269.
(K) Paragraph (1) of subdivision (b) of Section 286, provided that
the offense is a felony.
(L) Paragraph (2) of subdivision (b) of, or subdivision (c), (d),
(f), (g), (i), (j), or (k) of, Section 286.
(M) Section 288.
(N) Paragraph (1) of subdivision (b) of Section 288a, provided
that the offense is a felony.
(O) Paragraph (2) of subdivision (b) of, or subdivision (c), (d),
(f), (g), (i), (j), or (k) of, Section 288a.
(P) Section 288.5.
(Q) Section 288.7.
(Q)
(R) Subdivision (a), (b), (d), (e), (f), (g), or (h) of
Section 289, provided that the offense is a felony.
(R)
(S ) Subdivision (i) or (j) of Section 289.
(S)
(T) Section 647.6.
(T)
(U) The attempted commission of any of the offenses
specified in this paragraph.
(U)
(V) The statutory predecessor of any of the offenses
specified in this paragraph.
(V)
(W) Any offense which, if committed or attempted in
this state, would have been punishable as one or more of the offenses
specified in this paragraph.
(b) (1) Except as provided in paragraphs (2) and (3), a person
described in paragraph (2) of subdivision (a) shall not be relieved
of the duty to register until that person has obtained a full pardon
as provided in Chapter 1 (commencing with Section 4800) or Chapter 3
(commencing with Section 4850) of Title 6 of Part 3.
(2) This subdivision does not apply to misdemeanor violations of
Section 647.6.
(3) The court, upon granting a petition for a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3, if the petition was granted prior to
January 1, 1998, may relieve a person of the duty to register under
Section 290 for a violation of Section 288 or 288.5, provided that
the person was granted probation pursuant to subdivision (c)
(d) of Section 1203.066, has complied with the
provisions of Section 290 for a continuous period of at least 10
years immediately preceding the filing of the petition, and has not
been convicted of a felony during that period.
SEC. 2. Section 4852.01 of the Penal Code is amended to read:
4852.01. (a) Any person convicted of a felony who has been
released from a state prison or other state penal institution or
agency in California, whether discharged on completion of the term
for which he or she was sentenced or released on parole prior to May
13, 1943, who has not been incarcerated in a state prison or other
state penal institution or agency since his or her release and who
presents satisfactory evidence of a three-year residence in this
state immediately prior to the filing of the petition for a
certificate of rehabilitation and pardon provided for by this
chapter, may file the petition pursuant to the provisions of this
chapter.
(b) Any person convicted of a felony who, on May 13, 1943, was
confined in a state prison or other institution or agency to which he
or she was committed and any person convicted of a felony after that
date who is committed to a state prison or other institution or
agency may file a petition for a certificate of rehabilitation and
pardon pursuant to the provisions of this chapter.
(c) Any person convicted of a felony or any person who is
convicted of a misdemeanor violation of any sex offense specified in
Section 290, the accusatory pleading of which has been dismissed
pursuant to Section 1203.4, may file a petition for certificate of
rehabilitation and pardon pursuant to the provisions of this chapter
if the petitioner has not been incarcerated in any prison, jail,
detention facility, or other penal institution or agency since the
dismissal of the accusatory pleading and is not on probation for the
commission of any other felony, and the petitioner presents
satisfactory evidence of five years residence in this state prior to
the filing of the petition.
(d) This chapter shall not apply to persons serving a mandatory
life parole, persons committed under death sentences, persons
convicted of a violation of subdivision (c) of Section 286, Section
288, subdivision (c) of Section 288a, Section 288.5, Section
288.7, or subdivision (j) of Section 289, or persons in the
military service.
(e) Notwithstanding the above provisions or any
other provision of law, the Governor
shall have has the right to pardon a person
convicted of a violation of subdivision (c) of Section 286, Section
288, subdivision (c) of Section 288a, Section 288.5, Section
288.7, or subdivision (j) of Section 289, if there are
extraordinary circumstances.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.