BILL NUMBER: AB 1438 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 28, 2014
INTRODUCED BY Assembly Member Linder
( Coauthors: Assembly Members
Allen, Olsen, Patterson, and
Waldron )
( Coauthor: Senator Vidak
)
JANUARY 6, 2014
An act to amend Sections 290.5 , 3000.1, and 4852.01 of
the Penal Code, relating to sex offenders.
LEGISLATIVE COUNSEL'S DIGEST
AB 1438, as amended, Linder. Sex offenders: certificates of
rehabilitation.
Existing
(1) 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 a 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 being relieved of the duty to
register with local officials, the bill would impose a state-mandated
local program.
(2) Existing law requires the period of parole for an inmate
sentenced to a life term for aggravated sexual assault of a child and
for engaging in sexual intercourse, sodomy, oral copulation, or
sexual penetration with a child who is 10 years of age or younger to
be for the remainder of the inmate's life.
This bill would instead impose lifetime parole on a person
convicted of either of the above offenses.
The
(a) 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.
(R) Subdivision (a), (b), (d), (e), (f), (g), or (h) of Section
289, provided that the offense is a felony.
(S) Subdivision (i) or (j) of Section 289.
(T) Section 647.6.
(U) The attempted commission of any of the offenses specified in
this paragraph.
(V) The statutory predecessor of any of the offenses specified in
this paragraph.
(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 (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 3000.1 of the Penal Code
is amended to read:
3000.1. (a) (1) In the case of any inmate sentenced under Section
1168 for any offense of first or second degree murder with a maximum
term of life imprisonment, the period of parole, if parole is
granted, shall be the remainder of the inmate's life.
(2) Notwithstanding any other provision of law,
in the case of any inmate sentenced to a life term under subdivision
(b) of Section 209, if that offense was committed with the intent to
commit a specified sexual offense, Sections 269 and
Section 269 or 288.7, subdivision (c) of Section
667.51, Section 667.71 in which one or more of the victims of the
offense was a child under 14 years of age, or subdivision (j), (l),
or (m) of Section 667.61, the period of parole, if parole is granted,
shall be the remainder of the inmate's life.
(b) Notwithstanding any other provision of law,
when any person referred to in paragraph (1) of subdivision (a) has
been released on parole from the state prison, and has been on parole
continuously for seven years in the case of any person imprisoned
for first degree murder, and five years in the case of any person
imprisoned for second degree murder, since release from confinement,
the board shall, within 30 days, discharge that person from parole,
unless the board, for good cause, determines that the person will be
retained on parole. The board shall make a written record of its
determination and transmit a copy of it to the parolee.
(c) In the event of a retention on parole pursuant to subdivision
(b), the parolee shall be entitled to a review by the board each year
thereafter.
(d) There shall be a hearing as provided in Sections 3041.5 and
3041.7 within 12 months of the date of any revocation of parole of a
person referred to in subdivision (a) to consider the release of the
inmate on parole and, notwithstanding the provisions of
paragraph (3) of subdivision (b) of Section 3041.5, there
shall be annual parole consideration hearings thereafter, unless the
person is released or otherwise ineligible for parole release. The
panel or board shall release the person within one year of the date
of the revocation unless it determines that the circumstances and
gravity of the parole violation are such that consideration of the
public safety requires a more lengthy period of incarceration or
unless there is a new prison commitment following a conviction.
(e)
(e) The provisions of Section 3042 shall not
apply to any hearing held pursuant to this section.
SEC. 2. SEC. 3. 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 any other law, the Governor 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. SEC. 4. 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.