BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1438
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          Date of Hearing:   March 11, 2014
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 1438 (Linder) - As Introduced:  January 6, 2014

           
          SUMMARY  :  Specifies that the provisions for obtaining a  
          certificate of rehabilitation is inapplicable to a person who  
          has been 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.  

           EXISTING LAW  :  
           
           1)Specifies that a person required to register as a sex offender  
            as specified, upon obtaining a certificate of rehabilitation  
            shall be relieved of any further duty to register if he or she  
            is not in custody, on parole, or on probation.  (Pen. Code §  
            290.5 subd. (a)(1).)   

           2)States that a person required to register as a sex offender  
            upon obtaining a certificate of rehabilitation shall not be  
            relieved of the duty to register or any offense subject to  
            that section of which he or she is convicted in the future, if  
            his or her conviction of specified offenses.  (Pen. Code §  
            290.5 subd. (a)(2).)  
           
           3)Provides that a person shall not be relieved of the duty to  
            register until that person has obtained a full pardon.  (Pen.  
            Code § 290.5 subd. (b)(1).)  

          4)Provides that courts, upon granting a petition for a  
            certificate of rehabilitation, if the petition was granted  
            prior to January 1, 1998, may relieve a person of the duty to  
            register for specified convictions, provided that the person  
            was granted probation, has complied with the provisions of  
            registration for a continuous period of at least 10 years  
            immediately preceding the filing of the petition, and has not  








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            been convicted of a felony during that period.  (Pen. Code §  
            290.5 subd. (b)(3).)  

          5)Requires persons convicted of specified sex offenses to  
            register for life, or reregister if the person has been  
            previously registered, upon release from incarceration,  
            placement, commitment, or release on probation.  States that  
            the registration shall consist of all of the following:  (Pen.  
            Code § 290.015 subd. (a).)

             a)   A statement signed in writing by the person, giving  
               information as shall be required by DOJ and giving the name  
               and address of the person's employer, and the address of  
               the person's place of employment, if different from the  
               employer's main address;

             b)   Fingerprints and a current photograph taken by the  
               registering official;

             c)   The license plate number of any vehicle owned by,  
               regularly driven by or registered in the name of the  
               registrant;

             d)   Notice to the person that he or she may have a duty to  
               register in any other state where he or she may relocate;  
               and,

             e)   Copies of adequate proof of residence, such as a  
               California driver's license or identification card, recent  
               rent or utility receipt or any other information that the  
               registering official believes is reliable.

          1)States every person who is required to register, as specified,  
            who is living as a transient shall be required to register for  
            the rest of his or her life as follows:  (Pen. Code § 290.015  
            subd. (a).)

             a)   He or she shall register, or reregister if the person  
               has previously registered, within five working days from  
               release from incarceration, placement or commitment, or  
               release on probation, pursuant to Penal Code Section  
               290(b), except that if the person previously registered as  
               a transient less than 30 days from the date of his or her  
               release from incarceration, he or she does not need to  








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               reregister as a transient until his or her next required  
               30-day update of registration.  If a transient is not  
               physically present in any one jurisdiction for five  
               consecutive working days, he or she shall register in the  
               jurisdiction in which he or she is physically present on  
               the fifth working day following release, as specified.   
               Beginning on or before the 30th day following initial  
               registration upon release, a transient shall reregister no  
               less than once every 30 days thereafter.  A transient shall  
               register with the chief of police of the city in which he  
               or she is physically present within that 30-day period, or  
               the sheriff of the county if he or she is physically  
               present in an unincorporated area or city that has no  
               police department, and additionally, with the chief of  
               police of a campus of the University of California, the  
               California State University, or community college if he or  
               she is physically present upon the campus or in any of its  
               facilities.  A transient shall reregister no less than once  
               every 30 days regardless of the length of time he or she  
               has been physically present in the particular jurisdiction  
               in which he or she reregisters.  If a transient fails to  
               reregister within any 30-day period, he or she may be  
               prosecuted in any jurisdiction in which he or she is  
               physically present.

             b)   A transient who moves to a residence shall have five  
               working days within which to register at that address, in  
               accordance with Penal Code Section 290(b).  A person  
               registered at a residence address in accordance with that  
               provision who becomes transient shall have five working  
               days within which to reregister as a transient in  
               accordance with existing law.

             c)   Beginning on his or her first birthday following  
               registration, a transient shall register annually, within  
               five working days of his or her birthday, to update his or  
               her registration with the entities described in existing  
               law.  A transient shall register in whichever jurisdiction  
               he or she is physically present on that date. At the 30-day  
               updates and the annual update, a transient shall provide  
               current information as required on the DOJ annual update  
               form, including the information. 

             d)   A transient shall, upon registration and  








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               re-registration, provide current information as required on  
               the DOJ registration forms, and shall also list the places  
               where he or she sleeps, eats, works, frequents, and engages  
               in leisure activities.  If a transient changes or adds to  
               the places listed on the form during the 30-day period, he  
               or she does not need to report the new place or places  
               until the next required re-registration.  

          2)Provides that willful violation of any part of the  
            registration requirements constitutes a misdemeanor if the  
            offense requiring registration was a misdemeanor, and  
            constitutes a felony of the offense requiring registration was  
            a felony or if the person has a prior conviction of failing to  
            register.  (Pen. Code § 290.018 subds. (a) & (b).)

          3)Provides that within three days thereafter, the registering  
            law enforcement agency or agencies shall forward the  
            statement, fingerprints, photograph, and vehicle license plate  
            number, if any, to the DOJ.  (Pen. Code § 290.015 subd. (b).)

          4)States that a misdemeanor failure to register shall be  
            punishable by imprisonment in a county jail not exceeding one  
            year, and a felony failure to register shall be punishable in  
            the state prison for 16 months, 2 or 3 years.  (Pen. Code §  
            290.018 subds. (a) & (b).)
           
          FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  "AB 1438 would amend Penal Code  
            4852.01(d), section 290.5, to add Penal Code section 288.7 to  
            the list of offenses for which offenders are prohibited from  
            petitioning for relief, correcting current law. Additionally,  
            The California Supreme Court has ruled that the Legislature  
            can expand the list of those prohibited from obtaining a  
            certificate of rehabilitation, without violating  
            constitutional protections.
             
             "This bill not only makes an important change to the Penal  
            Code, but it further protects the most vulnerable of all - our  
            children. A loophole that allows dangerous criminals to evade  
            their responsibility to register as sex offenders and should  
            be closed immediately; AB 1438 intends to do just that."








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           2)Background  :  According to the background provided by the  
            author, "AB 1438 will correct an oversight that occurred  
            during the passage of SB 1128 in 2006, which created Penal  
            Code section 288.7, but failed to make sufficient conforming  
            changes. SB 1128, unintentionally allowed convicted adults,  
            who engaged in sexual intercourse, sodomy, oral copulation,  
            and sexual penetration with a child who is 10 years of age or  
            younger, to apply for a rehabilitation certificate. A  
            rehabilitation certificate would exempt felons from their  
            responsibility to register as sexual offenders. This specific  
            Penal Code section is the only one in its division that allows  
            for such a petition. 
             
             "In a recent court opinion, issued from the 4th District Court  
            of Appeals in People v. Tirey, it appears persons convicted of  
            violating section 288.7 are eligible to obtain a certificate  
            of rehabilitation under section 4852.01 and relief from the  
            registration requirement under section 290.5, while other  
            persons, like Tirey, convicted of violating section 288(a) are  
            not. The court could not discern a rational basis for the  
            unequal treatment of two so similarly situated groups of sex  
            offenders. This case has prompted an alleged violation of the  
            equal protection clause in the California and United States  
            constitutions."

           3)People v. Tirey  :  In 1998, John Tirey pled guilty to lewd and  
            lascivious acts with two girls under the age of 14 in  
            violation of Cal. Pen. Code § 288 subd. (a).  He served six  
            years in state prison and was ordered to register as a sex  
            offender.  He was discharged from parole in 2004.  In 2013,  
            Tirey filed a petition for a certificate of rehabilitation and  
            sought to be relieved of the sex offender registration  
            requirement.  The trial court denied his petition.  

            The Fourth Appellate District reversed the trial court's  
            decision because the denial violated equal protection  
            principles.  The appellate court explained that since the  
            relief was available for persons who were convicted of sexual  
            intercourse, sodomy, oral copulation or sexual penetration  
            with a child 10 years of age or younger; the same relief must  
            be available for the clearly lesser included conduct for which  
            Tirey was convicted.  The court found "no rational  
            explanation" for permitting a person previously convicted  








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            under §288.7 of sexual relations with a minor 10 years or  
            younger to obtain a certificate of rehabilitation and be  
            relieved of the registration requirement while denying this  
            right to one previously convicted under §288(a) of similar  
            conduct with a minor who is 11, 12 or 13 years of age.


            The court rejected the Attorney General's contention that the  
            two classes of offenders are not similarly situation because  
            of the different age ranges of their victims. The court found  
            that although the victims' ages might justify disparate  
            treatment of the offenders under the two statutes, it could  
            not justify harsher treatment of those convicted of the lesser  
            offense. Because §288(a) is indisputably a lesser offense than  
            §288.7, the different victim age ranges could not justify the  
            more severe treatment of §288(a) offenders. 


           4)Certificates of Rehabilitation  :  An individual who has been  
            convicted of a felony and has been discharged from custody  
            after the completion of the term to which he or she was  
            sentenced may apply for a certificate of rehabilitation.  The  
            applicant must not have been incarcerated in any other state  
            penal institution since his or her release and must present  
            evidence that he or she has been a resident of California for  
            the three years immediately preceding the application.  (Pen.  
            Code § 4852.01 subd. (a).)  An individual who was placed on  
            probation for a felony or for a misdemeanor violation of one  
            of the sex offense listed in Pen. Code § 290 may also apply  
            for a certificate of rehabilitation if he or she has had the  
            charges dismissed under Pen. Code § 1203.4; has not been  
            incarcerated in another penal institution, jail, or detention  
            facility; is not currently on probation; and has been a  
            resident of California for the five years immediately  
            preceding the application.  (Pen. Code § 4852.01 subd. (c).)  
             
             The decision whether to grant a petition for certificate of  
            rehabilitation is within the trial court's discretion; the  
            trial court's discretion will be overturned only for manifest  
            abuse that results in a miscarriage of justice.  

           5)Special Rules for Certificates of Rehabilitation of Sex  
            Offenders  :  A sex offender required to register under the Sex  
            Offender Registration Act (Pen. Code § 290 et. seq.) can  








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            obtain a certificate of rehabilitation only if: 

             a)   He or she is eligible to apply for one under Pen. Code §  
               4852.01.

             b)   The court finds that he or she is not a continuing  
               threat to minors under Pen. Code § 4852.13 subd. (b).   

            Once a certificate of rehabilitation is obtained by a  
            registrant, the registrant no longer has a duty to register if  
            they do not have an offense listed in Pen. Code § 290.5 subd.  
            (a)(2), and the individual is not in custody, on probation, or  
            on parole.  

           6)Purpose and Requirements of Sex Offender Registration  :   
            California was the first state to require sex offender  
            registration in 1947.  The stated purpose for sex offender  
            registration is to deter offenders from committing future  
            crimes, provide law enforcement with an additional  
            investigative tool, and increase public protection.  [Wright  
            vs. Superior Court (1997) 15 Cal.4th 521, 526; Alissa Pleau  
            (2007) Review of Selected 2007 California Legislation:   
            Closing a Loophole in California's Sex Offender Registration  
            Laws, 38 McGeorge L. Rev. 276, 277; Hatton vs. Bonner (2004)  
            365 F. 3rd 955, 961.]  Penal Code Section 290 requires  
            life-time registration by persons convicted of specified sex  
            crimes that reside in, attend school or work in California.   
            (Pen. Code § 290 subd. (a).)  Sex offenders are required to  
            register annually within five working days of his or her  
            birthday.  (Pen. Code § 290 subd. (b).)  If the offender has  
            no fixed address, he or she is required to register every 30  
            days.  (Pen. Code § 290.011 subd. (a).)  A person is also  
            required to notify law enforcement of any change of address  
            within five days of moving.  (Pen. Code § 290.014.)  A person  
            who fails to register as a sex offender within the period  
            required by law is guilty of a felony punishable by 16 months,  
            2 or 3 years.  (Pen. Code § 290.018 subd. (b).)

          In 1996, California enacted "Megan's Law" allowing the public to  
            access an address list of registered sex offenders.  Before  
            2003, members of the public could only obtain the information  
            on the Megan's Law list by calling a "900" or visiting certain  
            designated law enforcement agencies and reviewing a CD-ROM.   
            However, in 2003, California required the DOJ to put the  








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            Megan's Law list of offenders on a public access Web site with  
            the offender's address, photo and list of offenses.  [See  
            Penal Code Section 290.46(a).]  For some offenders with less  
            serious offenses, only his or her ZIP code is listed.  Now, a  
            citizen can enter his or her address and see if there are  
            registered sex offenders living in his or her community or  
            even next door.  

          The registration statute does not distinguish crimes based on  
            severity and instead requires all persons convicted of a  
            listed crime must register annually within five days of his or  
            her birthday and for the rest of his or her life.  (Pen. Code  
            § 290.012 subd. (a).)  Although most registerable offenses are  
            felonies, there some alternate felony/misdemeanor penalties  
            and a few straight misdemeanors.  [See (Pen. Code § 243.4  
            (sexual battery); (Pen. Code § 266c (obtaining sexual consent  
            by fraud); (Pen. Code §§ 311.1, 311.2(c), 311.4, 311.11 (child  
            pornography); (Pen. Code § 647.6 (annoying or molesting a  
            child); and, (Pen. Code §  314(1)(2) (indecent exposure).)

           7)Argument in Support  :  According to the  California State  
            Sheriffs' Association  , "In People v. Tirey (G048369),   
            California's fourth Appellate District found that portions of  
            Penal Code Sections 290.5 and 4852.01 violate equal protection  
            principles because they exclude a person convicted of a  
            violation of Penal Code Section 288 from being eligible to  
            petition for a certificate of rehabilitation and pardon and  
            for relief from the requirement to register as a sex offender  
            while failing to exclude a person convicted of PC 288.7, a  
            more serious crime than PC 288.  

            Despite the plain language of PC 4852.01, which precludes  
            offenders convicted of crime that carry mandatory lifetime  
            parole (including PC 288.7) from petitioning for a certificate  
            of rehabilitation and pardon, the court found for the  
            appellant and required the trial court to consider his  
            petition.  This error, which is currently the subject of the  
            rehearing in the Tirey case, demonstrates the need for  
            clarification in AB 1438.

           8)Argument in Opposition:   According to  Legal Services for  
            Prisoners with Children  , "sex-offender registration is not an  
            issue to be taken lightly, since it has a broad impact on  
            people that are already facing post-release reentry  








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            challenges.  As one example, under Proposition 83, also called  
            Jessica's Law, registered sex offenders are banned from living  
            within 2,000 feet of parks and schools, leading to a  
            disproportionate homeless rate of 32% among parolees with  
            prior sex convictions (California Sex Offender Management  
            Board, 2011).  
             
             "While we understand the seriousness of sex crimes and  
            acknowledge the necessity to protect society, we do not  
            believe that sex-offender registration in California is  
            effective.  It only belabors the popular myth of the sexual  
            predator tracking children in public places, when the US  
            Bureau of Justice Statistics states that only 7% of pedophiles  
            actually approach children in this context.  This does not  
            protect most of the children, since 85% know their abusers.   
            While California has the highest number of registrants in the  
            US (Legislative Analyst's Office, 2006), it completely fails  
            in individually evaluating the recidivism likelihood for each  
            offender."  
             
           9)Prior Legislation  :  SB 1128 (Alquist), Chapter 337, statutes  
            of 2006,  enacted the Sex Offender Punishment, Control, and  
            Containment Act of 2006 and makes specified legislative  
            findings and declarations concerning sex offenders.  Created  
            Pen. Code § 288.7.  
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Law Enforcement Association of Records Supervisors 
          California State Sheriffs' Association
          Crime Victims United of California 
          Riverside County District Attorney

           Opposition 
           
          California Attorneys for Criminal Justice
          Legal Services for Prisoners with Children
          Taxpayers for Improving Public Safety
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744 








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