BILL ANALYSIS Ó AB 1438 Page 1 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 AB 1438 Page 2 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 AB 1438 Page 3 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 AB 1438 Page 4 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." AB 1438 Page 5 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 AB 1438 Page 6 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 AB 1438 Page 7 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 AB 1438 Page 8 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 AB 1438 Page 9 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 AB 1438 Page 10