BILL ANALYSIS Ó
AB 1438
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Date of Hearing: April 9, 2014
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 1438 (Linder) - As Introduced: January 6, 2014
Policy Committee: Public Safety
Vote: 7-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill specifies provisions for obtaining a certificate of
rehabilitation are inapplicable to a person convicted of
engaging in sexual intercourse, sodomy, oral copulation, or
sexual penetration with a child 10 years of age or younger.
This bill also specifies 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.
FISCAL EFFECT
As current law clearly intends to preclude persons convicted of
the sex acts specified in this bill from certificate of
rehabilitation eligibility, the clarification contained in this
bill would not create new costs.
In the absence of this clarification, however, if the recent
ruling from a state appellate court stands, hundreds of sex
offenders could be considered eligible for certificates of
rehabilitation and relief from lifetime registration as a sex
offender. Such expansion could result in unknown out-year annual
savings, potentially in the hundreds of thousands of dollars, to
the extent fewer sex offenders are returned to custody for
violating sex offender registration requirements.
Also, to the extent sex offender registration results in fewer
repeat offenses, in the absence of the clarification proposed by
this bill, there could be additional sex offenses, which would
result in increased investigation, prosecution, and custody
costs.
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In 2011 and 2012, almost 1,400 persons were committed to state
prison for offenses that could be affected by this bill.
COMMENTS
1)Rationale . The author's objective is to address what he terms
a "loophole" in the law, because a specific Penal Code section
- 288.7, which makes specified sex acts committed by an adult
with a child 10 years of age or younger punishable by 15 or
25-years-to-life in prison - is not referenced in the section
(4852.01) that precludes a certificate of rehabilitation for
similar offenses, nor in the section that specifies such a
person must continue to register as a sex offender if a
certificate is obtained.
Although it would appear that the existing sex offenses that
preclude a certificate of rehabilitation - sodomy with a
person under the age of 14, lewd and lascivious acts with a
person under the age of 14, oral copulation with a person
under the age of 14, continuous sex abuse of a child, and
penetration of a child under the age of 10 - would cover the
offenses referenced in 288.7, a 2013 state appellate court
ruled that based on equal protection, the plaintiff, convicted
of lewd and lascivious acts with a child under the age of 14,
could not be denied a certificate of rehabilitation when the
law does not explicitly preclude a certificate for a person
who commits sex acts on a child under the age of 10.
This bill addresses this anomaly.
2)People v. Tirey . In 1998, John Tirey pled guilty to lewd and
lascivious acts with two girls under the age of 14. 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 a
certificate and registration relief was not explicitly denied
for persons who were convicted of sexual intercourse, sodomy,
oral copulation or sexual penetration with a child 10 years of
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age or younger, the same relief must be available for the
offense for which Tirey was convicted.
3)Drafting issues . It is not necessary to include the provision
of the bill that denies registration relief to persons who
commit specified sex offenses against children under the age
of 10, as the bill makes these offenders ineligible for the
certificate of rehabilitation that is a precursor to
registration relief. Current law, however, references five
other sex offenses against children under the age of 14 that
are not eligible for certificates - sodomy, penetration, lewd
and lascivious acts, oral copulation, and continuous sexual
abuse - and specifies that if a person obtains a certificate
of rehabilitation for these offenses, that person must
continue to register.
The author, supporters, and Department of Justice officials
acknowledge the over-drafting issue, but prefer to maintain
drafting consistency.
4)Certificates of Rehabilitation . A Certificate of
Rehabilitation restores some rights of forfeited as a result
of a conviction. It relieve some sex offenders, as specified,
of further duty to register; enhances a felon's potential for
licensing consideration by a State board; serves as an
official document to demonstrate a felon's rehabilitation,
which could enhance employment possibilities; and serves as an
automatic application for a gubernatorial pardon. A
certificate of rehabilitation does not erase the felony
conviction or seal the criminal record; prevent the offense
from being considered as a prior conviction; allow a felon to
answer on employment applications that he/she has no record of
conviction, restore the right to own or possess a gun.
A felon discharged from custody may apply for a certificate of
rehabilitation. The applicant must not have been incarcerated
in any other state facility since his or her release and must
present evidence he or she has been a state resident for the
three years immediately preceding the application.
A person placed on probation for a felony or for a misdemeanor
violation for a registerable sex offense may apply for a
certificate of rehabilitation if charges have been dismissed,
if the person has not been incarcerated and is not currently
on probation, and has been a resident of California for the
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five years immediately preceding the application.
The decision whether to grant a petition for certificate of
rehabilitation is at the discretion of the trial court.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081