BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1438 (Linder) 8
As Amended June 3, 2014
Hearing date: June 10, 2014
Penal Code
JM:mc
CERTIFICATES OF REHABILITATION AND SEX OFFENDER REGISTRATION
HISTORY
Source: Author
Prior Legislation: AB 1844 (Fletcher) - Ch. 219, Stats. 2010
SB 1128 (Alquist) - Ch. 337, Stats. 2006
Support: California Law Enforcement Association of Records
Supervisors; California State Sheriffs' Association;
Crime Victims United of California; Riverside County
District Attorney; Child Abuse Prevention Center;
California Police Chiefs Association; California
District Attorneys Association; Los Angeles District
Attorney's Office
Opposition:California Attorneys for Criminal Justice; Legal
Services for Prisoners with Children; Taxpayers for
Improving Public Safety
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUES
SHOULD A PERSON CONVICTED OF THE LIFE TERM OFFENSE OF SODOMY,
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INTERCOURSE, ORAL COPULATION OR SEXUAL PENETRATION WITH A CHILD
OF NO MORE THAN 10 YEARS OF AGE (Pen. Code § 288.7) BE
INELIGIBLE TO OBTAIN A CERTIFICATE OF REHABILITATION AND THEREBY
BE RELIEVED OF THE DUTY TO REGISTER AS A SEX OFFENDER?
(CONTINUED)
SHOULD A PERSON CONVICTED OF AGGRAVATED SEXUAL ASSAULT OF A CHILD
UNDER THE AGE OF 14 (Pen. Code § 269) BE PROHIBITED FROM OBTAINING A
CERTIFICATE OF REHABILITATION?
SHOULD ANY PERSON CONVICTED UNDER PENAL CODE SECTION 288.7 OR
SECTION 269 BE SUBJECT TO LIFETIME PAROLE?
PURPOSE
The purpose of this bill is to 1) clarify that any person
convicted under Penal Code Section 288.7 of engaging in of
sodomy, intercourse, oral copulation or sexual penetration with
a child who is no more than 10 years old, or under Penal Code
Section 269 of aggravated sexual assault of a child under the
age of 14, shall be subject to lifetime parole, if parole is
granted; 2) specify that a person convicted of the life term
offense of sex acts with a child who is no more than 10 years
old (Pen. Code § 288.7) is ineligible to obtain a certificate of
rehabilitation and thereby be relieved of the duty to register
as a sex offender; and 3) clarify that a person convicted of
aggravated sexual assault of a child (Pen. Code § 269) cannot
obtain a certificate of rehabilitation.
Certificates of Rehabilitation Generally and as Applied to Sex
Offenders under Existing Law
Existing law provides that a person who has been convicted of a
felony and released from custody may apply for a certificate of
rehabilitation, under the following circumstances:
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The applicant must not have been incarcerated since
release and must prove California residency for the
immediately preceding three years.
During the period of rehabilitation, he or she must have
exhibited good moral character and lived a sober, honest,
upright and industrious life. Additional periods of
rehabilitation are required for specified crimes.
A person who completed probation for a crime requiring
sex offender registration may apply for a certificate of
rehabilitation if his<1> underlying conviction was
dismissed under Pen. Code § 1203.4 and is not on probation.
Sex offenders seeking a certificate of rehabilitation
must demonstrate five years of rehabilitative residency in
California plus an additional five years of rehabilitation.
(Pen. Code §§ 4852.01 subds. (a) and (c), 4852.03 and
4852.05.)
Existing law provides that the following persons cannot obtain a
certificate of rehabilitation: 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<2>, Section 288.5,
or subdivision (j) of Section 289, or persons in the military
service. The governor does have the power to pardon such
persons. (Pen. Code § 4852.01, subd. (d)-(e).)
---------------------------
<1> The masculine pronoun is generally used throughout this
analysis for brevity, as the vast majority of sex offenders are
male. Female sex offenders are covered equally by the cited
statutes.
<2> The specified forms of sodomy (§ 286) or oral copulation
(288a) involve the use of force, duress, threats of retaliation,
or was committed by a perpetrator is at least 10 years older
than a victim is under the age of 14. The specified form of
penetration with foreign or unknown object (289) was committed
by a perpetrator is at least 10 years older than a victim is
under the age of 14. Section 288 concerns lewd conduct with a
child under the age of 14, lewd conduct with a minor of 14 or 15
years of age or lewd conduct with a dependent person by a
caretaker.
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Sex Offender Registration under Existing Law
Existing law requires persons convicted of specified sex
offenses to register for life, or reregister, upon release from
incarceration, placement, commitment, or release on probation.
The registration shall consist of all of the following: (Pen.
Code § 290.015 subd. (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;
Fingerprints and a current photograph taken by the
registering official;
The license plate number of any vehicle owned by,
regularly driven by or registered in the name of the
registrant;
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,
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.
Existing law states every person who is required to register as
sex offender who is living as a transient must register annually
and update the registration every 30 days with the law
enforcement entity with jurisdiction over the place where the
transient is staying. He must list the places where he engages
in daily activities. Upon obtaining a residence, the registrant
shall re-register within five days. (Pen. Code § 290.015 subd.
(a).)
Existing law provides that willful violation of any registration
requirement 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
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a prior conviction of failing to register. (Pen. Code § 290.018
subds. (a) & (b).)
Existing law , with numerous exceptions, specifies that upon
obtaining a certificate of rehabilitation a person required to
register as a sex offender is relieved of the duty to register
if he is not in custody, on parole, or on probation. (Pen. Code
§ 290.5 subd. (a)(1).)
Existing law 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. The long list
of offenses for which a certificate of rehabilitation does not
relieve the person convicted of the offense to register as a sex
offender includes the following:
Kidnapping with intent to commit a sex crime committed
with the intent to violate Section 261, 286, 288, 288a, or
289.
Assault with intent to commit a sex crime.
Felony sexual battery.
Rape, except by impersonation.
Felony forms of crimes related to pimping, pandering and
providing minors for sex.
Aggravated sexual abuse of a child.
Most felony forms of illegal sodomy, oral copulation or
penetration with a foreign or unknown object minor.
Annoying or molesting a child (felony or misdemeanor).
Lewd conduct with a child under the age of 14.
Felony or misdemeanor forms of lewd conduct with a minor
who is 14 or 15 years old.
Felony or misdemeanor lewd conduct by a caretaker with a
dependent person.
Continuous sexual abuse of a child.
An attempt to commit one of the listed offenses.
A statutory predecessor of or an equivalent out-of-state
conviction for one of the listed offenses. (Pen. Code §
290.5 subd. (a)(2).)
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Existing law provides that if person obtained a certificate of
rehabilitation prior to January 1, 1998, a court may relieve a
person of the duty to register for lewd conduct with a child
under the age of 14 (Pen. Code § 288) or continuing sexual
abuse of a child (Pen. Code § 288.5) provided that the person
was granted probation upon meeting strict requirements, 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 been convicted of a felony during that
period. (Pen. Code § 290.5 subd. (b)(3).)
Existing law provides that a person otherwise shall not be
relieved of the duty to register until that person has obtained
a full pardon. (Pen. Code § 290.5 subd. (b)(1).)
Aggravated Sexual Assault of a Child (Pen. Code § 269) and
Sodomy, Intercourse, Oral Copulation or Sexual Penetration with
a Child no older than 10 (Pen. Code § 288.7)
Existing law provides that an adult who engages in sexual
intercourse or sodomy with a child who is no more than 10 years
old shall be sentenced to a prison term of 25-years-to-life. If
the defendant engaged in oral copulation or penetration with a
foreign or unknown object, the defendant shall be sentenced to a
prison term of 15-years-to-life. (Pen. Code § 288.7.)
Existing law provides that any person who commits any of the
following crimes against a child under the age of 14 who is
seven years or more younger than the perpetrator is guilty of
sexual assault of a child: Rape, sodomy, oral copulation, or
penetration with a foreign or unknown object by force, duress or
threats or future retaliation, or any of these crimes in concert
(multiple perpetrators using force or duress). Aggravated
sexual assault of a child is punished by a prison term of
15-years-to-life. (Pen. Code § 269.)
Lifetime Parole for Murder and Specified Life-Term Sex Offenses
under Existing Law
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Existing law provides that an inmate convicted of a specified
life-term offense who is granted parole shall remain on parole
for life. These crimes include murder, aggravated kidnapping
for purposes of committing a sex crime, recidivist sex crimes
against a child, sex crimes against a child under the age of 14
that involved specified aggravated "one-strike" factors, or
"Sections 289 and 288.7" - aggravated sexual assault of a child
and sex acts with a child who is no older than 10 years of age,
respectively. (Pen. Code § 3000.1.)
This Bill: Lifetime Parole, Certificates of Rehabilitation and
Registration for Aggravated Sexual Assault of a Child (Pen. Code
§ 269) and Sodomy Intercourse, Oral Copulation or Sexual
Penetration with a Child of 10 Years or Younger (Pen. Code §
288.7)
This bill specifies that a person convicted of the life term
crimes of engaging in a defined sex act with a minor (Pen. Code
§ 288.7), or aggravated sexual abuse of a child under the age of
14 (Pen. Code § 269), shall be subject to lifetime parole.
This bill specifies that 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 (Pen. Code § 288.7) or aggravated sexual abuse of a
child under the age of 14 (Pen. Code § 269) is ineligible to
obtain a certificate of rehabilitation.
This bill specifies that any person who has obtained a
certificate of rehabilitation for a conviction of sexual
intercourse, sodomy, oral copulation, or sexual penetration with
a child who is 10 years of age or younger (Pen. Code § 288.7) is
not relieved of his or her duty to register as a sex offender.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
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prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
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reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014, and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013, Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
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impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
AB 1438 will correct an oversight that occurred during
the passage of SB 1128 in 2006, which 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 Pen. Code Section 4852.01 and relief from the
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registration requirement under Penal Code Section
290.5, while other persons, like Tirey, convicted of
violating Pen. Code 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.
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. (As
previously stated, 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. AB 1438 seeks to
close a loophole that allows dangerous criminals to
evade their responsibility to register as sex
offenders.
2. Certificates of Rehabilitation - Background and Application to
Sex Offender
Certificates of Rehabilitation Generally
A person who has been convicted of a felony and has been
discharged from custody after serving his or her sentence may
apply for a certificate of rehabilitation. The applicant must
not have been incarcerated 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).)
Limits and Prohibitions Applicable to Certificates of
Rehabilitation for Sex Offenders:
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A sex offender required to register as a sex offender (Pen. Code
§ 290 et. seq.) can obtain a certificate of rehabilitation only
if:
The applicant's eligible sex offense conviction was
dismissed and limited expungement granted pursuant to Penal
Code Section 1203.4.
He has not been incarcerated since the conviction was
dismissed and is not on felony probation.
He has lived in California for the five years prior to
the application and is not in the military.
The person must demonstrate rehabilitation - a moral,
industrious life for the five years required of any
applicant, with sex offender registration requiring an
additional five years of rehabilitation.
The applicant was not convicted of any of the following
offenses:
o A sentence requiring lifetime parole.
o Sodomy or oral copulation committed by force,
violence, duress, threats or retaliation, or where the
victim was under 14 years of age and the perpetrator
more than 10 years older than the victim.
o Penetration with a foreign or unknown object
where the victim was under 14 years of age and the
perpetrator more than 10 years older than the victim.
o Lewd conduct with a child under the age of 14,
or with a child who is 14 or 15 years old, or lewd
conduct with a dependent person by a caretaker.
o Continuous sexual abuse of a child under the
age of 14 - three or more acts of substantial sexual
conduct over at least three months' time, committed by
a person who lives with or has recurring access to the
child. (Pen. Code § 4852.01, subd. (c)-(d).)
The court finds that the defendant is not a continuing
threat to minors. (Pen. Code
§ 4852.13 subd. (b).)
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Once a certificate of rehabilitation is obtained by a
registrant, the registrant no longer has a duty to register
if he has not been convicted of one of the very numerous
offenses listed in Pen. Code § 290.5 subd. (a)(2), and not
in custody, on probation, or on parole.
3. Tirey Decision - Life Term Sex Offenders Convicted of Sex
Crimes Against Children Less than 10 Years of Age are not
Prohibited from Seeking a Certificate of Rehabilitation
Relevant Statutory History
In 2006, SB 1128 (Alquist)<3> - the Sex Offender Punishment,
Control and Containment Act - was enacted. The act was a
comprehensive measure that defined new offenses, increased
penalties for certain sex offenses and required risk evaluation
of sex offenders, among numerous other provisions. One of the
provisions in SB 1128 was a new life-term crime of engaging in
sexual intercourse, sodomy, oral copulation or penetration with
a foreign or unknown object with a child no older than 10 years
of age.
In 2010, AB 1844 (Fletcher)<4> Chelsea's Law - greatly increased
prison terms for persons convicted of sex crimes against minors.
One of the sections rewritten by the bill was Penal Code
Section 3000.1, which had required lifetime parole for any
person convicted of murder. The bill extended lifetime parole
to numerous life-term sex offenses. AB 1844 was amended
numerous times. Some versions included Penal Code 269 as a
lifetime parole offense. Some versions included 288.7. The
second-to-last amendments to Section 3000.1 placed the list of
lifetime parole sex offenses in a single paragraph and reduced
the number of crimes in the list. In what appears to be an
oversight, Section 287 was left out of these amendments.
Section 3000.1 was finally amended to include "Sections 269 and
288.7."
The court in the recent Tirey case interpreted Section 3000.1 so
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<3> SB 1128 (Alquist) Ch. 337, Stats. 2006.
<4> AB 1844 (Fletcher) Ch. 219, Stats. 2010.
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as to only require lifetime parole for a person convicted under
both Section 269 and 288.8, not one section alone. While the
conjunctive "and" between 269 and 288.7 appears to have been an
error or oversight, arguably the provision clearly requires that
the defendant have been convicted of both offenses. Where the
plain meaning of statutory terms are clear, an appellate court
will not look beyond the clear meaning to determine what the
Legislature meant, unless the plain meaning is absurd.
Tirey Case - No Lifetime Parole, Certificates of Rehabilitation
and Relief from Registration for those Convicted under Penal
Code Section 288.7
In 1998, John Tirey pled guilty to six charges of lewd and
lascivious acts, committed without the use of force or duress,
against two girls under the age of 14. (Pen. Code § 288 subd.
(a)<5>). Lewd conduct is essentially any sexually motivated
touching. The crime does not include elements that the touching
be on bare skin or of an intimate body part. (People v.
Martinez (1995) 11 Cal.4th 434, 442-453.) However, any defined
sex act with a minor - sexual intercourse and oral copulation
for example - also constitutes lewd conduct.
Tirey served six years in state prison and was ordered to
register as a sex offender upon release. He was discharged from
parole in 2004. In 2013, he filed a petition for a certificate
of rehabilitation and sought to be relieved of the sex offender
registration requirement because a person convicted of a more
serious offenders - sodomy, sexual intercourse, oral copulation
or sexual penetration involving a child under 10 years of age -
was eligible to obtain a certificate of rehabilitation and
thereby be relieved of the duty to register as a sex offender.
The trial court denied his petition.
The Fourth Appellate District reversed the trial court's
decision on equal protection grounds. The court found that a
person convicted under Section 288.7 of engaging in sexual
intercourse, oral copulation, sodomy or sexual penetration
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<5> Penal Code Section 288, subdivision (b), concerns lewd
conduct accomplished by means of force, duress or threats.
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involving a child of no more than 10 years of age was eligible
to apply for a certificate of rehabilitation and be relieved of
the duty to register as a sex offender. The court then found
that it would deny equal protection if a person convicted of the
significantly less egregious crime of lewd conduct with a child
under the age of 14, not accomplished by force or duress (Pen.
Code § 288, subd. (a)), could not apply for a certificate of
rehabilitation. The court found "no rational explanation" for
permitting a person previously convicted under Section 288.7 to
obtain a certificate of rehabilitation and be relieved of the
registration requirement while denying this right to one
previously convicted under Section 288, subdivision (a).
Explanation of Tirey Decision
The logic of the Tirey decision is complicated. A person
convicted of a felony may apply for a certificate of
rehabilitation, with an exception for any person convicted of
one of specified sex crimes, a person committed under a death
sentence and anyone "serving a mandatory life parole." A person
granted a certificate of rehabilitation for a sex crime
conviction - with exceptions that overshadow the rule - is
relieved of the obligation to register as a sex offender. One
of the many crimes for which a person cannot be relieved of the
duty to register as a sex offender is lewd conduct with a child
under the age of 14, committed without force or duress - Tirey's
conviction.
As noted above, the lifetime parole provisions in Penal Code
Section 3000.1 include persons convicted under Penal Code
"Section 269 and 288.7". The Tirey court found that a person
must be convicted under both Section 269 and 288.7 to be subject
to lifetime parole. Thus, a person convicted under Section
288.7 - sex acts with a child no older than 10 years old - is
not subject to lifetime parole and may apply for a certificate
of rehabilitation. Further, nothing in Section 290.5 prohibits
a person previously convicted under Section 288.7 who has
obtained a certificate of rehabilitation from obtaining relief
from the duty to register as a sex offender. Tirey argued that
because he was convicted of lewd conduct without force or duress
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- a substantially less egregious crime than sex acts with a
child no older than 10 - equal protection required that he must
be granted relief from the duty to register as a sex offender if
he obtained a certificate of rehabilitations. The Tirey court
accepted his argument.
Although Penal Code Section 269 - aggravated sexual assault of a
child - does not appear to require lifetime parole - a person
convicted of that offense is not relieved of the duty to
register as a sex offender, even if he were able to obtain a
certificate of rehabilitation. That is because Penal Code
Section 290.5 specifically provides that a person convicted
under Section 269 of aggravated sexual assault of a child is not
relieved of the duty to register upon obtaining a certificate of
rehabilitation.
4. Sex Offender Registration - History and Background
In 1947, California was the first state to require sex offender
registration. The stated purposes of registration are 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, 277.0.)
Specifically, Penal Code Section 290 requires life-time
registration by persons convicted of specified sex crimes who
reside in, attend school or work in California. A sex offender
must register annually within five working days of his or her
birthday. If the offender has no fixed address, he or she is
required to register every 30 days. A registrant must notify
law enforcement of any change of address within five days of
moving, or obtaining a residence if previously transient. A
person who fails to register within the period required by law
is guilty of a misdemeanor if the underlying crime is a
misdemeanor and a felony if the underlying offense is a felony.
(Pen. Code §§ 290 subds. (a)-(b), 290.011 subd. (a), § 290.014
and 290.018 subds. (a)- (b).)
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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" telephone number or
visiting certain designated law enforcement agencies and
reviewing a CD-ROM. However, in 2003, the Department of Justice
was statutorily required to put the Megan's Law list of
offenders on a public access Web site with the offender's
address, photo and list of offenses. (Pen. Code § 290.46, subd.
(a).) For some offenders with less serious offenses, only his
ZIP code is listed. A person can enter his or her address and
see if there are registered sex offenders living in his or her
general or immediate area.
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In contrast with the Megan's Law provisions for public notice,
the registration statute itself does not distinguish among
crimes based on severity, but instead requires a person
convicted of a listed crime to register annually within five
days of his birthday and for the rest of his life. (Pen. Code §
290.012 subd. (a).) Although most offenses requiring
registration are felonies, there some alternate
felony-misdemeanor crimes 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).)
5. Policy Issues Concerning the Prohibition on Relief from Sex
Offender Registration for Persons who Have Been Convicted of
Lewd Conduct Without Force or Duress
This bill concerns lifetime parole, certificates of
rehabilitation and sex offender registration for the
particularly serious crimes of sexual assault of a child under
the age of 14 (Pen. Code § 269) and sodomy, intercourse, oral
copulation and penetration with a foreign or unknown object with
a child of 10 years or younger (Pen. Code § 288.7). As noted
above, due to an apparent oversight in one of the amendments to
Chelsea's Law in 2010, a person convicted of sex acts with a
child of no more than 10 years old (Pen. Code § 288.7) may apply
for a certificate of rehabilitation and, if the certificate is
granted, relief from sex offender registration. However, relief
from the duty of registration for a person convicted of
violating Section 288.7 is largely an academic or abstract
issue. It is unlikely that any person convicted of such a
serious offense would be granted a certificate of
rehabilitation. Further, no one convicted of that crime has
become eligible for parole, as the offense requires a sentence
of 15-or-25-years-to-life before parole eligibility, and the
statute was enacted in 2006.
John Tirey, as discussed at length above, was not convicted
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under Section 288.7 of defined or specified sex acts with a
child of 10 years of age or younger. He was convicted of the
significantly less egregious crime of lewd conduct with a child
under the age of 14 without force or duress (Pen Code § 288,
subd. (a)) - an offense that can constitute any sexually
motivated touching and does not require that the touching be on
bare skin or be of an intimate body part. (People v. Martinez,
supra, 11 Cal.4th 434, 442-453.) By explicit statutory
prohibition, a person convicted of lewd conduct without force or
coercion is ineligible to obtain a certificate of rehabilitation
or relief from the duty to register.
The Tirey cases raises the issue of whether all sex offenders
must be required to register for life. Proposals have been made
to require tiered registration - registration for varying
periods of time, depending on the nature of the defendant's
conviction, his rehabilitative efforts and his danger or
re-offense. Requiring lifetime registration for every sex
offense - largely treating all sex
offenders as equally dangerous - could make it difficult to
realize the goals of the registration law to protect the public
from particularly dangerous offenders by warning the public and
allowing law enforcement to monitor the offenders in the
community.
SHOULD EVERY PERSON CONVICTED OF NON-FORCED, NON-COERCED LEWD
CONDUCT BE PERMANENTLY BARRED FROM SEEKING A CERTIFICATE OF
REHABILITATION, OR A CERTIFICATE OF REHABILITATION LEADING TO
RELIEF FROM SEX OFFENDER REGISTRATION?
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