BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1438
                                                                  Page  1

          CONCURRENCE IN SENATE AMENDMENTS
          AB 1438 (Linder)
          As Amended  June 3, 2014
          Majority vote
           
           ----------------------------------------------------------------- 
          |ASSEMBLY:  |75-0 |(April 24,      |SENATE: |33-0 |(August 7,     |
          |           |     |2014)           |        |     |2014)          |
           ----------------------------------------------------------------- 
            
           Original Committee Reference:    PUB. S.  
           
          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.  

           The Senate amendments  :  

              1)   Clarify that neither sexual intercourse or sodomy with a  
               child or aggravated sexual assault of a child are eligible  
               for a Certificate of Rehabilitation.

          2)Make clarifying non-substantive changes.

           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.  

           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. 
           
           3)Provides that a person shall not be relieved of the duty to  
            register until that person has obtained a full pardon.

          4)Provides that courts, upon granting a petition for a  








                                                                  AB 1438
                                                                  Page  2

            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  
            been convicted of a felony during that period.

          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:

             a)   A statement signed in writing by the person, giving  
               information as shall be required by the Department of  
               Justice (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.
              
          FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee:

          1)Potential minor future costs (General Fund) of $3,200 per  
            person annually to the California Department of Corrections  
            and Rehabilitation (CDCR) for lifetime parole supervision for  
            convictions under Penal Code (PC) Section 269 or PC Section  
            288.7 that otherwise would not have been incurred under  
            existing law. CDCR data indicates that of the 17 inmates who  








                                                                  AB 1438
                                                                  Page  3

            were released from life term sentences under PC Section 269 or  
            PC Section 288.7 over the past three years, only one inmate  
            was released onto parole that would have been impacted by the  
            provisions of this bill.  

          2)Potential state and local cost savings to the extent continued  
            sex offender registration results in fewer repeat offenses,  
            offset in part by potential loss of future cost savings to the  
            extent fewer sex offenders would have been returned to custody  
            for violating registration requirements. Lost savings are  
            estimated to be minor assuming only a small number of  
            offenders would have been awarded a certificate of  
            rehabilitation affording them relief from sex offender  
            registration.   

          3)Potential future cost savings (General Fund*) to the courts to  
            the extent hundreds of sex offenders would have otherwise  
            petitioned the courts for certificates of rehabilitation due  
            to the recent ruling under People v. Tirey (2014), which found  
            that defendants convicted of specified sex offenses enumerated  
            under state law may not be barred from petitioning for a  
            certificate of rehabilitation based on equal protection  
            grounds.

          *Trial Court Trust Fund

           COMMENTS  :   

          1)Author's Statement:  "AB 1438 would amend Penal Code [Section]  
            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."

          2)People v. Tirey:  In 1998, John Tirey pled guilty to lewd and  
            lascivious acts with two girls under the age of 14 in  








                                                                  AB 1438
                                                                  Page  4

            violation of PC Section 288(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 District Court of Appeal (Court) reversed the trial  
            court's decision because the denial violated equal protection  
            principles.  The 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  
            under PC Section 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 PC Section 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 PC Section 288(a) is indisputably a lesser  
            offense than PC Section 288.7, the different victim age ranges  
            could not justify the more severe treatment of PC Section  
            288(a) offenders. 


          Please see the policy committee analysis for a full discussion  
          of this bill.
           

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


                                                                FN: 0004207









                                                                  AB 1438
                                                                  Page  5