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