BILL ANALYSIS �
AB 1438
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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
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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
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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
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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."
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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
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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
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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
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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
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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
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