BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Kevin de Le�n, Chair
AB 1438 (Linder) - Sex offenders: certificates of
rehabilitation.
Amended: June 3, 2014 Policy Vote: Public Safety 6-0
Urgency: No Mandate: Yes
Hearing Date: June 30, 2014
Consultant: Jolie Onodera
This bill does not meet the criteria for referral to the
Suspense File.
Bill Summary: AB 1438 would:
Prohibit a person convicted of aggravated sexual assault
of a child under the age of 14 years (PC � 269) from
obtaining a certificate of rehabilitation.
Prohibit a person convicted of engaging in sexual
intercourse, sodomy, oral copulation, or sexual penetration
with a child no more than 10 years old (PC � 288.7) from
obtaining a certificate of rehabilitation.
Specify that a person convicted under PC � 288.7, upon
obtaining a certificate of rehabilitation, is not relieved
of his or her duty to register as a sex offender.
Specify that a person convicted under PC � 269 or PC �
288.7 shall be subject to lifetime parole.
Fiscal Impact:
Potential minor future costs (General Fund) of $3,200 per
person annually to CDCR for lifetime parole supervision for
convictions under PC � 269 or PC � 288.7 that otherwise
would not have been incurred under existing law. CDCR data
indicates that of the 17 inmates who were released from life
term sentences under PC � 269 or PC � 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.
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
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rehabilitation affording them relief from sex offender
registration.
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
Background: Existing law generally provides that 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 from incarceration and
must present evidence that he or she has been a resident of
California for the three years immediately preceding the
application.
Under existing law, a person convicted of specified crimes
requiring registration as a sex offender is eligible to obtain a
certificate of rehabilitation only under specified
circumstances. A certificate of rehabilitation is not available
to persons serving mandatory lifetime parole, persons committed
under death sentences, or persons convicted of violations of PC
�� 286(c), 288, 288a(c), 288.5, or 289(j). Under existing law, a
person convicted of violating PC � 269 (aggravated sexual
assault of a child under the age of 14 years) or PC � 288.7
(sexual intercourse, sodomy, oral copulation, or sexual
penetration with a child no more than 10 years old) is not
specifically prohibited from obtaining a certificate of
rehabilitation. It should be noted, however, that under existing
law, a person who obtains a certificate of rehabilitation who
has been convicted of violating PC � 269 is not relieved of the
duty to register as a sex offender pursuant to PC �
290.5(a)(2)(J).
In the case of People v. Tirey (2014) Cal.Ct.App4th, the
appellate court found it a violation of equal protection
principles to permit a person convicted of a much more serious
crime to petition for a certificate of rehabilitation and bar
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another person from so petitioning if he or she is convicted of
a lesser crime. In 1998, John Tirey pled guilty to six counts of
violating PC � 288(a) (lewd and lascivious acts without the use
of force or duress against two girls under the age of 14) and
was sentenced to six years in state prison. He was released from
prison in 2001 and was discharged from parole in 2004. In
January 2013, Mr. Tirey filed a petition for a certificate of
rehabilitation, which the trial court subsequently denied in
March 2013 on the ground that he was statutorily barred from
obtaining a certificate of rehabilitation under PC � 4852.01(d).
Mr. Tirey appealed the decision stating that because those
convicted of a violation of another similar but more serious sex
offense such as PC � 288.7 are able to seek a certificate of
rehabilitation, existing law violates equal protection
principles. The Fourth District Court of Appeal agreed and
reversed the trial court's decision, stating that the defendant
is entitled to file a petition for a certificate of
rehabilitation to be considered by the court.
Existing law requires the period of parole for an inmate
sentenced to a life term for aggravated sexual assault of a
child (PC � 269) and for engaging in sexual intercourse, sodomy,
oral copulation, or sexual penetration with a child under 10
years of age (PC � 288.7) or younger to be for the remainder of
the inmate's life. (PC � 3000.1(a)(2))
In the Tirey case, the court interpreted PC � 3000.1 to only
require lifetime parole for a person convicted under both PC ��
269 and 288.7, and not one section alone. While the conjunctive
"and" between these two code sections appears to have been an
error or oversight, arguably the provision clearly requires the
defendant to have been convicted of both offenses.
This bill seeks to address the two issues discussed above.
Proposed Law: This bill would:
Prohibit a person convicted of aggravated sexual assault of a
child under the age of 14 years (PC � 269) from obtaining a
certificate of rehabilitation.
Prohibit a person convicted of engaging in sexual intercourse,
sodomy, oral copulation, or sexual penetration with a child no
more than 10 years old (PC � 288.7) from obtaining a
certificate of rehabilitation.
Specify that a person convicted under PC � 288.7, upon
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obtaining a certificate of rehabilitation, is not relieved of
his or her duty to register as a sex offender.
Specify that a person convicted under PC � 269 or PC � 288.7
shall be subject to lifetime parole.
Staff Comments: By revising existing law that currently only
requires lifetime parole for a person convicted under both
offenses PC �� 269 and 288.7, to instead require lifetime parole
for a conviction under either PC � 269 or PC � 288.7 alone,
could result in future annual costs of $3,200 per person for
lifetime parole supervision that otherwise would not have been
incurred under existing law. CDCR data indicates that of the 17
inmates who were released from life term sentences under either
PC � 269 or PC � 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 (the other 16 inmates' cause of
release was due to death).
By specifically prohibiting persons convicted of violating PC ��
269 or 288.7 from eligibility for a certificate of
rehabilitation, these persons are also ineligible for relief
from sex offender registration. This could result in potential
state and local cost savings to the extent continued sex
offender registration results in fewer repeat offenses that
could result in new prosecution and incarceration costs. These
potential cost savings would also be offset in part by a
potential loss of future cost savings to the extent fewer sex
offenders would have been returned to custody for violating
registration requirements should they have been granted
certificates of rehabilitation. Lost savings are estimated to be
minor to the extent only a small number of offenders would have
been awarded a certificate of rehabilitation affording them
relief from sex offender registration.
By specifically excluding persons convicted of violations of PC
� 288.7 or PC � 269 from obtaining a certificate of
rehabilitation, this bill could result in significant 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, 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.
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