BILL ANALYSIS �
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THIRD READING
Bill No: AB 1438
Author: Linder (R), et al.
Amended: 6/3/14 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/10/14
AYES: Hancock, Anderson, De Le�n, Knight, Liu, Steinberg
NO VOTE RECORDED: Mitchell
SENATE APPROPRIATIONS COMMITTEE : 6-0, 6/30/14
AYES: De Le�n, Walters, Hill, Lara, Padilla, Steinberg
NO VOTE RECORDED: Gaines
ASSEMBLY FLOOR : 75-0, 4/24/14 (Consent) - See last page for
vote
SUBJECT : Certificates of rehabilitation and sex offender
registration
SOURCE : Author
DIGEST : This bill clarifies that every person convicted of a
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.
ANALYSIS :
Existing law:
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1.Provides that a person who has been convicted of a felony and
released from custody may apply for a certificate of
rehabilitation, as specified.
2.Requires persons convicted of specified sex offenses to
register for life, or reregister, upon release from
incarceration, placement, commitment, or release on probation.
3.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. The registrant must list the places
where they engage in daily activities. Upon obtaining a
residence, the registrant shall re-register within five days.
4.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 a prior conviction of failing to register.
5.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, if his/her conviction
includes specified offenses.
6.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 or continuing sexual abuse of a child
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.
7.Provides that a person otherwise shall not be relieved of the
duty to register until that person has obtained a full pardon.
8.Provides that an adult who engages in sexual intercourse or
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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.
9.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.
This bill:
1.Specifies that a person convicted of the life term crimes of
engaging in a defined sex act with a minor, or aggravated
sexual abuse of a child under the age of 14, shall be subject
to lifetime parole.
2.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 or
aggravated sexual abuse of a child under the age of 14 is
ineligible to obtain a certificate of rehabilitation.
3.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 is not relieved of his/her duty to
register as a sex offender.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Potential minor future costs (General Fund) of $3,200 per
person annually to the Department of Corrections and
Rehabilitation (CDCR) for lifetime parole supervision for
convictions under Penal Code (PEN) Section 269 or Section
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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 PEN Section 269
or 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.
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.
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
SUPPORT : (Verified 6/30/14)
California District Attorneys Association
California Law Enforcement Associations of Records Supervisors,
Inc.
California Police Chiefs Association, Inc.
California Probation, Parole and Correctional Association
California Sexual Assault Investigators Association.
California State Sheriffs' Association
Chief Probation Officers' of California
Crime Victims United of California
Los Angeles County District Attorney's Office
Riverside County District Attorney's Office
The Children Abuse Prevention Center
OPPOSITION : (Verified 6/30/14)
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California Attorneys for Criminal Justice
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
ARGUMENTS IN SUPPORT : 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."
ARGUMENTS IN OPPOSITION : The California Attorneys for
Criminal Justice states in part:
First, this proposal violates the California and United States
Constitutions in that it amounts to an ex post facto law by
retroactively imposing a punishment or detriment on the
defendant as a consequence of a violation of Penal Code
section 28 .7 by forever denying a person previously convicted
of this offense from being relieved of PC 290 registration
requirements. Such an ex post factor application of the law
has been prohibited by the United States Supreme Court. See
Stogner vs. California, 539 US 607 (2003).
Additionally, this amendment would improperly interfere with
the long established procedure concerning petitions for a
Certificate of Rehabilitation. Penal Code section 4852.01 et
seq. has established rigorous requirements before a
Certificate of Rehabilitation can be granted. These rigorous
requirements are more than adequate to safeguard the public to
ensure that only those that truly deserve this certification
(and relief from registration) will be declared as such by the
superior court in the county of their residence.
ASSEMBLY FLOOR : 75-0, 4/24/14
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
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Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,
Gorell, Grove, Hagman, Hall, Roger Hern�ndez, Holden, Jones,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Medina, Melendez, Mullin, Muratsuchi, Nestande, Olsen, Pan,
Patterson, Perea, V. Manuel P�rez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A.
P�rez
NO VOTE RECORDED: Gray, Harkey, Mansoor, Nazarian, Vacancy
JG:k 7/1/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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