BILL ANALYSIS �
AB 1438
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CONCURRENCE IN SENATE AMENDMENTS
AB 1438 (Linder)
As Amended June 3, 2014
Majority vote
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|ASSEMBLY: |75-0 |(April 24, |SENATE: |33-0 |(August 7, |
| | |2014) | | |2014) |
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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
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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
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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
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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
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