California Court of Appeals, Fourth District, Third Division
[REHEARING GRANTED 12-11-13]
Appeal from an order of the Superior Court of Orange County, No. M-14588 Lance Jensen, Judge.
[Copyrighted Material Omitted]
Law Offices of Robert D. Salisbury and Robert D. Salisbury, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant John Lynn Tirey appeals from the denial of his petition for a certificate of rehabilitation and pardon under Penal Code section 4852.01 (all further statutory references are to this code), which could have relieved him of the lifetime sex offender registration requirement pursuant to section 290.5. We conclude parts of section 4852.01 and section 290.5 violate the equal protection principles articulated in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29] (Hofsheier) and discussed in People v. Tuck (2012) 204 Cal.App.4th 724, 739-742 [139 Cal.Rptr.3d 407] (cone. opn. of Pollak, J.) (Tuck).
In 1998, Tirey pled guilty to six counts of lewd or lascivious conduct with two girls under the age of 14, in violation of section 288, subdivision (a) (section 288(a)). He was sentenced to six years in prison and ordered to register as a sex offender under section 290. 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 the petition solely on the ground it is barred by the express statutory exclusions set forth in section 4852.01, subdivision (d) and section 290.5, subdivision (a)(2).
Tirey contends the denial of his petition for a certificate of rehabilitation and relief from the sex offender registration requirement violates the equal protection clauses of the state and federal Constitutions. We agree. 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 persons like Tirey convicted of violating section 288(a) are ...