California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[As modified May 1 and 2, 2014.]
Appeal from an order of the Superior Court of Orange County No. M14588, Lance Jensen, Judge.
[Copyrighted Material Omitted]
Law Offices of Robert D. Salisbury and Robert 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., Steve Oetting and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
FYBEL, ACTING P. J.
The only issue before us is whether defendant John Lynn Tirey is statutorily barred under Penal Code section 4852.01, subdivision (d), from petitioning for a certificate of rehabilitation. (All further statutory references are to the Penal Code unless otherwise noted.) We agree with defendant that the statute barring persons convicted of crimes under section 288, subdivision (a), from petitioning for a certificate of rehabilitation, while allowing other similarly situated persons, who have committed more serious crimes under section 288.7, to file such a petition violates equal protection under the state and federal Constitutions. We conclude that the crime of which defendant was convicted—violating section 288, subdivision (a)—must be removed from the list of crimes for which an absolute prohibition on petitioning for a certificate of rehabilitation exists. We therefore reverse the trial court’s order denying defendant’s petition, and remand the matter to allow the trial court to consider the merits of the petition. We express no opinion as to whether a
certificate of rehabilitation should be issued to defendant; we hold only that defendant is entitled to file a petition and to have that petition considered by the trial court.
This court’s original, published opinion also held the subject statute unconstitutional, imposed the same remedy, and permitted defendant to petition for a certificate of rehabilitation.
The Attorney General petitioned for rehearing on the grounds the original opinion did not address two arguments. We granted her petition. The petition conceded those two arguments had not been raised initially. The first argument raises a question of statutory interpretation. The Attorney General argues that under section 3000.1, subdivision (a)(2), those convicted under section 288.7 are barred from petitioning for a certificate of rehabilitation. To reach this result, the Attorney General argues the word “and” really means “or” in section 3000.1, subdivision (a)(2). We disagree, and conclude “and” means “and” in that statute. The Attorney General’s second argument relies on a statute that only becomes applicable after a certificate of rehabilitation is obtained, and therefore is inapplicable in this case.
We disagree with those two new arguments and, once again, hold defendant is entitled to petition for a certificate of rehabilitation. We are only deciding, as we did in our original opinion, that defendant, now off parole for 13 years, and others similarly situated, are entitled to petition, under law, for a certificate of rehabilitation. The trial court will decide such a petition based on the evidence.
We recognize that since our original opinion was filed, a bill has been introduced in the California Assembly to provide that a defendant convicted of violating section 288.7 would also be barred from seeking a certificate of rehabilitation under section 4852.01, subdivision (d). We again invite the Legislature’s continued attention to this issue.
In September 1998, defendant pled guilty to six counts of violating section 288, subdivision (a), and was sentenced to six years in prison. He was released from prison in February 2001, and was discharged from parole in February 2004.
About nine years later, in January 2013, defendant filed a petition for a certificate of rehabilitation pursuant to section 4852.01. In March 2013, the
tral court denied defendant’s petition on the ground that defendant was statutorily barred from obtaining a certificate of rehabilitation under section 4852.01, subdivision (d). Defendant timely appealed.
The Disparate Treatment, Under Section 4852.01, Subdivision (d), of Violators of Sections 288, Subdivision (a) and 288.7 Violates Equal Protection Principles.
Section 4852.01, subdivision (a) allows those convicted of a felony to petition for a certificate of rehabilitation. The purpose of the statute is to allow rehabilitated criminal offenders to regain various civil rights denied to convicted felons. (See People v. Jones (1985) 176 Cal.App.3d 120, 130 [221 Cal.Rptr. 382].) Subdivision (d) of section 4852.01, however, absolutely denies the right to petition for a certificate of rehabilitation to “persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section 289, or persons in the military service.” Defendant, who pled guilty to six counts of violating section 288, subdivision (a), is therefore statutorily prohibited from petitioning for a certificate of rehabilitation. Defendant claims that because those convicted of a violation of another similar but more serious sex offense—section 288.7—can seek a certificate of rehabilitation, section 4852.01, subdivision (d) violates equal protection principles.
“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (In re Eric J. (1979) 25 Cal.3d 522, 530 [159 Cal.Rptr. 317, 601 P.2d 549]; see Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [127 Cal.Rptr.2d 177, 57 P.3d 654].) In her respondent’s brief, the Attorney General contended that persons convicted of violating sections 288, subdivision (a),  and 288.7 are
not similarly situated because the statutes apply to victims of different ages, and because section 288, subdivision (a) includes an intent requirement not found in section 288.7. We reject the Attorney General’s argument on both grounds.
First, “[w]hile the age of the victim by which sex offenses are defined justifies disparate treatment of offenders of the different statutes [citation], this rationale does not justify more severe treatment of those convicted of the lesser offense.” (D.M. v. Department of Justice (2012) 209 Cal.App.4th 1439, 1451 [147 Cal.Rptr.3d 798].) Both in terms of punishment and in terms of the tenderness of the victim’s age, section 288.7 is unquestionably the more severe crime. Therefore, for purposes of an equal protection analysis, the persons convicted of the less serious crime under section 288, subdivision (a) are similarly situated to those convicted of the more serious crime.
Second, while section 288, subdivision (a) requires a specific intent, and section 288.7 does not, this distinction does not affect our conclusion that persons convicted of the two different crimes are similarly situated. All of the conduct criminalized by section 288.7 is overtly sexual. Some of the conduct criminalized by section 288, subdivision (a), by contrast, would not be sexual and would not be criminalized, if it were committed without the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of either the offender or the victim.
The Attorney General cites two cases in support of her argument that those convicted of violating sections 288, subdivision (a) and 288.7 are not similarly situated. Both cases are distinguishable, and the analysis of neither case is inconsistent with ours. In People v. Alvarado (2010) 187 Cal.App.4th 72, 79 [113 Cal.Rptr.3d 648], the court found that a person convicted of violating section 288, subdivision (a) was not similarly situated to a person convicted of violating section 261.5 (unlawful sexual intercourse with a minor) for purposes of mandatory sex offender registration. The court relied on the differences in the ages of potential victims, as well as the lack of a specific intent requirement in section 261.5. (People v. Alvarado, supra, at p. 79.) The age difference went the other way in that case—a victim under section 261.5 need only be under 18 years of age: “As to older victims, the trial court may find that the offense is not sufficiently egregious and the
offender is not sufficiently dangerous to society, particularly to young children, to warrant mandatory sex offender registration for all section 261.5 and section 288a, subdivision (b)(1) convictions.” (People v. Alvarado, supra, at p. 77.)
In People v. Cavallaro (2009) 178 Cal.App.4th 103, 113-114 [100 Cal.Rptr.3d 139], the court concluded that persons convicted under sections 288, subdivision (c)(1) (lewd act against a child 14 or 15 years of age, where the offender is at least 10 years older than the victim) and 261.5, subdivision (d) (unlawful, nonforcible sexual intercourse with a child under 16 years of age, where the offender is 21 years of age or older) are not similarly situated. That case also relied on the specific intent element in section 288. (People v. Cavallaro, supra, at p. 114.) It also relied on the differing age gaps between the offender and the victims, and the different ages of the victims as compared to the victim in People v. Hofsheier (2006) 37 Cal.4th 1185 [39 Cal.Rptr.3d 821, 129 P.3d 29]. (People v. Cavallaro, supra, at p. 114.) Hofsheier analyzed equal protection in terms of mandatory sex offender registration for violations of section 288a, subdivision (b)(1) versus section 261.5. Finally, the Cavallaro court concluded that if the defendant had engaged in sexual intercourse with his victims, he could have been charged under either section 261.5, subdivision (d) or section 288, subdivision (c)(1), and he would have been subject to mandatory registration in any event. (People v. Cavallaro, supra, at p. 115.)
Here, we are not faced with a statutorily required age gap between the victim and the offender. We conclude the difference between the age of the victim in the crimes committed here and the age of the victim in People v. Hofsheier is irrelevant for purposes of determining whether there is an equal protection violation in this case. The question whether another offender charged with ...