BIG NEWS FOR THOSE CONVICTED OF 288 (a) - NOW ELIGIBLE FOR CERTIFICATE OF REHABILITATION!
In 1998, John Tirey was found guilty of six counts of lewd or lascivious conduct with a child under the age of 14, in violation of penal code 288(a). He was sentenced to six years in prison and was required to register as a sex offender under Penal Code section 290. He ended his parole in 2004.
This year (2013), Tirey tried to petition for a certificate of rehabilitation so that he could be removed from the sex offender registration list. Although it appeared that the trial court found Mr. Tirey otherwise eligible for a certificate of rehabilitation, the court denied his petition because it was prohibited by the statutory exclusions set forth in Penal Code section 4852.01(d) and Penal Code section 290.5(a)(2).
In this appellate court decision, the court reversed the trial court's decision holding that parts of Penal Code 4852.01(d) and 290.5 violated the equal protection provisions of the United States Constitution, as upheld in the case of People v. Hofsheier (2006) 37 Cal. 4th 1185.
The court reasoned that these statutory provisions provide a means by which some sex offenders can receive a certificate of rehabilitation and relief from the sex offender registration requirement, while other similarly situated offenders cannot. In Tirey's case, the only reason he was excluded was as a result of the fact that he was convicted of Penal Code section 288(a) (lewd or lascivious act against a minor under the age of 14). Yet, those convicted of Penal Code section 288.7, (performing sexual intercourse, sodomy, oral copulation, or sexual penetration with a child 10 years of age or younger) are not excluded from obtaining a certificate of rehabilitation by 290.5 and 4852.01 (d). The court sided with Tirey that there is not much to distinguish between someone convicted under 288(a) and those convicted under 288.7, and for this reason those convicted of 288 (a) should also be eligible. The court found no legitimate reason to deny a person with a prior conviction of Penal Code section 288(a) when a person convicted of Penal Code section 288.7 is otherwise eligible.
The court concluded that 4852.01(d) and 290.5 (a) (2) violated the equal protection clauses of the state and federal constitutions. The court found that it was appropriated to delete Penal Code section 288 (a) from the exclusion list set forth in 4852.01 and 290.5(a)(2)and permit those convicted of this offense to petition the court for a certificate of rehabilitation and be eligible to be removed from the Penal Code section 290 sex offender registration list.
If you have been convicted of Penal Code section 288 (a) and interested in obtaining a certificate of rehabilitation and being removed from the Penal Code 290 sex offender registration list, contact us immediately and also check out our web page on sex offender registration at: http://www.bayarea-attorney.com/PracticeAreas/Sex-Offender-Registration---Failure-to.asp