Certificate of Rehabilitation Eligibility Extended to Penal Code 288 (a)

Posted by Seth Chazin | Nov 25, 2013 | 2 Comments


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:

About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 25 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.


Neil Fisher Reply

Posted Feb 05, 2014 at 10:39:12

How and why did California remove the granting of the Certificate or Rehabilitation for PC 288.(a) the simple sexual touching of a person under 14 in 1997 and Not remove the granting of the Certificate of Rehabilitation for the PC.288.7 the full sexual relations with a person 10 and under. (Now that’s pedophillia) Is it just me or does anybody else wonder how and why this occured in the first place. Somthing is and was not right. Does anybody have the anwser to this question if so, Please explain.

Neil B Fisher [email protected]

Seth Chazin Reply

Posted Feb 06, 2014 at 13:02:03

There is often no rhyme or reason as to certain actions taken by the legislature. There is no question about that. However, you should be aware that there was a recent court decision which does open up the possibility of a certificate of rehabilitation and relief from PC 290 registration for those convicted of PC 288 (a) and related crimes. The case is entitled People vs. Tyrie.

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