Metropolitan News-Enterprise


Monday, November 18, 2013


Page 1


Sex Offender Was Deprived of Equal Protection, C.A. Rules

Panel Says Law Allowing Some Child Molesters to Seek Pardon, but Not Others, Is Irrational and Unconstitutional




A state law that allows a defendant convicted of a sex crime against a child under the age of 10 years to obtain a certificate of rehabilitation and pardon, but denies a similar opportunity to one convicted of molesting a child under the age of 14, is unconstitutional, the Fourth District Court of Appeal ruled Friday.

“[W]e can discern no rational basis for the unequal treatment of these two similarly situated groups of sex offenders,” Justice David A. Thompson wrote for Div. Three.

The court directed an Orange Superior Court judge to consider the merits of John Lynn Tirey’s petition for a certificate of rehabilitation.

Such certificates are issued under a statutory scheme that permits a convicted felon to apply after completing probation, or once a specified number of years—varying according to the seriousness of the crime—have elapsed following release from prison and discharge from parole. A petition is filed in the county where the person lives, and if—following an investigation—the person is found to be of good character, a judge may grant the certificate.

Governor’s Power

The governor then determines whether to grant a pardon based on the certificate, although such pardons are rare. The governor also has the power to grant a pardon without a certificate, but such action is even rarer.

Amendments to the scheme in the past 20 years have made certain sex offenders ineligible for a certificate of rehabilitation, and therefore subject to a lifetime sex offender registration requirement, regardless of how long ago they committed their crimes or what they have done since.

These include those convicted under Penal Code Sec. 288(a), which prohibits lewd or lascivious acts with a child who is under the age of 14 years. But those convicted of sexual intercourse, sodomy, oral copulation or sexual penetration with a child 10 years of age or younger, proscribed by Sec. 288.7, are permitted to seek the certificate.

Orange Superior Court Judge Lance Jensen ruled that Tirey—who was convicted of molesting two girls under the age of 14 in 1998 and sentenced to six years in prison, was discharged from parole in 2004, and applied for the certificate earlier this year—failed to establish an equal protection violation.

Thompson, writing for the appeals panel, disagreed.

No Rational Basis

He cited People v. Hofsheier (2006) 37 Cal.4th 1185, which held that a provision mandating sex offender registration for all defendants convicted of oral copulation of a minor violated the equal protection clauses. The court said there was no rational distinction between those offenders and those convicted of unlawful sexual intercourse, as to which the trial court has discretion as to whether to require registration.

While it may be rational to treat certain sex offenders more harshly based on the age of the victim, Thompson wrote, that rationale disappears when a person who commits the offense against a younger child is treated less harshly, as is the case with Sec. 288.7 offenders. Nor, he said, do the different intent elements of the crimes justify the distinction.

The lack of a rational basis for the classification, he went on to say, requires the court to choose among three possible remedies—throw out the statutory scheme completely and allow all sex offenders to apply for the certificate, add Sec. 288.7 offenders to the list of those who cannot apply, or add Sec. 288(a) offenders like Tirey to the list of those who can.

The last alternative is the most appropriate, the justice reasoned, because it is the one the Legislature would likely prefer.

The case is People v. Tirey, G048369.


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