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Name: People v. Tirey
Case #: G048369
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/10/2015

The Legislature’s clarifying amendments to relevant Penal Code provisions that expanded the number of sex offenses that render a person ineligible for a certificate of rehabilitation apply to defendant whose appeal was pending at the time of the amendments. In 1998, Tirey pleaded guilty to six sex offenses (Pen. Code, § 288, subd. (a)) and was sentenced to state prison. In 2001 he was released from prison and was discharged from parole in February 2004. In 2013, Tirey filed a petition for certificate of rehabilitation (Pen. Code, § 4852.01). The trial court found Tirey’s conviction precluded relief. He appealed. In Tirey’s first appeal, and again after a grant of rehearing, the Court of Appeal reversed the lower court on equal protection grounds because a defendant convicted of violating Penal Code section 288.7 was not precluded from seeking a certificate. The Attorney General’s petition for review was granted and the case was remanded to the Court of Appeal for reconsideration because, after the Tirey opinions were filed, the Legislature amended Penal Code sections 4852.01, subdivision (d), 490.5 and 3000.1 to clarify that a section 288.7 conviction precluded issuance of a certificate (AB No. 1438). Held: Trial court’s order affirmed. The general rule is that statutes, including those clarifying existing law, do not operate retrospectively. However, there is an exception when the Legislature quickly reacts to the emergence of a novel question of statutory interpretation. A statutory amendment which is swiftly enacted and in effect clarifies and confirms the state of the law in response to a Court of Appeal opinion must be accepted as the legislative declaration of the meaning of the original act, and therefore applies to a pending case. As amended by SB No. 1438, subdivision (d) of section 4852.01 excludes from relief those defendants convicted of enumerated sex offenses, including sections 288 and newly added 288.7. This eliminated the equal protection problem identified in Tirey’s prior appeal.