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Name: People v. Tirey
Case #: G048369
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/25/2014
Subsequent History: Review granted 8/20/14: S219050

Penal Code section 4852.01, subdivision (d), which prohibits a person convicted under Penal Code section 288, subdivision (a) from receiving a certificate of rehabilitation, violates equal protection. In 1998, Tirey was convicted by plea of six counts of violating section 288, subdivision (a), and received six years in prison. Nine years after his discharge from parole he petitioned for a certificate of rehabilitation, which was denied because Tirey was statutorily barred from obtaining relief. He appealed. Held: Reversed after rehearing. Section 4852.01 allows those convicted of a felony to petition for a certificate of rehabilitation. The statute bars section 288, subdivision (a) offenders from seeking relief, but not Penal Code section 288.7 offenders (sex with minor 10 years of age or younger). The classification in the statute affects these two groups of similarly situated offenders unequally and there is no rational basis for the unequal treatment. The different victim age ranges cannot justify more severe treatment of section 288, subdivision (a) offenders because section 288.7 is unquestionably the more severe crime. The fact that section 288, subdivision (a) and section 288.7 have different intent requirements does not affect the conclusion that the two groups are similarly situated. The conduct encompassed by section 288.7 is overtly sexual, while that within 288, subdivision (a) might not be sexual, absent the prerequisite intent. To remedy this equal protection violation, the court deleted section 288, subdivision (a) from the list of excluded offenses in the statute and authorized Tirey to renew his application. In a petition for rehearing, the Attorney General raised a new argument that section 288.7 offenders are ineligible for relief because section 3000.1, subdivision (a)(2) mandates life parole (a disqualifying circumstance under section 4852.01) for that offense. Applying rules of statutory construction, the court rejected this argument. The court also rejected the argument that Penal Code section 290.5 bars a section 288.7 offender from seeking a certificate of rehabilitation. [Editor’s Note: Legislation is currently pending that would add section 288.7 to the list of crimes in section 4852.01, subdivision (d) (Assem. Bill No. 1438 (2013-2014 Reg. Sess.).]