BILL ANALYSIS
SENATE COMMITTEE ON CRIMINAL PROCEDURE
Senator Milton Marks, Chair A
1995-96 Regular Session B
1
9
AB 1901 (Alby) 0
As amended June 3, 1996 1
Hearing date: June 11, 1996
Penal Code
ALA:js
REGISTERED SEX OFFENDERS: CERTIFICATES OF REHABILITATION
HISTORY
Source: Attorney Generalos Office; California District
Attorneyos Association
Prior Legislation: AB 2500 (Ch. 867/94 (Alby))
Support: Alameda County Sheriffos Department; Allan
Hancock College Chief of Police; Amber Foundation for
Missing Children; California District Attorneys
Association; California Sexual Assault Investigators
Association, Inc.; California State Sheriffso
Association; California State University, Chico Chief
of Police; California State University, Stanislaus
Director of Public Safety; City of Inglewood Chief of
Police; City of Isleton Chief of Police; City of
Monrovia Chief of Police; City of Monterey Park Chief
of Police; City of Napa Chief of Police; City of Palm
Springs Chief of Police; City of Redding Chief of
Police; City of Sacramento Chief of Police; City of
San Buenaventura Chief of Police; City of San Diego
Chief of Police; City of Santa Barbara Chief of
Police; City of Santa Clara Chief of Police; City of
Santa Cruz Chief of Police; City of Torrance Chief of
Police; Judicial Council of California; Kern County
Sheriff-Coroner; The Kevin Collins Foundation for
(More)
AB 1901 (Alby)
Page 2
Missing Children; KIDS SAFE; Livingston Chief of
Police; Lodi Chief of Police; Los Angeles County
Sheriffos Department; Marin County Undersheriff;
Marysville Chief of Police; Mothers Against Sexual
Abuse; Mono County Sheriff-Coroner; Montebello Chief
of Police; Monterey County Sheriff-Coroner; Orland
Chief of Police; Placer County
Sheriff-Coroner-Marshal; The Police Chiefos
Association of Santa Clara County; Protect Our
Children; Riverside County Sheriff; Rohnert Park
Department of Public Safety; Sacramento County
Sheriffos Department; San Bernardino County Office of
the Sheriff; San Jacinto Chief of Police; Santa Monica
Chief of Police; Sonoma County Sheriff-Coroner; Sonoma
State University Chief of Police; Sutter County
Sheriff-Coroner; Ventura County Sheriff; individuals
Opposition: American Civil Liberties Union; California
Attorneys for Criminal Justice; California
Probation, Parole and Correctional Association
Assembly Floor Vote: Ayes 71 - Noes 1
KEY ISSUE
SHOULD SPECIFIED CONVICTED SEX OFFENDERS BE REQUIRED TO OBTAIN A PARDON FROM
THE GOVERNOR TO BE RELIEVED FROM THE DUTY TO REGISTER AS A SEX OFFENDER?
PURPOSE
Current law provides that a person required to register as a
sex offender may initiate a specified court proceeding to
obtain a certificate of rehabilitation. (Penal Code ? 290.5)
Persons with certificates of rehabilitation are relieved of
any further duty to register as a sex offender because of the
offense for which registration was originally required.
(Id.)
(More)
AB 1901 (Alby)
Page 3
This bill would provide that persons convicted of the certain
sex offenses could not be relieved of the duty to register
until they have obtained a full pardon from the Governor, as
specified. The offenses for which the duty to register would
not be relieved absent a pardon would be:
assault with intent to commit rape, oral copulation, or
sodomy (Penal Code section
(oPCo) 220);
assault to commit specified sex acts (PC 264.1 or 289 under
PC 220);
rape (PC 261);
forcible spousal rape (PC 262(a)(1) involving the use of
force or violence for which the
person is sentenced to state prison);
in concert rape (PC 264.1);
sodomy (PC 286);
child molestation (PC 288 or 647.6);
oral copulation (PC 288a);
continuous sexual abuse of a child (PC 288.5);
foreign object rape (PC 289);
kidnapping of a minor under 14, as specified (PC 207(b));
kidnapping to commit specified sex act (PC 208 (d));
rape (PC 261) if the victim is a minor;
procuring unmarried female under 18 for prostitution (PC
266);
abduction of minor for prostitution (PC 267);
sodomy with a minor (PC 286 (b), (c));
specified oral copulation with a minor (PC 288a (b)(2) and
(c)(2));
specified foreign object rape of a minor (PC 289 (i) or (j));
and
kidnapping to commit specified sex act (PC 208(d)) if victim
is a minor.
As amended June 3, 1996, this bill would not apply to
misdemeanor violations of Section 647.6. The bill also would
authorize certificates of rehabilitation to relieve a person
of the duty to register as a sex offender if the person was
(More)
AB 1901 (Alby)
Page 4
granted probation as a non-violent, intra-familial offender
pursuant to Penal Code section 1203.066, and has complied
with registration requirements for a continuous period of at
least 10 years immediately preceding the filing of the
petition, and has not been convicted of a felony during that
period.
Current law generally requires courts to declare petitioners
for certificates of rehabilitation to be rehabilitated if the
court finds that the petitioner has odemonstrated by his
course of conduct his rehabilitation and his fitness to
exercise all of the civil and political rights of
citizenship,o . . . . (Penal Code sec. 4852.13)
This bill would change oshallo to omayo in the above-quoted
provision.
This is an urgency measure.
The purpose of this bill is to 1) require that certain sex
offenders obtain a gubernatorial pardon to obtain relief from
the duty to register as a sex offender; and 2) give courts
the discretion to order, or to not order, certificates of
rehabilitation when a petitioner has demonstrated
rehabilitation.
COMMENTS
1. Authoros Amendments.
When this Committee heard this bill on May 14, the author and
the Committee discussed, among other matters, the billos
application to certain non-violent, intra-familial child
molestation offenders who receive probation under the
provisions of Penal Code section 1203.066. The author has
responded to this issue with the following amendments:
removing from the billos scope Penal Code section 647.6
(More)
AB 1901 (Alby)
Page 5
misdemeanors (annoying or molesting any child under the age
of 18) and
providing that a certificate of rehabilitation may relieve
the obligation to register as a sex offender for offenders
who, under Penal Code section 1203.066, were granted
probation, registered for at least 10 years and have not
been convicted of a felony during that period.
These amendments are intended to address the concerns raised
by some childrenos advocates that, in its prior version, the
bill could have inadvertently harmed child victims in
non-violent, intra-familial molestation cases where the
child, offender and entire family have been successfully and
safely reunited following probation and intensive therapy.
The ten-year minimum period of registration imposed by this
bill is in response to federal legislation, The Jacob
Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act (42 U.S.C. 14071). The stateos
deadline for meeting the Actos requirements is September of
1997.
2. Stated Need for This Bill.
The author states:
Felons may petition for judicial grants of
certificates of rehabilitation under Penal Code
section 4852.03. Essentially, applicants need
only show that they have resided in California for
three years and that they have not been convicted
of another crime in the preceding 5 to 7 years
(depending upon the original offense).
Consequently, certificates are routinely granted.
For most felons, such a grant is merely the first
step toward obtaining a pardon, which must be
granted by the Governor and approved by the State
Supreme Court. In the case of sex offenders,
however, obtaining a certificate relieves them of
(More)
AB 1901 (Alby)
Page 6
the duty to register under Penal Code section 290.
If they do not register, their names are not
contained in the Child Molester Identification
Line database and cannot be publicly accessed.
The word is apparently out among pedophiles that
the way to escape such public detection is to
obtain a certificate. A number of D.A.'s report
that applications from child molesters for
certificates of rehabilitation have increased
since the passage of The Child Protection Act of
1995, AB 2500 (Alby), which enacted the 1-900
Hotline. This bill would amend section 290.5 of
the Penal Code to compel persons covered in the
Child Molester Identification Line database, plus
those who commit forcible rapes against adults, to
continue to register despite obtaining
certificates. They can only be relieved of the
duty to register when they are granted a full
pardon. It would also amend section 4852.13 of
the Penal Code to make the judge's decision on a
certificate petition discretionary.
3. Unconstitutional Ex Post Facto Law?
The practical impact of this bill would be to increase the
length of time an offender must comply with the registration
statute. This may be unconstitutional:
A certificate of rehabilitation and executive
pardon ameliorate various statutory disabilities
imposed on an ex-felon and restore full civil and
political rights. Since these disabilities
constitute punishment, an increase in the time
that an ex-felon remains subject to them also
constitutes punishment. Thus, an amendment to
P.C. 4852.03 increasing the waiting period
required before filing a petition for certificate
of rehabilitation, as applied to an ex-felon
discharged from prison prior to the amendmentos
(More)
AB 1901 (Alby)
Page 7
effective date, violates the constitutional
prohibitions against ex post facto laws. (Witkin
and Epstein, 1 California Criminal Law 2nd sec.
17, citing People v. Sovereign (1983) 144 Cal.
App.3d 143)
WOULD THIS BILL BE CONSTITUTIONAL?
4. Certificates of Rehabilitation.
As explained above, persons required to register as sex
offenders can be relieved of that duty if they obtain a
certificate of rehabilitation from the court. To file a
petition for a certificate, all felony offenders and
misdemeanor sex offenders, as specified, must meet the
following criteria:
the person has not been incarcerated in any prison, jail,
detention facility or other penal
institution or agency since the dismissal of the accusatory
pleading;
the person is not on probation for the commission of any
other felony; and
the person presents satisfactory evidence of three years
residence in this state prior to the
filing of the petition. (Penal Code ? 4852.01(c))
Persons serving mandatory life parole, committed under death
sentences, or persons in military service are not eligible to
apply for rehabilitation. (Penal Code ? 4852.01(d))
The period of rehabilitation runs upon the discharge of the
petitioner from custody upon completion of his or her term,
or upon his or her release on parole or probation, whichever
is sooner. (Penal Code ?4852.03) Rehabilitation generally
constitutes three yearso residence in California plus two
years. (Penal Code ? 4852.03(2)) Current law requires that,
oduring the period of rehabilitation the person shall live an
honest and upright life, shall conduct himself with sobriety
and industry, shall exhibit a good moral character, and shall
(More)
AB 1901 (Alby)
Page 8
conform to and obey the laws of the land.o (Penal Code ?
4852.05)
Persons seeking certificates must give notice to district
attorneys in the county of application and any counties in
which the person was convicted. In addition, they must give
notice to the office of the Governor. (Penal Code ? 4852.07)
A Certificate of Rehabilitation generally is a prelude to a
Governoros pardon. (Penal Code ? 4852.13)
HAVE ANY FORMER SEX OFFENDERS WHO HAVE RECEIVED CERTIFICATES
OF REHABILITATION SUBSEQUENTLY BEEN CONVICTED OF ANY SEX
OFFENSE?
IS THERE ANY EVIDENCE THAT THE CURRENT CERTIFICATE OF
REHABILITATION LAW IS EXCUSING NON-REHABILITATED SEX
OFFENDERS FROM THE OBLIGATION TO REGISTER?
IF THE CURRENT CERTIFICATE OF REHABILITATION PROCESS IS
FLAWED, WOULD TIGHTENING ITS PROVISIONS BE A MORE APPROPRIATE
RESPONSE THAN IMPOSING WHAT ESSENTIALLY WOULD BE LIFETIME
REGISTRATION?
5 Sex Offenders and Certificates of Rehabilitation.
There is no clear, comprehensive data indicating how many sex
offenders receive certificates of rehabilitation. The
Governoros office, which statutorily must be notified when
any offender files a petition for a certificate of
rehabilitation, reports that 244 offenders in 1995, and 263
offenders in 1994, filed and were granted petitions for
rehabilitation in 1995; however, it is unknown how many of
these offenders obtained certificates of rehabilitation for
sex offenses for which registration would be excused.
(More)
In October of 1995, the San Jose Mercury News reported that
about 30 people had sought certificates of rehabilitation in
Santa Clara County last year, and that about a quarter of
them were for sex offenses.<1> In its letter of support for
this bill, the California District Attorneys Association
states that oincreasing numbers of sex offenders are seeking
and receiving relief under this erroneous law.o CDAA
supports this statement with data from Santa Clara County, in
which CDAA reports 37 certificates were issued in 1993; 36 in
1994; 33 in 1995; and 23 in the first four months of 1996.
CDAA also advised Committee staff that it has anecdotal
reports from some district attorneys reporting increases in
the numbers of sex offenders seeking rehabilitation
certificates. In addition, the Department of Justice has
advised Committee staff that, in its function of maintaining
the sex offender registration list, it receives notice of
about 30 certificates of rehabilitation for sex offenses a
month.
The Governoros office reports that Governor Wilson has never
pardoned a sex offender. Thus, the practical effect of this
bill likely would be that, for the sex offenses it
enumerates, registration would be a lifetime requirement.
This bill also would effectively shift the decision of
whether a sex offender is rehabilitated from the courts to
the Governor.
SHOULD THE SEX OFFENSES ENUMERATED BY THIS BILL BE SUBJECT TO
LIFETIME SEX OFFENDER REGISTRATION?
IS THE GOVERNOR BETTER ABLE TO DETERMINE WHETHER SEX
OFFENDERS HAVE BEEN REHABILITATED THAN JUDGES? ON WHAT BASIS
WOULD THE GOVERNOR MAKE THIS DECISION?
WOULD THIS BILL MAKE A SEX OFFENDERoS REHABILITATION A
POLITICAL, RATHER THAN A THERAPEUTIC AND JUDICIAL, DECISION?
WOULD THAT BE GOOD PUBLIC POLICY?
WOULD THIS BILL LEAD TO LIFETIME REGISTRATION FOR ALL
-------------------------------
<1> San Jose Mercury News, Oct. 4, 1995.
(More)
AB 1901 (Alby)
Page 10
REGISTERED SEX OFFENDERS? IS THAT THE INTENT OF THE AUTHOR
OR THE SPONSORS?
6. Background: Sex Offenders Generally.
According to the Department of Justice, as of April 1, 1996,
there are 62,558 sex offenders registered in California. The
Department reports that approximately 80% of the address
information on active sex offender registrants is current.
The Department of Justice evaluated the recidivism patterns
of 1,362 sex offenders whose first arrest occurred in 1973.
An analysis of subsequent arrests over a 15-year period
(1973-1988) found that nearly half (49.4%) were re-arrested
for some type of offense and 19.7% for a subsequent sex
offense. Sex offenders whose first arrest was for rape by
force or threat had the highest recidivism rate, 63.8% for
any criminal offense and 25.2% for a subsequent sex offense.
This data indicate that sex offense recidivism among sex
offenders ranges from a low of 16.8% (first arrest for
indecent exposure, annoying or molesting, loitering in or
about toilet, etc.) to 25.2% (first arrest for forcible
rape). (Department of Justice, oEffectiveness of Statutory
Requirements for the Registration of Sex Offenders.o)
According to one 1990 study,<2> recidivism rates among sex
offenders not treated by mental health professionals for
sexual deviancy range as follows:
4-10% (incest offenders)
7-35% (rapists)
10-29% (child molesters of girls)
13-40% (child molesters of boys)
41-71% (exhibitionists)
***************
-------------------------------
<2> Washington State Institute for Public Policy (July
1992), citing W.L. Marshall and H.E. Barbaree, Handbook of
Sexual Assault (1990), p. 371, reported to be obased on a
compilation of sex offender recidivism studies; official
records only, no self-reports.o
AB 1901 (Alby)
Page 11