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California

Sex Offender Was Deprived of Equal Protection, CA 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 ___ ___ ___’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. Full Article

Note: For more on Certificate of Rehabilitation see the COR Page and FAQ on this site.

Updated: Decision – http://www.courts.ca.gov/opinions/documents/G048369.PDF

Join the discussion

  1. USA

    I commend the Judge. Truly. I too attempted to obtain a Certificate of Rehabilitation back in 2000. In my case, a Certificate of Rehabilitation would annul my requirement to register (Plead to a wobbler, batter, reduced to a misdemeanor, expunged, summary probation. ITs now been over 18 years, no arrests (prior/after) and I’ve obtained higher education. When I went in to OC, the DA was surreal. Very angry woman. She didn’t play fair. When it was all over with, the Judge stated, he could not find one reason to deny the motion, but it just wasn’t enough? To this day, I have no idea what that meant! Motion denied without predjudice:(

    • Staying Positive

      If your motion was denied without prejudice that was a hint that you should try again. If you can, move to a more lenient county. OC is probably about the worst county to try to get COR in. You can apply for COR more than once if necessary. Chance Oberstein was denied his first time out. But he got it on the second try, from what I gather.

  2. steve

    So 288a now you can apply for COR?

  3. noname

    What about a 288.b (4)??

  4. mch

    This is indeed very good news from a wise thinking judge. The many flaws in the 290 system are starting to be exposed and ever so slowly people are being afforded tidbits of justice. It’s a journey and two years ago I was pretty despondent about never getting relief from the registry and now I’m encouraged. Thanks Janice, CARSOL and all those that post positive and encouraging news, stories and life experiences. We ain’t there yet, but another step forward in spite of all outside attempts to make RSO’s fail.

    • Anonymous Nobody

      Just FYI, it is not “A” judge. Is it the appeals court, and that means a 3-judge panel. The story fails to mention how to two other jurists voted, whether it was a 2-1 decision or a 3-0 decision.

      I also note, while this decision is nice, it really is not a big deal other than for those convicted of that isolated statute. This does not mean any change in attitude about sex offenses. It is simply a technical matter saying that two so extremely similar offenses can’t be handled so differently.

      There have been a couple other cases of very similar offenses being handled differently that also have been ruled must be handled similarly. It started with the Hofsheier case, cited as the basis for this ruling. Many other cases have been brought under Hofsheier, but have lost, with the court ruling they were not so absolutely similar, saw some minor differences that the court ruled made all the difference. It does not take much at all to justify dissimilar treatment.

      This ruling is more an aberration than a new direction.

      • Eric Knight

        For what it’s worth, it was a unanimous decision. The three judges and the governor/year of appointments as follows:

        FYBEL, R. (GOV DAVIS, 2002)
        IKOLA, R. (GOV DAVIS, 2002)
        THOMPSON, D.A. (GOV BROWN, 2012)

  5. nathan

    what the next step on this ?

  6. One Day at a Time

    The 4th district has been a godsend to me and hopefully this decision will help me to put a bad mistake behind me.

  7. Janice Bellucci

    This is an important decision by a unanimous panel of three judges. While its scope is limited, the decision will help hundreds, maybe more to end their requirement to register. It’s decisions like this that make a difference. We can only hope that they are just the beginning and lead to overturning the 2003 decision by the U.S. Supreme Court, Doe v. Smith, which has caused so much harm by deciding that registration is an administrative requirement and not punishment.

    • Anonymous Nobody

      This ruling breaks no new ground on the punishment issue. It doesn’t even break any new ground on legal theory since it merely regurgitates Hofsheier for an extremely limited circumstance it says is identical to Hofsheier. This does not represent any kind of advance to leniency for sex offenders. I wish it did.

  8. JAH

    I have a question. My husband was arrested and convicted in 1986 for a 288(a) which was his step daughter at the time. He didn’t serve any prison time but was to complete some counseling, he divorced his wife and moved away but was suppose to complete counseling and was doing so but the court felt he was taking to long so they rearrested him and sent him to jail for 90 days for observation. Fast forward, to 1999 and he was arrested for failure to register when he moved from one city to another…no jail time. He has not been arrested or even a traffic ticket since then. He holds a good job and we have been married since 1998 with children of our own. So my question is…should we try for a Cert. of Rehab and see if we can have this erased? Or will they throw it out because of his mistakes. We did try to have him removed from the website with no luck because the county where he was arrested said they had destroyed all the documents since it was so far back. We haven’t tried to do anything since 2006. Any suggestions?

    • Anonymous Nobody

      Somewhat of an aside, I see a MAJOR problem that the county says it has no record. State law requires the district attorney to maintain those records (and the court to do so for a certain period). By law, the prosecutor basically has to hold them for a long, long, long time — I think until the offender would turn 100 years old. Years ago, I saw a case where the absence of the record at the county level was all that was needed to have the entire case erased from the state record — which effectively absolves you as having never been prosecuted much less convicted. But of course, they are not going to volunteer that, you would have to go to court to have it ordered for lack of records to back up the state record.

      You would need a GOOD lawyer to do plenty of research to carry this case. It is so long ago that I read that other case where this was done that I have no idea where it was or what kind of offense or anything. But for lack of the local record to back up the conviction, all records were invalidated and had to be destroyed. The state cannot simply have an index listing of your offense without the local record to back it up.

  9. Mot

    Is it better to have an attorney help with the COR or go it alone. I have a 288(a) attempt in 2001 and was released in 2003 so I should be able to apply at this time…correct?

    • Janice Bellucci

      I highly recommend an attorney. In some counties, the Office of the Public Defender will help a registered citizen apply for a Certificate of Rehabilitation at no cost. There are many steps to take in order to be successful in obtaining a certificate such as a recent psychological evaluation and letters of support. This case increases the number of people eligible to apply, but it does not guarantee that an increased number of people will obtain a certificate.

  10. Staying Positive

    Like with the Hofsheier decision, this case could open up the case law to include other charges that are currently banned from COR consideration. It’s an incremental approach but it’s working.

  11. Pedro

    does anyone know the actual def for a COR?

  12. bruce

    My Conv. was in late 96 in Butte Co. & I recently, well about 10 months ago called My old PD & he would not even talk to me however his sec. did & said that after 5 yrs they destroy the records but here’s the case #? I was not even out Yet & when I did Finnish parole in 03 I was “Told By My PO” Leave Town is My best advise Or,,,,? so I did & moved back home only thing I have had was 1 speeding ticket & 1 red light cam ticket since???? so they hang people & then burn the rope ? IDK Toooo Fishy Something is Wrong with this picture!

  13. bruce

    I would ask Mrs. B this where do You go for the Psych eval ? that would be acceptable to the panel. Private or County? Then I have to ask How can they use it against you later if not favorable & if favorable how much weight does it really carry @ the board? Character Witnesses & letters of recommendation? How Many are actually heard or read before the decision?I want to try this nothing to lose @ this point except $ I don’t have!lol

  14. Tim

    I would like a COR, but I think a better solution would be to have the registry deemed ex post facto punishment or at least have some way to fall off it at some point. Getting a COR sounds like you are guilty until you prove you are innocent. That is a step up from “you are a danger and there is nothing you can do to prove otherwise”, which is what every registry law says to justify itself.

  15. bruce

    @ Tim:You said”I would like a COR, but I think a better solution would be to have the registry deemed ex post facto punishment or at least have some way to fall off it at some point. Getting a COR sounds like you are guilty until you prove you are innocent. That is a step up from “you are a danger and there is nothing you can do to prove otherwise”. Yes Tim I was wondering that as well. It seems a land mine @ every turn That Is Exactly Why I haven’t started doing it Yet. In the case of a false conviction It could due just as You stated any other Ideas? This Country Has us Screwed to a wall & They don’t want us doing anything that could benefit Us Without having a Bear trap Waitin’ for Us @ every turn! It’s like Quick sand the more You struggle the deeper you sink What a Wonderful System We have,,,,WOW

  16. Tim

    I wouldn’t have any problem with proving that I am clean and of good character. Even if I were Saint Timothy, what incentive would the judge have to grant a COR? If the judge makes a mistake, it would come back to haunt her. It’s a matter of time and money for me. I am already struggling. In principle, I would first spend my time towards helping the greatest amount of people. That would give me a greater sense of victory.

  17. Neil B Fisher

    Here is the majority of what you have to do to get your 1203.4 P.C Certificate of Rehabilitation .
    1. you must have completed all of your probation requirements.
    2. you can not have any court cases whatsoever pending
    3.you can not be on probation or parole
    4.you must have had a clean slate and show good moral life (no convictions for the last 10 years before applying for the Cert.
    5. you must have been a California resident for the last five years before applying for your Cert.
    6. 10 years must have gone by from time of conviction and released from custody or released from parole or probation which is the lesser of the two before you can apply for your Cert.
    7.you must advise the DA 30 days before applying for your Cert.

    My advise is to get the Certificate Of rehabilitation packet ( from the court clerk) Then get a lawyer to read all the requirements (and advise you if you qualify) and then let him/her to do all the paperwork and all the legal stuff.

    GOOD LUCK. and my advice to all is use good judgment from this day forward.

    Neil

    • Joe

      Does this ruling apply to 288(a) only? Before the introduction of the new sections (288.7, etc), 288(a) was the ‘worst’ offense in the Penal Code. It is strictly a felony.

      Now what about the other offenses? i.e. the ones that are wobblers?

      While 4852.01, subdivision (d) does not prevent a person convicted for, say, 288a(b)(1) from applying for and receiving a COR, 290.5 specifically says a felony conviction for that section is exempted from terminating registration. Now, since Hofsheier registration for that is no longer mandatory, but even if one were required to register by discretion of the court and it were a felony, a COR (which one never was excluded from applying for) would not end the registration requirement.

      Does this ruling apply only to 288(a) or to all the other offenses listed in 290.5 which are, ostensibly, ‘less bad’ than 288(a)?

      Can someone shed some light on this, please.

  18. greg scott

    all the government is going to do is make it so NO persons with 290 get off megans or a certificate. so don’t get your hopes up.I am in danger in more ways than one.thank you greg scott 290

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