Court Decides California Sex Offender Law Unconstitutional
In 1998, John Tirey pled guilty to six counts of lewd and lascivious conduct with two girls under the age of 14 (Penal Code § 288(a)). The case was filed in Orange County. Lance Jensen was the judge.Condensed Version: Court decides California sex offender law is unconstitutional by barring those convicted of misconduct with persons under 14 from relief from PC 290 Registration.
Judge Jensen sentenced Tirey to six years in state prison and ordered him to register as a sex offender under Penal Code § 290 for life.
In 2013, Tirey filed a certificate of rehabilitation, seeking to be relieved of the § 290 registration requirements. Judge Jensen denied the petition, reasoning that Penal Code § 4852.01(d) and § 290.5 (a)(2) specifically deny such relief to those convicted of crimes under Penal Code § 288. Section § 4852.01 (d) allows for the filing of such a petition, but specifically states that, “[t]his chapter shall not apply to persons… convicted of a violation of… Section 288.”
Penal Code § 290 (a)(1) also provides that someone required to register as a sex offender may ask to be relieved of this requirement, unless the person has a conviction under Penal Code § 288(a), (like Tirey).
Tirey had argued that the judge should grant his request because Penal Code §§ 290.5(a)(1) and 4852.01(a) were unconstitutional because they denied his right to equal protection as provided in the U.S. Constitution, made applicable to the states. His argument was that 290.5 (a)(1) and 4852.01(a) allowed relief from 290 registration to persons convicted of Penal Code § 288.7, sexual intercourse, sodomy, oral copulation or sexual penetration of someone age ten or less, but paradoxically deny relief to people convicted of 288. The conduct prohibited by Penal Code § 288.7 is overly sexual and seemingly much worse than a violation of § 288(a). Judge Jensen disagreed.
In Tirey’s case, the appellate court did address the prosecution’s argument that the unequal treatment of 288.7 verses 288(a) was permissible because the intent required to commit 288(a) requires a specific intent to appeal to or gratify the lust, passion, or sexual desires of that person or the child. Penal Code § 288.7, however, does not require specific intent. However, the reader should note that the conduct is most likely quite specific in intent (sexual intercourse, sodomy, oral copulation or sexual penetration).
However, the appellate court found Tirey’s arguments more persuasive. It held that the statutory classifications of Penal Code §§ 4852.01(d) and 290.5(a)(2) result in a “rather startling statutory preferential treatment” for persons convicted of more serious crimes, all of which denies the latter persons of the equal protection of the laws. The court cited to Newland v. Board of Governors (1977) 19 Cal. 3d 705, 708 and 712 as a prior case where statutory rape was discussed in the same 290 context.
The court of appeal then reversed the order denying the certificate of rehabilitation and the case was remanded (sent back) to the trial court to consider the petition on its merits.
It should be emphasized that the trial court could still deny the petition on other grounds, such as finding that Tirey had not established he was rehabilitated as required.
For more information about registering as a sex offender under Penal Code § 290, click on the following articles:
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