California Court of Appeal Dec 15, 2015 No. E061839Unpublished
Filed 12/15/15 P. v. Lackey CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E061839
v. (Super.Ct.No. RIC1405744)
RONALD DEE LACKEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Edward D. Webster,
Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant
to art. VI, § 6 of the Cal. Const.) Reversed with directions.
Paul E. Zellerbach, District Attorney, Natalie M. Lough, Deputy District Attorney,
for Plaintiff and Appellant.
Law Offices of Robert D. Salisbury and Robert Salisbury for Defendant and
Respondent.
1
In 1993, defendant and appellant Ronald Dee Lackey pled guilty to lewd and
lascivious acts on a child under 14 years of age. (Pen. Code, § 288, subd. (a).)1 The trial
court sentenced him to 180 days in county jail and five years probation. Defendant
asserts he successfully completed that probation in December 1998.
and transferred to the Fourth District Court of Appeal for reconsideration. The Tirey
court found it violated equal protection principles for the Legislature to absolutely
prohibit those convicted of lewd and lascivious behavior with a minor under 14 years old
(§ 288, subd. (a)) from obtaining certificates of rehabilitation while appearing to make
such certificates available to those convicted of the crime of sexual intercourse with a
child 10 years of age or younger (§ 288.7), which is more serious. The People opposed
defendant’s petition on the ground that he was statutorily ineligible to receive a certificate
of rehabilitation. At the hearing on the petition, the trial court indicated it was following
Tirey, found defendant eligible for a certificate of rehabilitation, and issued the certificate
forthwith.
The People appeal from the granting of a certificate of rehabilitation. They argue
the equal protection argument accepted in Tirey fails because individuals convicted of
section 288.7 were and are just as ineligible for certificates of rehabilitation as those
1 Unless otherwise specified, all statutory references are to the Penal Code.
2
convicted of section 288, subdivision (a), such that no unequal treatment exists. We
agree, reverse the trial court’s granting defendant a certificate of rehabilitation, and
remand for entry of an order finding defendant statutorily ineligible for the relief he
seeks.
ANALYSIS
“The Penal Code provides a procedure for applying for a certificate of
rehabilitation for ‘convicted felons who have successfully completed their sentences, and
who have undergone an additional and sustained “period of rehabilitation” in California.’
(People v. Ansell (2001) 25 Cal.4th 868, 875; see also §§ 4852.01, 4852.03.) To obtain
the rehabilitation certificate, the statute requires that during the rehabilitation period
‘[t]he person shall live an honest and upright life, shall conduct himself . . . with sobriety
and industry, shall exhibit a good moral character, and shall conform to and obey the
laws of the land.’ (§ 4852.05.)” (People v. Failla (2006) 140 Cal.App.4th 1514, 1518
(Failla) [Fourth Dist., Div. Two].)
Some individuals convicted of crimes are statutorily ineligible for certificates of
rehabilitation. (§ 4852.01, subd. (d).) Under the version of section 4852.01 that was
operative at the time of the hearing on defendant’s petition for rehabilitation, these
individuals included: “persons serving a mandatory life parole, persons committed under
death sentences, persons convicted of a violation of subdivision (c) of Section 286,
Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of Section
289, or persons in military service.” (Former § 4852.01, subd. (d), italics added.) The
former version of section 4852.01 made no mention of section 288.7.
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Section 3000.1 describes the circumstances under which a defendant will be
subject to mandatory lifetime parole (and therefore also ineligible for a certificate of
rehabilitation (§ 4852.01, subd. (d)). As relevant to this proceeding, the version of
section 3000.1 that was in effect when the trial court granted defendant’s petition for
certificate of rehabilitation imposed lifetime parole on any person convicted of “Section
269 and 288.7.” (Former § 3000.1, subd. (a)(2), italics added.)
In 2014, the Legislature revised both sections 4852.01 and 3000.1. (Stats. 2014,
ch. 280.) Subdivision (d) of section 4852.01 now explicitly excludes persons convicted
of section 288.7 from being able to obtain certificates of rehabilitation. Similarly, section
3000.1 now states that a defendant convicted of “[s]ection 269 or 288.7” will be subject
to mandatory lifetime parole. (§ 3000.1, subd. (a)(2).)
Relying on Tirey, the trial court found it would violate equal protection to allow a
person convicted of sexual intercourse or sodomy with a child 10 years of age or younger
(§ 288.7) to obtain a certificate of rehabilitation when persons convicted of lewd and
lascivious conduct with a child age 14 or under (§ 288) were completely ineligible for
this relief even though their crimes were lesser in nature. A central premise of this line of
reasoning is that the previous version of section 3000.1 imposed lifetime parole only on
individuals convicted of both section 269 and section 288.7. If a person convicted of
section 288.7, alone, was subject to mandatory lifetime parole under the predecessor to
subdivision (a)(2) of section 3000.1, then such a person would be statutorily ineligible for
a certificate of rehabilitation under the former version of section 4852.01, subdivision (d),
and no equal protection issue would arise because individuals convicted of section 288
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and those individuals convicted of section 288.7 would be treated in exactly the same
way.
Having defined the issue as precisely as we can, we now turn to the meaning of
the previous version of section 3000.1. We will ordinarily affirm a trial court decision to
grant or deny a petition for a rehabilitation certificate “unless there is a clear showing of
abuse of discretion.” (Failla, supra, 140 Cal.App.4th at p. 1519.) However, as with any
appeal, we exercise independent judgment when interpreting a statute. (See, e.g., People
v. Accredited Surety Casualty Co. (2014) 230 Cal.App.4th 548, 555 [although abuse of
discretion standard ordinarily applies to bail bond forfeiture issues, de novo review
applied to purely legal question of statutory interpretation].) We look first to “ ‘ “the
words [of section 3000.1] themselves” ’ ” and, “ ‘ “[i]f the plain, commonsense meaning
of a statute’s words is unambiguous, the plain meaning controls.” ’ ” (People v. King
(2006) 38 Cal.4th 617, 622.) If, on the other hand, the statute is reasonably susceptible to
multiple interpretations, we look to extrinsic aids, such as legislative history. (Ibid.)
“Although an expression of legislative intent in a later enactment is not binding upon a
court in its construction of an earlier enacted statute, it is a factor that may be
considered.” (Cummins v. Superior Court (2005) 36 Cal.4th 478, 492.)
The People argue the former version of section 3000.1, subdivision (a)(2),
imposed mandatory lifetime parole on anyone convicted of either section 288.7 or section
269, or, more concisely, that the word “and” really meant “or” in the relevant context.
Respondent does nothing to help us interpret section 4852.01 or section 3000.1; the
respondent’s brief consists almost entirely of block quotations from Tirey, which is no
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longer citable authority.2 However, we agree with the People that “and” meant “or” for
the reasons we now discuss.
As indicated ante, the former version of section 3000.1, subdivision (a)(2),
imposed lifetime parole on individuals convicted of “Section 269 and 288.7.” (Former
§ 3000.1, subd. (a)(2), italics added.) We do not deny that “and” is most often used in the
conjunctive, which would mean that only a person convicted of both section 269 and
section 288.7 would have been required to remain on parole for life. Here, however,
former section 3000.1, subdivision (a)(2), could reasonably be interpreted to use “and” in
the disjunctive, instead. Section 3000.1, subdivision (a)(2), references not only
individuals convicted of section 269 and section 288.7, but also “any inmate sentenced to
a life term under subdivision (b) of Section 209, if that offense was committed with the
intent to commit a specified sexual offense . . . subdivision (c) of Section 667.51, Section
667.71 in which one or more of the victims of the offense was a child under 14 years of
age, or subdivision (j), (l), or (m) of Section 667.61.” Because lifetime parole is only
mandatory for defendants convicted of certain subdivisions of the statutes other than
sections 269 or 288.7, or of section 209 with a particular specific intent, the reference to
“Section 269 and 288.7” could signify either that a person must have been convicted of
2 Absent exceptions not applicable here, “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115(a), italics added.) Although we exercise discretion not to impose any here, continuing to violate this rule is a ground for sanctions. (People v. Williams (2009) 176 Cal.App.4th 1521, 1529 [“persistent use of unpublished authority may be cause for sanctions”].)
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both statutes for the requirement to apply, or that sections 269 and 288.7 are logically
connected because those are the only two statutes of which the violation of any
subdivision, with any intent, would suffice.
Having identified an ambiguity in former section 3000.1, subdivision (a)(2), we
look to extrinsic aids to help us interpret the statute. In particular, we note that the 2014
amendment to sections 4582.01 and 3000.1, which occurred as part of Assembly Bill
No. 1438, appears to have originated as a reaction to Tirey. An early report about the bill
states: “This bill clarifies existing law to ensure that the requirement for a child molester
to register as a sex offender continues to be enforced in the same manner as it was prior
to the April 2014 People v. Tirey decision.” (Rep. from Sen. Republican Policy Off.,
E. Csizmar, analysis of Assem. Bill No. 1438 (2013-2014 Reg. Sess.) as amended June 3,
2014, p. 1.) The same report continues: “This bill seeks to address the unusual decision
in People v. Tirey[, supra, S219050] (G048369), where the court oddly ruled that
contextually the word ‘and’ between two specified crimes meant that a defendant must
have been convicted of both offenses rather than either or as was the clear intent of the
section. This led to a decision whereby child molesters could be granted a certificate of
rehabilitation. This bill addresses that issue by clarifying the language in multiple
sections.” (Ibid.) Elsewhere, the report explains that, “[i]n what appears to be an
oversight,” mention of section 288.7 was omitted when the Legislature amended section
3000.1 in 2010. (Id. at p. 6.) “AB 1438 seeks to close a loophole that allows dangerous
criminals to evade their responsibility to register as sex offenders.” (Id. at p. 7.) The
third reading of Assembly Bill No. 1438 also referred to the need to correct the
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“oversight” that led to Tirey. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading
analysis of Assem. Bill No. 1438 (2013-2014 Reg. Sess.), as amended June 3, 2014, p. 4.)
As this subsequent history shows, the Legislature thought of itself as clarifying,
rather than changing, the law when it passed Assembly Bill No. 1438 and amended
sections 4852.01 and 3000.1. It did so because it deemed the confusing use of the word
“and” in section 3000.1, subdivision (a)(2), an oversight. We therefore conclude that
“and” was always intended to mean “or,” such that a person convicted of section 288.7
was, in fact, subject to mandatory lifetime parole and consequently ineligible for a
certificate of rehabilitation when the hearing on defendant’s petition occurred. This
means no equal protection violation could have arisen if the court deemed defendant
statutorily ineligible for a certificate of rehabilitation, because individuals convicted of
section 288.7 were treated the same as individuals convicted of section 288 in the
relevant context. The trial court erred in finding defendant eligible for a certificate of
rehabilitation on equal protection grounds.
Citing People v. Eckard (2011) 195 Cal.App.4th 1241 and In re Thomson (1980)
104 Cal.App.3d 950, counsel for defendant asserted at oral argument that the
Legislature’s insertion of section 288.7 into section 4852.01 constitutes a substantial
change to the law and therefore cannot operate retrospectively without a clear indication
by the Legislature that it was intended to operate as such. This general rule, however, is
subject to an exception that is applicable here: when an appellate court issues an opinion,
and the Legislature considers that opinion in clarifying the challenged law, we are bound
to apply the clarified law in the pending case. (See, e.g., Western Security Bank v.
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Superior Court (1997) 15 Cal.4th 232, 243-244; Carter v. California Dept. of Veterans
Affairs (2006) 38 Cal.4th 914, 922–923.) The legislative history of Assembly Bill
No. 1438 reflects that the Legislature viewed the statutory changes effected by that
legislation as clarifications necessary in response to Tirey. (Rep. from Sen. Republican
Policy Off., E. Csizmar, analysis of Assem. Bill No. 1438 (2013-2014 Reg. Sess.); Sen.
Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1438
(2013-2014 Reg. Sess.), as amended June 3, 2014, p. 4.)
We therefore reverse the order granting defendant a certificate of rehabilitation
and remand the matter back to the trial court. Any request by defendant for a certificate
of rehabilitation is now moot, given the 2014 changes that eviscerated his equal
protection contentions. By pleading guilty to violating section 288, subdivision (a),
defendant made himself subject to any later legislative changes that may affect him.
(Doe v. Harris (2013) 57 Cal.4th 64, 66 [“[T]he general rule in California is that the plea
agreement will be ‘ “deemed to incorporate and contemplate not only the existing law but
the reserve power of the state to amend the law or enact additional laws for the public
good and in pursuance of public policy. . . .” ’ ”].) This means the law that applies to any
further proceedings is the current law, which leaves no room for an equal protection
challenge, rather than the law that applied at the time of the hearing that already occurred.
Consequently, there is nothing for the trial court to do but to enter an order finding
defendant statutorily ineligible for the relief he requested.
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DISPOSITION
The judgment is reversed and remanded. The trial court is instructed to enter an
order finding defendant statutorily ineligible for a certificate of rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant was statutorily ineligible for a certificate of rehabilitation because the legislative use of the word "and" in former Penal Code section 3000.1 was intended to mean "or," thereby subjecting those convicted of section 288.7 to mandatory lifetime parole and eliminating the basis for an equal protection challenge.
Issues
Whether the term "and" in former Penal Code section 3000.1, subdivision (a)(2) should be interpreted as "or" to include individuals convicted of section 288.7 under mandatory lifetime parole.
Whether the trial court erred in granting a certificate of rehabilitation based on an equal protection violation regarding the eligibility of individuals convicted under section 288 versus section 288.7.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“We therefore conclude that “and” was always intended to mean “or,” such that a person convicted of section 288.7 was, in fact, subject to mandatory lifetime parole and consequently ineligible for a certificate of rehabilitation”
“The trial court erred in finding defendant eligible for a certificate of rehabilitation on equal protection grounds.”