Filed 7/14/15 P. v. Courtemarche CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                           C076981

                   Plaintiff and Respondent,                       (Super. Ct. No. MCRDCRF140000324)

         v.

MICHAEL STEVEN COURTEMARCHE,

                   Defendant and Appellant.




         In 2000 defendant Michael Steven Courtemarche pled no contest to one count of
oral copulation with a minor under the age of 14 and more than 10 years younger than the
perpetrator (Pen. Code,1 § 288a, subd. (c)(1)) and was sentenced to state prison for three
years. On May 19, 2014, after defendant had been released and discharged from parole,
he filed a petition for a certificate of rehabilitation (§ 4852.01, subd. (a)), which was




1        Undesignated statutory references are to the Penal Code.

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denied by the court on July 21, 2014, on the ground that defendant was statutorily
ineligible for the certificate of rehabilitation.2
       Defendant appeals, contending the trial court’s denial of his petition violated his
equal protection rights under both the California and federal Constitutions. This is so, he
argues, because persons convicted of violating section 288.7, a more violent crime
against children than are persons convicted under section 288a, subdivision (c)(1), are not
excluded from petitioning for the certificate. Defendant concludes that there is no
justification for the difference in treatment and, therefore, his equal protection rights have
been violated.
       The People respond there is no equal protection problem because, contrary to
defendant’s claim, there is no difference in treatment between persons convicted under
section 288.7 and section 288a, subdivision (c)--both are excluded from petitioning for a
certificate of rehabilitation. Because of recent amendments to the applicable statute, we
agree with the People.
                                         DISCUSSION
       Section 4852.01, subdivision (a) authorizes persons who have been released from
state prison, and who meet other conditions not relevant to this appeal, to file a petition
for a certificate of rehabilitation. However, subdivision (d) of section 4852.01 specifies
circumstances which exclude persons from the petitioning process. One of the excluding
circumstances is when a person has been convicted of a violation of section 288a,
subdivision (c), the conviction in this case. However, because defendant asserts an equal
protection claim based on section 288.7, we must also look at the exclusion based on
“persons serving a mandatory life parole.”




2      See Assembly Committee on Public Safety, Bill Analysis, Assembly Bill No. 1438
(A.B. 1438), pages 5-9.

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       Section 3000.1 governs mandatory life parole and provided, prior to January 1,
2015: “Notwithstanding any other law, in the case of 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, Sections 269 and 288.7, 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, the period of
parole, if parole is granted, shall be the remainder of the inmate’s life.” (§ 3000.1, subd.
(a)(2), italics added.)

       One of the questions raised by this appeal is whether the phrase “Sections 269 and
288.7” in section 3000.1, subdivision (a)(2) as it existed prior to January 1, 2015, means
exclusion is mandated only where the person is convicted of both offenses or whether a
single conviction of either offense will suffice. (See People v. Tirey (2014) 225
Cal.App.4th 1150, 1157-1159, review granted Aug. 20, 2014, S219050 [majority opinion
holds § 3000.1, subd. (a)(2)’s use of “and” is clear and unambiguous and mandates
lifetime parole only to persons convicted of both §§ 269 and 288.7, dissenting opinion at
pp. 1165-1168 finds that because majority’s construction leads to absurd results,
phraseology was a drafting error and word “and” should be read as “or”].)
       Our conclusion, however, is based upon amendments to section 3000.1,
subdivision (a)(2) and subdivision (d) of section 4852.01, effective January 1, 2015,
which provide that the disputed phrase should be understood as being in the disjunctive.3




3      Because the meaning of the phrase, “Sections 269 and 288.7” is a disputed
appellate issue, we take judicial notice of the legislative history of A.B. 1438. (Evid.
Code, § 452, subd. (c).)

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                                               I
                                   The 2014 Amendments
       On August 25, 2014, A.B. 1438 was enacted into law and became operative
January 1, 2015. A.B. 1438 amended section 3000.1, subdivision (a)(2) so that the
disputed phrase now reads “Sections 269 or 288.7.” Section 3000.1, subdivision (a)(2)
now reads: “Notwithstanding any other law, in the case of 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, Section 269 or 288.7, 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, the period of
parole, if parole is granted, shall be the remainder of the inmate’s life.” (Italics added.)
(See Stats. 2014, ch. 280 (A.B. 1438) § 2, eff. Jan. 1, 2015.) The Legislature also
amended section 4852.01, subdivision (d) by adding to, and placing in numerical order,
sections 269 and 288.7 to the list of offenses that disqualify persons from seeking a
certificate of rehabilitation. (Stats. 2014, ch. 280 (A.B. 1438) § 3, eff. Jan 1, 2015.)
       The legislative history of A.B. 1438, regarding the amendments to
sections 3000.1, subdivision (a)(2) and 4852.01, subdivision (d), repeatedly explains that
the amendments to these sections were enacted in response to the holding in Tirey that
the phrase “Sections 269 and 288.7” in section 3000.1, subdivision (a)(2) meant that a
violation of section 288.7 was subject to a life term of imprisonment only if the defendant
violated both sections 269 and 288.7. The legislative history of A.B. 1438 describes the
use of the word “and” as “unintentional,” an “oversight,” and in need of “clarifi[cation].”
Accordingly, there is now no doubt that the Legislature’s purpose in enacting the
amendments was to repudiate Tirey’s construction of the phrase “Sections 269 and
288.7,” and to make clear that the phrase was meant to be in the disjunctive rather than
the conjunctive.



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                                               II
                        The 2014 Amendments Clarify Existing Law
        “A legislative declaration that an amendment merely clarified existing law ‘cannot
be given an obviously absurd effect, and the court cannot accept the Legislative statement
that an unmistakable change in the statute is nothing more than a clarification and
restatement of its original terms.’ [Citation.] Material changes in language, however,
may simply indicate an effort to clarify the statute’s true meaning. [Citation.] ‘One such
circumstance is when the Legislature promptly reacts to the emergence of a novel
question of statutory interpretation.’ [Citation.] ‘ “ ‘An amendment which in effect
construes and clarifies a prior statute must be accepted as the legislative declaration of the
meaning of the original act, where the amendment was adopted soon after the controversy
arose concerning the proper interpretation of the statute. . . . [¶] If the amendment was
enacted soon after controversies arose as to the interpretation of the original act, it is
logical to regard the amendment as a legislative interpretation of the original act--a
formal change--rebutting the presumption of substantial change.’ [Citation.]” ’
[Citation.]” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922-
923.)
        Tirey was published on April 25, 2014, and is presently under review by the
California Supreme Court. A.B. 1438 was enacted August 25, 2014, with the
amendments to become operative January 1, 2015. This constitutes a prompt reaction by
the Legislature to Tirey’s construction of former sections 3000.1 and 4852.01.
Accordingly, we determine the disputed phrase should be read in the disjunctive and
reject defendant’s contention. Because there is no difference in treatment between
persons convicted under section 288.7 and section 288a, subdivision (c) -- both are
excluded from petitioning for a certificate of rehabilitation -- defendant’s equal protection
claim lacks merit.



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                                      DISPOSITION
       The trial court’s order denying defendant’s petition for a certificate of
rehabilitation is affirmed.



                                                        ROBIE                  , Acting P. J.



We concur:



      MAURO                   , J.



      HOCH                    , J.




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