Filed 11/10/15 P. v. Tirey CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048369

         v.                                                            (Super. Ct. No. M14588)

JOHN LYNN TIREY,                                                       OPINION

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Lance Jensen, Judge. Affirmed.
                   Law Offices of Robert D. Salisbury and Robert Salisbury for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                        INTRODUCTION
               In 2013, this court determined in People v. Tirey (Nov. 15, 2013, G048369)
(nonpub. opn.), rehearing granted December 11, 2013 (Tirey I) that defendant John Lynn
Tirey was eligible to apply for a certificate of rehabilitation pursuant to Penal Code
section 4852.01. (All further statutory references are to the Penal Code, unless otherwise
specified.) After rehearing, a majority in People v. Tirey (Apr. 25, 2014, G048369)
(nonpub. opn.), review granted August 20, 2014, S219050 (Tirey II), reached the same
conclusion. The California Supreme Court granted the Attorney General’s petition for
review, and has since transferred the case back to this court to reconsider its decision
following Johnson v. Department of Justice (2015) 60 Cal.4th 871.
               In both Tirey I and Tirey II, we urged the Legislature to give attention to the
statutes at issue. A bill was proposed following the issuance of Tirey I, and legislation
amending the statutes was enacted after the issuance of Tirey II. Under the language of
the relevant statutes as they now read, neither defendant nor a person convicted of
committing a similar or more heinous sex crime against a minor would be eligible to
apply for a certificate of rehabilitation; as a consequence, no constitutional issues are
implicated.
               Our Supreme Court held in Western Security Bank v. Superior Court (1997)
15 Cal.4th 232 (Western Security) that 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. Doing so here, we hold that defendant is not
eligible to apply for a certificate of rehabilitation, and affirm the trial court’s order.




                                                2
                                  PROCEDURAL HISTORY
              In September 1998, defendant pled guilty to six counts of violating
section 288, subdivision (a), and was sentenced to six years in prison.1 He was released
from prison in February 2001, and was discharged from parole in February 2004.
              About nine years later, in January 2013, defendant filed a petition for a
certificate of rehabilitation pursuant to section 4852.01. The trial court denied
defendant’s petition on the ground that defendant was statutorily barred from obtaining a
certificate of rehabilitation under section 4852.01, subdivision (d). Defendant timely
appealed. This court reversed, concluding that the application of sections 290.5 and
4852.01 violated equal protection principles. (Tirey I, supra, G048369.)
              The Attorney General filed a petition for rehearing, raising two new
arguments. We granted the petition, but, in a majority opinion, again reversed the trial
court, concluding the new arguments did not change our initial conclusion. (Tirey II,
supra, G048369.)
              After Tirey I, Assembly Bill No. 1438 (2013-2014 Reg. Sess.) (Assembly
Bill No. 1438) was introduced. The bill proposed amending sections 4852.01,
subdivision (d), 290.5, and 3000.1 to clarify that a person convicted of violating
section 288.7 was ineligible to apply for a certificate of rehabilitation (which eliminated
the equal protection issue identified in Tirey I and the majority opinion in Tirey II). The
stated intent of Assembly Bill No. 1438 was to abrogate the holding of Tirey I. Assembly
Bill No. 1438 was enacted after our opinion in Tirey II issued.
              The California Supreme Court granted the Attorney General’s petition for
review in Tirey II, and transferred the case back to this court for reconsideration in light
of Johnson v. Department of Justice, supra, 60 Cal.4th 871. We invited the parties to

              1
                The abstract of judgment appears to show defendant was sentenced to
three years on the principal count, and to concurrent three-year terms on the other five
counts. The parties, however, agree that defendant’s sentence was for six years.

                                              3
address Johnson v. Department of Justice in supplemental briefing, along with the effect
on this case of the legislation enacted by Assembly Bill No. 1438. Both defendant and
the Attorney General accepted our invitation, and we have considered their supplemental
briefs. The matter was submitted pursuant to California Rules of Court, rule 8.256(d)(2).


                                         DISCUSSION
              The question before us is whether the passage of Assembly Bill No. 1438,
which eliminated the equal protection issue identified in our previous opinions, supports
the trial court’s denial of defendant’s application for a certificate of rehabilitation. The
answer is found in Western Security, supra, 15 Cal.4th 232. In that case, a nonjudicial
foreclosure sale of the real property security left a deficiency. (Id. at p. 237.) The lender
attempted to draw on the standby letters of credit of which the lender was the beneficiary,
which would require the borrower to reimburse the issuer of the letters of credit. (Ibid.)
The Court of Appeal concluded that result would constitute a prohibited deficiency
judgment, and reversed the judgment permitting the lender to draw on the letters of
credit. (Id. at pp. 237-238.)
              At issue in Western Security was the conflict between the public policies
underlying two different statutes—the antideficiency rules in Code of Civil Procedure
section 580d, which “precludes a judgment for any loan balance left unpaid after the
lender’s nonjudicial foreclosure under a power of sale in a deed of trust or mortgage on
real property,” and the independence principle under Commercial Code section 5114,
which “makes the letter of credit issuer’s obligation to pay a draw conforming to the
letter’s terms completely separate from, and not contingent on, any underlying contract
between the issuer’s customer and the letter’s beneficiary.” (Western Security, supra, 15
Cal.4th at p. 237.) The Court of Appeal’s opinion had specifically requested that the
Legislature consider amending the conflicting statutes: “‘To the extent that this result
will present problems for real estate lenders with respect to the way they now do business

                                              4
(as the Bank and several amici curiae have strongly suggested), it is a matter which
should be addressed to the Legislature. We have been presented with two important but
conflicting statutory policies. Our reconciliation of them in this case may not prove as
satisfactory in another factual context. It is therefore a matter which should receive early
legislative attention.’ (Fn. omitted.)” (Id. at p. 241.)
              While the case was pending before the Supreme Court on a petition for
review, the Legislature enacted urgency legislation amending and adding statutes to allow
a lender to draw on letters of credit whether or not it had foreclosed on a property
pursuant to the terms of the deed of trust. (Western Security, supra, 15 Cal.4th at
pp. 241-242.) The Legislature made clear that its purpose was to abrogate the Court of
Appeal’s opinion: “‘It is the intent of the Legislature in enacting Sections 2 and 4 of this
act to confirm the independent nature of the letter of credit engagement and to abrogate
the holding [of the Court of Appeal in this case] . . . . [¶] The Legislature also intends to
confirm the expectation of the parties to a contract that underlies a letter of credit, that the
beneficiary will have available the value of the real estate collateral and the benefit of the
letter of credit without regard to the order in which the beneficiary may resort to either.’
[Citation.]” (Id. at p. 242.) The Supreme Court transferred the case back to the Court of
Appeal with directions to vacate its opinion and reconsider the matter in light of the new
legislation. (Ibid.)
              Following the transfer, the Court of Appeal determined that the
Legislature’s actions “constituted a substantial change in existing law” without a clear
indication by the Legislature that it was intended to operate retrospectively. (Western
Security, supra, 15 Cal.4th at p. 242.) Therefore, the Court of Appeal, for the most part,
reissued its previous opinion. (Ibid.)
              On review, the Supreme Court noted the general rule that statutes,
including those clarifying existing law, do not operate retrospectively. (Western Security,
supra, 15 Cal.4th at p. 243.) That rule, however, is subject to an exception, “when the

                                               5
Legislature promptly reacts to the emergence of a novel question of statutory
interpretation: ‘“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.]” (Id. at pp. 243-244.)
              Considering the intent specified within the legislation, as well as the actual
changes and additions to the statutes effected by the legislation and previous judicial
interpretations of the relevant statutes, the Supreme Court concluded that the legislation
clarified the law in response to the Court of Appeal’s original opinion, and therefore
applied in the case at hand. “The Legislature plainly intended that the sections of Senate
Bill No. 1612 we have addressed would apply to existing loan transactions supported by
outstanding letters of credit. We conclude the Legislature’s action did not effect a change
in the law. . . . [¶] . . . [T]he aspects of Senate Bill No. 1612 we have discussed did not
effect any change in the law, but simply clarified and confirmed the state of the law prior
to the Court of Appeal’s first opinion. Because the legislative action did not change the
legal effect of past actions, Senate Bill No. 1612 does not act retrospectively; it governs
this case.” (Western Security, supra, 15 Cal.4th at p. 252.)
              The situation is similar here. In Tirey I and Tirey II, we faced “a novel
question of statutory interpretation” (Western Security, supra, 15 Cal.4th at p. 243),
namely, whether the applicable statutes were intended to create disparate treatment of
those persons violating sections 288, subdivision (a) and 288.7, vis-à-vis their right to
petition for a certificate of rehabilitation. Tirey I identified this issue as one the
Legislature should review and consider: “Finally, we observe the Legislature may wish
to consider amending sections 4852.01(d) and 290.5(a)(2), to treat section 288(a)

                                                6
offenders and section 288.7 offenders equally for these purposes, and to ensure the
overall certificate of rehabilitation and relief from sex offender registration scheme
reflects the public policy objectives it was intended to accomplish.” (Tirey I, supra,
G048369.) The majority opinion in Tirey II acknowledged that the Legislature had begun
the process of making the necessary legislative changes: “We recognize that since our
original opinion was filed, a bill has been introduced in the California Assembly to
provide that a defendant convicted of violating section 288.7 would also be barred from
seeking a certificate of rehabilitation under section 4852.01, subdivision (d). We again
invite the Legislature’s continued attention to this issue.” (Tirey II, supra, G048369.)
              The legislative history of Assembly Bill No. 1438 reflects clearly that the
Legislature viewed the statutory changes effected by that legislation as clarifications
necessary in response to Tirey I. (Assem. Com. on Public Safety, Analysis of Assem.
Bill No. 1438 (2013-2014 Reg. Sess.) as introduced Jan. 6, 2014, pp. 3-4, 5-6.)
              Section 4852.01, subdivision (a) allows those persons convicted of a felony
to petition for a certificate of rehabilitation. The purpose of the statute is to allow
rehabilitated criminal offenders to regain various civil rights denied to convicted felons.
(See People v. Jones (1985) 176 Cal.App.3d 120, 130.) As amended by Assembly Bill
No. 1438, subdivision (d) of section 4852.01 absolutely denies the right to petition for a
certificate of rehabilitation to “persons serving a mandatory life parole, persons
committed under death sentences, persons convicted of a violation of Section 269,
subdivision (c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, Section 288.7, or subdivision (j) of Section 289, or persons in military
service.”
              Before the enactment of Assembly Bill No. 1438, subdivision (d) of
section 4852.01 did not specifically mention section 288.7. In Tirey I, we concluded that
because those persons convicted of a similar but more serious sex offense—violation of



                                               7
section 288.72—could seek a certificate of rehabilitation, while defendant—who was
convicted of violating section 288, subdivision (a)3—could not, section 4852.01,
subdivision (d) violated equal protection principles. In Tirey II, the majority reached the
same conclusion. Assembly Bill No. 1438 eliminates the appearance of unequal
treatment of persons convicted of section 288, subdivision (a) and section 288.7 by
making clear that persons convicted of violating either of those statutes are prohibited
from petitioning for a certificate of rehabilitation.4
              Assembly Bill No. 1438 also amended section 3000.1, on which the
majority relied in Tirey II. Before the enactment of Assembly Bill No. 1438,
subdivision (a)(2) of section 3000.1 read: “Notwithstanding any other provision of 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),




              2
                  Section 288.7 provides: “(a) Any person 18 years of age or older who
engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is
guilty of a felony and shall be punished by imprisonment in the state prison for a term of
25 years to life. [¶] (b) Any person 18 years of age or older who engages in oral
copulation or sexual penetration, as defined in Section 289, with a child who is 10 years
of age or younger is guilty of a felony and shall be punished by imprisonment in the state
prison for a term of 15 years to life.”
                3
                  Section 288, subdivision (a) provides: “[A]ny person who willfully and
lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the child,
is guilty of a felony and shall be punished by imprisonment in the state prison for three,
six, or eight years.”
                4
                  Further clarifying the Legislature’s original intent, Assembly Bill
No. 1438 specifically added section 288.7 to the list of crimes in section 290.5, for which
a certificate of rehabilitation is not available.

                                               8
(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.)5
              Section 3000.1, subdivision (a)(2) now provides that a person sentenced to
a life term for violating section 269 or section 288.7 is subject to lifetime parole, if parole
is granted. This amendment further clarifies that section 288.7 was intended to be within
the prohibition of section 4852.01.
              Given this court’s calls for legislative attention in Tirey I and the majority
opinion in Tirey II, the language of the statutory amendments enacted via Assembly Bill
No. 1438, and the intent to clarify existing law as set forth in the legislative history, we
must conclude Assembly Bill No. 1438 was explicitly intended to abrogate the holdings
of Tirey I and Tirey II, and to clarify the state of the law before our earlier decisions. To
paraphrase the Supreme Court in Western Security, supra, 15 Cal.4th at page 238, the
Legislature’s manifest intent was that Assembly Bill No. 1438 would apply to all
persons, including persons convicted of violating section 288.7, convicted of forcible sex
crimes committed against the most vulnerable members of our society. We therefore
conclude Assembly Bill No. 1438 constituted a clarification of the state of the law before
our decisions in Tirey I and Tirey II. Assembly Bill No. 1438 “has no impermissible
retroactive consequences, and we must give it the effect the Legislature intended.”
(Western Security, supra, at p. 238.)
              When the issue was presented to us in Tirey I, we concluded that the denial
of defendant’s right to petition for a certificate of rehabilitation violated equal protection
because defendant received disparate treatment than those similarly situated vis-à-vis
              5
                 The majority in Tirey II concluded section 3000.1, subdivision (a)(2) was
clear and unambiguous, and that the word “and” as used therein meant “and,” not “or.”
(Tirey II, supra, G048369.)
                  The dissent in Tirey II concluded, “the use of the word ‘and’ in the
phrase ‘Sections 269 and 288.7’ . . . [was] a drafting error, which must be disregarded,
and treated as a comma or an ‘or,’ in order to harmonize the various parts and effectuate
the purposes of the statute, and to avoid absurd results.” (Tirey II, supra, G048369.)

                                               9
certificates of rehabilitation. The majority reached the same conclusion in Tirey II.
Because the amendments to the statutes clarify that defendant is not treated differently
from others similarly situated, we do not need to address defendant’s equal protection
argument, and the Supreme Court’s recent opinion in Johnson v. Department of Justice,
supra, 60 Cal.4th 871, is not implicated in this case.


                                        DISPOSITION
              The order is affirmed.




                                                  FYBEL, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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