FYBEL, Acting P. J.—
In 2013, this court determined in People v. Tirey
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 [62 Cal.Rptr.2d 243, 933 P.2d 507] (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.
In September 1998, defendant pled guilty to six counts of violating section 288, subdivision (a), and was sentenced to six years in prison.
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
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 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).
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 California Uniform Commercial Code section 5114, which "makes the letter of credit issuer's obligation to pay a draw conforming to the letter's
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.)
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) 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
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 section 288.7
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
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.
The order is affirmed.
Ikola, J., and Thompson, J., concurred.
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.)