Court Expands Eligibility for Certificates of Rehabilitation

11-13-15 California:

A California Court of Appeal issued a decision this week that expands eligibility for registrants to apply for a certificate of rehabilitation. The decision, People v. Tirey, states that a registrant who was convicted of PC 288(a) and who completed parole 13 years ago is eligible to apply for a certificate.

“This is an important decision for many registrants,” stated attorney and CA RSOL vice president Chance Oberstein. “It will significantly expand the number of registrants who can apply for a certificate of rehabilitation.”

In this case, the appellate court clarified that it was not making a decision whether Tirey would obtain a certificate. Instead, that decision is to be made by a trial court.

According to the Court, equal protection principles were violated when Tirey was declared ineligible to apply for a certificate. These principles have the possibility of being applied to convictions for similar sex offenses such as PC 288 and 288.5.

In its decision, the Court rejected all arguments offered by the Attorney General who had requested a rehearing of the original case.

“A certificate of rehabilitation currently is the only realistic method for registered citizens to be removed from the sex offender registry,” stated Oberstein.

The decision to grant a certificate of rehabilitation is a discretionary decision by a state judge who faces re-election. In order to maximize the possibility of obtaining a certificate, registrants must provide the court with a psychological evaluation as well as letters of support.

Judge Thompson disagreed with the court’s ruling and in his dissent stated that the court’s decision “will allow thousands of serious sex offenders to escape their lifetime parole and sex offender registration obligations.” ..Source.. by CA-RSOL

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Positive Appellate Court Decision Halted by CA Supreme Court

6-21-2014 California:

The California Supreme Court has granted review of the appellate court decision, People v. Tirey, which increased slightly the number of registered citizens eligible to apply for a certificate of rehabilitation. The appellate court’s decision did not, however, change the criteria for who could be granted a certificate.

The appellate court decision was issued in November 15, 2013, and was based upon the equal protection clause of the constitution. Because the Supreme Court has granted review, the holding in the Tirey case cannot be used as precedent until that court render its decision.

“A decision from the California Supreme Court is not expected soon, ” stated CA RSOL president Janice Bellucci. “In the meantime, there is an additional threat to the case in the form of a bill pending in the California legislature.”

That bill is Assembly Bill 1438, which if passed by both the Assembly and the Senate and signed by the Governor would reverse the appellate court decision. The Assembly passed the bill on April 24 and sent it to the California Senate where the Senate Appropriations Committee is scheduled to consider the bill on June 30.

“It is unfortunate that this bill is being considered during an election year,” stated Bellucci. “During an election year, elected officials are more likely to react from emotion and ignore the facts such as the rate of re-offense for registered citizens on parole is only 1.8 percent.” ..Source.. by CA-RSOL

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Ruling may have vast effect on sex-offender registry, attorney says

12-10-2013 California:

Appeals court decision involving an Orange County case could impact thousands seeking to have their names removed from the ‘Megan’s Law’ list.

A court ruling involving an Orange County case could result in hearings for thousands of California sex offenders seeking to have their names removed from the “Megan’s Law” registry, says an attorney who represents a sex offender.

California’s 4th District Court of Appeal found unconstitutional a state law that allows some sex offenders to have hearings for certificates of rehabilitation while denying that right to others.

The appeals court also ordered Orange County Superior Court Judge Lance Jensen to reconsider John Lynn Tirey's petition for rehabilitation and to be allowed to stop registering as a sex offender. ..Continue for Court Decision.. by SCOTT SCHWEBKE / ORANGE COUNTY REGISTER

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Ruling may have vast effect on sex-offender registry, attorney says

11-27-2013 California:

Appeals court decision involving an Orange County case could impact thousands seeking to have their names removed from the ‘Megan’s Law’ list.

A court ruling involving an Orange County case could result in hearings for thousands of California sex offenders seeking to have their names removed from the “Megan’s Law” registry, says an attorney who represents a sex offender.

California’s 4th District Court of Appeal found unconstitutional a state law that allows some sex offenders to have hearings for certificates of rehabilitation while denying that right to others.

The appeals court also ordered Orange County Superior Court Judge Lance Jensen to ..Continued.. by SCOTT SCHWEBKE

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Sex Offender Was Deprived of Equal Protection, C.A. Rules

11-18-2013 California:

A state law that allows a defendant convicted of a sex crime against a child under the age of 10 years to obtain a certificate of rehabilitation and pardon, but denies a similar opportunity to one convicted of molesting a child under the age of 14, is unconstitutional, the Fourth District Court of Appeal ruled Friday.

“[W]e can discern no rational basis for the unequal treatment of these two similarly situated groups of sex offenders,” Justice David A. Thompson wrote for Div. Three.

The court directed an Orange Superior Court judge to consider the merits of John Lynn Tirey’s petition for a certificate of rehabilitation.

Such certificates are issued under a statutory scheme that permits a convicted felon to apply after completing probation, or once a specified number of years—varying according to the seriousness of the crime—have elapsed following release from prison and discharge from parole. A petition is filed in the county where the person lives, and if—following an investigation—the person is found to be of good character, a judge may grant the certificate. ..Continued.. by KENNETH OFGANG, Staff Writer

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Lawyer declared a ‘rehabilitated’ sex offender

2-2-2012 California:

Court grants rehabilitation and pardon to Laguna Niguel man convicted in 1998 for having sex with 16-year-old when he was 38.

SANTA ANA – A Laguna Niguel attorney has been granted a court order declaring him rehabilitated as a sex offender, a classification he's been living with since 1998 after he was convicted of having sex with a 16-year-old girl.

Chance Xcaliber Oberstein, who was 38 when he had intercourse with the minor, was granted a Certificate of Rehabilitation and Pardon by Orange County Judge Craig E. Robison on Jan. 17, court records show.

The certificate has been sent to the governor's office for signing, after which Oberstein, now 53, officially will be pardoned for a crime he admits was "horribly stupid."

In an interview, Oberstein said Wednesday: "It's been a long road back, and not an easy one. This allows me a clean start."

The convictions – for unlawful sexual intercourse, sodomy and oral copulation that occurred in 1996 – blew apart Oberstein's professional and personal life. He got a one-year jail sentence and probation, prompting him to resign from the state bar.

In June 2001, Los Angeles Superior Court granted early termination of probation and, in September 2003, Oberstein's convictions were reduced to misdemeanors. In June of 2004, his guilty verdict was set aside and, in 2008, the state bar reinstated him as an attorney.

A certificate of rehabilitation is a court-issued recommendation to the governor to pardon a convicted felon and release the petitioner from certain requirements stemming from the conviction. The standard for receiving a certificate of rehabilitation is high.

Oberstein petitioned for a certificate in February 2010 before Orange County Superior Court Judge Thomas Goethals, arguing that he did not pose a threat to society and that he had broken no laws since 1996.

Oberstein argued that his legal practice – especially his chances of getting appointed to the federal indigent panel – was hindered without a rehabilitation certificate.

Goethals, however, rejected his petition, saying the crimes were "not that old" and were very serious, especially for someone who was a lawyer at the time.

Goethals also said he was bothered by the fact that Oberstein would no longer have to register as a sex offender if the certificate were granted.

In July 2011, a panel of appellate justices sided with Goethals in rejecting Oberstein's petition, but reversed a ruling by Goethals that Oberstein would have to wait two years before he could reapply for a certificate of rehabilitation.

The panel said the law allows for that only when an offender has broken the law since the original conviction, and Oberstein has maintained a clean record since then.

In October 2011, the state Department of Justice ended Oberstein's requirement to register as a sex offender after a judge in Los Angeles granted a writ by his attorney – a writ that was not opposed by the Los Angeles County District Attorney's Office.

"This is just icing on the cake," Oberstein said of Robison's ruling two weeks ago.

Oberstein, who lives in Dana Point, said the sexual relationship with the 16-year-old was brief.

He said in a court declaration that the conviction sent him to the brink of homelessness after he lost his job.

He said counseling led him to take complete responsibility for his crime, and that joining Saddleback Church in 2002 further helped him reintegrate into society.

Oberstein had a series of jobs, including truck driver, before working his way back into the legal field.

In September 2011, he left a Redondo Beach law practice and set up his own criminal law firm that specializes in cases like his in which clients seek to clean up their records. ..Source.. by GREG HARDESTY / THE ORANGE COUNTY REGISTER

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