Skip to main content

Could you sue successfully to remove the exception for PC 290 in the new 4852.22 section of the California Penal Code?

San Jose, CA |

In Oct. 2013, Gov. Brown signed SB 530 to among other things create a new section of the California Penal Code 4852.22, which reads:

Except in a case requiring registration pursuant to Section 290, a trial court hearing an application for a certificate of rehabilitation before the applicable period of rehabilitation has elapsed may grant the application if the court, in its discretion, believes relief serves the interests of justice.

http://legiscan.com/CA/text/SB530/2013

Are there any grounds on which the PC 290 exception could be challenged? Does it violate the Equal Protection Under the Law doctrine?

Attorney Answers 2

Posted

The case law on this is really strong and the answer is no. Registration (cleverly) is not considered punishment, so there is not an equal protection argument. Our courts have deemed registration a regulatory issue, so it does not open up the Pandora's Box that you are suggesting may be proper.

While I am not opposed to 290 registration, and I appreciate its purpose, I also appreciate your question.

I can cite a bunch of cases on this issue, but you can also find them discussed in article on my website. This is a complex area of the law.

Mark as helpful

1 found this helpful

4 comments

Asker

Posted

Mr. Hill, my question was not regarding the constitutionality of registration itself (I accept that as settled law) rut rather is it constitutional to except one group (PC 290s) from the COR process time waiver whereas every other group of post-ligitants is able to avail themselves. 4852.22 is a brand new piece of legislation and I'd assume that the case law in this area is rather thin. The one case of which I am aware that might have some bearing, People v Schoop (2012) CA 1st, found that Equal Protection was violated when mandating different waiting periods for COR applications for litigants with similar 311 cases: http://www.law.com/jsp/ca/LawDecisionCA.jsp?id=1202582796909&slreturn=20130930154135

Asker

Posted

Here is a complete record of the court's finding in People v. Schoop: http://www.leagle.com/decision/In%20CACO%2020121227029

Asker

Posted

I believe that People v. Tuck (2012) CA 1st could also prove inciteful in that the court opined that denying in whole the post litigant' ability to even apply for a COR was a violation of Equal Protection: http://caselaw.findlaw.com/ca-court-of-appeal/1596912.html

Asker

Posted

I think I need Bruce Nickerson or Chance Oberstein to join Avvo.

Posted

Sounds like the change specifically excludes 290 registrants. The change allows an early application, that's it, so before the previous 10 year period.

Contributions on AVVO.com in no way create an attorney-client relationship nor are they intended to be relied upon as a course of action without having first consulted directly with an attorney, where the specific facts and circumstances of your case can be fully discussed.

Mark as helpful

1 comment

Asker

Posted

Hello Mr. Grupenhagen, I'm aware of the content that I posted and what the previous COR rules were. I'm asking could there be a basis for a suit to find the 290 exception unconstitutional.

Criminal defense topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics