BILL NUMBER: SB 873 CHAPTERED
BILL TEXT
CHAPTER 124
FILED WITH SECRETARY OF STATE JULY 24, 2003
APPROVED BY GOVERNOR JULY 23, 2003
PASSED THE ASSEMBLY JULY 10, 2003
PASSED THE SENATE MAY 12, 2003
AMENDED IN SENATE APRIL 22, 2003
AMENDED IN SENATE MARCH 26, 2003
INTRODUCED BY Senator McPherson
FEBRUARY 21, 2003
An act to amend Section 11105.3 of the Penal Code, and to amend
Section 828 of, and to repeal Sections 204 and 725.1 of, the Welfare
and Institutions Code, relating to criminal history.
LEGISLATIVE COUNSEL'S DIGEST
SB 873, McPherson. Criminal history information.
(1) Existing law provides that agencies responsible for
determining the character and fitness of a person applying for
employment, a license, or a volunteer position, within a human
services field in which he or she would have supervisory or
disciplinary power over members of vulnerable populations, including
children, the elderly, or the mentally impaired, may request, and the
Department of Justice shall provide, the criminal history
information of those applicants or volunteers, as specified, with
respect to certain enumerated offenses.
This bill would provide that in that connection, requests for
federal level criminal record information received by the department
would be forwarded to the Federal Bureau of Investigation by the
department to be searched for any record of arrests or convictions.
(2) Existing law prohibits the Department of Justice from
knowingly transmitting information relating to the arrest or the
taking into custody of a minor at the time of the arrest or the
taking into custody unless the information also includes the
resulting disposition. Existing law also requires the juvenile court
to report to the Department of Justice the complete criminal history
of any minor found to be a person adjudged a ward of the court
because of the commission of a specified felony offense. Existing
law requires the Department of Justice to retain this information and
make it available pursuant to provisions governing the California
Criminal Index and Identification System.
This bill would repeal those provisions.
(3) Existing law provides that any information gathered by a law
enforcement agency relating to the taking of a minor into custody may
be disclosed to another law enforcement agency or to any person or
agency with a legitimate need for the information for purposes of
official disposition of a case.
This bill would revise that provision to specifically include
information gathered by the Department of Justice.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11105.3 of the Penal Code is amended to read:
11105.3. (a) Notwithstanding any other law, a human resource
agency or an employer may request from the Department of Justice
records of all convictions or any arrest pending adjudication
involving the offenses specified in subdivision (a) of Section 15660
of the Welfare and Institutions Code of a person who applies for a
license, employment, or volunteer position, in which he or she would
have supervisory or disciplinary power over a minor or any person
under his or her care. The department shall furnish the information
to the requesting employer and shall also send a copy of the
information to the applicant.
(b) Any request for records under subdivision (a) shall include
the applicant's fingerprints, which may be taken by the requester,
and any other data specified by the department. The request shall be
on a form approved by the department, and the department may charge
a fee to be paid by the employer, human resource agency, or applicant
for the actual cost of processing the request. However, no fee
shall be charged to a nonprofit organization. Requests received by
the department for federal level criminal offender record information
shall be forwarded to the Federal Bureau of Investigation by the
department to be searched for any record of arrests or convictions.
The provisions of Section 50.12 of Title 28 of the Code of Federal
Regulations are to be followed in processing federal criminal history
information.
(c) (1) Where a request pursuant to this section reveals that a
prospective employee or volunteer has been convicted of a violation
or attempted violation of Section 220, 261.5, 262, 273a, 273d, or
273.5, or any sex offense listed in Section 290, except for the
offense specified in subdivision (d) of Section 243.4, and where the
agency or employer hires the prospective employee or volunteer, the
agency or employer shall notify the parents or guardians of any minor
who will be supervised or disciplined by the employee or volunteer.
A conviction for a violation or attempted violation of an offense
committed outside the State of California shall be included in this
notice if the offense would have been a crime specified in this
subdivision if committed in California. The notice shall be given to
the parents or guardians with whom the child resides, and shall be
given at least 10 days prior to the day that the employee or
volunteer begins his or her duties or tasks. Notwithstanding any
other provision of law, any person who conveys or receives
information in good faith and in conformity with this section is
exempt from prosecution under Section 11142 or 11143 for that
conveying or receiving of information. Notwithstanding subdivision
(d), the notification requirements of this subdivision shall apply as
an additional requirement of any other provision of law requiring
criminal record access or dissemination of criminal history
information.
(2) The notification requirement pursuant to paragraph (1) shall
not apply to a misdemeanor conviction for violating Section 261.5 or
to a conviction for violating Section 262 or 273.5. Nothing in this
paragraph shall preclude an employer from requesting records of
convictions for violating Section 261.5, 262, or 273.5 from the
Department of Justice pursuant to this section.
(d) Nothing in this section supersedes any law requiring criminal
record access or dissemination of criminal history information. In
any conflict with another statute, dissemination of criminal history
information shall be pursuant to the mandatory statute. This
subdivision applies to, but is not limited to, requirements pursuant
to Article 1 (commencing with Section 1500) of Chapter 3 of, and
Chapter 3.2 (commencing with Section 1569) and Chapter 3.4
(commencing with Section 1596.70) of, Division 2 of, and Section 1522
of, the Health and Safety Code, and Sections 8712, 8811, and 8908 of
the Family Code.
(e) The department may adopt regulations to implement the
provisions of this section as necessary.
(f) As used in this section, "employer" means any nonprofit
corporation or other organization specified by the Attorney General
which employs or uses the services of volunteers in positions in
which the volunteer or employee has supervisory or disciplinary power
over a child or children.
(g) As used in this section, "human resource agency" means a
public or private entity, excluding any agency responsible for
licensing of facilities pursuant to the California Community Care
Facilities Act (Chapter 3 (commencing with Section 1500)), the
California Residential Care Facilities for the Elderly Act (Chapter
3.2 (commencing with Section 1569)), Chapter 3.01 (commencing with
Section 1568.01), and the California Child Day Care Facilities Act
(Chapter 3.4 (commencing with Section 1596.70)) of Division 2 of the
Health and Safety Code, responsible for determining the character and
fitness of a person who is:
(1) Applying for a license, employment, or as a volunteer within
the human services field that involves the care and security of
children, the elderly, the handicapped, or the mentally impaired.
(2) Applying to be a volunteer who transports individuals impaired
by drugs or alcohol.
(3) Applying to adopt a child or to be a foster parent.
(h) Except as provided in subdivision (c), any criminal history
information obtained pursuant to this section is confidential and no
recipient shall disclose its contents other than for the purpose for
which it was acquired.
SEC. 2. Section 204 of the Welfare and Institutions Code is
repealed.
SEC. 3. Section 725.1 of the Welfare and Institutions Code is
repealed.
SEC. 4. Section 828 of the Welfare and Institutions Code is
amended to read:
828. (a) Except as provided in Sections 389, 781, and 827.9 of
this code or Section 1203.45 of the Penal Code, any information
gathered by a law enforcement agency, including the Department of
Justice, relating to the taking of a minor into custody may be
disclosed to another law enforcement agency, including a school
district police or security department, or to any person or agency
which has a legitimate need for the information for purposes of
official disposition of a case. When the disposition of a taking
into custody is available, it shall be included with any information
disclosed.
A court shall consider any information relating to the taking of a
minor into custody, if the information is not contained in a record
which has been sealed, for purposes of determining whether
adjudications of commission of crimes as a juvenile warrant a finding
that there are circumstances in aggravation pursuant to Section 1170
of the Penal Code or to deny probation.
(b) When a law enforcement agency has been notified pursuant to
Section 1155 that a minor has escaped from a secure detention
facility, the law enforcement agency shall release the name of, and
any descriptive information about, the minor to a person who
specifically requests this information. The law enforcement agency
may release the information on the minor without a request to do so
if it finds that release of the information would be necessary to
assist in recapturing the minor or that it would be necessary to
protect the public from substantial physical harm.