BILL NUMBER: SB 873 CHAPTERED 07/24/03 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.