BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2068| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2068 Author: Hill (D) Amended: 8/9/10 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/15/10 AYES: Leno, Cedillo, Hancock, Steinberg, Wright NOES: Cogdill, Huff SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 45-29, 5/3/10 - See last page for vote SUBJECT : Expungement standards SOURCE : East Bay Community Law Center DIGEST : This bill provides that a court, in its discretion and in the interest of justice, can determine that a defendant, who has been convicted of a misdemeanor and not granted probation, should be granted expungement relief after the lapse of one year from the date of pronouncement of the judgment. Senate Floor Amendments of 8/9/10 (1) clarify that the expungement shall only apply if the person who was not granted probation for the misdemeanor has fully complied with and performed the sentence of the court, is not serving a sentence for any offense, and is not under charge of commission of any crime, (2) provide for double-jointing CONTINUED AB 2068 Page 2 language to avoid chaptering out AB 2582 (Adams), Chapter 99, Statutes of 2010, and (3) make technical changes. ANALYSIS : Existing law provides that in any case where the defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted expungement relief, the defendant shall at any time after the termination of the period of probation be allowed to withdraw his/her plea of guilty, or if he/she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case, the court shall dismiss the accusation against the defendant, and, except as noted, the defendant shall be released from all penalties and disabilities. (Section 1203.4(a) of the Penal Code [PEN]) Existing law prohibits the expungement of the record of conviction for persons convicted of child molestation, continuous sexual abuse of a child, sodomy with a child under the age of 14, oral copulation with a child under the age of 14, and sexual penetration of a child under the age of 14. (PEN Section 1203.4(b)) Existing law states that dismissal of an accusation or information pursuant to PEN Section 1203.4 does not permit a person to own, possess, or have in his/her custody or control any firearm or prevent him/her from being convicted of the offense of being an ex-felon in possession of a firearm. (PEN Section 1203.4(a)) Existing law states that an order of dismissal does not relieve him/her of the obligation to disclose the conviction in response to any questions contained in any questionnaire or application for public office, or for licensure for any state or local agency. (PEN Section 1203.4(a)) Existing law provides that, despite the accusatory pleading having been dismissed, in any other subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the CONTINUED AB 2068 Page 3 same effect as if probation had not been granted or the accusation or information dismissed. (PEN Section 1203.4(a)) Existing law states that every defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he/she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or nolo contendere and enter a plea of not guilty; or if he/she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he/she has been convicted. (PEN Section 1203.4a(a)) This bill makes this relief unavailable for convictions of specified sex offenses that apply if the victim is a child 14 or 15 years of age or a dependent person. This bill authorizes the court, in its discretion and in the interests of justice, to afford a defendant that relief as to other charges to which these provisions apply if, after a lapse of one year from the date of pronouncement of judgment, the defendant has fully complied with his or her sentence, is not currently serving a sentence for any offense, and is not under charge of commission of any crime. This bill changes an obsolete cross-reference that determines which misdemeanors are exempt from dismissal and relief pursuant to these provisions. This bill incorporates additional changes in Section 1203.4a of the Penal Code made by AB 2582 that becomes operative if both bills are enacted and this bill is chaptered last. CONTINUED AB 2068 Page 4 FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 8/10/10) East Bay Community Law Center (source) All of Us or None American Civil Liberties Union California Public Defenders Association Free at Last Give Something Back, Inc. JobTrain Law Office of Alejandro I. J?come Law Office of Mitri Hanania National Employment Law Project Office of the Public Defender, City and County of San Francisco Santa Clara County Public Defender's Office Service Employees International Union Stanford Community Law Clinic Women's Employment Rights Clinic of Golden Gate University ARGUMENTS IN SUPPORT : The East Bay Community Law Center, the bill's sponsor, states: "California faces significant reentry challenges, with one in five adults showing a criminal record on a background check. Studies have shown that the economic support provides by employment reduces recidivism. The dismissal remedy (also known as an 'expungement') that is available in California provides evidence of rehabilitation for employment and licensing purposes and removes barriers to employment and housing. Currently, there is an inconsistency in California's expungement statutes, Cal. Penal Code Sections 1203.4 and 1203.4a. Penal Code Section 1203.4 (which applies to cases where probation is sentenced) empowers judges to exercise their discretion to dismiss a conviction 'in the interests of justice.' However, there is no parallel provision in Penal Code Section 1203.4a, which applies to non-probation misdemeanor cases. "We are in support of revising Section 1203.4a, in order CONTINUED AB 2068 Page 5 to make the dismissal remedy available to all misdemeanors even when probation is not ordered. Specifically, the bill would mirror the discretion already available to the judiciary found in Cal. Penal Code Section 1203.4. Currently, under Penal Code Section 1203.4a, judges do not have discretion to grant expungement relief even where the defendant has demonstrated strong evidence of rehabilitation. The result is that people with minor misdemeanors are barred from getting these cases expunged, which creates limitations for people seeking meaningful reentry and reintegration in both the employment and housing contexts." ASSEMBLY FLOOR : AYES: Adams, Ammiano, Arambula, Bass, Beall, Block, Blumenfield, Bradford, Brownley, Buchanan, Caballero, Charles Calderon, Carter, Chesbro, Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong, Fuentes, Furutani, Galgiani, Hayashi, Hernandez, Hill, Huffman, Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning, V. Manuel Perez, Ruskin, Salas, Saldana, Skinner, Swanson, Torlakson, Torres, Torrico, Yamada NOES: Anderson, Bill Berryhill, Tom Berryhill, Blakeslee, Conway, Cook, DeVore, Emmerson, Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman, Harkey, Huber, Jeffries, Knight, Logue, Miller, Nestande, Niello, Nielsen, Portantino, Silva, Smyth, Audra Strickland, Tran, Villines NO VOTE RECORDED: Hall, Nava, Norby, Solorio, John A. Perez, Vacancy RJG:mw 8/10/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED