BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2068|
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                                 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  
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          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  

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          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.


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           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  

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            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

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