BILL ANALYSIS
AB 2582
Page 1
Date of Hearing: May 4, 2020
Counsel: Meghan Masera
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2582 (Adams) - As Amended: March 25, 2010
As Proposed to be Amended in Committee
SUMMARY : Authorizes the court to expunge a former conviction
for a non-vehicular infraction. Specifically, this bill :
1)Provides that a court can determine that a defendant convicted
of a non-vehicular infraction should be granted expungement
relief after the lapse of one year from the date of
pronouncement of the judgment.
2)Requires that a petition for dismissal of an infraction be by
written declaration, except upon a showing of compelling need,
and that the prosecuting attorney be given 15-days' notice of
the petition. It will be presumed that the prosecuting
attorney has received notice if proof of service is filed with
the court.
EXISTING LAW :
1)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 or 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 or
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 or she has been convicted. [Penal Code Section
1203.4a(a).]
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2)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 or her
plea of guilty, or if he or 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. [Penal Code Section 1203.4(a).]
3)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. [Penal Code
Section 1203.4(b).]
4)States that dismissal of an accusation or information pursuant
to Penal Code Section 1203.4 does not permit a person to own,
possess, or have in his or her custody or control any firearm
or prevent him or her from being convicted of the offense of
being an ex-felon in possession of a firearm. [Penal Code
Section 1203.4(a).]
5)States that an order of dismissal does not relieve him or 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. [Penal Code Section 1203.4(a).]
6)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 same effect as if
probation had not been granted or the accusation or
information dismissed. [Penal Code Section 1203.4(a).]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "A criminal
record can be a huge impediment to anyone seeking a job.
Existing law partially addresses this issue by permitting a
person convicted of a non-vehicular misdemeanor, and who has
maintained a perfectly clean record for at least a year, to
petition the court to have the conviction removed from his or
her record. However, existing law does not permit a person
convicted of a non-vehicular infraction to clear his or her
record in the same way, even though such a conviction will
show up in a criminal history background check and some
infractions- such as disturbing the peace, fighting in public,
attempt to purchase alcohol by a minor, and driving without a
license - can appear serious enough to keep the individual
from getting the job.
"AB 2582 will permit persons convicted on non-vehicular
infractions to petition the court to have the convictions
removed from their record, under exactly the same conditions
and in exactly the same manner as misdemeanor convictions,
thereby removing this impediment from their efforts to obtain
gainful employment."
2)Background : According to information provided by the author,
"Existing law, Penal Code section 1203.4a, permits a person
convicted of a misdemeanor who 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' to petition the court to have the
conviction removed from his or her record. The section
specifies that it does not apply to any misdemeanor resulting
from a vehicular violation 'or to any infraction.'
Petitioners with the ability to pay may be required to
reimburse both the court and the city for costs associated
with processing the petition, up to a maximum of $60 for each.
"The exclusion of infractions from the record-clearance
provisions of [Penal Code section] 1203.4a creates a serious
inequity by permitting an individual to remove convictions for
more serious crimes from his or her record, but not permitting
him or her to remove supposedly lesser (but still
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serious-appearing) offenses which can prove fatal to his or
her ability to get a job. Although most employees are not
required to disclose infraction convictions on job
applications, if an employer does conduct a criminal
background check, infractions will appear. This could result
in negative hiring decisions where employers forbid any
conviction, even infractions, as a condition of employment.
"AB 2582 will remove this inequity by permitting persons
convicted of non-vehicular infractions to remove them from
their records in exactly the same way they now can remove
misdemeanors."
3)Statutory Differences : In order to understand the
implications of this bill, it is necessary to contrast the
pertinent language of Penal Code Sections 1203.4 and 1203.4a,
respectively. "Each provides a procedure, under specified
circumstances, under which one convicted of certain criminal
offenses may have his conviction set aside and the criminal
action dismissed. Each of the sections states, in identical
language, that upon such a dismissal a defendant 'shall
thereafter be released from all penalties and disabilities
resulting from the offense of which he has been convicted.'
"[Penal Code] section 1203.4, however, applies only to a
defendant who has been placed on probation. It is not limited
to those convicted of misdemeanors only, but also applies to
probationers who are convicted of felonies. [Penal Code]
section 1203.4a applies only to a defendant who is convicted
of a misdemeanor, and who is not granted probation." [People
v. Chandlee, 90 Cal. App. 3d Supp. 13, 16 153 Cal. Rptr. 188,
189 (1979).]
Penal Code Section 1203.4 includes language giving discretion to
the court, in the interest of justice, to grant expungement to
an individual. Penal Code Section 1203.4a does not have a
similar provision.
Penal Code Section 1203.4a "contains the following language not
found in [Penal Code section 1203.4: 'and has, since the
pronouncement of judgment, lived an honest and upright life
and has conformed to and obeyed the laws of the land.' " (Id.
at 19, 191.)
4)Equal Protection : In Newland v. Board of Governors, the Board
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of Governors of the California Community Colleges rejected a
teacher's application for a credential on the ground that he
had been convicted of lewd conduct in a public, a misdemeanor,
that the Education Code barred issuance of a credential to any
person convicted of a "sex offense", and refused to conduct a
hearing to determine the teacher's teaching fitness. [Newland
v. Board of Governors, 19 Cal. 3d 705, 139 Cal. Rptr. 620
(1977).]
The Supreme Court of California held the Board of Governors
could not constitutionally deny the plaintiff, a misdemeanant,
a community college credential while issuing credentials to
convicted felons. The statutory classification discriminated
against misdemeanants and, lacking a rational relationship to
the legislative goals, denied misdemeanants equal protection
of the laws. Accordingly, the Court held that since the
plaintiff had fulfilled two of the three requirements for
relief and the remaining requirement could not
constitutionally be invoked to deny relief to misdemeanants,
the Board could not rely on the Education Code to deny
plaintiff's application for a community college credential.
(Id. at 714, 626.)
5)Arguments in Support : According to the Conference of
California Bar Associations (the sponsor of this bill), "A
criminal record can be a huge impediment to anyone seeking a
job, even if it consists of a single, relatively minor
offense. To help ameliorate this problem, current law (Penal
Code Section 1203.4a) permits persons who have been convicted
of misdemeanors and not granted probation to petition the
court to have the conviction removed from their record after
one year if they have lived a violation-free, 'honest and
upright life' during that time. However, the law does not
permit persons convicted of non-vehicular infractions to clear
their records no matter how violation-free, honest and upright
their post-conviction lives may have been, even though such
convictions will show up in a criminal history background
check and some infractions - such as disturbing the peace,
fighting in public, attempt (sic) to purchase alcohol by a
minor, and driving without a license - can appear serious
enough to keep the individual from getting a job.
"AB 2582 addresses this issue by permitting persons convicted on
non-vehicular infractions to petition the court to have the
convictions removed from their record, under exactly the same
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conditions and in exactly the same manner as persons convicted
of misdemeanors (and not granted probation) can. This will
remove an inequity in current law, and will help reduce
recidivism by removing an unnecessary impediment to persons
being able to get jobs."
6)Related Legislation : AB 2068 (Hill) authorizes the court, in
its discretion and in the interest of justice, to afford a
defendant expungement from a former misdemeanor conviction.
AB 2068 is pending a vote on the Assembly floor.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (Sponsor)
East Bay Community Law Center
Santa Clara County Bar Association
Opposition
None
Analysis Prepared by : Meghan Masera / PUB. S. / (916)
319-3744