BILL NUMBER: AB 1384 CHAPTERED
BILL TEXT
CHAPTER 284
FILED WITH SECRETARY OF STATE SEPTEMBER 7, 2011
APPROVED BY GOVERNOR SEPTEMBER 7, 2011
PASSED THE SENATE AUGUST 18, 2011
PASSED THE ASSEMBLY AUGUST 22, 2011
AMENDED IN SENATE JUNE 29, 2011
AMENDED IN SENATE JUNE 2, 2011
AMENDED IN ASSEMBLY MARCH 21, 2011
INTRODUCED BY Assembly Member Bradford
(Coauthor: Assembly Member Mitchell)
FEBRUARY 18, 2011
An act to amend Section 1203.4a of the Penal Code, relating to
expungement standards.
LEGISLATIVE COUNSEL'S DIGEST
AB 1384, Bradford. Expungement standards.
Existing law, subject to exceptions, provides that every defendant
convicted of a misdemeanor and not granted probation and every
defendant convicted of an infraction shall 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, have the court set aside the verdict of guilty after
one year from the date of judgment, provided he or she satisfies
certain conditions. In either case, the court is required to dismiss
the accusatory pleading against the defendant, as specified.
The bill would make this relief unavailable for misdemeanor
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 would
authorize, if a defendant does not satisfy all of the above
requirements, 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. The
bill would specify that the dismissal of an accusatory pleading
pursuant to the above provisions does not permit a person to own,
possess, or have a firearm, or to hold public office if the person is
prohibited from holding public office as a result of the conviction.
The bill would make a clarifying change to its provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1203.4a of the Penal Code is amended to read:
1203.4a. (a) Every defendant convicted of a misdemeanor and not
granted probation, and every defendant convicted of an infraction
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, except as
provided in Section 12021.1 of this code or Section 13555 of the
Vehicle Code.
(b) If a defendant does not satisfy all the requirements of
subdivision (a), after a lapse of one year from the date of
pronouncement of judgment, a court, in its discretion and in the
interests of justice, may grant the relief available pursuant to
subdivision (a) to a defendant convicted of an infraction, or of a
misdemeanor and not granted probation, or both, 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.
(c) (1) The defendant shall be informed of the provisions of this
section, either orally or in writing, at the time he or she is
sentenced. The defendant may make an application and change of plea
in person or by attorney, or by the probation officer authorized in
writing, provided that, in any 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 relief had not been
granted pursuant to this section.
(2) Dismissal of an accusatory pleading pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Chapter 2 (commencing with Section 29800) of Division 9 of Title 4
of Part 6.
(3) Dismissal of an accusatory pleading underlying a conviction
pursuant to this section does not permit a person prohibited from
holding public office as a result of that conviction to hold public
office.
(d) This section applies to any conviction specified in
subdivision (a) or (b) that occurred before, as well as those
occurring after, the effective date of this section, except that this
section does not apply to the following:
(1) A misdemeanor violation of subdivision (c) of Section 288.
(2) Any misdemeanor falling within the provisions of Section
42002.1 of the Vehicle Code.
(3) Any infraction falling within the provisions of Section 42001
of the Vehicle Code.
(e) A person who petitions for a dismissal of a charge under this
section may be required to reimburse the county and the court for the
cost of services rendered at a rate to be determined by the county
board of supervisors for the county and by the court for the court,
not to exceed sixty dollars ($60), and to reimburse any city for the
cost of services rendered at a rate to be determined by the city
council not to exceed sixty dollars ($60). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the cost for services established
pursuant to this subdivision.
(f) A petition for dismissal of an infraction pursuant to this
section shall be by written declaration, except upon a showing of
compelling need. Dismissal of an infraction shall not be granted
under this section unless the prosecuting attorney has been given at
least 15 days' notice of the petition for dismissal. It shall be
presumed that the prosecuting attorney has received notice if proof
of service is filed with the court.
(g) Any determination of amount made by a court under this section
shall be valid only if either (1) made under procedures adopted by
the Judicial Council or (2) approved by the Judicial Council.