BILL ANALYSIS Ó
AB 1384
Page 1
Date of Hearing: April 26, 1022
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1384 (Bradford) - As Amended: March 21, 2011
SUMMARY : Amends existing provisions of law relating to
expungement standards. Specifically, this bill :
1)Allows the court to grant expungement relief in the "interests
of justice," as specified.
2)Makes expungement unavailable for misdemeanor convictions of
lewd acts upon a child 15 years of age or younger when the
perpetrator is 10 years older than the child.
3)Makes expungement unavailable for misdemeanor convictions of
lewd acts upon a dependent person by a caretaker.
EXISTING LAW :
1)Provides a procedure for misdemeanants not granted probation
and persons convicted of an infraction to obtain a dismissal
(expungement) of the case. This includes those misdemeanants
given "conditional sentences," including informal probation
and court probation. (Penal Code Section 1203.4a.)
2)Provides that specified misdemeanors and infractions arising
under the Vehicle Code are ineligible for expungement relief.
ÝPenal Code Section 1203.4a(b).]
3)Provides a procedure for many felons and misdemeanants granted
formal probation, with the exception of those convicted of
certain crimes, to obtain expungement of the case. This
includes those who successfully complete formal probation, as
well as any other case in which a court, in its discretion and
in the interests of justice, determines the relief is
warranted. (Penal Code Section 1203.4.)
4)Punishes the commission of a lewd act upon a child of 14 or 15
years by a person who is at least 10 years older than the
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child with a prison sentence of one, two, or three years, or
with imprisonment in the county jail for up to one year.
ÝPenal Code Section 288(c)(1).]
5)Punishes the commission of a lewd act upon a dependent by a
caretaker with a prison sentence of one, two, or three years,
or with imprisonment in the county jail for up to one year.
ÝPenal Code Section 288(c)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Over seven
million Californians face potential barriers to employment due
to a prior criminal conviction. In this tough economic
downturn, organizations that serve clients with criminal
records have experienced an increase in the number of people
seeking to clean up their criminal records; as most job
seekers find past convictions are a significant barrier to
finding employment.
"In today's climate, job seekers, who were suddenly laid off
after years of working, find they are unable to find a new job
because of a conviction that occurred many years ago. Some of
those job seekers are unable to get low level misdemeanor
convictions expunged from their records due to this
inconsistency in the California expungement process.
"This bill can increase employment opportunities for people
with past convictions and decrease the state's recidivism
rate, which is the highest in the nation (70%). Reducing
recidivism will enhance public safety and decrease the amount
of money that the state spends on incarceration"
2)Background : Penal Code Section 1203.4a applies to a defendant
who is convicted of a misdemeanor, and who is not granted
probation, and to a defendant convicted of an infraction. To
be eligible for expungement under Penal Code Section 1203.4a,
the person must have fully complied with and performed the
sentence of the court, must not be serving a sentence not
charged with a crime, and must have, since judgment, "lived an
honest and upright life," obeying the laws. If these
conditions are met, the person must be permitted to withdraw
his or her plea, and enter a not guilty plea. If the
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conviction resulted from a jury trial, the verdict must be set
aside and the case dismissed. The person is thereafter
"released from all penalties and disabilities resulting" from
the conviction, except as specified.
Unlike expungement under Penal Code Section 1203.4, expungement
under Penal Code Section 1203.4a does not explicitly require
the person to disclose the conviction in an application for a
state license, public office, or to contract with the state
lottery. It is unclear whether the person should disclose the
conviction in response to an inquiry by a private employer.
Relief under the statute does not end the requirement to
register as a convicted sex offender.
3)Inconsistency Regarding Judicial Discretion in the Expungement
Statutes : 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.
In People v. Chandlee (1979) 90 Cal.App.3d Supp. 13, the court
found the government's assertion that Penal Code Section
1203.4a is to be applied more rigorously than Penal Code
Section 1203.4 "anomalous, to say the least." (Id. at p. 16.)
4)Exclusion of a New Offense : Currently, there are only a few
specified Vehicle Code violations exempt from the relief
provided by the statute. This bill adds an exemption for lewd
acts as specified in Penal Code Section 288(c). Lewd acts
prescribed by this provision are punishable as a "wobbler," an
alternate felony or misdemeanor. Expungement for this crime
is not available under Penal Code Section 1203.4, dealing with
cases involving formal probation. If one of the goals of the
bill is to make the expungement statutes consistent, it makes
sense to add this exception. Nevertheless, it seems unlikely
that a person convicted of this crime would be given a
misdemeanor sentence and not placed on formal probation since
this is an offense subject to sex offender registration.
(People v. Cavallaro (2009) 173 Cal.App.4th 103, 109.)
5)Equal Protection : In Newland v. Board of Governors (1977) 19
Cal.3d 705, the Board of Governors of the California Community
Colleges rejected a teacher's application for a credential on
the ground he had been convicted of lewd conduct in a public,
a misdemeanor; that the Education Code barred issuance of a
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credential to anyone convicted of a "sex offense;" and refused
to conduct a hearing to determine the teacher's teaching
fitness. The California Supreme Court held the board 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 the equal
protection of the laws. Accordingly, the Court held that
since 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 p. 714.)
6)Governor's Veto Message : In his veto message on AB 2068
(Hill) of the 2009-10 Legislative Session, the Governor
stated, "This bill would allow persons convicted of a
misdemeanor and not granted probation to expunge the
conviction at a future date for any reason so long as a court
finds that it is in the 'interest of justice.' Proponents of
this measure argue that existing law is unfair because someone
can petition a court for any reason, if granted probation,
whereas if someone is not granted probation, it requires a
person to live crime free for one year before being able to
obtain relief. If expungement is an appropriate remedy for
those who have truly rehabilitated themselves, then living an
honest and upright life for one year should not present too
high a bar. Consequently, I do not believe a change in law is
warranted."
7)Argument in Support : According to the Lawyers' Committee for
Civil Rights of the San Francisco Bay Area , "Currently there
is an inconsistency in the two dismissal statutes . . . .
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.' Penal Code section 1203.4a, which applies to
misdemeanor and infraction cases where no probation is
sentenced, does not contain a parallel 'interests of justice'
provision. The differing treatment of misdemeanors under the
two statutes is unwarranted, and prevents courts from granting
dismissals in appropriate cases. AB 1384 will amend Penal
Code section 1203.4a to give judges discretion to expunge
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misdemeanor convictions in appropriate cases, regardless of
whether or not the sentence included probation. The impact of
AB 1384 is significant because it equalizes the way
misdemeanors are treated for purposes of California
expungement remedies."
8)Argument in Opposition : According to the California District
Attorneys Association, "Under existing law, persons convicted
of a misdemeanor and granted probation can be granted
expungement relief if they meet particular conditions or in
the interest of justice. The statute that governs expungement
for misdemeanants who are not granted probation does not allow
a court to grant expungement relief in the interest of
justice. In other words, there is no fallback in terms of
seeking an expungement for a misdemeanant who is not granted
probation and does not meet the terms and conditions set out
in the statute.
"The proponents argue that current law is inconsistent and
unfair given the disparate treatment of misdemeanants who are
granted probation and those who are not. While the statutes
are different, we would argue that it is not inappropriate to
recognize the difference between those granted probation and
those who are not.
"Additionally, criminal history can be an important factor in
employment decisions, especially when they involve persons who
will be working in sensitive positions (e.g. with and around
children, handling financial or personal information, etc.).
We are not convinced of the need to open the door to
expungement to a class of offenders who were not granted
probation and were otherwise unable to comply with the
existing conditions that precede expungement."
9)Prior Legislation :
a) AB 2068 (Hill), of the 2009-10 Legislative Session, was
substantially similar to this bill and would have
authorized the court, in its discretion and in the interest
of justice, to afford a defendant expungement from a former
misdemeanor conviction in cases where probation was not
granted. AB 2068 was vetoed.
b) AB 2582 (Adams) Chapter 99, Statutes of 2010, permitted
defendants convicted of infractions, except certain motor
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vehicle related infractions, to seek dismissal of charges
and release from all penalties and disabilities resulting
from them.
REGISTERED SUPPORT / OPPOSITION :
Support
America Civil Liberties Union
American Federation of State, County and Municipal Employees
California Coalition of Women Prisoners
California Probation, Parole and Correctional Association
Conference of California Bar Associations
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
San Francisco Public Defender
One private individual
Opposition
California District Attorneys Association
California Public Defenders Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744