BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1384 ( Bradford) 4
As Amended June 2, 2011
Hearing date: June 21, 2011
Penal Code
SM:dl
EXPUNGEMENT OF RECORDS
HISTORY
Source: East Bay Community Law Center
Prior Legislation: AB 2068 (Hill) - (2010) Vetoed
AB 2582 (Adams) - Chap. 99, Stats. of 2010
Support: California Probation, Parole and Correction
Association; California Attorneys For Criminal Justice;
California Public Defenders Association; East Bay
Community Law Center; Legal Services For Prisoners With
Children; California Coalition For Women Prisoners;
Conference of California Bar Associations; Lawyers'
Committee For Civil Rights; Stanford Community Law
Clinic; San Francisco Public Defender; American
Federation of State, County and Municipal Employees
(AFSCME); American Civil Liberties Union; Los Angeles
County District Attorney's Office
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 47 - Noes 25
KEY ISSUES
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SHOULD A COURT BE PERMITTED, IN ITS DISCRETION AND IN THE
INTEREST OF JUSTICE, TO DETERMINE THAT A DEFENDANT WHO HAS BEEN
CONVICTED OF A MISDEMEANOR AND NOT GRANTED PROBATION OR AN
INFRACTION, SHOULD BE GRANTED EXPUNGEMENT AFTER THE LAPSE OF ONE
YEAR FROM THE DATE OF PRONOUNCEMENT OF THE JUDGMENT, AS
SPECIFIED?
CONTINUED
SHOULD THESE EXPUNGEMENT PROVISIONS NOT APPLY TO A PERSON WHO IS
CONVICTED OF A MISDEMEANOR LEWD AND LASCIVIOUS ACT ON A CHILD 14 OR
15 YEARS OLD WHEN THE PERPETRATOR WAS 10 OR MORE YEARS OLDER THAN
THE VICTIM?
PURPOSE
The purpose of this bill is to (1) allow a court, in its
discretion and in the interest of justice, to determine that a
defendant, who has been convicted of a misdemeanor and not
granted probation or an infraction, should be granted
expungement relief after the lapse of one year from the date of
pronouncement of the judgment; and (2) establish that these
expungement provisions shall not apply to a person who is
convicted of a misdemeanor lewd and lascivious act on a child 14
or 15 years old when the perpetrator was 10 or more years older
than the victim.
Existing law provides that in any case where the defendant has
fulfilled the conditions 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, and where the defendant is not serving a sentence for
any offense, on probation for any offense or charged with any
offense, the defendant shall at any time after the termination
of the period of probation be allowed to withdraw his or her
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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 §
1203.4(a).)
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. (Penal
Code § 1203.4(b).)
Existing law 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 § 1203.4(a).)
Existing law 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 § 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 same effect as if
probation had not been granted or the accusation or information
dismissed. (Penal Code § 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 or she has fully complied with and performed the
sentence of the court, is not then serving a sentence for any
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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 § 1203.4a(a).)
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 or an
infraction should be granted expungement relief after the lapse
of one year from the date of pronouncement of the judgment.
This bill provides that its expungement provisions shall not
apply to a person who is convicted of a misdemeanor lewd and
lascivious act on a child 14 or 15 years old when the
perpetrator was 10 or more years older than the victim.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
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court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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
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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: Current Expungement Procedures
Penal Code Section 1203.4 provides for the expungement of both
misdemeanors and felonies at the judge's discretion in cases
where probation has been granted if the defendant has fulfilled
the terms of probation and has not been charged with another
offense. Under Penal Code Section 1203.4 the defendant
withdraws their earlier plea of guilty or their conviction is
set aside and the court then dismisses the charges against the
defendant.
However, a person convicted of a misdemeanor who is not granted
probation, or of an infraction, falls under Penal Code Section
1203.4a. 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, or 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
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.
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At least one court has found that the language of section
1203.4a indicating that the defendant had to have obeyed the law
since judgment must be read to mean, 'for a period of one year
following judgment,' because that is the standard applicable to
felons in section 1203.4. The Court referred to this
discrepancy between the statutes as an "anomaly" and stated that
to hold misdemeanants to a higher standard in this respect would
raise, "serious and obvious equal protection of the law
problems?" (People v. Chandlee, 90 Cal. App. 3d Supp. 13, 19
(1979).)
3. What This Bill Would Do
This bill addresses an inconsistency in what the Court in
Chandlee referred to as the, "legislative crazy-quilt dealing
with the sealing of records of criminal convictionsÝ.]"
(Chandlee, supra, at 18.) This bill would conform these two
expungement statutes by amending section 1203.4a to allow the
court to order a conviction for a misdemeanor or infraction
expunged, "in its discretion and in the interest of justice," in
cases where the defendant has fully complied with and performed
the sentence of the court, is not then serving a sentence for
any other offense, and is not charged with any crime. This is
the same standard currently applied to people convicted of
felonies or misdemeanors who were granted probation. In effect,
the current law applies a harsher standard for expungement to
persons convicted of misdemeanors or infractions who are not
granted probation than to those convicted of felonies who were
granted probation. That is because a person who was convicted
of a new misdemeanor within one year after a felony conviction
for which he or she successfully completed probation, would
still be eligible for expungement of the felony, whereas a
person convicted of two misdemeanors would not be eligible for
expungement. This bill would eliminate that disparity.
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This bill would also provide that expungement under section
1203.4a would not be available to a person convicted of a
misdemeanor and not granted probation for committing a lewd and
lascivious act on a child 14 or 15 years old when the
perpetrator was 10 or more years older than the victim. (Penal
Code § 288(c).)
4. Governor's Veto Message
In his veto message on AB 2068 (Hill) (2010), 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.
SHOULD THESE EXPUNGEMENT PROCEDURES BE RECONCILED?
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