BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1384|
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THIRD READING
Bill No: AB 1384
Author: Bradford (D), et al.
Amended: 6/29/11 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-1, 6/21/11
AYES: Hancock, Calderon, Liu, Price, Steinberg
NOES: Anderson
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 47-25, 5/12/11 - See last page for vote
SUBJECT : Expungement standards
SOURCE : East Bay Community Law Center
DIGEST : This bill (1) allows 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) establishes
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.
ANALYSIS : Existing law provides that in any case where
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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/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.
(Penal Code Section 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 Section 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/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. (Penal Code 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. (Penal Code
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
same effect as if probation had not been granted or the
accusation or information dismissed. (Penal Code Section
1203.4(a).)
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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/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. (Penal Code
Section 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.
This bill provides that dismissal of an accusatory pleading
pursuant to this section does not permit a person to own,
possess, or have in his/her custody or control any firearm
or prevent his/her conviction.
This bill provides 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.
Prior Legislation
AB 2068 (Hill), 2009-10 Session, passed the Senate with a
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vote of 23-10 on August 19, 2010. This bill was
subsequently vetoed by Governor Schwarzenegger. In his
veto message 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.
AB 2582 (Adams) Chapter 99, Statutes of 2010
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/8/11)
East Bay Community Law Center (source)
American Civil Liberties Union
American Federation of State, County and Municipal
Employees
California Attorneys for Criminal Justice
California Coalition for Women Prisoners
California Probation, Parole and Correction Association
California Public Defenders Association
Conference of California Bar Associations
East Bay Community Law Center
Lawyers' Committee for Civil Rights
Legal Services for Prisoners With Children
Los Angeles County District Attorney's Office
San Francisco Public Defender
Stanford Community Law Clinic
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ARGUMENTS IN SUPPORT : 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."
ASSEMBLY FLOOR :
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Chesbro, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani,
Gatto, Gordon, Hall, Hayashi, Roger Hernández, Hill,
Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, Mendoza,
Mitchell, Monning, Pan, V. Manuel Pérez, Skinner,
Solorio, Swanson, Wieckowski, Williams, Yamada, John A.
Pérez
NOES: Conway, Cook, Donnelly, Fletcher, Beth Gaines, Grove,
Hagman, Halderman, Harkey, Huber, Jeffries, Jones,
Knight, Logue, Mansoor, Miller, Morrell, Nestande,
Nielsen, Olsen, Perea, Silva, Smyth, Valadao, Wagner
NO VOTE RECORDED: Achadjian, Bill Berryhill, Cedillo,
Garrick, Gorell, Norby, Portantino, Torres
RJG:do 7/12/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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