BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2040
                                                                  Page  1

          Date of Hearing:   March 27, 2012
          Counsel:          Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                AB 2040 (Swanson) - As Introduced:  February 23, 2012
           

          SUMMARY  :   Allows a person who was adjudicated as a ward of the 
          court or convicted of an act of prostitution to have his or her 
          record sealed or expunged without having to show that he or she 
          has not been subsequently convicted of an offense involving 
          moral turpitude or has been rehabilitated.  Specifically,  this 
          bill  :

          1)Provides that a person who was adjudicated as a ward of the 
            court for an offense involving an act of prostitution, may 
            upon reaching 18 years of age, petition the court to have his 
            or her record sealed without requiring the person to show that 
            he or she has not been convicted of a felony or of any 
            misdemeanor involving moral turpitude, or that rehabilitation 
            has been attained to the satisfaction of the court. 

          2)Provides that a person who was 18 years of age or older at the 
            time of the offense or a person who was under 18 years of age 
            but tried as an adult may petition a court to withdraw his or 
            her guilty plea, and requires the court to grant the petition 
            if the court finds in its discretion that the petitioner has 
            made a satisfactory showing that the violation was a result of 
            the petitioner being a victim of human trafficking.

          3)States that the conviction of a another person under existing 
            laws prohibiting human trafficking in relation to the 
            petitioner's conviction for prostitution or solicitation shall 
            be strongly considered as evidence that the petitioner was a 
            victim of human trafficking.

          4)Provides that evidence that the prostitution or solicitation 
            offense was the result of having been a victim of human 
            trafficking may include, but is not limited to, any of the 
            following:

             a)   Certified records of federal or state court proceedings 








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               that demonstrate that the defendant was a victim of a 
               trafficker who was charged with a trafficking offense;

             b)   Certified records of approval notices or law enforcement 
               certifications generated from federal immigration 
               proceedings available to the victim;

             c)   A sworn statement from a trained professional staff 
               member of a victim services organization, an attorney, a 
               member of the clergy or a medical or other professional 
               from whom the defendant sought assistance in addressing the 
               trauma associated with being trafficked; and 

             d)   Any evidence of probative value that the court deems 
               sufficiently credible.

          5)Makes ineligible for relief a person who paid or attempted to 
            pay money or any other valuable thing to any person for the 
            purpose of prostitution.

          6)Specifies that the provisions of this bill apply 
            retroactively.

          7)Clarifies that this bill does not authorize the sealing of any 
            part of a person's record that is unrelated to an act of 
            prostitution.

           EXISTING LAW  : 

          1)Allows a person who has reached 18 years of age to petition a 
            court to seal all records relating to the person's case in the 
            custody of a juvenile court if he or she has not been 
            subsequently convicted of a felony or misdemeanor involving 
            moral turpitude and if rehabilitation has been attained to the 
            satisfaction of the court.  Once the court has ordered the 
            person's records sealed, the proceedings in the case shall be 
            deemed never to have occurred, and the person may properly 
            reply accordingly to any inquiry about the events, the records 
            of which are ordered sealed.  The court shall send a copy of 
            the order to each agency and official named therein, directing 
            the agency to seal its records and stating the date thereafter 
            to destroy the sealed records.  ÝWelfare and Institutions Code 
            Section 781(a).]

          2)Allows a judge of the juvenile court in which a petition was 








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            filed, at any time before the minor reaches the age of 21 
            years, to dismiss the petition or may set aside the findings 
            and dismiss the petition if the court finds that the interests 
            of justice and the welfare of the minor require such dismissal 
            or if it finds that the minor is not in need of treatment or 
            rehabilitation. The court shall have jurisdiction to order 
            such dismissal or setting aside of the findings and dismissal 
            regardless of whether the minor is, at the time of such order, 
            a ward or dependent child of the court.  (Welfare and 
            Institutions Code Section 782.)

          3)Allows a person to have a misdemeanor conviction set aside if 
            the court, in its discretion and the interests of justice, 
            determines that the person should be granted relief, provided 
            that the person is not then serving a sentence for any other 
            offense, is not on probation for any other offense, and is not 
            being charged with any other offense.  ÝPenal Code Section 
            1203.4.]

          4)Provides that in a case in which a person was under the age of 
            18 years at the time of commission of a misdemeanor and is 
            eligible for, or has previously received, the relief provided 
            by laws relating to expungement, that person may petition the 
            court for an order sealing the record of conviction and other 
            official records in the case, including records of arrests 
            resulting in the criminal proceeding and records relating to 
            other offenses charged in the accusatory pleading, whether 
            defendant was acquitted or charges were dismissed.  If the 
            court finds that the person was under the age of 18 at the 
            time of the commission of the misdemeanor, and is eligible for 
            relief under laws relating to expungement, or has previously 
            received that relief, it may issue its order granting the 
            relief prayed for.  Thereafter the conviction, arrest, or 
            other proceeding shall be deemed not to have occurred, and the 
            petitioner may answer accordingly any question relating to 
            their occurrence.  (Penal Code Section 1203.45.)

          5)States that any person who solicits or who agrees to engage in 
            or who engages in any act of prostitution is guilty of 
            misdemeanor disorderly conduct.  A person agrees to engage in 
            an act of prostitution when, with specific intent to so 
            engage, he or she manifests an acceptance of an offer or 
            solicitation to so engage, regardless of whether the offer or 
            solicitation was made by a person who also possessed the 
            specific intent to engage in prostitution.  No agreement to 








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            engage in an act of prostitution shall constitute a violation 
            of this subdivision unless some act, in addition to the 
            agreement, is done within California in furtherance of the 
            commission of an act of prostitution by the person agreeing to 
            engage in that act.  "Prostitution" includes any lewd act 
            between persons for money or other consideration.  ÝPenal Code 
            Section 647(b).]

          6)States that it is unlawful for a person to loiter in a public 
            place with intent to commit prostitution.  Intent is evidenced 
            by acting in a manner and under circumstances which openly 
            demonstrate the purpose of inducing, enticing, or soliciting 
            prostitution, or procuring another to commit prostitution.  
            (Penal Code Section 653.22.)

          7)Provides that any person who deprives or violates the personal 
            liberty of another with the intent to effect or maintain a 
            felony violation of enticement of a minor into prostitution, 
            pimping or pandering, abduction of a minor for the purposes of 
            prostitution, extortion, or to obtain forced labor or 
            services, is guilty of human trafficking.  ÝPenal Code Section 
            236.1(a).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Victims of 
            human trafficking are often forced into prostitution and other 
            crimes against their will.  When these victims try to leave 
            the sex trade, their criminal records often follow them, 
            limiting their employment and housing opportunities and making 
            it difficult for them to integrate back into society and a 
            safe environment.

          "Current laws authorizing the sealing of juvenile court records 
            and the setting aside of misdemeanor convictions do not take 
            into account the fact that many convictions were the direct 
            result of human trafficking.

          "AB 2040 assists persons who were victims of human trafficking 
            in two significant ways:  1) With respect to record sealing, 
            AB 2040 deletes the requirement that a petitioner show the he 
            or she has not been subsequently convicted of a felony or 
            misdemeanor involving moral turpitude or that rehabilitation 








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            has been attained.  Rehabilitation is an impossible legal 
            hurdle to prove for someone whose crime was caused by their 
            commercial sexual exploitation.  By deleting the 
            rehabilitation requirement, AB 2040 makes it easier for those 
            victims to get their juvenile records sealed.  2) With respect 
            to petitions to withdraw pleas and set aside convictions, AB 
            2040 would require a court to grant the petition for setting 
            aside certain convictions for prostitution if the petitioner 
            has demonstrated that the violation was a result of the 
            petitioner having been a victim of human trafficking.  The 
            bill also describes some of the types of evidence a court 
            should consider in making that determination."

           2)Domestic Trafficking is an Increasing Problem  :  Although Penal 
            Code Section 236.1 was added due to an increase in women and 
            children being shipped into the United States from abroad for 
            purposes of sexual exploitation or forced labor, those women 
            and children now live in the United States and are being 
            shuttled from city to city also for sexual exploitation.  
            According to the Polaris Project, "Much like the majority of 
            other countries affected by human trafficking, the U.S. has a 
            large internal or 'domestic' component of human trafficking 
            for the purposes of both sexual and labor exploitation.  One 
            of the largest forms of domestic sex trafficking in the U.S. 
            involves traffickers who coerce women and children to enter 
            the commercial sex industry through the use of a variety of 
            recruitment and control mechanisms in strip clubs, 
            street-based prostitution, escort services, and brothels.  
            Domestic sex traffickers, commonly referred to as 'pimps', 
            particularly target vulnerable youth, such as runaway and 
            homeless youth, and reinforce the reality that the average age 
            of entry into prostitution is 12-13 years old in the U.S.  
            Experts estimate that at least 100,000 children are sexually 
            exploited each year."  
            ()

           3)Necessity for this Bill ?  Existing provisions of law for 
            expungement and sealing of records provide relief to juveniles 
            adjudicated for most offenses and adults convicted of most 
            misdemeanors, including prostitution offenses.  For offenses 
            committed as a juvenile, the petitioner may have his or her 
            record sealed upon reaching 18 years of age if he or she has 
            not been subsequently convicted of a felony or misdemeanor 
            involving moral turpitude and if the court is satisfied that 








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            the petitioner has been rehabilitated.  In the alternative, 
            the petitioner may file a petition any time before reaching 
            the age of 21 to dismiss the petition if the court finds that 
            the interests of justice and the welfare of the minor require 
            such dismissal, or if it finds that the minor is not in need 
            of treatment or rehabilitation.  For misdemeanor offenses 
            committed as an adult, the petitioner may have his or her 
            conviction set aside or dismissed upon a showing that the 
            petitioner has completed probation, he or she is not then 
            serving a sentence for any other offense, is not on probation 
            for any other offense, and is not being charged with any other 
            offense.  

          These provisions of law have broad application which includes 
            acts of prostitution.  Is there a need to create a special 
            expungement or record sealing procedure for prostitution 
            offenses committed by victims of human trafficking when relief 
            is already available under other existing provisions of law?  
            Is it good policy to grant a petitioner relief without 
            requiring a showing of rehabilitation, completion of 
            probation, or that the petitioner is not continuing to engage 
            in acts of prostitution or other criminal acts?

           4)Argument in Support  :  According to  California Catholic 
            Conference  , "From the early days of the slave trade to present 
            reality, we have been challenged by the global movement of 
            vulnerable people across borders for various forms of slave 
            labor.  California is currently one of the top destinations 
            for human trafficking.  More public awareness will allow 
            individuals more opportunities to recognize and combat this 
            assault on personal dignity and liberty.  And certainly, more 
            humane treatment of the victims through protection, support 
            and care will help restore their dignity and self-worth."

           5)Argument in Opposition  :  According to the  California District 
            Attorneys Association  , "This bill would effectively negate the 
            requirements of existing law that a convicted person complete 
            any punishment and/or supervision and refrain from future 
            criminal acts in order to qualify for expungement relief.  A 
            person convicted of a qualifying offense could arguably apply 
            for this relief the day following his or her conviction and 
            presumably while he or she is still incarcerated or on 
            probation.  Additionally, these offenses can be used as prior 
            offenses to enhance punishment for future crimes and it is 
            inappropriate to make it easier to purge that criminal 








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            history.

          "We do not deny the pernicious effects of human trafficking, but 
            the bottom line is that adults who commit crimes face 
            consequences.  Existing law provides a procedure to expunge 
            certain offenses and we feel it is unnecessary to create a 
            special process for one class of offenses and one class of 
            offenders."  

           6)Previous Legislation  : 

             a)   AB 22 (Lieber), Chapter 240, Statutes of 2005, created 
               the California Trafficking Victims Protection Act, which 
               established civil and criminal penalties for human 
               trafficking and allowed for forfeiture of assets derived 
               from human trafficking.  In addition, the Act required law 
               enforcement agencies to provide Law Enforcement Agency 
               Endorsement to trafficking victims, providing trafficking 
               victims with protection from deportation and created the 
               human trafficking task force.

             b)   AB 12 (Swanson), Chapter 75, Statutes of 2011, provides 
               that any person convicted of soliciting or engaging in an 
               act of prostitution, where the person involved in the 
               solicitation or the act was under 18 years of age, shall be 
               ordered by the court, to pay an additional fine not to 
               exceed $25,000.

             c)   AB 799 (Swanson), Chapter 51, Statutes of 2011, extends 
               the repeal date to January 1, 2017 of a provision in 
               existing law that authorizes the Alameda County District 
               Attorney to create a pilot project, contingent upon local 
               funding, for the comprehensive, replicative, 
               multidisciplinary model to address the needs and effective 
               treatment of commercially sexually exploited minors.

             d)   AB 702 (Swanson), of the 2011-12 Legislative Session, 
               was substantially similar to this bill.  AB 702 was never 
               heard by this Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Attorneys for Criminal Justice








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          California Catholic Conference
          California Probation, Parole and Correctional Association
          California State PTA
          Crime Victims United of California
          National Association of Social Workers, California Chapter

           Opposition 
           
          California District Attorneys Association

           
          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744