BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2040 (Swanson) 0
As Amended May 25, 2012
Hearing date: June 26, 2012
Penal Code
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JUVENILE PROSTITUTION OFFENSES:
SEALING OF RECORDS
HISTORY
Source: Author
Prior Legislation: None directly on point
Support: California Attorneys for Criminal Justice; 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
Assembly Floor Vote: Ayes 49 - Noes 21
KEY ISSUES
SHOULD AN ADULT WHO WAS PREVIOUSLY ADJUDICATED TO BE A WARD OF
THE JUVENILE COURT BECAUSE OF THE COMMISSION OF A PROSTITUTION
OFFENSE BE AUTHORIZED TO HAVE THE RECORD OF THE JUVENILE OFFENSE
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SEALED, REGARDLESS OF THE PERSON'S RECORD OR HISTORY?
(CONTINUED)
SHOULD THIS RELIEF NOT BE AVAILABLE FOR A PERSON WHO EXCHANGED
SOMETHING OF VALUE IN EXCHANGE FOR AN ACT OF PROSTITUTION, OR
OFFERED TO DO SO?
PURPOSE
The purposes of this bill are to 1) provide that an adult who
was previously adjudicated to be a ward of the juvenile court
because he or she committed a prostitution offense may petition
the court to seal the records of the offense, regardless of the
person's criminal record or proof of rehabilitation; and 2)
provide that this relief shall not be available if the person
exchanged, or offered to exchange, anything of value in the
prostitution offense.
Existing law provides that a minor (under the age of 18) who
violates any criminal law is within the jurisdiction of the
juvenile court and may be declared a ward of the court. (Welf.
& Inst. Code § 602.)
Existing law allows a person who has reached 18 years of age to
petition a court to seal all his or her juvenile court records
if he or she has not been subsequently convicted of a felony or
misdemeanor involving moral turpitude and the court finds he or
she has been rehabilitated. Upon sealing of the records, the
proceedings shall be deemed never to have occurred. The court
shall order each applicable agency to seal its record. (Welf. &
Inst. Code § 781, subd. (a).)
Existing law provides that the records shall be destroyed when
the subject of the records reaches the age of 38, except that
records concerning a crime listed in Welfare and Institutions
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Code Section 707, subdivision (b)<1>, shall not be destroyed.
(Welf. & Inst. Code § 781, subd. (d).)
Existing law authorizes a juvenile court to dismiss a petition
if the court finds that the interests of justice and the welfare
of the minor require dismissal, or if it finds that the minor is
not in need of treatment or rehabilitation. The court has
jurisdiction to make these orders regardless of whether the
minor is then a ward or dependent child of the court. (Welf. §
Inst. Code § 782.)
Existing law provides that where a defendant has fulfilled the
terms of probation, or been discharged from probation, or where
the court determines that a defendant should be granted relief
in the interests of justice, the defendant may petition for
dismissal of the underlying conviction under the following terms
and circumstances:
The application can be made at any time after the
termination of probation.
The person must not be serving a sentence for any
offense, on probation for any offense, or charged with any
offense.
The court shall dismiss the conviction or allow the
defendant to withdraw his or her guilty plea.
The court shall then dismiss the accusations against the
defendant.
In any subsequent prosecution the prior conviction may
be pleaded and proved and shall have the same effect as if
probation had not been granted or the accusations
dismissed.
An order of dismissal does not relieve the petitioner 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. (Pen. Code § 1203.4.)
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<1> Welfare and Institutions Code Section 707, subdivision (b),
concern offenses affecting whether the minor should be tried as
an adult.
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Existing law provides a person who was convicted of a
misdemeanor and not granted probation may move the court, in its
discretion and in the interests of justice, to set aside the
conviction. The following shall apply in such cases:
The application can be made one year or more past the
judgment.
The person may withdraw his or her guilty plea.
The court shall dismiss the charges.
The person must have fully complied with and performed
the sentence of the court.
The person seeking relief must not be serving a
sentence, or be on probation, or facing charges for any
other offense.
The person must have lived an honest, upright and
law-abiding life. (Penal Code
§ 1203.4a, subd. (a).)
The court may grant the person relief if he or she has
fully complied with and performed the sentence and is not
then serving a sentence for any offense, although the
person does not meet the other qualifications set out in
subdivision (a). (Pen. Code §1203.4a, subd. (b).)
Existing law provides that where a person was a minor when he or
she committed a misdemeanor, and he or she is eligible for or
received expungement of the record under Penal Code Sections
1203.4 or 1203.4a, the following shall apply:
The person may petition for an order sealing the record
of adjudication and other official records in the case.
These records include the records of arrest and records
relating to other charged offenses and the resolution of
the charges.
If the court finds that the person was under the age of
18 at the time of the commission of the misdemeanor, and
was granted or is eligible for expungement of the
adjudication, it may order the relief. Thereafter, the
petitioner may state that the offense and related
procedures did not occur. (Pen. Code § 1203.45.)
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Existing law states that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty of
misdemeanor.<2> This crime does not occur unless the person
specifically intends to engage in an act of prostitution and
some act is done in furtherance of agreed upon act.
Prostitution includes any lewd act between persons for money or
other consideration. (Pen. Code § 647, subd. (b).)
Existing law states that it is unlawful for a person to loiter
in a public place with intent to commit prostitution. (Penal
Code § 653.22.)
Existing law 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. (Pen. Code §
236.1, subd. (a).)
This bill 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. The person need not show that he or
she has not been convicted of a felony or any misdemeanor
involving moral turpitude. The person need not show that he or
she has been rehabilitated.
This bill provides that a person who paid or attempted to pay
money or any other valuable thing to any person for the purpose
of prostitution is not eligible for the relief authorized by
this bill.
This bill specifies that the provisions of this bill shall apply
retroactively.
This bill does not authorize the sealing of any part of a
person's record that is unrelated to an act of prostitution.
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<2> Soliciting or engaging in an act of prostitution is a form
of disorderly conduct. (Pen. Code § 647.)
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for this Bill
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According to the author:
The National Center for Missing and Exploited Children
estimates that approximately 100,000 U.S. children are
exploited through prostitution every year. California
is one of the states most affected by the crime. In
fact, since December of 2007, the national human
trafficking hotline received more than 5,300 calls
directly from California - more calls than any other
state.
Further, according to the U.S. Trafficking Victims
Protection Act (TVPA), the U.S. State Department's
Trafficking in Human Persons Report sealing judgments
for commercially sexually exploited children ensures
that the victims are not inappropriately penalized for
unlawful acts committed as a direct result of being
trafficked.
Under existing law, a person who reaches 18 years of
age may petition the court to seal all records
relating to their cases in juvenile court. The court
may approve the petition if the person has not been
subsequently convicted of a felony or misdemeanor
involving moral turpitude and if the court is
satisfied that the petitioner has been rehabilitated.
These rehabilitation requirements make little sense
with regard to prostitution offenses. Minors are
unable to legally consent to sex, so it is critical
that our state begins to recognize commercially
sexually exploited minors as victims by not requiring
them to show that they've been "rehabilitated" of a
crime that was actually committed against them.
Therefore, AB 2040 deletes these rehabilitation
requirements with respect to prostitution offenses,
making it a little easier for persons prostituted as
minors to clean up their records and integrate back
into society and the workforce.
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2. Sex Trafficking of Minors - Estimated Prevalence
There appears to be general agreement that sex trafficking of
children is increasing and profitable. However, the 2007 Final
Report of the California Alliance to Combat Trafficking and
Slavery Task Force<3> noted that California lacks comprehensive
statistics on human trafficking. Thus, many statistics on human
trafficking in general, and sex trafficking of children in
particular, are estimates. The task force report did cite
statistics from various sources, including a study finding that
80 percent of documented cases in California occurred in urban
areas and the majority of victims were non-citizens.
Approximately 50 percent of human trafficking cases involved
prostitution. A U.S. State Department report of global
trafficking estimated that minors constituted 50 percent of
trafficking victims. (2007 Alliance to Combat Trafficking.
Final Report, pp. 33-39.<4>)
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<3> The task force was administered by the California Attorney
General's Office.
<4>
http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf .
The report includes citations to the each of the studies
quoted in the report.
The Federal Bureau of Investigation (FBI) conducts 24 Innocence
Lost child sexual exploitation task forces and working groups
across the country. Through 2007, 365 cases were opened and 281
child victims were located. The Shared Hope International
non-profit organization has reported that approximately 100,000
domestic minors are sexually trafficked each year.<5> Numerous
examples of trafficking cases were summarized in California
Alliance Report. In 2001, a Berkeley man was prosecuted for
smuggling 15 girls from India for labor and sexual exploitation.
In 2000, a man was prosecuted for bringing women and girls from
Mexico and forcing them to work as prostitutes in Long Beach.
Traffickers in Los Angeles and San Francisco were prosecuted for
forcibly taking 100 women from Korea to be sex workers in
massage businesses. (2007 Alliance to Combat Trafficking, Final
Report, p. 18.)
3. Existing Remedies, Juvenile Court Process, Limited Relief
under this Bill
Existing Provisions for Sealing Juvenile Records
Under existing law a person's misdemeanor juvenile record may be
sealed if he or she has not been convicted of a felony or a
misdemeanor involving moral turpitude and the person has been
rehabilitated. The records are then destroyed when the person
reaches age 38. (Welf. & Inst. Code § 781.)
Penal Code Section 1203.45 allows a person to have his or her
misdemeanor juvenile record sealed if he or she was eligible for
or granted relief under the so-called expungement provisions in
Penal Code Sections 1203.4 or 1203.4a. The law does not require
the court to find that the order sealing the records is in the
interest of justice.
The relief authorized under Section 1203.4a is quite broad.
Under subdivision (b) of that section, a person's misdemeanor
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<5>
http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report
_on_DMST_2009.pdf
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"conviction" may be dismissed in the discretion of the court if
the person fully complied with the sentence imposed and at least
one year has passed since the judgment. If the person can
demonstrate that he or she has lived an honest and upright life,
it appears that the person is entitled to the dismissal.
Further, as noted above, once a person can show that he or she
qualifies for relief under Section 1203.4a, he or she arguably
is entitled to sealing of the record of the offense.
Juvenile Court Proceedings
This bill would apply only to a person declared a ward of the
court based on the commission of a prostitution offense.
Existing law includes many provisions under which a minor could
avoid being declared a ward or could have a wardship petition
dismissed.
Juvenile probation officers are authorized to place a minor in
an informal program of supervision without filing a petition to
declare the minor a ward of the court. (Welf. & Inst. Code §
654.) If a petition is filed and the court finds that the minor
has committed the offense alleged in the petition, the court can
place the minor on probation without declaring him or her to be
a ward of the court. (Welf. & Inst. Code § 725, subd. (a).)
The court can also declare the minor ward of the court and make
any appropriate disposition in the case, including placing the
minor on probation and ordering services for the care and
rehabilitation of the minor, including rehabilitative
punishment. (Welf. & Inst. Code §§ 725 et seq.)
A minor who has been found to have acted as a prostitute could
be placed on probation and ordered to engage in a program of
rehabilitation and counseling. The court can remove the minor
from the home of the parents. If the minor successfully
completes the disposition ordered by the juvenile court, his or
her records can be sealed under existing law. The juvenile
court has the authority to substantially intervene in the life
of a minor who has become the victim of human trafficking for
commercial sexual services.
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Most of the minors who are coerced into performing commercial
sex acts are never brought before the juvenile court. These
minors are a great risk of becoming trapped in prostitution,
drug abuse and other criminal activity. This bill would not
benefit these persons.
The Limited Form of Relief Available under this Bill
This bill allows a person to obtain the sealing of his or her
juvenile prostitution record, regardless of the person's later
criminal and social history, including adult convictions for
felonies or misdemeanors involving moral turpitude (intentional
wrongdoing). The records of felony or misdemeanor convictions
would not be dismissed or sealed under this bill. An adult
felony record would likely create much more serious impediments
to the person's ability to obtain education and legitimate
employment than the juvenile prostitution adjudication. Because
the juvenile matter does not constitute a conviction, it would
not need to be disclosed in connection with most employment and
educational programs in any event.
WOULD THIS BILL PROVIDE RELATIVELY LIMITED BENEFITS TO A PERSON
WHO WAS PREVIOUSLY ADJUDICATED IN JUVENILE COURT TO HAVE
COMMITTED A PROSTITUTION OFFENSE?
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