BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 2040|
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                                 THIRD READING


          Bill No:  AB 2040
          Author:   Swanson (D)
          Amended:  5/25/12 in Assembly
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  5-2, 6/26/12
          AYES:  Hancock, Anderson, Liu, Price, Steinberg
          NOES:  Calderon, Harman

           ASSEMBLY FLOOR  :  49-21, 5/31/12 - See last page for vote


           SUBJECT  :    Juvenile prostitution offenses:  sealing of 
          records

           SOURCE  :     Author


           DIGEST  :    This bill (1) provides 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) provides that this relief shall not 
          be available if the person exchanged, or offered to 
          exchange, anything of value in the prostitution offense. 

           ANALYSIS  :    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.  (Welfare and Institutions Code (WIC) 
          Section 602.)
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          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.  (WIC Section 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 Code Section 707, subdivision (b), shall 
          not be destroyed.  (WIC Section 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.  (WIC Code Section 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.

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           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.  (Penal Code Section 1203.4.)

          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 Section 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).  (Penal Code Section1203.4a, 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 

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          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.  (Penal Code Section 1203.45.)  


          Existing law states that any person who solicits, agrees to 
          engage in, or engages in an act of prostitution is guilty 
          of misdemeanor.  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.  (Penal Code 
          Section 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 Section 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.  (Penal Code Section 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 

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          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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  7/5/12)

          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
          West Coast Children's Clinic

           ARGUMENTS IN SUPPORT  :    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 

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               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. 


           ASSEMBLY FLOOR  :  49-21, 5/31/12
          AYES:  Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, 
            Block, Blumenfield, Bonilla, Bradford, Brownley, 
            Buchanan, Butler, Campos, Carter, Cedillo, Davis, 
            Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani, 
            Gatto, Gordon, Halderman, Hall, Hayashi, Roger Hernández, 
            Hill, Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma, 
            Mitchell, Pan, Perea, V. Manuel Pérez, Skinner, Solorio, 
            Swanson, Torres, Wieckowski, Williams, Yamada, John A. 
            Pérez
          NOES:  Bill Berryhill, Conway, Donnelly, Beth Gaines, 
            Garrick, Gorell, Grove, Hagman, Harkey, Jeffries, Jones, 
            Knight, Logue, Miller, Morrell, Nestande, Nielsen, Olsen, 
            Silva, Smyth, Wagner
          NO VOTE RECORDED:  Charles Calderon, Chesbro, Cook, 
            Fletcher, Mansoor, Mendoza, Monning, Norby, Portantino, 
            Valadao


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          RJG:nl  7/5/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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