BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2040| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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.) CONTINUED AB 2040 Page 2 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. CONTINUED AB 2040 Page 3 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 CONTINUED AB 2040 Page 4 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 CONTINUED AB 2040 Page 5 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 CONTINUED AB 2040 Page 6 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 CONTINUED AB 2040 Page 7 RJG:nl 7/5/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED