BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 651
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          Date of Hearing:  April 2, 2013
          Counsel:       Shaun Naidu


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                AB 651 (Bradford) - As Introduced:  February 21, 2013
           
           
           SUMMARY  :  Authorizes a court, in its discretion and in the  
          interests of justice, to grant expungement relief for a  
          conviction of a petitioner sentenced to county jail pursuant to  
          criminal justice realignment if specified conditions are  
          satisfied.  Specifically,  this bill  :  

          1)Applies to petitioners seeking to dismiss a conviction for a  
            nonserious, nonviolent, or nonsexual offense for which he or  
            she was sentenced to county jail pursuant to criminal justice  
            realignment for his or her full sentence or for all but a  
            concluding portion of his or her term during which time he or  
            she is subject to mandatory supervision.

          2)Provides that the court, in its discretion and in the  
            interests of justice, may grant the expungement relief only  
            after the lapse of one year following the petitioner's  
            completion of the sentence, provided that the petitioner is  
            not under post-release community supervision pursuant to  
            realignment or is not serving a sentence for, on probation  
            for, or charged with the commission of any offense.

          3)Provides that in any subsequent prosecution of the petitioner  
            for any offense, a conviction dismissed pursuant to the relief  
            provided for by this bill shall have the same effect as if it  
            had not been dismissed.

          4)Provides that a conviction dismissed by the relief provided  
            for by this bill does not relieve the petitioner of the  
            obligation to disclose the conviction in response to any  
            direct question contained in any questionnaire or application  
            for public office, for any state or local license, or for  
            contracting with the California State Lottery Commission.

          5)Provides that the expungement relief of a conviction does not  
            permit a person to own, possess, or have in his or her custody  








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            or control any firearm or prevent his or her conviction for  
            such ownership or possession.

          6)Provides that the expungement relief does not permit a person  
            prohibited from holding public office as a result of the  
            dismissed conviction to hold public office.

          7)Prevents the court from granting the expungement relief unless  
            the prosecuting attorney has been given 15 days' notice of the  
            petition.

           EXISTING LAW  : 

          1)Provides that any defendant who has not been convicted in the  
            current or a prior case of one of a specified class of  
            felonies shall be sentenced to a term of imprisonment in the  
            county jail for a term of 16 months, two or three years, or  
            the term provided in the crime of conviction.  [Penal Code  
            Section 1170(h).]

          2)Provides that a defendant currently or previously convicted of  
            any the following felonies are excluded from a jail sentence  
            and must serve any felony sentence in prison:

             a)   A "serious felony" as defined [Penal Code Section  
               1192.7(c)]; 

             b)   A "violent felony" as defined [Penal Code Section  
               667.5(c)],

             c)   A felony for which sex offender registration is required  
               (Penal Code Section 290 et seq.); or,

             d)   A felony offense where an excessive taking or loss  
               enhancement has been pleaded and proven [Penal Code section  
               186.11 and 1170(h)(3).]

          3)Authorizes a court to grant expungement relief, with specified  
            exceptions, for a misdemeanor or felony conviction for which  
            the sentence included a period of probation if the petitioner  
            is not serving a sentence for, on probation for, or charged  
            with the commission of any offense.  [Penal Code Section  
            1203.4(a).]

          4)Authorizes a court to grant expungement relief, with specified  








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            exceptions, for a misdemeanor conviction for which the  
            sentence did not include a period of probation or for an  
            infraction conviction if the petitioner is not serving a  
            sentence for, on probation for, or charged with the commission  
            of any offense.  [Penal Code Section 1203.4a(a).]

           FISCAL EFFECT  :  Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 651 creates  
            a process of 'expungement'- modeled on an existing California  
            statute - for people who have successfully completed  
            supervision, paid restitution, and are able to demonstrate a  
            commitment to reentry. This process is similar to one already  
            available to individuals who successfully complete felony  
            probation, and does not mean that the conviction is removed  
            from a person's record.

            "A felony conviction on a person's record will often create  
            significant barriers to reentry. Even one conviction for a  
            felony drug possession may prevent a person from finding a job  
            or securing stable housing.  Today, background checks by  
            landlords and employers have become nearly universal. A recent  
            survey by the Society of Human Resources found that over  
            ninety percent (90%) of employers conduct background checks.

            "With the prevalence of background checks, even a decades-old  
            conviction can be a barrier to employment and housing. AB 651  
            affords the possibility of a fresh start for those sentenced  
            under the Realignment law - giving people committed to  
            successful reentry a chance to clean up their record and  
            receive a meaningful second chance. 

            "AB 651 promotes public safety and economic stability by  
            allowing people who have demonstrated a commitment to success,  
            and have remained crime-free for at least one year, a  
            meaningful chance to clean up their record."

           2)Background  :  According to the background information provided  
            by the author, "Under existing law, an individual who  
            successfully completes felony probation and demonstrates a  
            commitment to reentry may petition the court to have the  
            conviction expunged. 









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            "When expungement is requested, the District Attorney and  
            Probation are notified and are able to provide input to the  
            court before any request is granted. 

            "When a conviction is expunged, an individual's Department of  
            Justice criminal record is amended to include (in addition to  
            the arrest and conviction) a note that the conviction has been  
            expunged. Although prospective employers and landlords can  
            still see the conviction, the addition of the 'expungement'  
            signals that the individual has been held accountable, has  
            taken responsibility, and has successfully exited the criminal  
            justice system.  But, 'expungement' does not mean the  
            conviction has been deleted or removed."  

          3)Expungement Relief Generally  :  Defendants who have  
            successfully completed probation (including early discharge)  
            can petition the court to set aside a guilty verdict or permit  
            withdrawal of the guilty or nolo contendere plea and dismiss  
            the complaint, accusation, or information.  [Penal Code  
            Section 1203.4.]  Defendants who have successfully completed a  
            conditional sentence also are eligible to petition the court  
            for expungement relief under Penal Code Section 1203.4.   
            [People v. Bishop (1992) 11 Cal.App.4th 1125, 1129.]  Penal  
            Code Section 1203.4 also provides that the court can, in the  
            furtherance of justice, grant this relief if the defendant did  
            not successfully complete probation.  [Penal Code Section  
            1203.4; see People v. McLernon (2009) 174 Cal.App.4th 569,  
            577.]  
           
            Expungement relief is not available for convictions of certain  
            offenses.  These include most felony child molestation  
            offenses, other specific sex offenses, and a few traffic  
            offenses.  [Penal Code Sections 1203.4 and 1203.4a.]  The  
            expungement relief does not prevent the conviction from being  
            pleaded and proved just like any other prior conviction in any  
            subsequent prosecution.  [See People v. Diaz (1996) 41  
            Cal.App.4th 1424.]  Nor does it relieve the petitioner of the  
            obligation to disclose the conviction in response to any  
            direction question in any questionnaire or application for  
            public office or allow a person who is prohibited from  
            possessing a firearm because of the conviction to possess a  
            firearm.  [Penal Code Sections 1203.4 and 1203.4a.]

           4)Notice Requirement to the District Attorney  :  Under current  
            law, the prosecution must receive 15 days' notice of petitions  








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            filed with the court requesting expungement relief for  
            misdemeanor or felony convictions for which a term of  
            probation was assigned or for misdemeanor or infraction  
            convictions which did not include a term of probation.  [Penal  
            Code Sections 1203.4 and 1203.4a.]
           
          5)Argument in Support  :  According to the  American Civil  
            Liberties Union of California  , "The stated purpose of the  
            Criminal Justice Realignment Act ? is to reduce spending on  
            incarceration, encourage the implementation and use of  
            evidence-based practices in community corrections, and reduce  
            recidivism.  (See Cal. Penal Code  17.5, subd. (a)(1).)  The  
            evidence clearly demonstrates that gainful employment and  
            stable housing are critical to a person's successful reentry,  
            and to ending the revolving door in our criminal justice  
            system.  

             "?  AB 651 affords the possibility of a fresh start for those  
            sentenced under the Realignment law-giving people committed to  
            successful reentry a chance to clean up their record and  
            receive a meaningful second chance."
             
          6)Argument in Opposition  :  According to the  California District  
            Attorneys Association , "Felons sentenced to county jail under  
            realignment are similarly situated to felons sentenced to  
            prison, with the main difference being where they are  
            incarcerated.  Conversely, felons sentenced under realignment  
            are not similarly situated to probationers.  Felons sentenced  
            pursuant to PC 1170(h) are those who have been found not  
            suitable for probation, which typically means that the felon  
            has a significant criminal history.  PC 1170(h) felons are not  
            similarly situated to felons on probation because they have  
            been sentenced to incarceration.  As such, the simple change  
            to where a sentenced felon is housed effectuated by  
            realignment is not appropriate grounds to afford such  
            offenders the relief made available by PC 1203.4."  
                 
            7)Prior Legislation  :  
                
             a)   AB 2263 (Bradford), of the 2011-12 Legislative Session,  
               would have authorized a court to grant expungement relief  
               for a conviction of a petitioner sentenced to county jail  
               pursuant to criminal justice realignment.  AB 2263 was held  
               on the Senate Appropriations Committee suspense file.  









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             b)   AB 2068 (Hill), of the 2009-10 Legislative Session,  
               would have authorized the court, in its discretion and in  
               the interest of justice, to afford a defendant expungement  
               from a former misdemeanor conviction in cases where  
               probation was not granted.  AB 2068 was vetoed.

             c)   AB 2582 (Adams), Chapter 99, Statutes of 2010, permitted  
               defendants convicted of infractions, except certain motor  
               vehicle related infractions, to seek dismissal of charges  
               and release from all penalties and disabilities resulting  
               from them.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Civil Liberties Union of California (Co-Sponsor)
          East Bay Community Law Center (Co-Sponsor)
          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Area (Co-Sponsor)
          A New Way of Life Re-Entry Project
          All of Us or None
          California Attorneys for Criminal Justice
          California Coalition for Women Prisoners
          California Public Defenders Association
          Californians United for a Responsible Budget
          Community Works West
          Drug Policy Alliance
          Equal Rights Advocates
          Friends Committee on Legislation of California
          Los Angeles Regional Reentry Partnership
          National Employment Law Project
          Rubicon Programs
          San Francisco Adult Probation Department, Chief Adult Probation  
          Officer
          San Francisco District Attorney's Office
          San Francisco Public Defender's Office

           Opposition 
           
          California District Attorneys Association
          California Police Chiefs Association Inc.
          California Probation, Parole and Correctional Association










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           Analysis Prepared by  :    Shaun Naidu / PUB. S. / (916) 319-3744