BILL ANALYSIS Ó
AB 651
Page 1
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