BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          AB 651 (Bradford)                                           
          As Introduced February 21, 2013 
          Hearing date:  June 11, 2013
          Penal Code
          JM:mc

                       CONVICTION DISMISSALS:  REALIGNED FELONS  

                                       HISTORY

          Source:  American Civil Liberties Union; Lawyers' Committee for  
                   Civil Rights; East Bay Community Law Center 

          Prior Legislation: AB 2263 (Bradford) - 2012, held in Senate  
          Appropriations

             Support:All of Us or None; California Attorneys for Criminal  
                    Justice; California Coalition for Women Prisoners;  
                    California Labor Federation; 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; Legal Services for  
                    Prisoners with Children; Los Angeles Regional Reentry  
                    Partnership; National Employment Law Project; NAACP -  
                    California; Contra Costa County Public Defender;  
                    Rubicon Programs; San Francisco Adult Probation  
                    Department, Chief Adult Probation; San Francisco  
                    District Attorney's Office; San Francisco Public  
                    Defender's Office; American Federation of State,  
                    County and Municipal Employees; California Catholic  
                    Conference; Alameda County Board of Supervisors;  
                    Public Counsel; California Labor Federation; A New Way  




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                    of Life Reentry Project; National Association of  
                    Social Workers, California Chapter

          Opposition:California District Attorneys Association; California  
          Police Chiefs Association;
                   California Probation, Parole and Correctional  
                   Association; Judicial Council of California; Crime  
                   Victims Action Alliance

          Assembly Floor Vote:  Ayes 42 - Noes 32



                                         KEY ISSUE
           
          SHOULD DEFENDANTS WHO HAVE SERVED A JAIL FELONY TERM BE AUTHORIZED  
          TO PETITION THE COURT TO DISMISS THE CONVICTION AND UNDERLYING  
          CHARGES?


                                       PURPOSE

          The purpose of this bill is to authorize a person who served a  
          jail felony term (Pen. Code 
           1170, subd. (h)) to apply for dismissal of his or her  
          conviction and the underlying charge.
          
           Existing law  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 years or three  
          years, or the term provided in the crime of conviction.  (Pen.  
          Code  1170, subd. (h).)

           Existing law  provides that defendants currently or previously  
          convicted of the following felonies are excluded from a jail  
          sentence and must serve any felony sentence in prison:

                 A serious felony (Pen. Code  1192.7, subd. (c).)




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                 A violent felony (Pen. Code  667.5, subd. (c).)
                 A felony for which sex offender registration is  
               required.  (Pen. Code  290.)
                 A felony conviction with a white-collar crime excessive  
               theft or loss enhancement (Pen. Code 186.11) (Pen. Code   
               1170, subd. (h).)

           Existing law  provides that where a court sentences a defendant  
          for a jail felony pursuant to Penal Code Section 1170,  
          subdivision (h), the court may impose the sentence as follows:

                 The full lower, middle or upper term for the offense.
                 The term for the offense, but with the last portion of  
               the term spent under supervision by the probation  
               department in the community.  (Pen. Code  1170, subd.  
               (h)(5)(A)-(B).)

           Existing law  provides that where a defendant has fulfilled the  
          terms of probation, or been discharged from probation, the  
          defendant shall, if he or she is not then serving a sentence for  
          any offense, on probation for any offense, or charged with any  
          offense, be granted the following relief:  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.  Where the person has successfully  
          completed probation, but he or she did not fulfill all terms of  
          probation throughout 
          the probationary term, the court may grant the relief in the  
          interests of justice.  (Pen. Code 
           1203.4, subd. (a).)

           Existing law  provides that the court, in the interests of  
          justice, may allow a person who has, to withdraw his or her  
          plea, or the court may dismiss the conviction and the underlying  
          charges.  (Pen. Code  1203.4, subd. (a).)  
           
          Existing law  provides that in any subsequent prosecution of the  
          defendant, the prior conviction may be pleaded and proved and  
          shall have the same effect as if probation had not been granted  




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          or the accusations dismissed.  (Pen. Code  1203.4, subd. (a).)

           Existing law  states that 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, subd. (a).)
           
          This bill  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.

           This bill  provides that the court, in its discretion and in the  
          interests of justice, may grant dismissal of a conviction 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.

           This bill  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.

           This bill  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.

           This bill  provides that dismissal of a conviction does not  
          permit a person to own, possess, or have in his or her custody  
          or control any firearm or prevent his or her conviction for such  
          ownership or possession.




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           This bill  provides that dismissal of a conviction does not  
          permit a person prohibited from holding public office as a  
          result of the dismissed conviction to hold public office.

           This bill  prevents the court from granting dismissal or a  
          conviction and the underlying charge unless the prosecuting  
          attorney has been given 15 days' notice of the petition.



                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  




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          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  
          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and




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                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               AB 651 seeks to extend the possibility for expungement  
               to those sentenced to low level crimes under  
               Realignment.  Contrary to the contention of the  
               opposition, defendants sentenced to county jail  
               pursuant to Cal. Penal Code section 1170(h) are not  
               simply serving a state prison term in county jail.  AB  
               109 clearly states, inter alia, that those sentenced  
               under Realignment are so sentenced to county jail  
               because the Legislature deemed them low risk and are  
               better suited to supervision on the county level.   
               (See, Cal. Penal Code  17.5, subd. (a); Cal. Penal  
               Code  3450, subd. (b).) Moreover, one of the express  
               reasons for enacting Realignment is to reduce  
               California's staggering recidivism rate.  Hence,  
               allowing an opportunity to seek expungement is  
               critical to gaining meaningful employment, steady  
               housing, and numerous public benefits.  Additionally,  
               whenever a person requests an expungement, both  
               probation and the district attorney are notified, and  
               provided ample opportunity to be heard on the merits  
               of the request.  AB 651 merely allows those sentenced  
               to county jail pursuant to California Penal Code  
               section 1170(h) the chance to request an expungement  
               as specified in existing law, where he or she has been  
               discharged from any supervision and has remained  
               crime-free for at least a year, and is able to  
               demonstrate rehabilitation.  Ironically, a person  
               sentenced to state prison also has a right to request  
               a certificate of rehabilitation pursuant to Cal.  




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               4852.01, et seq., yet those sentenced under  
               Realignment, have no remedy where he or she is able to  
               show rehabilitation.  AB 651 is a modest proposal that  
               will ensure greater opportunity for reentry, and  
               thereby reduce recidivism.  

          2.  How This Bill Would be Implemented - Standard of Conduct  

          This bill creates a process similar to the procedure and  
          standards under existing law for defendants who were placed on  
          probation and did not either 1) fulfill the conditions of  
          probation for the entire term, or 2) obtain early discharge from  
          probation.  Where the defendant fulfills the conditions of  
          probation without violation or obtains early discharge, he or she  
          has a right to dismissal of the 
          underlying conviction.  (People v. Bradus (2007) 149 Cal.App.4th  
          636.)  In other circumstances the court has discretion to dismiss  
          the prior conviction after the defendant completes probation.   
          For example, if the defendant violated the terms of probation,  
          but eventually completed probation, the court has discretion to  
          dismiss the underlying conviction and charge.  (People v.  
          McLernon (2009) 174 Cal.App.4th 569, 572-578.)  In such cases,  
          the court can consider the defendant's behavior after completion  
          of probation and any other relevant factors.  (Ibid.) 



















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          Under this bill, a person released from custody for an executed  
          jail felony sentence may apply for relief one year after  
          release.  This bill does not set out guidelines for the court in  
          determining whether or not to dismiss a sentenced jail felon's  
          conviction.  However, consistent with the process for  
          discretionary relief under existing Penal Code Section 1203.4,  
          courts would very likely look for evidence that the defendant  
          has been rehabilitated before dismissing a jail felony.  As the  
          court could not weigh the defendant's behavior on probation or  
          other supervision, the court would likely rely on the  
          defendant's conduct since release from jail.  In the McLernon  
          case the defendant demonstrated six years of exemplary behavior  
          when he brought the original request for relief under Section  
          1203.4.  At the time the Court of Appeal ruled that he could  
          apply for relief, he demonstrated 12 years of exemplary  
          behavior.  (Id, at p. 577.)  

          3.  Argument in Support  

          The American Civil Liberties Union argues in support:

               AB 651 - modeled on California's felony expungement  
               process - creates a parallel process for people  
               sentenced to pursuant to the Criminal Justice  
               Realignment Act of 2011 and who have successfully,  
               paid restitution, demonstrated rehabilitation and  
               remained crime-free for at least one year.

               A felony conviction creates significant barriers to  
               reentry.  Even one conviction for 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 found that over ninety percent of employers  
               conduct background checks.  Even a decades-old  
               conviction can be a barrier to employment and housing.  


               The stated purpose of the realignment is to reduce  




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               spending on incarceration, encourage implementation of  
               evidence-based practices in community correction and  
               reduce recidivism.  Evidence demonstrates that  
               employment and stable housing are critical to  
               successful reentry and reducing recidivism.  Yet,  
               there is no opportunity for people sentenced under  
               realignment to request an expungement after remaining  
               crime-free for at least a year.

               AB 651 does not erase a conviction.  The conviction  
               remains on all government records and must be  
               disclosed for professional licenses, government jobs  
               and paid and volunteer work with children and other  
               sensitive populations.  
          4.  Argument in Opposition  

          The California District Attorneys Association argues in  
          opposition:  

                The California District Attorneys association  
               regretfully opposes AB 651.  This bill would allow a  
               court to grant expungement relief to felons sentenced  
               to county jail pursuant to subdivision (h) of Penal  
               Code Section 1170 (realignment felons).

               Currently, pursuant to PC 1203.4, a defendant who was  
               placed on probation for a conviction may have that  
               conviction expunged.  A conviction for which a  
               defendant was sentenced to prison (which necessarily  
               means that probation was denied) cannot be expunged.   
               (People v. Borja (1980) 110 Cal.App.3d 378; People v.  
               Mendez (1991) 234 Cal.App.3d 1773.)

               Felons sentenced to county jail under realignment (PC  
               1170 (h)) 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.  A felon sentenced pursuant to PC  











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               1170(h) has been found not suitable for probation,  
               likely because he or she has a significant criminal  
               history.  PC 1170(h) felons are thus 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.
           
           5.  Prior Legislation
                
                 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.  

                  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.  
                
                 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.


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