BILL ANALYSIS Ó
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
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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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AB 651 (Bradford)
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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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