BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          AB 651 (Bradford) - Convictions: expungement for realigned  
          felons.
          
          Amended: As Introduced          Policy Vote: Public Safety 5-2
          Urgency: No                     Mandate: No
          Hearing Date: June 24, 2013                             
          Consultant: Jolie Onodera       
          
          This bill meets the criteria for referral to the Suspense File.
          
          
          Bill Summary: AB 651 would authorize defendants who have served  
          a jail felony term pursuant to criminal justice realignment to  
          petition the court to dismiss the conviction and underlying  
          charges, as specified.

          Fiscal Impact: 
           Potential future court costs in the range of $544,000 to $1.1  
            million (General Fund*) per year for additional petitions for  
            dismissal. To the extent full reimbursement of $150 is  
            received for all petitions, annual costs would range from  
            $325,000 to $650,000 (General Fund). This estimate assumes  
            petitions for five to ten percent of annual sentences pursuant  
            to Penal Code (PC) § 1170(h) at a cost of $375 per 45-minute  
            hearing. 
           First-year costs to the Department of Justice (DOJ) of  
            $34,000, FY 2014-15 costs of $45,000, and ongoing costs of  
            $21,000 (General Fund) to receive and process a larger number  
            of record expungement orders.
          *Trial Court Trust Fund

          Background: Existing law provides that where a court sentences a  
          defendant for a jail felony pursuant to criminal justice  
          realignment, the court may impose the full lower, middle, or  
          upper term for the offense, or a split sentence in which a  
          portion of the term is spent under supervision by the county  
          probation department. The portion of a defendant's sentenced  
          term during which time he or she is supervised by the county  
          probation officer is known as mandatory supervision. Under  
          existing law, the court is also authorized to impose  
          dispositions for defendants charged under PC § 1170(h) including  
          pretrial diversion, deferred entry of judgment, or an order  








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          granting probation.

          Under existing law, a defendant who has fulfilled the terms of  
          probation, been discharged from probation, or where the court  
          determines that a defendant should be granted relief in the  
          interests of justice, the defendant may, at any time after the  
          termination of the period of probation, and upon application, be  
          granted relief in the form of dismissal of the conviction or  
          allowance for the defendant to withdraw his or her guilty plea. 

          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. Additionally, an order of dismissal does not  
          permit a person to own, possess, or have in his or her custody  
          or control any firearm, or permit a person prohibited from  
          holding public office as a result of that conviction to hold  
          public office.

          Proposed Law: This bill would provide that a defendant convicted  
          either before or after January 1, 2014, of a felony offense  
          pursuant to criminal justice realignment may petition the court  
          for relief as follows:
          (1)The court may permit the defendant to withdraw his or her  
            plea of guilty or plea of nolo contendere and enter a plea of  
            not guilty, or, if he or she has been convicted after a plea  
            of not guilty, the court shall set aside the verdict of  
            guilty, and the court shall dismiss the accusations against  
            the defendant and he or she shall thereafter be released from  
            all penalties and disabilities resulting from the offense of  
            which he or she has been convicted, except as specified.
          (2)The relief may be granted only after the lapse of one year  
            following the defendant's completion of the sentence, provided  
            that the defendant is not under supervision, and is not  
            serving a sentence for, on probation for, or charged with the  
            commission of any offense.
          (3)The defendant shall be informed, either orally or in writing,  
            of the provisions of the relief outlined in this measure and  
            of his or her right, if any, to petition for a certificate of  
            rehabilitation and pardon at the time he or she is sentenced.
          (4)The defendant may make the application and change of plea in  
            person or by attorney, or by a probation officer authorized in  
            writing.








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          This bill provides that the relief granted pursuant to this  
          measure is subject to the following conditions:
          (1)In any subsequent prosecution of the defendant for any other  
            offense, the prior conviction may be pleaded and proved and  
            shall have the same effect as if the accusation or information  
            had not been dismissed.
          (2)The order shall state, and the defendant shall be informed,  
            that the order does not relieve him or her of the obligation  
            to disclose the conviction in response to any direct question  
            contained in any questionnaire or application for public  
            office, for licensure by any state or local agency, or for  
            contracting with the California State Lottery Commission.
          (3)Dismissal of an accusation or information does not permit a  
            person to own, possess, or have in his or her custody or  
            control any firearm.
          (4)Dismissal of an accusation or information underlying a  
            conviction does not permit a person prohibited from holding  
            public office as a result of that conviction to hold public  
            office.

          This bill provides that a person who petitions for a change of  
          plea or setting aside of a verdict may be required to reimburse  
          the court for the actual costs of services rendered, whether or  
          not the petition is granted and the records are sealed or  
          expunged, at a rate to be determined by the court not to exceed  
          $150, and to reimburse the county or city for the actual costs  
          of services rendered, whether or not the petition is granted and  
          the records are sealed or expunged, at a rate to be determined  
          by the county board of supervisors or city council not to exceed  
          $150. Ability to make this reimbursement shall be determined by  
          the court using existing standards and shall not be a  
          prerequisite to a person's eligibility for expungement. The  
          court may order reimbursement in any case in which the  
          petitioner appears to have the ability to pay, without undue  
          hardship, all or any portion of the costs for services  
          established.

          Prior Legislation: AB 2263 (Bradford) 2012 was similar to this  
          measure with the exception of the one year waiting period and  
          specified fee schedule. This bill was held on the Suspense File  
          of this committee.

          Staff Comments: By authorizing felons sentenced to county jail  








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          pursuant to public safety realignment to petition for  
          expungement of their felony convictions, this bill could result  
          in additional petitions for dismissal under PC § 1203.4 that  
          would not have occurred under existing law. 

          The provisions of this bill would apply retroactively to  
          convictions that occurred prior to January 1, 2014. Based on  
          information from the Chief Probation Officers of California  
          (CPOC) California Realignment Dashboard, over 29,000 individuals  
          have been convicted of felony offenses and sentenced to county  
          jails pursuant to criminal justice realignment under PC §  
          1170(h) through September 2012 (representing 12 months of data)  
          under varying terms of incarceration and/or supervision. It is  
          unknown what percentage of those cases may petition for  
          dismissal, but based on historical data from the courts,  
          approximately 2,500 filings, or one percent of total felony  
          filings, including petitions for Certificate of Rehabilitation  
          and Pardon, are filed per year. Courts indicate that these types  
          of hearings require approximately 45 minutes of court time. 

          Assuming five to ten percent of the eligible annual caseload, or  
          1,450 to 2,900 individuals would petition for expungement in any  
          one year, would result in additional court costs of $543,750 to  
          $1,087,500 (General Fund) based on a 45-minute hearing cost of  
          $375 (based a daily eight-hour court cost of $4,000). 

          Under existing law, a person who petitions for a change of plea  
          may be required to reimburse the court, county, any city for the  
          actual cost of services rendered, whether or not the petition is  
          granted and the records are sealed or expunged. The ability to  
          make such reimbursement is determined by the court and is not  
          required in order for a person to be eligible to petition the  
          court. This bill provides for similar reimbursement up to a  
          maximum amount of $150 to the courts and $150 to the county or  
          city. It is unknown what percentage of petitioners would be  
          determined by the court to have the ability to provide  
          reimbursement, but it is estimated that reimbursement to the  
          courts would be insufficient to fully offset the ongoing  
          increased cost to the courts for new causes of action. To the  
          extent full reimbursement from all cases of $150 was received  
          would still result in a net cost per case of $225, resulting in  
          annual costs in the range of $326,250 to $652,500 (General  
          Fund).









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          Prior to the implementation of criminal justice realignment,  
          individuals who were sentenced to state prison for specified  
          felonies would have had the opportunity to pursue remedy through  
          a petition for a Certificate of Rehabilitation (COR). It is  
          unknown to what degree this alternative would have been  
          utilized, as the period of rehabilitation would generally be at  
          least seven years after the completion of sentence. Under  
          existing law, individuals sentenced to county jail pursuant to  
          PC § 1170(h) for felony offenses classified as "non-serious,  
          non-violent, non-sexual" would not have this same remedy.

          The DOJ has indicated that the provisions of this bill will  
          result in a larger number of record expungement orders received  
          by the California Justice Information Services (CJIS) Division.  
          The additional overtime hours required to process the increase  
          in requests is estimated at $34,000 in FY 2013-14, $45,000 in FY  
          2014-15, and $21,000 ongoing (General Fund).

          To the extent additional petitions for expungement are granted  
          and assist an individual's ability to access housing and  
          employment, could result in a positive impact through  
          facilitating reentry into local communities, resulting in future  
          cost savings associated with reduced recidivism.

          Recommended Amendments: Staff recommends the following technical  
          amendments to the bill to 1) specify a cross-reference, and, 2)  
          ensure defendants who are convicted  on  January 1, 2014, would be  
          afforded the opportunity to petition for expungement.

          On page 2, line 19:
          (2) The relief available under this section may be granted only  
          after the lapse of one year following the defendant's completion  
          of the sentence, provided that the defendant is not under  
          supervision pursuant to subparagraph (B) of paragraph (5)  of  
          subdivision (h)  of Section 1170, or charged with the commission  
          of any offense.

          On page 3, line 13:
          (c) This section applies to any conviction specified in  
          subdivision (a) that occurred before  , on,  or after January 1,  
          2014.











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