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: August 30, 2013 Consultant: Jolie Onodera SUSPENSE FILE. AS PROPOSED TO BE AMENDED. 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 (as proposed to be amended): 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. Annual costs to the Department of Justice (DOJ) of less than $50,000 (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 granting probation. AB 651 (Bradford) Page 1 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. AB 651 (Bradford) Page 2 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 pursuant to public safety realignment to petition for AB 651 (Bradford) Page 3 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). Prior to the implementation of criminal justice realignment, AB 651 (Bradford) Page 4 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. The proposed author amendments would do the following: Delay the granting of relief (expungement) from one year to two years after the completion of sentence, for AB 651 (Bradford) Page 5 sentences imposed for a full term in custody as determined in accordance with applicable sentencing law (PC § 1170(h)(5)(A). Make the two recommended committee amendments noted above.