BILL ANALYSIS �
AB 795
Page 1
Date of Hearing: April 16, 2013
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 795 (Alejo) - As Amended: March 19, 2013
SUMMARY : Provides that a defendant who has been convicted of
solicitation or prostitution, as specified, may petition the
court for, and the court may set aside the conviction if the
defendant can show that the conviction was the result of his or
her status as a victim of human trafficking. Specifically, this
bill allows a court upon making such a finding to issue an order
that does all of the following:
1)Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the crime;
2)Orders expungement relief;
3)Notifies the Department of Justice (DOJ) that the petitioner
was a victim of human trafficking when he or she committed the
crime and the relief that has been ordered by the court; and,
4)Prohibits DOJ from disseminating the petitioner's record of
conviction for specified licensing, employment and
certification requirements.
EXISTING LAW :
1)Allows a court to set aside a conviction of a person who has
fulfilled the conditions of probation for the entire period of
probation, or has been discharged prior to the termination of
the period of probation, or who the court in its discretion
and the interests of justice, determines that the person
should be granted relief, provided that the person is not then
serving a sentence for any other offense, is not on probation
for any other offense, and is not being charged with any other
offense. [Penal Code Section 1203.4(a).]
2)Provides that the relief pursuant to Penal Code Section 1203.4
does not relieve the petitioner of the obligation to disclose
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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. [Penal Code
Section 1203.4(a).]
3)States that a person who was adjudicated a ward of the court
for the commission of a violation of specified provisions
prohibiting prostitution may petition a court to have his or
her records sealed as these records pertain to the
prostitution offenses without showing that he or she has not
been subsequently convicted of a felony or misdemeanor
involving moral turpitude, or that rehabilitation has been
attained. This relief is not available to a person who paid
money or any other valuable thing, or attempted to pay money
or any other valuable thing, to any person for the purpose of
prostitution as defined. (Penal Code Section 1203.47.)
4)Provides that a person who was under the age of 18 at the time
of commission of a misdemeanor and is eligible for, or has
previously received expungement relief, may petition the court
for an order sealing the record of conviction and other
official records in the case, including records of arrests
resulting in the criminal proceeding and records relating to
other offenses charged in the accusatory pleading, whether
defendant was acquitted or charges were dismissed. Thereafter
the conviction, arrest, or other proceeding shall be deemed
not to have occurred, and the petitioner may answer
accordingly any question relating to their occurrence. (Penal
Code Section 1203.45.)
5)States that any person who was under the age of 18 when he or
she was arrested for a misdemeanor, may petition the court in
which the proceedings occurred or, if there were no court
proceedings, the court in whose jurisdiction the arrest
occurred, for an order sealing the records in the case,
including any records of arrest and detention, in certain
circumstances. (Penal Code Section 851.7.)
6)Allows in certain cases, a person who has reached the age of
18 years to petition the juvenile court for sealing of his or
her juvenile record. (Welfare and Institutions Code Section
781.)
7)Provides that any person who deprives or violates the personal
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liberty of another with the intent to obtain forced labor or
services, is guilty of human trafficking and shall be punished
by imprisonment in the state prison for 5, 8, or 12 years and
a fine of not more than $500,000. [Penal Code Section
236.1(a).]
8)States that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than
$500,000. [Penal Code Section 236.1(b).]
9)Provides that the Department of Justice (DOJ) shall maintain
state summary criminal history information and authorizes DOJ
to furnish state summary criminal history information to
statutorily authorized entities for specified purposes
including employment and licensing. (Penal Code Section
11105.6.)
10)Prohibits an employer, whether a public agency or private
individual or corporation, from asking an applicant for
employment to disclose, through any written form or verbally,
information concerning an arrest or detention that did not
result in conviction, or information concerning a referral to,
and participation in, any pretrial or posttrial diversion
program. Nor shall any employer seek from any source
whatsoever, or utilize, as a factor in determining any
condition of employment including hiring, promotion,
termination, or any apprenticeship training program or any
other training program leading to employment, any record of
arrest or detention that did not result in conviction, or any
record regarding a referral to, and participation in, any
pretrial or posttrial diversion program. Nothing in this
section shall prevent an employer from asking an employee or
applicant for employment about an arrest for which the
employee or applicant is out on bail or on his or her own
recognizance pending trial. This provision does not apply to
employment of peace officers. [Labor Code Section 432.7(a) and
(e)]
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "Human
trafficking has become a serious issue in our state, with
people being bought, sold and smuggled like modern-day slaves.
It affects people of all races, religions and backgrounds,
and can have long lasting effects on victims and their
families. The purpose of this bill is to help those most
affected by human trafficking create a new life and move
beyond their harsh past. A person forced into a life of
prostitution should not be branded as a criminal."
2)Background : According to the background materials provided by
the author, "Under current law, when a victim of human
trafficking is convicted of solicitation or prostitution their
only option is to have the conviction set aside or dismissed
under Penal Code Section 1203.4. However, even when the
conviction has been set aside, it may be discovered during the
criminal history background check process. As a result, the
current expungement process still requires the Department of
Justice to reveal these convictions to employers, and
licensing and certification entities."
3)Recent Update to Human Trafficking Laws : In 2012,
Californians voted to pass Proposition 35, which modified many
provisions of California's already tough human trafficking
laws. Specifically, Proposition 35 increased criminal
penalties for human trafficking offenses, including prison
sentences up to 15-years-to-life and fines up to $1.5 million.
The proposition specified that the fines collected are to be
used for victim services and law enforcement. In criminal
trials, the proposition prohibits the use of evidence that a
person was involved in criminal sexual conduct (such as
prostitution) to prosecute that person for that crime if the
conduct was a result of being a victim of human trafficking,
and makes evidence of sexual conduct by a victim of human
trafficking inadmissible for the purposes of attacking the
victim's credibility or character in court. The proposition
lowered the evidentiary requirements for showing of force in
cases of minors.
Proposition 35 also requires persons convicted of human
trafficking to register as sex offenders and expanded
registration requirements by requiring registered sex
offenders to provide the names of their internet providers and
identifiers, such as e-mail addresses, user names, and screen
names, to local police or sheriff's departments. After
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passage of Proposition 35, plaintiffs American Civil Liberties
Union and Electronic Frontier Foundation filed a law suit
claiming that these provisions unconstitutionally restricts
the First Amendment rights of registered sex offenders in the
states. A United States District Court judge granted a
preliminary injunction prohibiting the implementation or
enforcement of Proposition 35's provisions that require
registered sex offenders to provide certain information
concerning their Internet use to law enforcement. [Doe v.
Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS
5428.]
4)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.] Expungement relief pursuant to Penal Code
Section 1203.4 does not 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 for licensure by any state or local agency.
Expungement relief pursuant to Penal Code Section 1203.4a, on
the other hand, does not explicitly require the person to
disclose the conviction in an application for a state license
or public office. Penal Code Section 1203.4a is only
available for defendants convicted of a misdemeanor and not
granted probation.
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By regulation, a private employer may not ask a job applicant
about any misdemeanor conviction dismissed under 1203.4. [2
Cal. Code of Regs. Section 7287.4(d).] Also, under Labor Code
Section 432.7, any private or public employer may not ask an
applicant for employment to disclose information concerning an
arrest or detention that did not result in conviction, or
information concerning a referral to, and participation in,
any pretrial or posttrial diversion program. However, if the
employer is an entity statutorily authorized to request
criminal background checks on prospective employees, the
background check would reveal the expunged conviction with an
extra entry noting the dismissal on the record.
5)Equal Protection Concerns : The Equal Protection Clause of the
Fourteenth Amendment commands that no state shall "deny to any
person within its jurisdiction the equal protection of the
laws." The California Constitution has a similar provision.
(Cal. Const., art. I, � 7.) An equal protection challenge is
a claim that a law discriminates against a person by unequal
treatment or unequal results.
Under current law, expungement relief does not erase a
conviction, rather it provides additional information in an
individual's criminal record showing that the conviction was
set aside or dismissed. This bill establishes a separate
procedure only available for one class of defendants and
provides this class with the additional benefit of prohibiting
DOJ from releasing information about the prior conviction for
specified licensing, employment or certification requirements.
This additional benefit is not available to other defendants
who successfully petition for expungement relief. A state law
that provides favorable treatment to one class of defendants
based solely on their status, while denying all other classes
of defendants the same treatment, may run afoul of the Equal
Protection clause.
6)Arguments in Support :
a) According to the California Department of Justice , the
sponsor of this bill, "Currently, victims of trafficking
may bring an expungement motion pursuant to Penal Code
Section 1203.4. However, pursuant to that statute, the
Department of Justice (DOJ) must still provide a record of
expungement which specifies the underlying offense. As a
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result, the employer is still notified of the offense
during the hiring, certification and/or licensing process.
AB 795 will allow DOJ to maintain the record of the offense
in the Criminal Offender Record Information System for law
enforcement purposes, while not reporting offenses to
potential employers where the petitioner has proven their
status as a victim of human trafficking."
b) The California Attorneys for Criminal Justice writes,
"This bill will add Penal Code Section 1203.49, which would
allow courts to dismiss charges of prostitution or
solicitation on the basis that the defendant was a victim
of human trafficking. This bill also helps these victims
remove some of the collateral consequences of their
convictions.
"Often times, prostitutes are quickly arrested, charged and
sentenced with little or no investigation into their
personal backgrounds. However, in many cases, if an
inquiry had been made, it would become clear that these men
and women were the victims in the sordid world of human
trafficking."
7)Related Legislation :
a) ACR 6 (Donnelly), Chapter 5, Statutes of 2013,
recognizes the month of January 2013, and each following
January, as National Slavery and Human Trafficking
Prevention Month, and it would recognize February 1, 2013,
and each following February 1, as California's Free From
Slavery Day.
b) AB 156 (Holden) expands the provisions authorizing
interception of wire or electronic communications to apply
if a judge determines that, among other things, there is
probable cause to believe that an individual is committing,
has committed, or is about to commit a violation of human
trafficking. AB 156 is pending hearing by the Committee on
Appropriations.
c) AB 694 (Bloom) prohibits the admissibility of evidence
that a victim has engaged in any commercial sexual act as a
result of being a victim of human trafficking in order to
prove the victim's criminal liability for the commercial
sexual act. AB 694 is pending hearing by this Committee.
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d) SB 60 (Wright) provides that a victim of human
trafficking who suffers emotional injury may seek
compensation from the Victims of Crime Fund. SB 60 is
pending hearing by the Senate Committee on Appropriations.
e) SB 327 (Yee) allows a writ of habeas corpus when
competent and substantial evidence of human trafficking was
not presented at trial and to provide that the Board of
Parole Hearings shall give great weight to evidence that a
prisoner was a victim of human trafficking. SB 327 is
pending hearing by the Senate Committee on Public Safety.
8)Prior Legislation :
a) AB 1940 (Hill), of the 2011-12 Legislative Session,
would have authorized a court to seal a record of
conviction for prostitution based on a finding that the
petitioner is a victim of human trafficking, that the
offense is the result of the petitioner's status as a
victim of that crime, and that the petitioner is therefore
factually innocent. AB 1940 was held on the Committee on
Appropriations' Suspense File.
b) AB 702 (Swanson), of the 2011-12 Legislative Session,
allows a person adjudicated a ward of the court or a person
convicted of prostitution to have his or her record sealed
or conviction expunged without showing that he or she has
not been subsequently convicted or that he or she has been
rehabilitated. AB 702 was never heard by this Committee
and was returned to the Chief Clerk.
c) AB 2040 (Swanson), Chapter 197, Statutes of 2012,
provides that a person who was adjudicated a ward of the
court for the commission of a violation of specified
provisions prohibiting prostitution may petition a court to
have his or her records sealed as these records pertain to
the prostitution offenses without showing that he or she
has not been subsequently convicted of a felony or
misdemeanor involving moral turpitude, or that
rehabilitation has been attained.
d) AB 22 (Lieber), Chapter 240, Statutes of 2005, created
the California Trafficking Victims Protection Act, which
established civil and criminal penalties for human
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trafficking and allowed for forfeiture of assets derived
from human trafficking. In addition, the Act required law
enforcement agencies to provide Law Enforcement Agency
Endorsement to trafficking victims, providing trafficking
victims with protection from deportation and created the
human trafficking task force.
REGISTERED SUPPORT / OPPOSITION :
Support
California Department of Justice (Sponsor)
California Catholic Conference, Inc.
California Attorneys for Criminal Justice
California Narcotics Officers' Association
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744