BILL ANALYSIS �
AB 795
Page 1
Date of Hearing: May 1, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 795 (Alejo) - As Amended: March 19, 2013
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
As proposed to be amended, his bill authorizes the court to set
aside a conviction for prostitution or solicitation if the
defendant petitions the court and can show by clear and
convincing evidence 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)Finds 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) 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.
4)Prohibits DOJ from disseminating the petitioner's record of
conviction for specified licensing, employment and
certification requirements.
FISCAL EFFECT
Unknown annual state trial court costs, potentially in excess of
$150,000. Based on about 9,000 misdemeanor adult dispositions
for prostitution statewide, if just 1% pursued such a petition,
with an average of three hours of court time per case, the
annual GF cost to the state trial courts could exceed $150,000.
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COMMENTS
1)Rationale . 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."
Under current law, when a human trafficking victim is
convicted of solicitation or prostitution their only option is
to have the conviction set aside or dismissed under Penal Code
Section 1203.4, which 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 should be granted relief, provided that the person
is not serving a sentence for any other offense, is not on
probation for any other offense, and is not being charged with
any other offense.
The author contends, however, that 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 DOJ to reveal these
convictions to employers, and licensing and certification
entities.
2)Is there a need for a special record-sealing procedure for
prostitution? Current law provides sealing and expungement
relief to juveniles adjudicated for most offenses and adults
convicted of most misdemeanors, including prostitution. For
offenses committed as a juvenile, the petitioner may have his
or her record sealed upon reaching 18 years of age if he or
she has not been subsequently convicted of a felony or a
misdemeanor involving moral turpitude, and if the court is
satisfied that the petitioner has been rehabilitated. In
addition, an offender may file a petition any time before
reaching the age of 21 to dismiss the petition if the court
finds the interests of justice and the welfare of the minor
require such dismissal, or if it finds the minor is not in
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need of treatment or rehabilitation.
For misdemeanor offenses committed as an adult, the offender
may have his or her conviction set aside or dismissed upon a
showing the petitioner has completed probation, is not serving
a sentence for any other offense, is not on probation for any
other offense, and is not being charged with any other
offense.
Is it good policy to grant a petitioner relief without
requiring a showing of rehabilitation, completion of
probation, or that the petitioner is not continuing to engage
in acts of prostitution or other criminal acts?
As noted in the Assembly Public Safety Committee analysis, 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, an employer may not ask an applicant to
disclose information concerning an arrest or detention that
did not result in conviction, or information concerning
participation in any diversion program. If, however, the
employer is statutorily authorized to request criminal
background checks on employees, the background check would
reveal the expunged conviction with an entry noting the
dismissal on the record.
3)It is not clear that prosecution of human trafficking victims
occurs with any frequency. It would seem that coercion or
duress would be a complete defense to prostitution or
solicitation charges. Moreover it is not clear whether a
victim of human trafficking, having been convicted of
prostitution, and having successfully received expungement
relief, has been denied a job or certification based on
knowledge of the expungement.
4)There have been 41 commitments to state prison over the past
five years for human trafficking.
5)Amendments require clear and convincing evidence to prove a
person was a victim of human trafficking.
6)Support . The DOJ, states, "Currently, victims of trafficking
may bring an expungement motion pursuant to Penal Code Section
1203.4. However, pursuant to that statute, the Department of
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Justice (DOJ) must still provide a record of expungement which
specifies the underlying offense. As a 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."
7)There is no registered opposition to this bill .
8)Related Legislation .
a) AB 694 (Bloom) prohibits the admissibility of evidence
that a victim has engaged in a 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 in the Assembly Public Safety
Committee.
b) AB 1940 (Hill), 2012, 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 this committee's
Suspense File.
c) AB 2040 (Swanson), Statutes of 2012, specifies a ward of
the court for the commission of a prostitution offense may
petition a court to have his or her records sealed, without
showing that he or she has not been convicted of a
subsequent crime involving moral turpitude, or that
rehabilitation has been attained.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081