BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1585
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          Date of Hearing:  March 11, 2014
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 1585 (Alejo) - As Introduced:  February 3, 2014
           
           
           SUMMARY  :  Provides that a defendant who has been convicted of  
          solicitation or prostitution may petition the court to set aside  
          the conviction if the defendant can establish 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  : 

          1)Allows a court to issue an order that does all of the  
            following:

             a)   Sets forth a finding that the petitioner was a victim of  
               human trafficking when he or she committed the crime;

             b)   Orders expungement relief; and

             c)   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.

          2)Prohibits DOJ from disseminating the petitioner's record of  
            conviction for applications and petitions related to  
            adoptions, and other 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  








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            offense.  (Pen. Code, § 1203.4, subd. (a).)

          2)Provides that the relief pursuant to Penal Code Section 1203.4  
            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  
            licensure by any state or local agency, or for contracting  
            with the California State Lottery Commission.  (Pen. Code, §  
            1203.4, subd. (a).)

          3)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.  (Pen.  
            Code, § 1203.45.)

          4)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.  (Pen. Code, § 1203.47.)

          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, § 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  








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            her juvenile record.  (Welf. & Inst. Code, § 781.)

          7)Provides that any person who deprives or violates the personal  
            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.  (Pen. Code, § 236.1, subd.  
            (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.  (Pen. Code, § 236.1, subd. (b).)

          9)Provides that 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.  (Pen. Code, § 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. (Lab. Code, § 432.7, subds. (a)  
            & (e).)

           FISCAL EFFECT  :   Unknown









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           COMMENTS  :   

           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)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.)  It 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 direct 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  








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            probation.

          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, a 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.

           3)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.

           4)Argument in Support  :   California Communities United Institute   
            writes, "The current law is unfair and does not adequately  
            protect victims from future harm.  Often, prostitutes are  
            quickly arrested, charged, and sentenced with little to no  
            investigation into their personal backgrounds.  However, in  
            many cases, if an inquiry had been made, it would become clear  
            that these women and men were victims of human trafficking.








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          "The stigma that is attached to their prostitution-related  
            charges can inhibit their ability to lead productive lives.   
            Often, when they apply for a job, the employer will check  
            their criminal record.  A record of prostitution could kill  
            any chance of finding a good job."  
           
           5)Related Legislation  :  

             a)   AB 1747 (Holden), states the intent of the Legislature  
               to enact legislation to prevent human trafficking and  
               prostitution in massage therapy establishments.  AB 1747 is  
               pending referral by the Rules Committee.

             b)   AB 1610 (Bonta), authorizes the defendant or the people  
               to apply for an order that the witness be examined  
               conditionally when the material witness is a victim of or  
               witness to a felony prosecution involving human  
               trafficking, commercial sex acts, or forced labor or  
               services.  AB 1610 is pending hearing by this Committee. 

             c)   AB 795 (Alejo) was substantially similar to this bill.   
               AB 795 was held on the Committee on Appropriations'  
               Suspense File.

             d)   AB 694 (Bloom), Chapter 126, Statutes of 2013, 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.

             e)   AB 156 (Holden) would have expanded 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 was held  
               on the Committee on Appropriations' Suspense file.

             f)   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.








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             g)   SB 1085 (Walters) prohibits the granting of probation  
               to, or the suspension of sentence for, a person who is  
               convicted of human trafficking.  SB 1085 is pending hearing  
               by the Senate Committee on Public Safety.

             h)   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 was  
               held on the Committee on Appropriations' Suspense file.

             i)   SB 60 (Wright), Chapter 147, Statutes of 2013, includes  
               victims of human trafficking within the definition of  
               crimes that are eligible for compensation from the  
               restitution fund administered by the California Victim  
               Compensation and Government Claims Board.  

           6)Prior Legislation  :

             a)   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.  

             b)   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.

             c)   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  








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               rehabilitated.  AB 702 was never heard by this Committee  
               and was returned to the Chief Clerk.

             d)   AB 22 (Lieber), Chapter 240, Statutes of 2005, created  
               the California Trafficking Victims Protection Act, which  
               established civil and criminal penalties for human  
               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 Catholic Conference of Bishops 
          California Communities United Institute
          Californians for Safety and Justice
          Citizens for Law and Order
          City and County of San Francisco
          Crime Victims Action Alliance
          Crime Victims United of California
          Taxpayers for Improving Public Safety

          Eight private individuals

           Opposition 

           None
           
          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744