BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1585 (Alejo) 5
As Amended May 23, 2014
Hearing date: June 17, 2014
Family Code and Penal Code
MK:mc
HUMAN TRAFFICKING
HISTORY
Source: California Attorney General
Prior Legislation: AB 795 (Alejo) - failed Assembly
Appropriations, 2013
AB 694 (Bloom) - Ch. 126, Stats. 2013
AB 1940 (Hill) - failed Assembly Appropriations,
2012
AB 651 (Bradford) - Ch. 787, Stats. 2012
AB 2040 (Swanson) - Ch. 197, Stats. 2012
Proposition 35 of the November 2012 General
Election
AB 22 (Lieber) - Ch. 240, Stats. 2005
Support: Alameda County District Attorney; California Against
Slavery; California Catholic Conference; California
Coalition for Youth; California Communities United
Institute; Californians for Safety and Justice; The
Child Abuse Prevention Center; Citizens for Law and
Order, Inc.; Crime Victims Action Alliance; City of
Oakland; City and County of San Francisco; Taxpayers
for Improving Public Safety; American Academy of
Pediatrics; Judicial Counsel (if amended)
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Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUE
SHOULD A PERSON WHO HAS BEEN CONVICTED OF SOLICITATION OR
PROSTITUTION BE PERMITTED TO PETITION THE COURT TO SET ASIDE THE
CONVICTION IF HE OR SHE CAN SHOW THAT THE CONVICTION WAS A RESULT OF
HIS OR HER STATUS AS A VICTIM OF HUMAN TRAFFICKING?
PURPOSE
The purpose of this bill is to provide 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.
Existing law 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 § 1203.4(a).)
Existing law 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
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with the California State Lottery Commission. (Penal Code §
1203.4(a).)
Existing law 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 § 1203.47.)
Existing law provides that a person who was under the age of 18
at the time of a 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 the
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 § 1203.45.)
Existing law 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.)
Existing law allows in certain cases, a person who has reached
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the age of 18 years to petition the juvenile court for sealing
of his or her juvenile record. (Welfare and Institutions Code §
781.)
Existing law 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. (Penal Code §
236.1(a).)
Existing law 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 § 236.1(b).)
Existing law 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 §
11105.6.)
Existing law 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
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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 § 432.7(a)
and (e).)
This bill allows a court, upon making a finding that a defendant
has been convicted of solicitation or prostitution as a result
of his or her status as a victim of human trafficking, to issue
an order that does all of the following:
Sets forth a finding that the petitioner was a victim of
human trafficking when he or she committed the crime;
Orders expungement relief;
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,
Prohibits DOJ from disseminating the petitioner's record
of conviction for specified licensing, employment and
certification requirements.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
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Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
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accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
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is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to 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.
The current law is unfair. These individuals are the
true victims of the crime, and a victim should not be
prevented opportunities that would allow them to live a
normal life. According to a study by the Polaris
Project, a group committed to combating human
trafficking, having a conviction of prostitution on
one's record makes it difficult for a victim of human
trafficking to fully integrate back into society.
AB 1585 will help lift these barriers by adding a new
section to the penal code that specifically addresses
the issues victims of human trafficking face. The
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newly added section, 1203.49, will allow a court to
make a specific finding as to the convicted person's
status as a victim of human trafficking, allow the
court to issue all of the relief provided by Section
1203.4, and will prohibit the dissemination of the
victims record for specified employment, licensing, and
certification requirements. This bill is a modified
version of AB 795 (Alejo) from last session, which was
brought to us by the Attorney General's office. The
Attorney General's office is also continuing
sponsorship of this bill.
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2. Dismissal of Prior Conviction
Convicted defendants who have successfully completed probation
(including early discharge) or a conditional sentence 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 § 1203.4;
People v. Bishop (1992) 11 Cal.App.4th 1125, 1129.) Where the
defendant fulfills the conditions of probation without violation
or obtains early discharge, he or she has a right to dismissal of
the underlying conviction. (People v. Bradus (2007) 149
Cal.App.4th 636.)
3. Relief if Victim of Human Trafficking
This bill provides that in cases where a person has been
convicted of solicitation or prostitution, has completed
probation, and can show the court that he or she was convicted of
the offense because he or she was a victim of human trafficking,
the court may offer relief under Penal Code Section 1203.4. The
court shall also notify the Department of Justice that the person
was a victim of human trafficking when he or she committed the
offense.
4. Background Checks
Generally, when the Department of Justice sends out background
information they include convictions that have later been
dismissed under Penal Code Section 1203.4. This bill would
provide that, in specified circumstances, a conviction for
prostitution or solicitation dismissed because a person was
victim of human trafficking would not be included in background
information sent by the Department of Justice.
If the agencies seeking background checks get other convictions
that were dismissed, is it appropriate that these agencies will
not receive notice of these dismissed convictions?
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5. Adoption
Existing law allows adoption agencies to secure the full criminal
record of a person seeking to be an adoptive parent. This bill
would exempt from the records agencies receiving convictions for
prostitution or solicitation that were dismissed because the
person was a victim of human trafficking.
If the agencies seeking background checks get other convictions
that were dismissed, is it appropriate that these agencies will
not receive notice of these dismissed convictions?
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