BILL NUMBER: AB 2396 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 28, 2014
INTRODUCED BY Assembly Member Bonta
FEBRUARY 21, 2014
An act to amend Section 1203.41 of the Penal Code
480 of the Business and Professions Code ,
relating to expungement.
LEGISLATIVE COUNSEL'S DIGEST
AB 2396, as amended, Bonta. Convictions: expungement.
expungement: licenses.
Existing law provides for the licensure and regulation of various
professions and vocations by boards within the Department of Consumer
Affairs. Existing law authorizes a board to deny, suspend, or revoke
a license on various grounds, including, but not limited to,
conviction of a crime if the crime is substantially related to the
qualifications, functions, or duties of the business or profession
for which the license was issued. Existing law prohibits a board from
denying a license on the ground that the applicant has committed a
crime if the applicant shows that he or she obtained a certificate of
rehabilitation in the case of a felony, or that he or she has met
all applicable requirements of the criteria of rehabilitation
developed by the board, as specified, in the case of a misdemeanor.
Existing law permits a defendant to withdraw his or her plea of
guilty or plea of nolo contendere and enter a plea of not guilty in
any case in which a defendant 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 has been
convicted of a misdemeanor and not granted probation and has fully
complied with and performed the sentence of the court, or has been
sentenced to a county jail for a felony, or in any other case in
which a court, in its discretion and the interests of justice,
determines that a defendant should be granted this or other specified
relief and requires the defendant to be released from all penalties
and disabilities resulting from the offense of which he or she has
been convicted.
This bill would prohibit a board from denying a license based
solely on a conviction that has been dismissed pursuant to the above
provisions.
Existing law authorizes a court to allow a defendant sentenced to
a county jail for a felony to withdraw his or her plea of guilty or
plea of nolo contendere and enter a plea of not guilty after the
lapse of one or 2 years following the defendant's completion of the
sentence, as specified, provided that the defendant is not under
supervision, as specified, and is not serving a sentence for, on
probation for, or charged with the commission of any offense.
Existing law releases the defendant from all penalties and
disabilities resulting from the offense of which he or she has been
convicted, except as specified.
This bill would make a technical, nonsubstantive change to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 480 of the Business
and Professions Code is amended to read:
480. (a) A board may deny a license regulated by this code on the
grounds that the applicant has one of the following:
(1) Been convicted of a crime. A conviction within the meaning of
this section means a plea or verdict of guilty or a conviction
following a plea of nolo contendere. Any action that a board is
permitted to take following the establishment of a conviction may be
taken when the time for appeal has elapsed, or the judgment of
conviction has been affirmed on appeal, or when an order granting
probation is made suspending the imposition of sentence, irrespective
of a subsequent order under the provisions of Section 1203.4 ,
1203.4a, or 1203.41 of the Penal Code.
(2) Done any act involving dishonesty, fraud, or deceit with the
intent to substantially benefit himself or herself or another, or
substantially injure another.
(3) (A) Done any act that if done by a licentiate of the business
or profession in question, would be grounds for suspension or
revocation of license.
(B) The board may deny a license pursuant to this subdivision only
if the crime or act is substantially related to the qualifications,
functions, or duties of the business or profession for which
application is made.
(b) Notwithstanding any other provision of this code, no
person shall a person shall not be denied a
license solely on the basis that he or she has been convicted of a
felony if he or she has obtained a certificate of rehabilitation
under Chapter 3.5 (commencing with Section 4852.01) of Title 6 of
Part 3 of the Penal Code or that he or she has been convicted of a
misdemeanor if he or she has met all applicable requirements of the
criteria of rehabilitation developed by the board to evaluate the
rehabilitation of a person when considering the denial of a license
under subdivision (a) of Section 482.
(c) Notwithstanding any other provisions of this code, a person
shall not be denied a license solely on the basis of a conviction
that has been dismissed pursuant to Section 1203.4, 1203.4a, or
1203.41.
(c)
(d) A board may deny a license regulated by this code
on the ground that the applicant knowingly made a false statement of
fact required to be revealed in the application for the license.
SECTION 1. Section 1203.41 of the Penal Code is
amended to read:
1203.41. (a) If a defendant is sentenced pursuant to paragraph
(5) of subdivision (h) of Section 1170, the court, in its discretion
and in the interests of justice, may order the following relief,
subject to the conditions of subdivision (b):
(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, in either case, the
court shall thereupon dismiss the accusations or information 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 provided in Section 13555 of the
Vehicle Code.
(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, if the sentence was imposed pursuant to subparagraph
(B) of paragraph (5) of subdivision (h) of Section 1170, or after the
lapse of two years following the defendant's completion of the
sentence, if the sentence was imposed pursuant to subparagraph (A) of
paragraph (5) of subdivision (h) of Section 1170.
(3) The relief available under this section may be granted only if
the defendant is not under supervision pursuant to subparagraph (B)
of paragraph (5) of subdivision (h) of Section 1170, and is not
serving a sentence for, on probation for, or charged with the
commission of any offense.
(4) The defendant shall be informed, either orally or in writing,
of the provisions of this section 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.
(5) The defendant may make the application and change of plea in
person or by attorney, or by a probation officer authorized in
writing.
(b) Relief granted pursuant to subdivision (a) is subject to the
following conditions:
(1) In a 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 pursuant to this
section does not permit a person to own, possess, or have in his or
her custody or control any firearm or prevent his or her conviction
under Chapter 2 (commencing with Section 29800) of Division 9 of
Title 4 of Part 6.
(4) Dismissal of an accusation or information underlying a
conviction pursuant to this section does not permit a person
prohibited from holding public office as a result of that conviction
to hold public office.
(c) This section applies to any conviction specified in
subdivision (a) that occurred before, on, or after January 1, 2014.
(d) A person who petitions for a change of plea or setting aside
of a verdict under this section 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 one hundred fifty
dollars ($150), and to reimburse the county 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 not to exceed one hundred fifty dollars
($150), and to reimburse any 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 city council
not to exceed one hundred fifty dollars ($150). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. 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
pursuant to this subdivision.
(e) (1) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days' notice of the petition
for relief. The probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.
(2) It shall be presumed that the prosecuting attorney has
received notice if proof of service is filed with the court.
(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.