Amended in Assembly April 29, 2014

Amended in Assembly March 28, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2404

Introduced by Assembly Member Eggman

February 21, 2014

An act to amend Section 11105 of the Penal Code, relating to criminal history information.

LEGISLATIVE COUNSEL’S DIGEST

AB 2404, as amended, Eggman. Criminal history information.

Existing law requires the Attorney General to furnish state summary criminal history information to specified persons or entities, including courts and probation officers, if needed in the course of their duties and authorizes the Attorney General to furnish state or federal summary criminal history information upon a showing of a compelling need to other persons or entities, including an illegal dumping enforcement officer or a peace officer of another country. Existing law requires the Department of Justice to disseminate specified information, including every conviction rendered against an applicant, whenever state or federal summary criminal history information is furnished by the Department of Justice as the result of an application by an authorized agency or organization and the information is to be used for certain purposes, including for peace officer employment or certification purposes.

This bill would additionally require the Department of Justice to disseminate the sex offender registration status of an applicant begin insert when state summary criminal history is furnished for specified purposes end insert .

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 11105 of the Penal Code is amended to
read:

11105.  

(a) (1) The Department of Justice shall maintain state
summary criminal history information.

(2) As used in this section:

(A) “State summary criminal history information” means the
master record of information compiled by the Attorney General
pertaining to the identification and criminal history of any person,
such as name, date of birth, physical description, fingerprints,
photographs, dates of arrests, arresting agencies and booking
numbers, charges, dispositions, and similar data about the person.

(B) “State summary criminal history information” does not refer
to records and data compiled by criminal justice agencies other
than the Attorney General, nor does it refer to records of complaints
to or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.

(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:

(1) The courts of the state.

(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivision (a) of Section 830.31, and subdivisions (a) and
(b) of Section 830.5.

(3) District attorneys of the state.

(4) Prosecuting city attorneys of any city within the state.

(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section
3479 or 3480 of the Civil Code, or Section 11571 of the Health
and Safety Code.

(6) Probation officers of the state.

(7) Parole officers of the state.

(8) A public defender or attorney of record when representing
a person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.

(9) A public defender or attorney of record when representing
a person in a criminal case, or a parole, mandatory supervision
pursuant to paragraph (5) of subdivision (h) of Section 1170, or
postrelease community supervision revocation or revocation
extension proceeding, and if authorized access by statutory or
decisional law.

(10) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based
upon that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to receive state
summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be
transmitted to the Federal Bureau of Investigation.

(11) Any city or county, city and county, district, or any officer
or official thereof if access is needed in order to assist that agency,
officer, or official in fulfilling employment, certification, or
licensing duties, and if the access is specifically authorized by the
city council, board of supervisors, or governing board of the city,
county, or district if the criminal history information is required
to implement a statute, ordinance, or regulation that expressly
refers to specific criminal conduct applicable to the subject person
of the state summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon that
specified criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by this
paragraph may also transmit fingerprint images and related
information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation.

(12) The subject of the state summary criminal history
information under procedures established under Article 5
(commencing with Section 11120).

(13) Any person or entity when access is expressly authorized
by statute if the criminal history information is required to
implement a statute or regulation that expressly refers to specific
criminal conduct applicable to the subject person of the state
summary criminal history information, and contains requirements
or exclusions, or both, expressly based upon that specified criminal
conduct.

(14) Health officers of a city, county, city and county, or district
when in the performance of their official duties enforcing Section
120175 of the Health and Safety Code.

(15) Any managing or supervising correctional officer of a
county jail or other county correctional facility.

(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section
14502 of the Corporations Code for the appointment of humane
officers.

(17) Local child support agencies established by Section 17304
of the Family Code. When a local child support agency closes a
support enforcement case containing summary criminal history
information, the agency shall delete or purge from the file and
destroy any documents or information concerning or arising from
offenses for or of which the parent has been arrested, charged, or
convicted, other than for offenses related to the parent’s having
failed to provide support for minor children, consistent with the
requirements of Section 17531 of the Family Code.

(18) County child welfare agency personnel who have been
delegated the authority of county probation officers to access state
summary criminal history information pursuant to Section 272 of
the Welfare and Institutions Code for the purposes specified in
Section 16504.5 of the Welfare and Institutions Code. Information
from criminal history records provided pursuant to this subdivision
shall not be used for any purposes other than those specified in
this section and Section 16504.5 of the Welfare and Institutions
Code. When an agency obtains records obtained both on the basis
of name checks and fingerprint checks, final placement decisions
shall be based only on the records obtained pursuant to the
fingerprint check.

(19) The court of a tribe, or court of a consortium of tribes, that
has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information
may be used only for the purposes specified in Section 16504.5
of the Welfare and Institutions Code and for tribal approval or
tribal licensing of foster care or adoptive homes. Article 6
(commencing with Section 11140) shall apply to officers, members,
and employees of a tribal court receiving criminal record offender
information pursuant to this section.

(20) Child welfare agency personnel of a tribe or consortium
of tribes that has entered into an agreement with the state pursuant
to Section 10553.1 of the Welfare and Institutions Code and to
whom the state has delegated duties under paragraph (2) of
subdivision (a) of Section 272 of the Welfare and Institutions Code.
The purposes for use of the information shall be for the purposes
specified in Section 16504.5 of the Welfare and Institutions Code
and for tribal approval or tribal licensing of foster care or adoptive
homes. When an agency obtains records on the basis of name
checks and fingerprint checks, final placement decisions shall be
based only on the records obtained pursuant to the fingerprint
check. Article 6 (commencing with Section 11140) shall apply to
child welfare agency personnel receiving criminal record offender
information pursuant to this section.

(21) An officer providing conservatorship investigations
pursuant to Sections 5351, 5354, and 5356 of the Welfare and
Institutions Code.

(22) A court investigator providing investigations or reviews
in conservatorships pursuant to Section 1826, 1850, 1851, or
2250.6 of the Probate Code.

(23) A person authorized to conduct a guardianship investigation
pursuant to Section 1513 of the Probate Code.

(24) A humane officer pursuant to Section 14502 of the
Corporations Code for the purposes of performing his or her duties.

(25) A public agency described in subdivision (b) of Section
15975 of the Government Code, for the purpose of oversight and
enforcement policies with respect to its contracted providers.

(c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this
subdivision, federal level criminal history information upon a
showing of a compelling need to any of the following, provided
that when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing duties,
Chapter 1321 of the Statutes of 1974 and Section 432.7 of the
Labor Code shall apply:

(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, that operates a nuclear energy facility when access
is needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom
the data relates.

(2) To a peace officer of the state other than those included in
subdivision (b).

(3) To an illegal dumping enforcement officer as defined in
subdivision (j) of Section 830.7.

(4) To a peace officer of another country.

(5) To public officers, other than peace officers, of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute
of the United States, other states, or possessions or territories of
the United States if the information is needed for the performance
of their official duties.

(6) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of
furthering the rehabilitation of the subject.

(7) The courts of the United States, other states, or territories
or possessions of the United States.

(8) Peace officers of the United States, other states, or territories
or possessions of the United States.

(9) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.

(10) (A) (i) Any public utility, as defined in Section 216 of the
Public Utilities Code, or any cable corporation as defined in
subparagraph (B), if receipt of criminal history information is
needed in order to assist in employing current or prospective
employees, contract employees, or subcontract employees who,
in the course of their employment may be seeking entrance to
private residences or adjacent grounds. The information provided
shall be limited to the record of convictions and any arrest for
which the person is released on bail or on his or her own
recognizance pending trial.

(ii) If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data
to the current or prospective employee to whom the data relates.

(iii) Any information obtained from the state summary criminal
history is confidential and the receiving public utility or cable
corporation shall not disclose its contents, other than for the
purpose for which it was acquired. The state summary criminal
history information in the possession of the public utility or cable
corporation and all copies made from it shall be destroyed not
more than 30 days after employment or promotion or transfer is
denied or granted, except for those cases where a current or
prospective employee is out on bail or on his or her own
recognizance pending trial, in which case the state summary
criminal history information and all copies shall be destroyed not
more than 30 days after the case is resolved.

(iv) A violation of this paragraph is a misdemeanor, and shall
give the current or prospective employee who is injured by the
violation a cause of action against the public utility or cable
corporation to recover damages proximately caused by the
violations. Any public utility’s or cable corporation’s request for
state summary criminal history information for purposes of
employing current or prospective employees who may be seeking
entrance to private residences or adjacent grounds in the course
of their employment shall be deemed a “compelling need” as
required to be shown in this subdivision.

(v) This section shall not be construed as imposing any duty
upon public utilities or cable corporations to request state summary
criminal history information on any current or prospective
employees.

(B) For purposes of this paragraph, “cable corporation” means
any corporation or firm that transmits or provides television,
computer, or telephone services by cable, digital, fiber optic,
satellite, or comparable technology to subscribers for a fee.

(C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized
pursuant to subparagraph (A) shall be forwarded to the Federal
Bureau of Investigation by the Department of Justice. Federal level
criminal history information received or compiled by the
Department of Justice may then be disseminated to the entities
referenced in subparagraph (A), as authorized by law.

(D) (i) Authority for a cable corporation to request state or
federal level criminal history information under this paragraph
shall commence July 1, 2005.

(ii) Authority for a public utility to request federal level criminal
history information under this paragraph shall commence July 1,
2005.

(11) To any campus of the California State University or the
University of California, or any four year college or university
accredited by a regional accreditation organization approved by
the United States Department of Education, if needed in
conjunction with an application for admission by a convicted felon
to any special education program for convicted felons, including,
but not limited to, university alternatives and halfway houses. Only
conviction information shall be furnished. The college or university
may require the convicted felon to be fingerprinted, and any inquiry
to the department under this section shall include the convicted
felon’s fingerprints and any other information specified by the
department.

(12) To any foreign government, if requested by the individual
who is the subject of the record requested, if needed in conjunction
with the individual’s application to adopt a minor child who is a
citizen of that foreign nation. Requests for information pursuant
to this paragraph shall be in accordance with the process described
in Sections 11122 to 11124, inclusive. The response shall be
provided to the foreign government or its designee and to the
individual who requested the information.

(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped “no criminal record” and returned to the person or entity
making the request.

(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department
of Justice may charge the person or entity making the request a
fee that it determines to be sufficient to reimburse the department
for the cost of furnishing the information. In addition, the
Department of Justice may add a surcharge to the fee to fund
maintenance and improvements to the systems from which the
information is obtained. Notwithstanding any other law, any person
or entity required to pay a fee to the department for information
received under this section may charge the applicant a fee sufficient
to reimburse the person or entity for this expense. All moneys
received by the department pursuant to this section, Sections
11105.3 and 26190, and former Section 13588 of the Education
Code shall be deposited in a special account in the General Fund
to be available for expenditure by the department to offset costs
incurred pursuant to those sections and for maintenance and
improvements to the systems from which the information is
obtained upon appropriation by the Legislature.

(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits
submitted pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4
of the Business and Professions Code shall take priority over the
processing of other applicant fingerprints.

(g) It is not a violation of this section to disseminate statistical
or research information obtained from a record, provided that the
identity of the subject of the record is not disclosed.

(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by
a court, statute, or decisional law.

(i) Notwithstanding any other law, the Department of Justice
or any state or local law enforcement agency may require the
submission of fingerprints for the purpose of conducting summary
criminal history information checks that are authorized by law.

(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6
(commencing with Section 1367) of Title 10 of Part 2 arising out
of a complaint charging a felony offense specified in Section 290.

(k) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the
Department of Justice as the result of an application by an
authorized agency or organization and the information is to be
used for peace officer employment or certification purposes. As
used in this subdivision, a peace officer is defined in Chapter 4.5
(commencing with Section 830) of Title 3 of Part 2.

(2) Notwithstanding any other law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:

(A) Every conviction rendered against the applicant.

(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance
pending trial.

(C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided, however, that where the
records of the Department of Justice do not contain a disposition
for the arrest, the Department of Justice first makes a genuine effort
to determine the disposition of the arrest.

(D) Every successful diversion.

(E) Every date and agency name associated with all retained
peace officer or nonsworn law enforcement agency employee
preemployment criminal offender record information search
requests.

(F) Sex offender registration status of the applicant.

(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the
Department of Justice as the result of an application by a criminal
justice agency or organization as defined in Section 13101, and
the information is to be used for criminal justice employment,
licensing, or certification purposes.

(2) Notwithstanding any other law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:

(A) Every conviction rendered against the applicant.

(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance
pending trial.

(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition or did not result
in a conviction, provided that the Department of Justice first makes
a genuine effort to determine the disposition of the arrest. However,
information concerning an arrest shall not be disclosed if the
records of the Department of Justice indicate or if the genuine
effort reveals that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program, or
the arrest was deemed a detention.

(D) Every date and agency name associated with all retained
peace officer or nonsworn law enforcement agency employee
preemployment criminal offender record information search
requests.

(E) Sex offender registration status of the applicant.

(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the
Department of Justice as the result of an application by an
authorized agency or organization pursuant to Section 1522,
1568.09, 1569.17, or 1596.871 of the Health and Safety Code, or
any statute that incorporates the criteria of any of those sections
or this subdivision by reference, and the information is to be used
for employment, licensing, or certification purposes.

(2) Notwithstanding any other law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:

(A) Every conviction of an offense rendered against the
applicant.

(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance
pending trial.

(C) Every arrest for an offense for which the State Department
of Social Services is required by paragraph (1) of subdivision (a)
of Section 1522 of the Health and Safety Code to determine if an
applicant has been arrested. However, if the records of the
Department of Justice do not contain a disposition for an arrest,
the Department of Justice shall first make a genuine effort to
determine the disposition of the arrest.

(D) Sex offender registration status of the applicant.

(3) Notwithstanding the requirements of the sections referenced
in paragraph (1) of this subdivision, the Department of Justice
shall not disseminate information about an arrest subsequently
deemed a detention or an arrest that resulted in either the successful
completion of a diversion program or exoneration.

(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment,
licensing, or certification purposes, is furnished by the Department
of Justice as the result of an application by an authorized agency,
organization, or individual pursuant to any of the following:

(A) Paragraph (10) of subdivision (c), when the information is
to be used by a cable corporation.

(B) Section 11105.3 or 11105.4.

(C) Section 15660 of the Welfare and Institutions Code.

(D) Any statute that incorporates the criteria of any of the
statutory provisions listed in subparagraph (A), (B), or (C), or of
this subdivision, by reference.

(2) With the exception of applications submitted by
transportation companies authorized pursuant to Section 11105.3,
and notwithstanding any other law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:

(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department
of Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the agency’s request for information or the conviction is
over 10 years old but the subject of the request was incarcerated
within 10 years of the agency’s request for information.

(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.

(C) Sex offender registration status of the applicant.

(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the
Department of Justice as the result of an application by an
authorized agency or organization pursuant to Section 379 or 550
of the Financial Code, or any statute that incorporates the criteria
of either of those sections or this subdivision by reference, and the
information is to be used for employment, licensing, or certification
purposes.

(2) Notwithstanding any other law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:

(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial Code.

(B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which
the applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.

begin delete

(C) Sex offender registration status of the applicant.

end delete

(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o), or
by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that section
or this subdivision by reference, and the information is to be used
for employment, licensing, or certification purposes.

(2) Notwithstanding any other law, whenever state summary
criminal history information is initially furnished pursuant to
paragraph (1), the Department of Justice shall disseminate the
following information:

(A) Every conviction rendered against the applicant.

(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance
pending trial.

(C) Sex offender registration status of the applicant.

(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent notification pursuant to
Section 11105.2. This subdivision shall not supersede sections that
mandate an agency, organization, or individual to contract with
the Department of Justice for subsequent notification pursuant to
Section 11105.2.

(r) This section does not require the Department of Justice to
cease compliance with any other statutory notification
requirements.

(s) The provisions of Section 50.12 of Title 28 of the Code of
Federal Regulations are to be followed in processing federal
criminal history information.

(t) Whenever state or federal summary criminal history
information is furnished by the Department of Justice as the result
of an application by an authorized agency, organization, or
individual defined in subdivisions (k) to (p), inclusive, and the
information is to be used for employment, licensing, or certification
purposes, the authorized agency, organization, or individual shall
expeditiously furnish a copy of the information to the person to
whom the information relates if the information is a basis for an
adverse employment, licensing, or certification decision. When
furnished other than in person, the copy shall be delivered to the
last contact information provided by the applicant.