Amended in Assembly August 22, 2013

Amended in Assembly August 6, 2013

Amended in Senate April 1, 2013

Senate BillNo. 513


Introduced by Senator Hancock

February 21, 2013


An act to add Section 851.87 to the Penal Code, relating to diversion programs.

LEGISLATIVE COUNSEL’S DIGEST

SB 513, as amended, Hancock. Diversion programs: sealed records.

Existing law provides that, upon successful completion of a drug diversion program or deferred entry of judgment program, the court may order the sealing of court and arrest records of the diverted charges where the interests of justice would be served, as specified.

This bill would provide that in any case where a person is arrested and successfully completes abegin insert preend insertbegin insertfilingend insert diversion program administered by a prosecuting attorney in lieu of filing an accusatory pleading, the person may petition the superior court that would have had jurisdiction over the matter for an order to seal the records of the arresting agency and related court files and records, and the court may issue that order if the court finds that doing so will be in furtherance of justice. The bill would provide that the Department of Justice shall continue to be able to maintain and disseminate any records or documents received or maintained by it, as authorized by law.

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

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

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SECTION 1.  

The Legislature finds and declares that in order
2to allow a person who has been arrested and who successfully
3completes abegin insert preend insertbegin insertfilingend insert diversion program administered by a
4prosecuting attorney in lieu of filing an accusatory pleading to
5become a law abiding and productive member of society, the
6records of the arresting agency and related court files and records
7shall be sealed.

8

SEC. 2.  

Section 851.87 is added to the Penal Code, to read:

9

851.87.  

(a) (1) In any case where a person is arrested and
10successfully completes abegin insert preend insertbegin insertfilingend insert diversion program administered
11by a prosecuting attorney in lieu of filing an accusatory pleading,
12the person may, two years after successful completion of the
13begin deletediversionend delete program as determined by the prosecuting attorney,
14petition the superior court that would have had jurisdiction over
15the matter to issue an order to seal the records of the arresting
16agency and related court files and records, and the court may order
17those records sealed if the court finds that doing so will be in
18furtherance of justice. A copy of the petition shall be served on
19the law enforcement agency and the prosecuting attorney of the
20county or city having jurisdiction over the offense, who may
21request a hearing within 60 days of receipt of the petition. The
22court may hear the matter no less than 60 days from the date the
23law enforcement agency and the prosecuting attorney receive a
24copy of the petition. The prosecuting attorney and the law
25enforcement agency, through the prosecuting attorney, may present
26evidence to the court at the hearing.

27(2) If the order is made, the clerk of the court shall thereafter
28not allow access to any records concerning the case, including the
29court file, index, register of actions, or other similar records.

30(3) If the order is made, the court shall give a copy of the order
31to the person and inform the person that he or she may thereafter
32state that he or she was not arrested for the charge.

33(4) The person may, except as specified in subdivisions (b), (c),
34and (d), indicate in response to any question concerning the
35person’s prior criminal record that the person was not arrested.

36(5) Subject to subdivisions (b), (c), and (d), a record pertaining
37to the arrest shall not, without the person’s permission, be used in
P3    1any way that could result in the denial of any employment, benefit,
2or certificate.

3(6) A sealing order made pursuant to this subdivision shall not
4be forwarded to the Department of Justice to be included or notated
5in the department’s manual or electronic fingerprint image or
6criminal history record systems. Any sealing order made pursuant
7to this subdivision and received by the Department of Justice need
8not be processed by the department.

9(b) The person shall be advised that, regardless of the person’s
10successful completion of thebegin delete diversionend delete program, the arrest shall
11be disclosed by the Department of Justice in response to any peace
12officer application request, and that, notwithstanding subdivision
13(a), this section does not relieve the person of the obligation to
14disclose the arrest in response to any direct question contained in
15any questionnaire or application for a position as a peace officer,
16 as defined in Section 830.

17(c) The person shall be advised that, regardless of the person’s
18successful completion of thebegin delete diversionend delete program, the arrest shall
19be disclosed by the Department of Justice or the court in which
20the matter was heard in response to any subsequent inquiry by the
21district attorney, court, probation department, or counsel for the
22person concerning the person’s eligibility for any diversion
23program administered by a prosecuting attorney in the future.

24(d) A sealing order made pursuant to this section shall not apply
25to any record or document received or maintained by the
26Department of Justice. Upon issuing the sealing order, the court
27shall advise the person that, notwithstanding the issuance of a
28sealing order pursuant to this section, the Department of Justice
29shall continue to be able to maintain and disseminate any records
30or documents received or maintained by the department, as
31authorized by law.

begin insert

32(e) As used in this section, “prefiling diversion” is a diversion
33from prosecution that is offered to a person by the prosecuting
34attorney in lieu of, or prior to, the filing of an accusatory pleading
35in court as set forth in Section 950.

end insert


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