BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 513
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          Date of Hearing:  June 25, 2013
          Counsel:       Stella Choe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     SB 513 (Hancock) - As Amended: April 1, 2013
           
           
           SUMMARY  :  Authorizes individuals who successfully complete a  
          prosecutor-administered diversion program to have their arrest  
          records sealed.  Specifically,  this bill  :

          1)Provides in any case where a person is arrested and  
            successfully completes a diversion program administered by a  
            prosecuting attorney in lieu of filing an accusatory pleading,  
            the person may, two years after successful completion of the  
            diversion program as determined by the prosecuting attorney,  
            petition the superior court that would have had jurisdiction  
            over the matter to issue an order to seal the records of the  
            arresting agency and related court files and records, and the  
            court may order those records sealed if the court finds that  
            doing so will be in furtherance of justice.

          2)Requires a copy of the petition to be served on the law  
            enforcement agency and the prosecuting attorney of the county  
            or city having jurisdiction over the offense at least 10 days  
            prior to the hearing. The prosecuting attorney and the law  
            enforcement agency, through the prosecuting attorney, may  
            present evidence to the court at the hearing.

          3)States if the order is made, the clerk of the court shall  
            thereafter not allow access to any records concerning the  
            case, including the court file, index, register of actions, or  
            other similar records.  The court shall give a copy of the  
            order to the person and inform the person that he or she may  
            thereafter state that he or she was not arrested for the  
            charge.

          4)Allows the person, except as specified, to indicate in  
            response to any question concerning the person's prior  
            criminal record that the person was not arrested.

          5)States that a record pertaining to the arrest shall not,  








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            without the person's permission, be used in any way that could  
            result in the denial of any employment, benefit, or  
            certificate, subject to the exceptions specified.

          6)Provides that a sealing order made pursuant to the provisions  
            of this bill shall not be forwarded to the Department of  
            Justice (DOJ) to be included or notated in the department's  
            manual or electronic fingerprint image or criminal history  
            record systems.  Any sealing order made pursuant to the  
            provisions of this bill and received by DOJ need not be  
            processed by DOJ.

          7)Requires that the person be advised that, regardless of the  
            person's successful completion of the diversion program, the  
            arrest shall be disclosed by DOJ in response to any peace  
            officer application request, and that this section does not  
            relieve the person of the obligation to disclose the arrest in  
            response to any direct question contained in any questionnaire  
            or application for a position as a peace officer, as defined.

          8)Requires that the person be advised that, regardless of the  
            person's successful completion of the diversion program, the  
            arrest shall be disclosed by DOJ or the court in which the  
            matter was heard in response to any subsequent inquiry by the  
            district attorney, court, probation department, or counsel for  
            the person concerning the person's eligibility for any  
            diversion program administered by a prosecuting attorney in  
            the future..

          9)States that a sealing order made pursuant to the provisions of  
            this bill shall not apply to any record or document received  
            or maintained by DOJ.  Upon issuing the sealing order, the  
            court shall advise the person that, notwithstanding the  
            issuance of a sealing order pursuant to this section, DOJ  
            shall continue to be able to maintain and disseminate any  
            records or documents received or maintained by the department,  
            as authorized by law.

          10)Expresses the Legislature's finding and declaration that in  
            order to allow a person who has been arrested and who  
            successfully completes a diversion program administered by a  
            prosecuting attorney in lieu of filing an accusatory pleading  
            to become a law abiding and productive member of society, the  
            records of the arresting agency and related court files and  
            records shall be sealed.








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           EXISTING LAW  : 

          1)States that pretrial diversion refers to the procedure of  
            postponing prosecution of an offense filed as a misdemeanor  
            either temporarily or permanently at any point in the judicial  
            process from the point at which the accused is charged until  
            adjudication.  (Penal Code Section 1001.1.)

          2)Provides that the district attorney of each county shall  
            review annually any diversion program adopted by the county,  
            and no program shall continue without the approval of the  
            district attorney.  No person shall be diverted under a  
            program unless it has been approved by the district attorney.   
            Nothing in this subdivision shall authorize the prosecutor to  
            determine whether a particular defendant shall be diverted.   
            [Penal Code Section 1001.2(b).]

          3)Specifies that at no time shall a defendant be required to  
            make an admission of guilt as a prerequisite for placement in  
            a pretrial diversion program.  (Penal Code Section 1001.3.)

          4)Provides that a divertee is entitled to a hearing, as set  
            forth by law, before his or her pretrial diversion can be  
            terminated for cause.  (Penal Code Section 1001.4.)

          5)States if the divertee has performed satisfactorily during the  
            period of diversion, the criminal charges shall be dismissed  
            at the end of the period of diversion.  (Penal Code Section  
            1001.7.)

          6)Provides that any record filed with the DOJ shall indicate the  
            disposition in those cases diverted pursuant to these  
            provisions.  Upon successful completion of a diversion  
            program, the arrest upon which the diversion was based shall  
            be deemed to have never occurred.  The divertee may indicate  
            in response to any question concerning his or her prior  
            criminal record that he or she was not arrested or diverted  
            for the offense, except as specified.  A record pertaining to  
            an arrest resulting in successful completion of a diversion  
            program shall not, without the divertee's consent, be used in  
            any way that could result in the denial of any employment,  
            benefit, license, or certificate.  [Penal Code Section  
            1001.9(a).]









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          7)Requires that the divertee be advised that, regardless of his  
            or her successful completion of diversion, the arrest upon  
            which the diversion was based may be disclosed by DOJ in  
            response to any peace officer application request and that  
            this section does not relieve him or her of the obligation to  
            disclose the arrest in response to any direct question  
            contained in any questionnaire or application for a position  
            as a peace officer.  [Penal Code Section 1001.9(b).]

          8)Authorizes a preguilty plea diversion program or a deferred  
            entry of judgment (DEJ) for specified drug offenses.  [Penal  
            Code Section 1000 et seq.]

          9)Specifies that the presiding judge of the superior court, or a  
            judge designated by the presiding judge, together with the  
            district attorney and the public defender, to agree in writing  
            to establish and conduct a preguilty plea drug court program  
            pursuant to the provisions of this chapter, wherein criminal  
            proceedings are suspended without a plea of guilty for  
            designated defendants.  [Penal Code Section 1000.5(a).]

          10)States if there is no agreement in writing for a preguilty  
            plea program by the presiding judge or his or her designee,  
            the district attorney, and the public defender, the program  
            shall be operated as a DEJ program as provided in this  
            chapter.  [Penal Code Section 1000.5(a).]

          11)Provides upon successful completion of a DEJ program, the  
            arrest upon which the judgment was deferred shall be deemed to  
            have never occurred. The defendant may indicate in response to  
            any question concerning his or her prior criminal record that  
            he or she was not arrested or granted DEJ for the offense,  
            except as specified. A record pertaining to an arrest  
            resulting in successful completion of a DEJ program shall not,  
            without the defendant's consent, be used in any way that could  
            result in the denial of any employment, benefit, license, or  
            certificate.  [Penal Code Section 1000.4(a).]

          12)Requires the defendant to be advised that, regardless of his  
            or her successful completion of the DEJ program, the arrest  
            upon which the judgment was deferred may be disclosed by DOJ  
            in response to any peace officer application request and that  
            this section does not relieve him or her of the obligation to  
            disclose the arrest in response to any direct question  
            contained in any questionnaire or application for a position  








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            as a peace officer.  [Penal Code Section 1000.4(b).]

          13)Authorizes a court to order the records and files related to  
            a defendant's participation in a drug diversion or drug DEJ  
            program to be sealed, including any record of arrest or  
            detention, if the defendant successfully completes the program  
            and it appears to the judge presiding at the hearing where the  
            diverted charges are dismissed that the interests of justice  
            would be served by sealing those records.  [Penal Code Section  
            851.90(a).]

          14)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.  (Penal Code Section 11105.6.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "Current law  
            provides that in any case where a person successfully  
            completes a drug diversion program or deferred entry of  
            judgment program, the person can have his or her arrest record  
            and related court record sealed by the court in the interest  
            of justice.  However, existing law lacks a similar mechanism  
            for individuals who successfully complete a  
            prosecutor-administered diversion program such as Neighborhood  
            Courts to have their arrest record sealed. SB 513 addresses  
            this disparity.

          "Research has shown that the presence of an arrest record can  
            reduce opportunities for employment.  Research has also shown  
            that stable employment significantly lowers recidivism and  
            promotes public safety.  By allowing an opportunity for arrest  
            sealing, SB 513 removes unnecessary barriers to obtain a job  
            and promotes economic stability in our communities.  The  
            sealing order does not prohibit law enforcement from access to  
            the record. 

          "In San Francisco, individuals who commit certain misdemeanor  
            and infraction offenses may be diverted by the District  
            Attorney's Office to Neighborhood Courts, an innovative  
            alternative to prosecution.  The individual is referred prior  








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            to his or her case being charged in criminal court.   
            Neighborhood Court cases are heard by volunteer community  
            members, without judges or attorneys.  The community members  
            apply restorative justice principles to the hearings - working  
            with the individual to develop a plan for that person to  
            repair the harm that he or she has caused.  If the person  
            completes the agreed upon plan, their case is not charged in  
            criminal court.  In 2012, the San Francisco District  
            Attorney's Office sent over 700 cases to Neighborhood Courts,  
            and 73% of those cases were successfully completed without the  
            need to bring them into our overburdened criminal justice  
            system.  This model program currently is being replicated in  
            Yolo County.  Santa Barbara County also operates a  
            pre-charging diversion model."

           2)Disclosure of Diversion Records  :  SB 599 (Perata), Chapter  
            792, Statutes of 2003, authorized a court to order the sealing  
            of the records of any person who successfully completed a drug  
            diversion or deferred entry of judgment program.  The sponsor  
            of SB 599 - the Alameda County District Attorney - noted that  
            private investigators had been searching court files to  
            determine if a person had been charged with a crime that was  
            later dismissed through a diversion program.  These record  
            searches were then used to deny employment and other services  
            or benefits. 

            A core principle in a diversion program is that a successful  
            participant can avoid collateral consequences of a criminal  
            conviction or charge, including legal and practical bars to  
            employment.  Disclosure of diversion records, except for  
            official purposes, appears to substantially reduce the  
            benefits and reasons for a person to participate in a  
            diversion program.  Requiring the sealing of diversion program  
            records arguably advances or realizes the intent of these  
            programs.  
             
           3)Argument in Support  :  According to the  California Attorneys  
            for Criminal Justice  , "Existing law provides that upon  
            successful completion of a drug diversion program, the court  
            may order the sealing of court and arrest records of diverted  
            charges where the interests of justice would be served.  This  
            bill would allow the offender to take an affirmative step in  
            requesting their record to be sealed instead of relying solely  
            on the discretion of the court. 









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          "Steady employment is known to be an essential element in  
            keeping former offenders or those at risk out of prison.  Many  
            times, people cannot find viable employment due to their  
            previous criminal records.  This bill seeks to encourage those  
            who are attempting to become or remain law abiding and  
            productive members of society.  This bill will remove barriers  
            for those seeking steady employment and housing; all  
            instrumental aspects of becoming productive members of  
            society."

           4)Related Legislation  :  

             a)   AB 994 (Lowenthal) requires each county to establish and  
               maintain a pretrial diversion program, to be administered  
               by the district attorney of that county, and authorizes  
               either the district attorney or the superior court to offer  
               diversion to a defendant.  AB 994 is pending hearing by the  
               Senate Committee on Public Safety.

             b)   AB 795 (Alejo) authorizes the sealing of records for a  
               victim of human trafficking who was convicted of a  
               prostitution or solicitation offense.  AB 795 was held on  
               the Appropriations Committee's Suspense file.

           5)Prior Legislation  :  

             a)   AB 2199 (Harman), of the 2005-06 Legislative Session,  
               would have established a pretrial diversion education  
               program for persons arrested for nonviolent misdemeanor or  
               felony firearms offenses.  AB 2199 was never heard by this  
               Committee.

             b)   AB 1956 (Wolk), Chapter 290, Statutes of 2004, expanded  
               the application of the existing statute authorizing  
               diversion for mentally ill defendants in certain  
               misdemeanor cases to apply to persons with a cognitive  
               developmental disability.

             c)   SB 599 (Perata), Chapter 792, Statutes of 2003,  
               authorizes a court to order the sealing of records of the  
               arresting agency and related court files with respect to a  
               person diverted pursuant to a drug diversion program or  
               admitted to a DEJ program for specified drug offenders.

           REGISTERED SUPPORT / OPPOSITION  :   








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           Support 
           
          San Francisco District Attorney (Sponsor)
          California Attorneys for Criminal Justice
          California Public Defenders Association
          City and County of San Francisco
          Judicial Council of California
          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Area
          National Employment Law Project
          Santa Barbara County District Attorney
          Taxpayers for Improving Public Safety
          Yolo County District Attorney

           Opposition 
           
          None
           

          Analysis Prepared by  :    Stella Choe / PUB. S. / (916) 319-3744