BILL ANALYSIS Ó SB 513 Page 1 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, SB 513 Page 2 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. SB 513 Page 3 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).] SB 513 Page 4 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 SB 513 Page 5 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 SB 513 Page 6 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. SB 513 Page 7 "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 : SB 513 Page 8 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