BILL ANALYSIS �
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