BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 513
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          SENATE THIRD READING
          SB 513 (Hancock)
          As Amended  August 6, 2013
          Majority vote 

           SENATE VOTE  :33-5  
           
           PUBLIC SAFETY       5-2         APPROPRIATIONS      12-5        
           
           ----------------------------------------------------------------- 
          |Ayes:|Ammiano, Jones-Sawyer,    |Ayes:|Gatto, Bocanegra,         |
          |     |Mitchell, Quirk, Skinner  |     |Bradford,                 |
          |     |                          |     |Ian Calderon, Campos,     |
          |     |                          |     |Eggman, Gomez, Hall,      |
          |     |                          |     |Holden, Pan, Quirk, Weber |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Melendez, Waldron         |Nays:|Harkey, Bigelow,          |
          |     |                          |     |Donnelly, Linder, Wagner  |
           ----------------------------------------------------------------- 

           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, who may request  
            a hearing within 60 days of receipt of the petition.

          3)Specifies that the court may hear the matter no less than 60  
            days from the date the law enforcement agency and the  
            prosecuting attorney receive a copy of the petition. The  








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            prosecuting attorney and the law enforcement agency, through  
            the prosecuting attorney, may present evidence to the court at  
            the hearing.

          4)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.

          5)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.

          6)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.

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

          8)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.

          9)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.









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          10)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.

          11)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.

          12)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.

           EXISTING LAW  : 

          1)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.  

          2)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.  

          3)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.  









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          4)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.  

          5)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.  

          6)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.  

          7)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 Deferred Entry of Judgment (DEJ)  
            program as provided in this chapter.  

          8)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  








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            that could result in the denial of any employment, benefit,  
            license, or certificate.  

          9)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  
            as a peace officer.  

          10)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.  

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee, unknown annual General Fund (GF) trial court costs,  
          likely less than $100,000, to the extent hearings are necessary  
          to determine whether sealing records is in the interest of  
          justice.  For every 100 30-minute hearings, the cost would be in  
          the range of $25,000.

           COMMENTS  :  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  








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          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 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."

          Please see the policy committee analysis for a full discussion  
          of this bill. 


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


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