BILL ANALYSIS Ó
SB 513
Page 1
SENATE THIRD READING
SB 513 (Hancock)
As Amended August 22, 2013
Majority vote
SENATE VOTE :33-5
PUBLIC SAFETY 5-2 APPROPRIATIONS 12-5
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|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 |
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SUMMARY : Authorizes individuals who successfully complete a
prosecutor-administered prefiling diversion program to have
their arrest records sealed. Specifically, this bill :
1)Defines "prefiling diversion" as a diversion from prosecution
that is offered to a person by the prosecuting attorney in
lieu of, or prior to, the filing of an accusatory pleading in
court.
2)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.
3)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.
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4)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
prosecuting attorney and the law enforcement agency, through
the prosecuting attorney, may present evidence to the court at
the hearing.
5)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.
6)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.
7)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.
8)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.
9)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.
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 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
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response to any direct question contained in any questionnaire
or application for a position as a peace officer, as defined.
11)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.
12)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.
13)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
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at the end of the period of diversion.
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
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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.
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
FN: 0001866