BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                 UNFINISHED BUSINESS


          Bill No:  SB 513
          Author:   Hancock (D)
          Amended:  8/22/13
          Vote:     21


           SENATE PUBLIC SAFETY COMMITTEE  :  6-1, 4/30/13
          AYES:  Hancock, Anderson, Block, De León, Liu, Steinberg
          NOES:  Knight

           SENATE APPROPRIATIONS COMMITTEE  :  7-0, 5/23/13
          AYES:  De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg

           SENATE FLOOR  :  33-5, 5/28/13
          AYES:  Anderson, Beall, Berryhill, Block, Cannella, Corbett,  
            Correa, De León, DeSaulnier, Emmerson, Evans, Gaines,  
            Galgiani, Hancock, Hernandez, Hill, Hueso, Jackson, Lara,  
            Leno, Lieu, Liu, Monning, Padilla, Pavley, Price, Roth,  
            Steinberg, Walters, Wolk, Wright, Wyland, Yee
          NOES:  Fuller, Huff, Knight, Nielsen, Torres
          NO VOTE RECORDED:  Calderon, Vacancy

           ASSEMBLY FLOOR  :  53-23, 8/26/13 - See last page for vote


           SUBJECT  :    Diversion programs:  sealed records

           SOURCE  :     San Francisco County District Attorney


           DIGEST  :    This bill provides that, two years after successfully  
          completing a prefiling diversion program administered by a  
          prosecuting attorney, an individual may petition the court for  
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          an order sealing the records of arrest and related court files  
          and records, as specified.

           Assembly Amendments  specify that this bill applies to a person  
          who has successfully completed a "prefiling diversion" program,  
          define "prefiling diversion," delete the 10 day notice that a  
          petition has to be served to the prosecuting attorney prior to a  
          hearing, and add that when a prosecution attorney receives a  
          petition that the court may hear the matter no less than 60 days  
          from receipt of that petition, as specified.

           ANALYSIS  :    

          Existing law:
           
           1.Includes various diversion programs under which a person  
            arrested for and charged with a crime is diverted from the  
            criminal prosecution system and placed in a program of  
            rehabilitation or restorative justice.  Upon successful  
            completion of the program, any charges are filed and the  
            arrest is generally deemed to not have occurred, with  
            specified exceptions.  Generally, diversion programs are  
            created and run at the discretion of the district attorney.   
            Some examples of diversion follow:

             A.   Pre-plea diversion for drug possession.

             B.   Misdemeanor diversion, excluding driving under the  
               influence, crimes requiring registration as a sex offender,  
               crimes involving violence, as specified.

             C.   Bad check diversion.

          1.Defines misdemeanor diversion thus:  "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."

          This bill:

          1.Provides that two years after a person has successfully  
            completed a prefiling diversion program, he/she may petition  
            the court for an order sealing the records of arrest and  

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            related court files and records.

          2.Requires notice of the petition be given the prosecutor and  
            the arresting agency and allows the prosecutor to present to  
            the court evidence in opposition to the petition.

          3.Provides that a copy of the petition shall 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.

          4.States 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.

          5.Provides upon the granting of the order, the clerk of court  
            shall allow no access to the court file and records.

          6.Requires the court give the petitioning person a copy of the  
            order and inform the petitioner that he/she may state that the  
            arrest never occurred.

          7.Requires, with specified exceptions, the arrest record not be  
            used without the person's permission to deny a person any  
            employment, benefit or certificate.

          8.Provides the order shall not be forwarded to the Department of  
            Justice (DOJ).  The order shall not affect DOJ fingerprint and  
            criminal history records, or any document or record received  
            or maintained by DOJ.

          9.Requires the person be informed that the arrest shall be  
            disclosed by DOJ in a peace officer application and that the  
            person must disclose the arrest in response to any direct  
            question on an application for a position as a peace officer.

          10.Requires the person be advised that the arrest will be  
            disclosed by DOJ or the court in connection with the person's  
            eligibility for any subsequent diversion program.

          11.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, as specified.

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           Related Legislation
           
          SB 599 (Perata, Chapter 792, Statutes of 2003), authorizes a  
          court to order the sealing of records of any person who  
          successfully completed a drug diversion or deferred entry of  
          judgment program.


           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee:

                 Potential first year increase in court costs in the  
               range of $125,000 to $250,000 (General Fund*) for increased  
               petitions requesting a sealing order on court records.   
               This estimate is based on the population of individuals who  
               have successfully completed a diversion program and will be  
               eligible to petition the court upon enactment of this  
               measure.

                 To the extent the provisions of this bill increase the  
               benefits realized by diversion program participants and  
               prompt increased participation in these programs, there  
               could be potential future cost savings of a significant  
               amount to the criminal justice system, both to the courts  
               in averted prosecutorial hearings as well as to local  
               incarceration, that could more than offset the ongoing  
               court costs incurred for petitions to seal records.

           SUPPORT  :   (Verified  8/27/13)

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

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           ARGUMENTS IN SUPPORT  :    According to the author's office:

               Existing 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/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 to his/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 principals to  
               the hearings - working with the individual to develop a  
               plan for that person to repair the harm that he/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.

           ASSEMBLY FLOOR  :  53-23, 8/26/13
          AYES:  Achadjian, Alejo, Ammiano, Atkins, Bloom, Bocanegra,  
            Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,  

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            Campos, Chau, Chesbro, Cooley, Daly, Dickinson, Eggman, Fong,  
            Frazier, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray,  
            Hall, Roger Hernández, Holden, Jones-Sawyer, Levine,  
            Lowenthal, Medina, Mitchell, Mullin, Muratsuchi, Nazarian,  
            Olsen, Pan, Perea, V. Manuel Pérez, Quirk, Rendon, Skinner,  
            Stone, Ting, Weber, Wieckowski, Williams, Yamada, John A.  
            Pérez
          NOES:  Allen, Bigelow, Chávez, Conway, Dahle, Donnelly, Fox,  
            Beth Gaines, Grove, Harkey, Jones, Linder, Logue, Maienschein,  
            Mansoor, Melendez, Morrell, Patterson, Quirk-Silva, Salas,  
            Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Hagman, Nestande, Vacancy, Vacancy


          JG:ej  8/27/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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