Amended in Senate May 28, 2013

Amended in Senate April 15, 2013

Senate BillNo. 530


Introduced by Senator Wright

February 21, 2013


An act to amend Section 432.7 of the Labor Code,begin delete and to amend Sections 4852.01, 4852.03, 4852.06, 4852.07, and 4852.13 of the Penal Code,end delete relating to criminal offenders.

LEGISLATIVE COUNSEL’S DIGEST

SB 530, as amended, Wright. Criminal offenders: rehabilitation.

begin delete

Existing law authorizes an individual convicted of a felony or convicted of a misdemeanor violation of a sex offense, as specified, the accusatory pleading of which has been dismissed, to file a petition for a certificate of rehabilitation and a pardon provided that the petitioner has not been incarcerated since the dismissal of the accusatory pleading, is not on probation for the commission of another felony, and presents satisfactory evidence of 5 years’ residence in this state prior to the filing of the petition. Existing law authorizes, after the minimum period of rehabilitation has expired, an individual, as specified, to file a petition for ascertainment and declaration of rehabilitation. Existing law then requires the individual to give notice of that filing to specified individuals. Existing law authorizes a court to grant an order known as a certificate of rehabilitation and recommend that the Governor grant a full pardon to certain individuals.

end delete
begin delete

This bill would eliminate the requirement that an individual present satisfactory evidence of 5 years’ residence in this state prior to the filing of the petition. This bill would additionally authorize an individual convicted outside the state, as provided, of an offense that would be a specified felony or a misdemeanor sex offense if the conviction had occurred in the state, to file a petition for a certificate of rehabilitation if the petitioner has not been incarcerated since the dismissal of the accusatory pleading and is not on probation for the commission of any other felony, and presents clear and convincing evidence that he or she has been a resident of the United States, its territories, or a military base for the 5 consecutive years prior to filing the petition. The bill would make other conforming changes.

end delete

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or posttrial diversion program, except as specified. Existing law makes it a crime to intentionally violate these provisions.

This bill would additionally prohibit an employer, as specified, from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed, as provided, unless the employer is required by law to obtain that information, the applicant would be required to possess or use a firearm in the course of his or her employment, an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, or if the employer is prohibited by law from hiring an applicant who has been convicted of a crime. Because this bill would expand the definition of a crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P3    1

SECTION 1.  

Section 432.7 of the Labor Code is amended to
2read:

3

432.7.  

(a) No employer, whether a public agency or private
4individual or corporation, shall ask an applicant for employment
5to disclose, through any written form or verbally, information
6concerning an arrest or detention that did not result in conviction,
7or information concerning a referral to, and participation in, any
8pretrial or posttrial diversion program, or concerning a conviction
9that has been judicially dismissed pursuant to Section 1203.4 of
10the Penal Code, nor shall any employer seek from any source
11whatsoever, or utilize, as a factor in determining any condition of
12employment including hiring, promotion, termination, or any
13apprenticeship training program or any other training program
14leading to employment, any record of arrest or detention that did
15not result in conviction, or any record regarding a referral to, and
16participation in, any pretrial or posttrial diversion program, or
17concerning a conviction that has been judicially dismissed pursuant
18to Section 1203.4 of the Penal Code. As used in this section, a
19conviction shall include a plea, verdict, or finding of guilt
20regardless of whether sentence is imposed by the court. Nothing
21in this section shall prevent an employer from asking an employee
22or applicant for employment about an arrest for which the employee
23or applicant is out on bail or on his or her own recognizance
24pending trial.

25(b) Nothing in this section shall prohibit the disclosure of the
26information authorized for release under Sections 13203 and 13300
27of the Penal Code, to a government agency employing a peace
28officer. However, the employer shall not determine any condition
29of employment other than paid administrative leave based solely
30on an arrest report. The information contained in an arrest report
31may be used as the starting point for an independent, internal
32investigation of a peace officer in accordance with Chapter 9.7
33(commencing with Section 3300) of Division 4 of Title 1 of the
34Government Code.

35(c) In any case where a person violates this section, or Article
366 (commencing with Section 11140) of Chapter 1 of Title 1 of Part
374 of the Penal Code, the applicant may bring an action to recover
38from that person actual damages or two hundred dollars ($200),
P4    1whichever is greater, plus costs, and reasonable attorney’s fees.
2An intentional violation of this section shall entitle the applicant
3to treble actual damages, or five hundred dollars ($500), whichever
4is greater, plus costs, and reasonable attorney’s fees. An intentional
5violation of this section is a misdemeanor punishable by a fine not
6to exceed five hundred dollars ($500).

7(d) The remedies under this section shall be in addition to and
8not in derogation of all other rights and remedies that an applicant
9may have under any other law.

10(e) Persons seeking employment or persons already employed
11as peace officers or persons seeking employment for positions in
12the Department of Justice or other criminal justice agencies as
13defined in Section 13101 of the Penal Code are not covered by
14this section.

15(f) Nothing in this section shall prohibit an employer at a health
16facility, as defined in Section 1250 of the Health and Safety Code,
17from asking an applicant for employment either of the following:

18(1) With regard to an applicant for a position with regular access
19to patients, to disclose an arrest under any section specified in
20Section 290 of the Penal Code.

21(2) With regard to an applicant for a position with access to
22drugs and medication, to disclose an arrest under any section
23specified in Section 11590 of the Health and Safety Code.

24(g) (1) No peace officer or employee of a law enforcement
25agency with access to criminal offender record information
26maintained by a local law enforcement criminal justice agency
27shall knowingly disclose, with intent to affect a person’s
28employment, any information contained therein pertaining to an
29arrest or detention or proceeding that did not result in a conviction,
30including information pertaining to a referral to, and participation
31in, any pretrial or posttrial diversion program, to any person not
32authorized by law to receive that information.

33(2) No other person authorized by law to receive criminal
34offender record information maintained by a local law enforcement
35criminal justice agency shall knowingly disclose any information
36received therefrom pertaining to an arrest or detention or
37proceeding that did not result in a conviction, including information
38pertaining to a referral to, and participation in, any pretrial or
39posttrial diversion program, to any person not authorized by law
40to receive that information.

P5    1(3) No person, except those specifically referred to in Section
21070 of the Evidence Code, who knowing he or she is not
3authorized by law to receive or possess criminal justice records
4information maintained by a local law enforcement criminal justice
5agency, pertaining to an arrest or other proceeding that did not
6result in a conviction, including information pertaining to a referral
7to, and participation in, any pretrial or posttrial diversion program,
8shall receive or possess that information.

9(h) “A person authorized by law to receive that information,”
10for purposes of this section, means any person or public agency
11authorized by a court, statute, or decisional law to receive
12information contained in criminal offender records maintained by
13a local law enforcement criminal justice agency, and includes, but
14is not limited to, those persons set forth in Section 11105 of the
15Penal Code, and any person employed by a law enforcement
16criminal justice agency who is required by that employment to
17receive, analyze, or process criminal offender record information.

18(i) Nothing in this section shall require the Department of Justice
19to remove entries relating to an arrest or detention not resulting in
20conviction from summary criminal history records forwarded to
21an employer pursuant to law.

22(j) As used in this section, “pretrial or posttrial diversion
23program” means any program under Chapter 2.5 (commencing
24with Section 1000) or Chapter 2.7 (commencing with Section
251001) of Title 6 of Part 2 of the Penal Code, Section 13201 or
2613352.5 of the Vehicle Code, or any other program expressly
27authorized and described by statute as a diversion program.

28(k) (1) Subdivision (a) shall not apply to any city, city and
29county, county, or district, or any officer or official thereof, in
30screening a prospective concessionaire, or the affiliates and
31associates of a prospective concessionaire for purposes of
32consenting to, or approving of, the prospective concessionaire’s
33application for, or acquisition of, any beneficial interest in a
34concession, lease, or other property interest.

35(2) For purposes of this subdivision the following terms have
36the following meanings:

37(A) “Screening” means a written request for criminal history
38information made to a local law enforcement agency.

39(B) “Prospective concessionaire” means any individual, general
40or limited partnership, corporation, trust, association, or other
P6    1entity that is applying for, or seeking to obtain, a public agency’s
2consent to, or approval of, the acquisition by that individual or
3entity of any beneficial ownership interest in any public agency’s
4concession, lease, or other property right whether directly or
5indirectly held. However, “prospective concessionaire” does not
6include any of the following:

7(i) A lender acquiring an interest solely as security for a bona
8fide loan made in the ordinary course of the lender’s business and
9not made for the purpose of acquisition.

10(ii) A lender upon foreclosure or assignment in lieu of
11foreclosure of the lender’s security.

12(C) “Affiliate” means any individual or entity that controls, or
13is controlled by, the prospective concessionaire, or who is under
14common control with the prospective concessionaire.

15(D) “Associate” means any individual or entity that shares a
16common business purpose with the prospective concessionaire
17with respect to the beneficial ownership interest that is subject to
18the consent or approval of the city, county, city and county, or
19district.

20(E) “Control” means the possession, direct or indirect, of the
21power to direct, or cause the direction of, the management or
22policies of the controlled individual or entity.

23(l) (1) Nothing in subdivision (a) shall prohibit a public agency,
24or any officer or official thereof, from denying consent to, or
25approval of, a prospective concessionaire’s application for, or
26acquisition of, any beneficial interest in a concession, lease, or
27other property interest based on the criminal history information
28of the prospective concessionaire or the affiliates or associates of
29the prospective concessionaire that show any criminal conviction
30for offenses involving moral turpitude. Criminal history
31information for purposes of this subdivision includes any criminal
32history information obtained pursuant to Section 11105 or 13300
33of the Penal Code.

34(2) In considering criminal history information, a public agency
35shall consider the crime for which the prospective concessionaire
36or the affiliates or associates of the prospective concessionaire was
37convicted only if that crime relates to the specific business that is
38proposed to be conducted by the prospective concessionaire.

39(3) Any prospective concessionaire whose application for
40consent or approval to acquire a beneficial interest in a concession,
P7    1lease, or other property interest is denied based on criminal history
2information shall be provided a written statement of the reason for
3the denial.

4(4) (A) If the prospective concessionaire submits a written
5request to the public agency within 10 days of the date of the notice
6of denial, the public agency shall review its decision with regard
7to any corrected record or other evidence presented by the
8prospective concessionaire as to the accuracy or incompleteness
9of the criminal history information utilized by the public agency
10in making its original decision.

11(B) The prospective concessionaire shall submit the copy or the
12corrected record of any other evidence to the public agency within
1390 days of a request for review. The public agency shall render its
14decision within 20 days of the submission of evidence by the
15prospective concessionaire.

16(m) Subdivision (a) does not prohibit an employer from asking
17an applicant about a criminal convictionbegin delete orend deletebegin insert of,end insert seeking from any
18source information regarding a criminal conviction of,begin insert utilizing as
19a factor in determining any condition of employment of,end insert
or entry
20into a pretrial diversion or similar program by, the applicant if,
21pursuant to Section 1829 of Title 12 of the United States Code or
22any other state or federal law, any of the following apply:

23(1) The employer is required by law to obtain information
24regarding a conviction of an applicant.

25(2) The applicant would be required to possess or use a firearm
26in the course of his or her employment.

27(3) An individual who has been convicted of a crime is
28prohibited by law from holding the position sought by the
29applicant, regardless of whether that conviction has been expunged,
30judicially ordered sealed, statutorily eradicated, or judicially
31dismissed following probation.

32(4) The employer is prohibited by law from hiring an applicant
33who has been convicted of a crime.

begin delete
34

SEC. 2.  

Section 4852.01 of the Penal Code is amended to read:

35

4852.01.  

(a) Any person convicted of a felony who has been
36released from a state prison or other state penal institution or
37agency in California, whether discharged on completion of the
38term for which he or she was sentenced or released on parole prior
39to May 13, 1943, who has not been incarcerated in a state prison
40or other state penal institution or agency since his or her release
P8    1and who presents satisfactory evidence of a three-year residence
2in this state immediately prior to the filing of the petition for a
3certificate of rehabilitation and pardon provided for by this chapter,
4may file the petition pursuant to the provisions of this chapter.

5(b) Any person convicted of a felony who, on May 13, 1943,
6was confined in a state prison or other institution or agency to
7which he or she was committed and any person convicted of a
8felony after that date who is committed to a state prison or other
9institution or agency may file a petition for a certificate of
10rehabilitation and pardon pursuant to the provisions of this chapter.

11(c) (1) Any person convicted of a felony or any person who is
12convicted of a misdemeanor violation of any sex offense specified
13in Section 290, the accusatory pleading of which has been
14dismissed pursuant to Section 1203.4, may file a petition for
15certificate of rehabilitation and pardon pursuant to the provisions
16of this chapter if the petitioner has not been incarcerated in any
17prison, jail, detention facility, or other penal institution or agency
18since the dismissal of the accusatory pleading and is not on
19probation for the commission of any other felony.

20(2) Any individual convicted outside the state, but in the United
21States or one of its territories, of an offense that would be a felony
22or a misdemeanor sex offense specified in Section 290 if the
23conviction had occurred in the state, may file a petition for a
24certificate of rehabilitation pursuant to the provisions of this chapter
25if the petitioner has not been incarcerated in any prison, jail,
26detention facility, or other penal institution or agency since the
27dismissal of the accusatory pleading and is not on probation for
28the commission of any other felony, and the petitioner presents
29clear and convincing evidence that he or she has been a resident
30of the United States, its territories, or a military base for the five
31consecutive years prior to filing the petition.

32(d) This chapter shall not apply to persons serving a mandatory
33life parole, persons committed under death sentences, persons
34convicted of a violation of subdivision (c) of Section 286, Section
35288, subdivision (c) of Section 288a, Section 288.5, or subdivision
36(j) of Section 289, or persons in the military service.

37(e) Notwithstanding the above provisions or any other provision
38of law, the Governor shall have the right to pardon a person
39convicted of a violation of subdivision (c) of Section 286, Section
P9    1288, subdivision (c) of Section 288a, Section 288.5, or subdivision
2(j) of Section 289, if there are extraordinary circumstances.

3

SEC. 3.  

Section 4852.03 of the Penal Code is amended to read:

4

4852.03.  

(a) The period of rehabilitation shall begin to run
5upon the discharge of the petitioner from custody due to his or her
6completion of the term to which he or she was sentenced or upon
7his or her release on parole or probation, whichever is sooner. For
8purposes of this chapter, the period of rehabilitation shall constitute
9five years, plus a period of time determined by the following rules:

10(1) To the five years there shall be added four years in the case
11of any person convicted of violating Section 187, 209, 219, 4500,
12or 18755 of this code, or subdivision (a) of Section 1672 of the
13Military and Veterans Code, or of committing any other offense
14which carries a life sentence.

15(2) To the five years there shall be added five years in the case
16of any person convicted of committing any offense or attempted
17offense for which sex offender registration is required pursuant to
18Section 290, except for convictions for violations of subdivision
19(b), (c), or (d) of Section 311.2, or of Section 311.3, 311.10, or
20314. For those convictions, two years shall be added to the five
21years imposed by this section.

22(3) To the five years there shall be added two years in the case
23of any person convicted of committing any offense that is not listed
24in paragraph (1) or paragraph (2) and that does not carry a life
25sentence.

26(4) The trial court hearing the application for the certificate of
27rehabilitation may, if the defendant was ordered to serve
28consecutive sentences, order that his or her statutory period of
29rehabilitation be extended for an additional period of time which
30when combined with the time already served will not exceed the
31period prescribed by statute for the sum of the maximum penalties
32for all the crimes.

33(5) Any person who was discharged after completion of his or
34her term or was released on parole before May 13, 1943, is not
35subject to the periods of rehabilitation set forth in these rules.

36(b) Except in a case requiring registration pursuant to Section
37290, a trial court hearing an application for a certificate of
38rehabilitation before the applicable period of rehabilitation has
39elapsed may grant the application if the court, in its discretion,
40believes relief serves the interests of justice.

P10   1(c) A change of residence within this state does not interrupt
2the period of rehabilitation prescribed by this section.

3

SEC. 4.  

Section 4852.06 of the Penal Code is amended to read:

4

4852.06.  

Except as provided in subdivision (a) of Section
54852.01 and subdivision (b) of Section 4852.03, after the expiration
6of the minimum period of rehabilitation applicable to him or her
7(and, in the case of persons released upon parole or probation, after
8the termination of parole or probation), each person who has
9complied with the requirements of Section 4852.05 may file in the
10superior court of the county in which he or she then resides a
11petition for ascertainment and declaration of the fact of his or her
12rehabilitation and of matters incident thereto, and for a certificate
13of rehabilitation under this chapter.

14

SEC. 5.  

Section 4852.07 of the Penal Code is amended to read:

15

4852.07.  

(a) The petitioner, except for those applying pursuant
16to paragraph (2) of subdivision (c) of Section 4852.01, shall give
17notice of the filing of the petition to the district attorney of the
18county in which the petition is filed, to the district attorney of each
19county in which the petitioner was convicted of a felony or of a
20crime the accusatory pleading of which was dismissed pursuant
21to Section 1203.4, and to the office of the Governor, together with
22notice of the time of the hearing of the petition, at least 30 days
23prior to the date set for that hearing.

24(b) A petitioner filing pursuant to paragraph (2) of subdivision
25(c) of Section 4852.01 shall give notice of the filing of the petition
26to the district attorney in each county, or the equivalent jurisdiction,
27where a felony or misdemeanor offense occurred, and in each
28county where the petitioner resided for the previous five years, at
29least 90 days prior to the date set for a hearing.

30

SEC. 6.  

Section 4852.13 of the Penal Code is amended to read:

31

4852.13.  

(a) (1) Except as otherwise provided in subdivision
32(b), if after hearing, the court finds that the petitioner has
33demonstrated by his or her course of conduct his or her
34rehabilitation and his or her fitness to exercise all of the civil and
35political rights of citizenship, the court may make an order
36declaring that the petitioner has been rehabilitated, and
37recommending that the Governor grant a full pardon to the
38 petitioner, unless the petitioner has filed the petition pursuant to
39paragraph (2) of subdivision (c) of Section 4852.01. This order
P11   1shall be filed with the clerk of the court, and shall be known as a
2certificate of rehabilitation.

3(2) If an individual has filed the petition pursuant to paragraph
4(2) of subdivision (c) of Section 4852.01, and the court finds that
5the petitioner has demonstrated the fitness and rehabilitation
6requirements of paragraph (1) by clear and convincing evidence,
7the court may make an order declaring that the petitioner has been
8rehabilitated. The order shall be filed with the clerk of the court,
9and shall be known as a certificate of rehabilitation.

10(b) No certificate of rehabilitation shall be granted to a person
11convicted of any offense specified in Section 290 if the court
12determines that the petitioner presents a continuing threat to minors
13of committing any of the offenses specified in Section 290.

14(c) A district attorney in either the county where the conviction
15was obtained or the county of residence of the recipient of the
16certificate of rehabilitation may petition the superior court to
17rescind a certificate if it was granted for any offense specified in
18Section 290. The petition shall be filed in either the county in
19which the person who has received the certificate of rehabilitation
20resides or the county in which the conviction was obtained. If the
21superior court finds that petitioner has demonstrated by a
22preponderance of the evidence that the person who has received
23the certificate presents a continuing threat to minors of committing
24any of the offenses specified in Section 290, the court shall rescind
25the certificate.

end delete
26

begin deleteSEC. 7.end delete
27begin insertSEC. 2.end insert  

No reimbursement is required by this act pursuant to
28Section 6 of Article XIII B of the California Constitution because
29the only costs that may be incurred by a local agency or school
30district will be incurred because this act creates a new crime or
31infraction, eliminates a crime or infraction, or changes the penalty
32for a crime or infraction, within the meaning of Section 17556 of
33the Government Code, or changes the definition of a crime within
34the meaning of Section 6 of Article XIII B of the California
35Constitution.



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