BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 530 (Wright)                                             
          As Amended April 15, 2013 
          Hearing date:  April 23, 2013
          Labor and Penal Codes
          MK:mc

                              CRIMINAL RECORD OFFENDERS:

                                    REHABILITATION  


                                       HISTORY

          Source:  Author

          Prior Legislation: None

          Support: Congress of Racial Equality of California (CORE-CA);  
                   Taxpayers for Improving Public Safety; Lawyers'  
                   Committee for Civil Rights of the San Francisco Bay  
                   Area; Legal Services for Prisoners with Children;  
                   California Attorneys for Criminal Justice; American  
                   Civil Liberties Union; California Public Defenders  
                   Association; National Employment Law Project; Clean  
                   Slate Practice of the East Bay Community Law Center; A  
                   New Way of Life Reentry Project

          Opposition:California District Attorneys Association


                                      KEY ISSUES
           
          SHOULD THE LAW PROVIDE THAT A POTENTIAL EMPLOYER CANNOT ASK  




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          ABOUT OR USE INFORMATION ABOUT A CONVICTION WHICH HAS BEEN  
          EXPUNGED?

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          SHOULD THE FIVE-YEAR RESIDENCY REQUIREMENT FOR A CERTIFICATE OF  
          REHABILITATION BE ELIMINATED?

          SHOULD A PERSON WITH AN OUT-OF-STATE CONVICTION BE PERMITTED TO SEEK  
          A CERTIFICATE OF REHABILITATION IN CALIFORNIA?


                                       PURPOSE

          The purpose of this bill is to prohibit the use of a conviction  
          that has been expunged in employment and to make changes to the  
          process for certificates of rehabilitation.

           Existing law  provides for a process for a court to allow a  
          defendant to withdraw his or her plea or set aside verdict of  
          guilty and dismiss the accusation or information if the  
          defendant has fulfilled the conditions of probation for the  
          entire period of probation, or who has been discharged prior to  
          the termination for the period of probation, or in any other  
          case in which the interests of justice, determines that a  
          defendant should be granted relief available.  (Penal Code   
          1203.4.)  

           Existing law  provides that no employer, whether a public agency  
          or private individual or corporation, shall ask an applicant for  
          employment to disclose, through any written form or verbally,  
          information concerning an arrest or detention that did not  
          result in conviction, or information concerning a referral to,  
          and participation in, any pretrial or post trial diversion  
          program, nor shall any employer seek from any source whatsoever,  
          or utilize, as a factor in determining any condition of  
          employment including, hiring, promotion, termination, or any  




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          apprenticeship training program or any other training program  
          leading to employment, record of arrest or detention that did  
          not result in conviction, or any record regarding a referral to,  
          and participation in, any pretrial or post trial diversion  
          program.  (Labor Code  432.7.)

           This bill would provide that an employer also may not ask about  
          or use as a factor in determining condition of employment the  
          fact that the person has a conviction that has been judicially  
          dismissed pursuant to Penal Code Section 1203.4.

           This bill  provides that an employer is not prohibited from  
          asking an applicant about a criminal conviction or seeking from  
          any source information regarding a criminal conviction of, or  
          entry into a pretrial diversion, or similar program by the  
          applicant if because of any state or federal any of the  
          following apply:
                 The employer is required by law to obtain information  
               regarding a conviction of an applicant.
                 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.
                 The employer is prohibited by law from hiring an  
               applicant who has been convicted of a crime.
           
           This bill provides that to determine if a conviction directly  
          relates to the position of the employment sought, the employer  
          shall consider all of the following:
                 The nature and seriousness of the crime or crimes of  
               which the individual was convicted.
                 The relationship of the crime or crimes to the purposes  
               of the position for which employment is sought.
                 The relationship of the crime or crimes to the ability,  
               capacity, and fitness required to perform the duties and  
               discharge the responsibilities of the position of  




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               employment.

           Existing  law sets forth the requirements for a person to file a  
          petition for a certificate or rehabilitation.  (Penal Code   
          4852.01.)

           Existing law  provides that any person convicted of a felony, or  
          any person who is convicted of a misdemeanor violation of any  
          sex offense specified in Section 290, the accusatory pleading of  
          which has been dismissed pursuant to Section 1203.4, may file a  
          petition for certificate of rehabilitation and pardon if the  
          petitioner has not been incarcerated in any prison, jail,  
          detention facility, or other penal institution or agency since  
          the dismissal of the accusatory pleading and is not on probation  
          for the commission of any other felony, and the petition  
          presents satisfactory evidence of five years residence in this  
          state prior to the filing of the petition.  (Penal Code 
           4852.01 (c).)

           This bill  removes the requirement that the petitioner "presents  
          satisfactory evidence of five years residence in this state  
          prior to the filing of the petition."

           This bill  provides that any individual convicted outside the  
          state, but in the United States or one of its territories, of an  
          offense that would be a felony or a misdemeanor sex offense  
          specified in Section 290 if the conviction had occurred in the  
          state, may file a petition for a certificate of rehabilitation  
          if the petitioner has not been incarcerated in any prison, jail,  
          detention facility, or other penal institution or agency since  
          the dismissal of the accusatory pleading, is not on probation  
          for the commission of any other felony, and the petitioner  
          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 five consecutive years prior to the filing of the  
          petition.

           Existing law  provides that the period of rehabilitation shall  
          begin to run upon the discharge of the petitioner from custody  




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          due to his or her completion of the term to which he or she was  
          sentenced or upon his or her release on parole or probation,  
          whichever is sooner.  The period of rehabilitation shall  
          constitute five years residence in this state, plus an  
          additional period of time depending on the type of crime.   
          (Penal Code  4852.03 (a).)

           This bill  removes the requirement that during the five years the  
          person has to be a resident in this state.

           Existing law  provides that unless and until the period of  
          rehabilitation has passed, the petitioner shall be ineligible to  
          file his or her petition for a certificate of rehabilitation  
          with the court.  Any certificate of rehabilitation that is  
          issued and under which the petitioner has not fulfilled the  
          requirements shall be void.  (Penal Code  4852.03 (b).)

           This bill  provides that except in a case requiring sex offender  
          registration a trial court hearing an application for a  
          certificate of rehabilitation before the applicable period of  
          rehabilitation has elapsed may grant the application, if the  
          court, in its discretion believes relief services the interests  
          of justice.

           Existing law  provides that except as provided in Penal Code  
          Section 4852.01(a) after the expiration of the minimum period of  
          rehabilitation applicable to him or her (and, in the case of  
          persons released upon parole or probation, after the termination  
          of parole or probation), each person who has complied with the  
          requirements of Penal Code  4852.05 may file in the superior  
          court of the county in which he or she then resides a petition  
          for ascertainment and declaration of the fact that his or her  
          rehabilitation in matters incident thereto, and for a  
          certificate of rehabilitation.  No petition shall be filed until  
          and unless the petitioner has continuously resided in this  
          state, after leaving prison, for a period of not less than five  
          years immediately preceding the date of filing the petition.   
          (Penal Code  4852.06.)





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           This bill  also provides except as provided in Penal Code section  
          4852.03(b) a person may bring the petition.

           This bill  deletes the requirement that a person must live  
          continuously in the state for five years.

           Existing law  provides the petitioner shall give notice of the  
          filing of the petition to the district attorney of the county in  
          which the petition is filed, to the district attorney of each  
          county in which the petitioner was convicted of a felony or of a  
          crime the accusatory leading of which was dismissed pursuant to  
          Penal Code  1203.4 and to the office of the Governor, together  
          with notice of the time of the hearing of the petition at least  
          30 days prior to the date set for that hearing.  (Penal Code  
          4852.07.)

           This bill  provides that if a petitioner is filing pursuant to  
          the provision allowing a petition to be filed for a crime  
          outside California, the petitioner shall give notice of the  
          filing of the petition to the district attorney in each county,  
          or the equivalent jurisdiction, where a felony or misdemeanor  
          offense occurred, and in each county where the petitioner  
          resided for the previous five years, at least 90 days prior to  
          the date of the hearing.

           Existing law  provides that if after a hearing, the court finds  
          that the petitioner has demonstrated by his or her course of  
          conduct his or her rehabilitation and his or her fitness to  
          exercise all of the civil and political rights of citizenship,  
          the court may make an order declaring that the petitioner has  
          been rehabilitated and recommending that the Governor grant a  
          full pardon to the petitioner.  The order shall be filed with  
          the court of the clerk of the court and shall be known as a  
          certificate of rehabilitation.  (Penal Code  4852.13(a).)

           This bill  provides that if an individual has filed the petition  
          pursuant to the provision allowing a petition to be filed for a  
          crime outside California  and the court finds that the  
          petitioner has demonstrated the fitness and rehabilitation  




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          requirements by clear and convincing evidence, the court may  
          make an order decaling that the petitioner has been  
          rehabilitated.  The order shall be filed with the clerk of the  
          court and shall be known as a certificate of rehabilitation.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order issued by the Three-Judge Court three years  
          earlier to reduce the state's prison population to 137.5 percent  
          of design capacity.  The State submitted in part that the, ". .  
          .  population in the State's 33 prisons has been reduced by over  
          24,000 inmates since October 2011 when public safety realignment  




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          went into effect, by more than 36,000 inmates compared to the  
          2008 population . . . , and by nearly 42,000 inmates since 2006  
          . . . ."  Plaintiffs, who opposed the state's motion, argue in  
          part that, "California prisons, which currently average 150% of  
          capacity, and reach as high as 185% of capacity at one prison,  
          continue to deliver health care that is constitutionally  
          deficient."  In an order dated January 29, 2013, the federal  
          court granted the state a six-month extension to achieve the  
          137.5 % prisoner population cap by December 31st of this year.  

          In an order dated April 11, 2013, the Three-Judge Court denied  
          the state's motions, and ordered the state of California to  
          "immediately take all steps necessary to comply with this  
          Court's . . . Order . . . requiring defendants to reduce overall  
          prison population to 137.5% design capacity by December 31,  
          2013."         

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unresolved.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.






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                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

               California's existing expungement law, Penal Code  
               1203.4, is ineffective.  Even after receiving an  
               expungement, rehabilitated former offenders suffer  
               lifelong discrimination in employment, housing and  
               travel.  Not only is this unjust, it inevitably costs  
               California millions of dollars in dealing with  
               recidivism, unemployment, and under employment.   

               The expungement process is generally recognized by  
               people in the field as having limited benefit despite  
               the legislative intent because other court records and  
               background companies can discover these convictions or  
               employers now know what the term "expunged pursuant to  
               PC Section 1203.4" means.

               The Certificate of Rehabilitation process is limited  
               because if requires a five year state residency even to  
               those who were convicted outside of California and now  
               have moved into the state. The law also provides no  
               discretion for the court to grant a certificate before  
               the five year waiting period in extraordinary  
               circumstances.

               The protections in current law (Labor Code section  
               432.7) prohibit employers from asking applicants for  
               employment to disclose certain criminal background  
               information.  This provision however does not cover  
               records expunged under PC 1203.4, thus limiting its  
               effectiveness.

               SB 530 makes three corrections to existing law.  First,  
               it adds records expunged to the protections under Labor  
               Code 432.7.  Second, it eliminates the five year state  




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               residency for those convicted outside of California but  
               moved into the state for a Certificate of  
               Rehabilitation ("COR").  Third, it allows the court to  
               waive the 5 year time period to grant a COR in the  
               "interests of justice".






































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          2.    Expungement  

          Existing law provides for an expungement process.  A person can  
          seek to have dismissed an accusation or information after he or  
          she has fulfilled his or her probation or parole period.  While  
          granting of the expungement of  releases a person from all  
          penalties and disabilities resulting from the offense, the  
          release is not absolute.  The expunged offense can still be used  
          as a prior in a subsequent conviction.  The expungement order  
          does not relieve a person of the obligation to disclose the  
          conviction in response to any direct question contained in any  
          questionnaire or application for public offense, for licensure  
          by any state or local agency, or for contracting the California  
          State Lottery.  It also does not permit a person to own a  
          firearm or hold public office if the conviction would bar that  
          person from holding office.  

          The author argues that while the a person is supposed to be  
          relieved from the disabilities of their offense, the fact that  
          people can get records online and understand what a dismissal  
          under Penal Code Section 1203.4 means, even an offense dismissed  
          under Penal Code Section 1203.4 is interfering with the ability  
          of many to fully rehabilitate by gaining employment.

          3.    Labor Code  

          The author argues that while the a person is supposed to be  
          relieved from the disabilities of their offense, the fact that  
          people can get records on line and understand what a dismissal  
          under Penal Code Section 1203.4 means, even an offense dismissed  
          under Penal Code Section 1203.4 is interfering with the ability  
          of many to fully rehabilitate by gaining employment.

          This bill would amend the Labor Code to provide that in addition  
          to not being able to ask or use information on an applicant  
          about arrests that did not result in conviction or participation  
          in diversion that an employer cannot ask about or use  
          information that a conviction was dismissed pursuant to Penal  
          Code Section 1203.4 unless the conviction fall under one of the  




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          specified exceptions because the law otherwise requires the  
          conviction to be considered.




          4.    Elimination of 5-Year Residency  

          Under existing law, a person who has had their record expunged  
          under Penal Code Section 1203.4 may seek a certificate of  
          rehabilitation and pardon.  One of the elements for seeking the  
          certificate of rehabilitation is that a person must "present  
          satisfactory evidence of five years residence in this state  
          prior to filing of the petition."  This bill eliminates that  
          requirement.  This will allow someone who has met all their  
          conditions of probation but not lived in California for the  
          whole five years to be able to seek a certificate of  
          rehabilitation.

          5.    Out-of-State Conviction  

          This bill also extends the ability to seek a certificate of  
          rehabilitation to a person who is convicted outside of the state  
          if the person shows evidence of his or her rehabilitation.  The  
          person will be required to give notice of their petition to seek  
          a certificate of rehabilitation to the prosecutor in the county  
          where he or she was convicted as well as any county where he or  
          she lived for at least 90 days in the last five years so that  
          the court can verify the rehabilitation.  The intent is to give  
          a person currently living in California the ability to have  
          proof of rehabilitation and thus be able to seek employment.
        
           
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