BILL ANALYSIS Ó
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
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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?
(CONTINUED)
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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