Amended in Assembly March 28, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 1761


Introduced by Assembly Member Weber

(Principal coauthor: Assembly Member Santiago)

February 2, 2016


An act to add Section 1107.5 to the Evidence Code, and to amend Sections 236.1 and 11105 of, and to add Section 236.23 to, the Penal Code, relating to human trafficking.

LEGISLATIVE COUNSEL’S DIGEST

AB 1761, as amended, Weber. Human trafficking: victims: affirmative defense.

(1) Under existing law, as amended by Proposition 35, an initiative measure approved by the voters at the November 6, 2012, statewide general election, a person who deprives or violates another person’s personal liberty with the intent to obtain forced labor or services or who deprives or violates another person’s personal liberty for the purpose of prostitution or sexual exploitation is guilty of human trafficking, a felony. Proposition 35 provides that it may be amended by a statute in furtherance of its objectives by a majority of the membership of each house of the Legislature concurring.

This bill would create an affirmative defense against a charge of a nonviolent crime that was committed as a direct result of being a human trafficking victim.begin delete The bill would create an affirmative defense to any crime not punishable by death that the defendant committed as a result of duress created by a person who deprived or violated the personal liberty of the defendant.end delete The bill would require the court to dismiss any charges arising from a commercial sex act against a person who was under 18 years of age, whether or not the defendant asserts the affirmative defense. The bill would grant a defendant who prevails on that affirmative defense the right to have all records in the case sealed and to be released from all penalties and disabilities, as provided. The bill would define “human trafficking victim” and “nonviolent crime” for these purposes.

(2) Existing law makes expert testimony regarding intimate partner battering and its effects admissible in a criminal action.

This bill would make expert testimony regarding the effect of human trafficking on a human trafficking victim admissible in a criminal action.

(3) Existing law requires the Attorney General to compile and disseminate state summary criminal history information pertaining to the identification and criminal history of any person.

This bill would require the Attorney General to exclude from the state summary criminal history information to exclude any charge or conviction for which relief has been granted pursuant to the provisions of this bill.

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

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

P2    1

SECTION 1.  

Section 1107.5 is added to the Evidence Code,
2to read:

3

1107.5.  

(a) In a criminal action, expert testimony is admissible
4by either the prosecution or the defense regarding the effects of
5human trafficking on human trafficking victims, including the
6nature and effect of physical, emotional, or mental abuse on the
7beliefs, perceptions, or behavior of human trafficking victims.

8(b) The foundation shall be sufficient for admission of this expert
9testimony if the proponent of the evidence establishes its relevancy
10and the proper qualifications of the expert witness. Expert opinion
11testimony on the effects of human trafficking on victims shall not
12be considered a new scientific technique whose reliability is
13unproven.

14(c) For purposes of this section, “human trafficking victim” is
15defined in Section 236.1 of the Penal Code.

16(d) This section is intended as a rule of evidence only and no
17substantive change affecting the Penal Code is intended.

18

SEC. 2.  

Section 236.1 of the Penal Code is amended to read:

P3    1

236.1.  

(a) A person who deprives or violates the personal
2liberty of another with the intent to obtain forced labor or services,
3is guilty of human trafficking and shall be punished by
4imprisonment in the state prison for 5, 8, or 12 years and a fine of
5not more than five hundred thousand dollars ($500,000).

6(b) A person who deprives or violates the personal liberty of
7another with the intent to effect or maintain a violation of Section
8266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5,
9311.6, or 518 is guilty of human trafficking and shall be punished
10by imprisonment in the state prison for 8, 14, or 20 years and a
11fine of not more than five hundred thousand dollars ($500,000).

12(c) A person who causes, induces, or persuades, or attempts to
13cause, induce, or persuade, a person who is a minor at the time of
14commission of the offense to engage in a commercial sex act, with
15the intent to effect or maintain a violation of Section 266, 266h,
16266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518
17is guilty of human trafficking. A violation of this subdivision is
18punishable by imprisonment in the state prison as follows:

19(1) Five, 8, or 12 years and a fine of not more than five hundred
20thousand dollars ($500,000).

21(2) Fifteen years to life and a fine of not more than five hundred
22thousand dollars ($500,000) when the offense involves force, fear,
23fraud, deceit, coercion, violence, duress, menace, or threat of
24unlawful injury to the victim or to another person.

25(d) In determining whether a minor was caused, induced, or
26persuaded to engage in a commercial sex act, the totality of the
27circumstances, including the age of the victim, his or her
28relationship to the trafficker or agents of the trafficker, and any
29handicap or disability of the victim, shall be considered.

30(e) Consent by a victim of human trafficking who is a minor at
31the time of the commission of the offense is not a defense to a
32criminal prosecution under this section.

33(f) Mistake of fact as to the age of a victim of human trafficking
34who is a minor at the time of the commission of the offense is not
35a defense to a criminal prosecution under this section.

36(g) The Legislature finds that the definition of human trafficking
37in this section is equivalent to the federal definition of a severe
38form of trafficking found in Section 7102(9) of Title 22 of the
39United States Code.

40(h) For purposes of this chapter, the following definitions apply:

P4    1(1) “Coercion” includes a scheme, plan, or pattern intended to
2cause a person to believe that failure to perform an act would result
3in serious harm to or physical restraint against any person; the
4abuse or threatened abuse of the legal process; debt bondage; or
5providing and facilitating the possession of a controlled substance
6to a person with the intent to impair the person’s judgment.

7(2) “Commercial sex act” means sexual conduct on account of
8which anything of value is given or received by any person.

9(3) “Deprivation or violation of the personal liberty of another”
10includes substantial and sustained restriction of another’s liberty
11accomplished through force, fear, fraud, deceit, coercion, violence,
12duress, menace, or threat of unlawful injury to the victim or to
13another person, under circumstances where the person receiving
14or apprehending the threat reasonably believes that it is likely that
15the person making the threat would carry it out.

16(4) “Duress” includes a direct or implied threat of force,
17violence, danger, hardship, or retribution sufficient to cause a
18reasonable person to acquiesce in or perform an act which he or
19she would otherwise not have submitted to or performed; a direct
20or implied threat to destroy, conceal, remove, confiscate, or possess
21any actual or purported passport or immigration document of the
22victim; or knowingly destroying, concealing, removing,
23confiscating, or possessing any actual or purported passport or
24immigration document of the victim.

25(5) “Forced labor or services” means labor or services that are
26performed or provided by a person and are obtained or maintained
27through force, fraud, duress, or coercion, or equivalent conduct
28that would reasonably overbear the will of the person.

29(6) “Great bodily injury” means a significant or substantial
30physical injury.

31(7) “Human trafficking victim” means a person who is a victim
32of the acts described in subdivisions (a), (b), or (c).

33(8) “Minor” means a person less than 18 years of age.

34(9) “Serious harm” includes any harm, whether physical or
35nonphysical, including psychological, financial, or reputational
36harm, that is sufficiently serious, under all the surrounding
37circumstances, to compel a reasonable person of the same
38background and in the same circumstances to perform or to
39continue performing labor, services, or commercial sexual acts in
40order to avoid incurring that harm.

P5    1(10) “Nonviolent crime” means any crime or offense other than
2 murder, attempted murder, voluntary manslaughter, mayhem,
3kidnaping, rape, robbery, arson, carjacking, or any other violent
4felony as defined in subdivision (c) of Section 667.5.

5(i) The total circumstances, including the age of the victim, the
6relationship between the victim and the trafficker or agents of the
7trafficker, and any handicap or disability of the victim, shall be
8factors to consider in determining the presence of “deprivation or
9violation of the personal liberty of another,” “duress,” and
10“coercion” as described in this section.

11

SEC. 3.  

Section 236.23 is added to the Penal Code, to read:

12

236.23.  

(a) begin delete(1)end deletebegin deleteend deleteIt is a defense to a charge of a nonviolent crime
13that the defendant or minor committed the offense as a direct result
14of being a human trafficking victim.

begin delete

15(2) It is a defense to a charge of any crime not punishable by
16death that the defendant committed the offense as a direct result
17of duress created by a person who has deprived or violated the
18personal liberty of the defendant within the meaning of subdivision
19(a) or (b) of Section 236.1.

end delete

20(b) A defendant asserting the affirmative defense specified in
21subdivision (a) has the burden of establishing the affirmative
22defense by a preponderance of the evidence.

23(c) A person charged with a crime constituting or arising from
24a commercial sex act, including violation of subdivision (b) of
25Section 647 or Section 653.22, who was under 18 years of age at
26the time of the offense shall be conclusively presumed to have
27committed the offense as a direct result of being a victim of human
28trafficking.

29(d) The court shall independently determine whether the
30conditions set forth in subdivision (c) are met and, if so, find that
31the affirmative defense applies to the charge and to dismiss it,
32whether or not the defendant asserts the affirmative defense.

33(e) Certified records of a federal, state, tribal, or local court or
34governmental agency documenting the person’s status as a victim
35of human trafficking at the time of the offense, including
36identification of a victim of human trafficking by a peace officer
37pursuant to Section 236.2 and certified records of approval notices
38or enforcement certifications generated from federal immigration
39proceedings, create a rebuttable presumption that an offense was
P6    1committed by the defendant as a direct result of being a human
2trafficking victim.

3(f) The affirmative defense may be asserted at any time before
4the entry of a plea of guilty or nolo contendere or admission to the
5truth of the charges andbegin delete prior toend deletebegin insert before theend insert conclusion of any trial
6for the offense. If asserted before the preliminary hearing held in
7a case, the affirmative defense shall, upon request by the defendant,
8be determined at the preliminary hearing.

9(g) If the defendant prevails on the affirmative defense provided
10under subdivision (a) or if the court dismisses charges under
11subdivision (c), the defendant is entitled to all of the following
12relief:

13(1) The court shall order that all records in the case be sealed
14pursuant to Section 851.86 and shall grant the relief provided in
15subdivision (b) of Section 851.8.

16(2) The victim shall be released from all penalties and disabilities
17resulting from the charge, and all actions and proceedings by law
18enforcement personnel, courts, or other government employees
19that led to the charge shall be deemed not to have occurred.

20(3) (A) The human trafficking victim may in all circumstances
21state that he or she has never been arrested for, or charged with,
22the crime that is the subject of the charge or conviction, including
23without limitation in response to questions on employment,
24housing, financial aid, or loan applications.

25(B) The human trafficking victim may not be denied rights or
26benefits,begin delete includingend deletebegin insert including,end insert withoutbegin delete limitationend deletebegin insert limitation,end insert
27 employment, housing, financial aid, welfare, or a loan or other
28financial accommodation, based on the arrest or charge or the
29human trafficking victim’s failure or refusal to disclose the
30existence of or information concerning those events.

31(C) The human trafficking victim may not be thereafter charged
32or convicted of perjury or otherwise of giving a false statement by
33reason of having failed to disclose or acknowledge the existence
34of the charge, or any arrest, indictment, trial, or other proceedings
35related thereto.

36(h) If, in any proceeding pursuant to Section 602 of the Welfare
37and Institutions Code, the juvenile court finds that the offense on
38which the proceeding is based was committed as a direct result of
39the minor being a human trafficking victim, the court shall dismiss
P7    1the proceeding and order the relief prescribed in Section 786 of
2the Welfare and Institutions Code.

3

SEC. 4.  

Section 11105 of the Penal Code is amended to read:

4

11105.  

(a) (1) The Department of Justice shall maintain state
5summary criminal history information.

6(2) As used in this section:

7(A) “State summary criminal history information” means the
8master record of information compiled by the Attorney General
9pertaining to the identification and criminal history of any person,
10such as name, date of birth, physical description, fingerprints,
11photographs, dates of arrests, arresting agencies and booking
12numbers, charges, dispositions, and similar data about the person.

13(B) “State summary criminal history information” does not refer
14to records and data compiled by criminal justice agencies other
15than the Attorney General, nor does it refer to records of complaints
16to or investigations conducted by, or records of intelligence
17information or security procedures of, the office of the Attorney
18General and the Department of Justice.

19(b) The Attorney General shall furnish state summary criminal
20history information to any of the following, if needed in the course
21of their duties, provided that when information is furnished to
22assist an agency, officer, or official of state or local government,
23a public utility, or any other entity, in fulfilling employment,
24certification, or licensing duties, Chapter 1321 of the Statutes of
251974 and Section 432.7 of the Labor Code shall apply:

26(1) The courts of the state.

27(2) Peace officers of the state, as defined in Section 830.1,
28subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
29830.3, subdivision (a) of Section 830.31, and subdivisions (a) and
30(b) of Section 830.5.

31(3) District attorneys of the state.

32(4) Prosecuting city attorneys of any city within the state.

33(5) City attorneys pursuing civil gang injunctions pursuant to
34Section 186.22a, or drug abatement actions pursuant to Section
353479 or 3480 of the Civil Code, or Section 11571 of the Health
36and Safety Code.

37(6) Probation officers of the state.

38(7) Parole officers of the state.

P8    1(8) A public defender or attorney of record when representing
2a person in proceedings upon a petition for a certificate of
3 rehabilitation and pardon pursuant to Section 4852.08.

4(9) A public defender or attorney of record when representing
5a person in a criminal case, or a parole, mandatory supervision
6pursuant to paragraph (5) of subdivision (h) of Section 1170, or
7postrelease community supervision revocation or revocation
8extension proceeding,begin delete andend deletebegin insert and,end insert ifbegin delete authorizedend deletebegin insert authorized,end insert access
9by statutory or decisional law.

10(10) Any agency, officer, or official of the state if the criminal
11history information is required to implement a statute or regulation
12that expressly refers to specific criminal conduct applicable to the
13subject person of the state summary criminal history information,
14and contains requirements or exclusions, or both, expressly based
15upon that specified criminal conduct. The agency, officer, or
16official of the state authorized by this paragraph to receive state
17summary criminal history information may also transmit fingerprint
18images and related information to the Department of Justice to be
19transmitted to the Federal Bureau of Investigation.

20(11) Any city or county, city and county, district, or any officer
21or official thereof if access is needed in order to assist that agency,
22officer, or official in fulfilling employment, certification, or
23licensing duties, and if the access is specifically authorized by the
24city council, board of supervisors, or governing board of the city,
25county, or district if the criminal history information is required
26to implement a statute, ordinance, or regulation that expressly
27refers to specific criminal conduct applicable to the subject person
28of the state summary criminal history information, and contains
29requirements or exclusions, or both, expressly based upon that
30specified criminal conduct. The city or county, city and county,
31district, or the officer or official thereof authorized by this
32paragraph may also transmit fingerprint images and related
33information to the Department of Justice to be transmitted to the
34Federal Bureau of Investigation.

35(12) The subject of the state summary criminal history
36information under procedures established under Article 5
37(commencing with Section 11120).

38(13) Any person or entity when access is expressly authorized
39by statute if the criminal history information is required to
40implement a statute or regulation that expressly refers to specific
P9    1criminal conduct applicable to the subject person of the state
2summary criminal history information, and contains requirements
3or exclusions, or both, expressly based upon that specified criminal
4conduct.

5(14) Health officers of a city, county, city and county, or district
6when in the performance of their official duties enforcing Section
7120175 of the Health and Safety Code.

8(15) Any managing or supervising correctional officer of a
9county jail or other county correctional facility.

10(16) Any humane society, or society for the prevention of cruelty
11to animals, for the specific purpose of complying with Section
1214502 of the Corporations Code for the appointment of humane
13officers.

14(17) Local child support agencies established by Section 17304
15of the Family Code. When a local child support agency closes a
16support enforcement case containing summary criminal history
17information, the agency shall delete or purge from the file and
18destroy any documents or information concerning or arising from
19offenses for or of which the parent has been arrested, charged, or
20convicted, other than for offenses related to the parent’s having
21failed to provide support for minor children, consistent with the
22requirements of Section 17531 of the Family Code.

23(18) County child welfare agency personnel who have been
24delegated the authority of county probation officers to access state
25summary criminal history information pursuant to Section 272 of
26the Welfare and Institutions Code for the purposes specified in
27Section 16504.5 of the Welfare and Institutions Code. Information
28from criminal history records provided pursuant to this subdivision
29shall not be used for any purposes other than those specified in
30this section and Section 16504.5 of the Welfare and Institutions
31Code. When an agency obtains records obtained both on the basis
32of name checks and fingerprint checks, final placement decisions
33shall be based only on the records obtained pursuant to the
34fingerprint check.

35(19) The court of a tribe, or court of a consortium of tribes, that
36has entered into an agreement with the state pursuant to Section
3710553.1 of the Welfare and Institutions Code. This information
38may be used only for the purposes specified in Section 16504.5
39of the Welfare and Institutions Code and for tribal approval or
40tribal licensing of foster care or adoptive homes. Article 6
P10   1(commencing with Section 11140) shall apply to officers, members,
2and employees of a tribal court receiving criminal record offender
3information pursuant to this section.

4(20) Child welfare agency personnel of a tribe or consortium
5of tribes that has entered into an agreement with the state pursuant
6to Section 10553.1 of the Welfare and Institutions Code and to
7whom the state has delegated duties under paragraph (2) of
8subdivision (a) of Section 272 of the Welfare and Institutions Code.
9The purposes for use of the information shall be for the purposes
10specified in Section 16504.5 of the Welfare and Institutions Code
11and for tribal approval or tribal licensing of foster care or adoptive
12homes. When an agency obtains records on the basis of name
13checks and fingerprint checks, final placement decisions shall be
14based only on the records obtained pursuant to the fingerprint
15check. Article 6 (commencing with Section 11140) shall apply to
16child welfare agency personnel receiving criminal record offender
17information pursuant to this section.

18(21) An officer providing conservatorship investigations
19pursuant to Sections 5351, 5354, and 5356 of the Welfare and
20Institutions Code.

21(22) A court investigator providing investigations or reviews
22in conservatorships pursuant to Section 1826, 1850, 1851, or
232250.6 of the Probate Code.

24(23) A person authorized to conduct a guardianship investigation
25pursuant to Section 1513 of the Probate Code.

26(24) A humane officer pursuant to Section 14502 of the
27Corporations Code for the purposes of performing his or her duties.

28(25) A public agency described in subdivision (b) of Section
2915975 of the Government Code, for the purpose of oversight and
30enforcement policies with respect to its contracted providers.

31(c) The Attorney General may furnish state summary criminal
32history information and, when specifically authorized by this
33subdivision, federal level criminal history information upon a
34showing of a compelling need to any of the following, provided
35that when information is furnished to assist an agency, officer, or
36official of state or local government, a public utility, or any other
37entity in fulfilling employment, certification, or licensing duties,
38Chapter 1321 of the Statutes of 1974 and Section 432.7 of the
39 Labor Code shall apply:

P11   1(1) Any public utility, as defined in Section 216 of the Public
2Utilities Code, that operates a nuclear energy facility when access
3is needed in order to assist in employing persons to work at the
4facility, provided that, if the Attorney General supplies the data,
5he or she shall furnish a copy of the data to the person to whom
6the data relates.

7(2) To a peace officer of the state other than those included in
8subdivision (b).

9(3) To an illegal dumping enforcement officer as defined in
10subdivision (j) of Section 830.7.

11(4) To a peace officer of another country.

12(5) To public officers, other than peace officers, of the United
13States, other states, or possessions or territories of the United
14States, provided that access to records similar to state summary
15criminal history information is expressly authorized by a statute
16of the United States, other states, or possessions or territories of
17the United States if the information is needed for the performance
18of their official duties.

19(6) To any person when disclosure is requested by a probation,
20parole, or peace officer with the consent of the subject of the state
21summary criminal history information and for purposes of
22furthering the rehabilitation of the subject.

23(7) The courts of the United States, other states, or territories
24or possessions of the United States.

25(8) Peace officers of the United States, other states, or territories
26or possessions of the United States.

27(9) To any individual who is the subject of the record requested
28if needed in conjunction with an application to enter the United
29States or any foreign nation.

30(10) (A) (i) Any public utility, as defined in Section 216 of the
31Public Utilities Code, or any cable corporation as defined in
32subparagraph (B), if receipt of criminal history information is
33needed in order to assist in employing current or prospective
34employees, contract employees, or subcontract employees who,
35in the course of their employment, may be seeking entrance to
36private residences or adjacent grounds. The information provided
37shall be limited to the record of convictions and any arrest for
38which the person is released on bail or on his or her own
39recognizance pending trial.

P12   1(ii) If the Attorney General supplies the data pursuant to this
2paragraph, the Attorney General shall furnish a copy of the data
3to the current or prospective employee to whom the data relates.

4(iii) Any information obtained from the state summary criminal
5history is confidential and the receiving public utility or cable
6corporation shall not disclose its contents, other than for the
7purpose for which it was acquired. The state summary criminal
8history information in the possession of the public utility or cable
9corporation and all copies made from it shall be destroyed not
10more than 30 days after employment or promotion or transfer is
11denied or granted, except for those cases where a current or
12prospective employee is out on bail or on his or her own
13recognizance pending trial, in which case the state summary
14criminal history information and all copies shall be destroyed not
15more than 30 days after the case is resolved.

16(iv) A violation of this paragraph is a misdemeanor, and shall
17give the current or prospective employee who is injured by the
18violation a cause of action against the public utility or cable
19corporation to recover damages proximately caused by the
20violations. Any public utility’s or cable corporation’s request for
21state summary criminal history information for purposes of
22employing current or prospective employees who may be seeking
23entrance to private residences or adjacent grounds in the course
24of their employment shall be deemed a “compelling need” as
25required to be shown in this subdivision.

26(v) This section shall not be construed as imposing any duty
27upon public utilities or cable corporations to request state summary
28criminal history information on any current or prospective
29employees.

30(B) For purposes of this paragraph, “cable corporation” means
31any corporation or firm that transmits or provides television,
32 computer, or telephone services by cable, digital, fiber optic,
33satellite, or comparable technology to subscribers for a fee.

34(C) Requests for federal level criminal history information
35received by the Department of Justice from entities authorized
36pursuant to subparagraph (A) shall be forwarded to the Federal
37Bureau of Investigation by the Department of Justice. Federal level
38criminal history information received or compiled by the
39Department of Justice may then be disseminated to the entities
40referenced in subparagraph (A), as authorized by law.

P13   1(D) (i) Authority for a cable corporation to request state or
2federal level criminal history information under this paragraph
3shall commence July 1, 2005.

4(ii) Authority for a public utility to request federal level criminal
5history information under this paragraph shall commence July 1,
62005.

7(11) To any campus of the California State University or the
8University of California, or any four year college or university
9accredited by a regional accreditation organization approved by
10the United States Department of Education, if needed in
11conjunction with an application for admission by a convicted felon
12to any special education program for convicted felons, including,
13but not limited to, university alternatives and halfway houses. Only
14conviction information shall be furnished. The college or university
15may require the convicted felon to be fingerprinted, and any inquiry
16to the department under this section shall include the convicted
17felon’s fingerprints and any other information specified by the
18department.

19(12) To any foreign government, if requested by the individual
20who is the subject of the record requested, if needed in conjunction
21with the individual’s application to adopt a minor child who is a
22citizen of that foreign nation. Requests for information pursuant
23to this paragraph shall be in accordance with the process described
24in Sections 11122 to 11124, inclusive. The response shall be
25provided to the foreign government or its designee and to the
26individual who requested the information.

27(d) Whenever an authorized request for state summary criminal
28history information pertains to a person whose fingerprints are on
29file with the Department of Justice and the department has no
30criminal history of that person, and the information is to be used
31for employment, licensing, or certification purposes, the fingerprint
32card accompanying the request for information, if any, may be
33stamped “no criminal record” and returned to the person or entity
34making the request.

35(e) Whenever state summary criminal history information is
36furnished as the result of an application and is to be used for
37employment, licensing, or certification purposes, the Department
38of Justice may charge the person or entity making the request a
39fee that it determines to be sufficient to reimburse the department
40for the cost of furnishing the information. In addition, the
P14   1Department of Justice may add a surcharge to the fee to fund
2maintenance and improvements to the systems from which the
3information is obtained. Notwithstanding any other law, any person
4or entity required to pay a fee to the department for information
5received under this section may charge the applicant a fee sufficient
6to reimburse the person or entity for this expense. All moneys
7received by the department pursuant to this section, Sections
811105.3 and 26190, and former Section 13588 of the Education
9Code shall be deposited in a special account in the General Fund
10to be available for expenditure by the department to offset costs
11incurred pursuant to those sections and for maintenance and
12improvements to the systems from which the information is
13obtained upon appropriation by the Legislature.

14(f) Whenever there is a conflict, the processing of criminal
15fingerprints and fingerprints of applicants for security guard or
16alarm agent registrations or firearms qualification permits
17submitted pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4
18of the Business and Professions Code shall take priority over the
19processing of other applicant fingerprints.

20(g) It is not a violation of this section to disseminate statistical
21or research information obtained from a record, provided that the
22identity of the subject of the record is not disclosed.

23(h) It is not a violation of this section to include information
24obtained from a record in (1) a transcript or record of a judicial or
25 administrative proceeding or (2) any other public record if the
26inclusion of the information in the public record is authorized by
27a court, statute, or decisional law.

28(i) Notwithstanding any other law, the Department of Justice
29or any state or local law enforcement agency may require the
30submission of fingerprints for the purpose of conducting summary
31criminal history information checks that are authorized by law.

32(j) The state summary criminal history information shall include
33any finding of mental incompetence pursuant to Chapter 6
34(commencing with Section 1367) of Title 10 of Part 2 arising out
35of a complaint charging a felony offense specified in Section 290.

36(k) (1) This subdivision shall apply whenever state or federal
37summary criminal history information is furnished by the
38Department of Justice as the result of an application by an
39authorized agency or organization and the information is to be
40used for peace officer employment or certification purposes. As
P15   1used in this subdivision, a peace officer is defined in Chapter 4.5
2(commencing with Section 830) of Title 3 of Part 2.

3(2) Notwithstanding any other law, whenever state summary
4criminal history information is initially furnished pursuant to
5paragraph (1), the Department of Justice shall disseminate the
6following information:

7(A) Every conviction rendered against the applicant.

8(B) Every arrest for an offense for which the applicant is
9 presently awaiting trial, whether the applicant is incarcerated or
10has been released on bail or on his or her own recognizance
11pending trial.

12(C) Every arrest or detention, except for an arrest or detention
13resulting in an exoneration, provided, however, that where the
14records of the Department of Justice do not contain a disposition
15for the arrest, the Department of Justice first makes a genuine effort
16to determine the disposition of the arrest.

17(D) Every successful diversion.

18(E) Every date and agency name associated with all retained
19peace officer or nonsworn law enforcement agency employee
20preemployment criminal offender record information search
21requests.

22(F) Sex offender registration status of the applicant.

23(l) (1) This subdivision shall apply whenever state or federal
24summary criminal history information is furnished by the
25Department of Justice as the result of an application by a criminal
26justice agency or organization as defined in Section 13101, and
27the information is to be used for criminal justice employment,
28licensing, or certification purposes.

29(2) Notwithstanding any other law, whenever state summary
30criminal history information is initially furnished pursuant to
31paragraph (1), the Department of Justice shall disseminate the
32following information:

33(A) Every conviction rendered against the applicant.

34(B) Every arrest for an offense for which the applicant is
35presently awaiting trial, whether the applicant is incarcerated or
36has been released on bail or on his or her own recognizance
37pending trial.

38(C) Every arrest for an offense for which the records of the
39Department of Justice do not contain a disposition or did not result
40in a conviction, provided that the Department of Justice first makes
P16   1a genuine effort to determine the disposition of the arrest. However,
2information concerning an arrest shall not be disclosed if the
3records of the Department of Justice indicate or if the genuine
4effort reveals that the subject was exonerated, successfully
5completed a diversion or deferred entry of judgment program, or
6the arrest was deemed a detention.

7(D) Every date and agency name associated with all retained
8peace officer or nonsworn law enforcement agency employee
9preemployment criminal offender record information search
10requests.

11(E) Sex offender registration status of the applicant.

12(m) (1) This subdivision shall apply whenever state or federal
13summary criminal history information is furnished by the
14Department of Justice as the result of an application by an
15authorized agency or organization pursuant to Section 1522,
161568.09, 1569.17, or 1596.871 of the Health and Safety Code, or
17any statute that incorporates the criteria of any of those sections
18or this subdivision by reference, and the information is to be used
19for employment, licensing, or certification purposes.

20(2) Notwithstanding any other provision of law, whenever state
21summary criminal history information is initially furnished
22pursuant to paragraph (1), the Department of Justice shall
23disseminate the following information:

24(A) Every conviction of an offense rendered against the
25applicant, except a conviction for which relief has been granted
26pursuant to Section 1203.49.

27(B) Every arrest for an offense for which the applicant is
28 presently awaiting trial, whether the applicant is incarcerated or
29has been released on bail or on his or her own recognizance
30pending trial.

31(C) Every arrest for an offense for which the Department of
32Social Services is required by paragraph (1) of subdivision (a) of
33Section 1522 of the Health and Safety Code to determine if an
34applicant has been arrested. However, if the records of the
35Department of Justice do not contain a disposition for an arrest,
36the Department of Justice shall first make a genuine effort to
37determine the disposition of the arrest.

38(D) Sex offender registration status of the applicant.

39(3) Notwithstanding the requirements of the sections referenced
40in paragraph (1) of this subdivision, the Department of Justice
P17   1shall not disseminate information about an arrest subsequently
2deemed a detention or an arrest that resulted in either the successful
3completion of a diversion program or exoneration.

4(n) (1) This subdivision shall apply whenever state or federal
5summary criminal history information, to be used for employment,
6licensing, or certification purposes, is furnished by the Department
7of Justice as the result of an application by an authorized agency,
8organization, or individual pursuant to any of the following:

9(A) Paragraph (10) of subdivision (c), when the information is
10to be used by a cable corporation.

11(B) Section 11105.3 or 11105.4.

12(C) Section 15660 of the Welfare and Institutions Code.

13(D) Any statute that incorporates the criteria of any of the
14 statutory provisions listed in subparagraph (A), (B), or (C), or of
15this subdivision, by reference.

16(2) With the exception of applications submitted by
17transportation companies authorized pursuant to Section 11105.3,
18and notwithstanding any other law, whenever state summary
19criminal history information is initially furnished pursuant to
20paragraph (1), the Department of Justice shall disseminate the
21following information:

22(A) Every conviction, except a conviction for which relief has
23been granted pursuant to Section 1203.49, rendered against the
24applicant for a violation or attempted violation of any offense
25specified in subdivision (a) of Section 15660 of the Welfare and
26Institutions Code. However, with the exception of those offenses
27for which registration is required pursuant to Section 290, the
28Department of Justice shall not disseminate information pursuant
29to this subdivision unless the conviction occurred within 10 years
30of the date of the agency’s request for information or the conviction
31is over 10 years old but the subject of the request was incarcerated
32within 10 years of the agency’s request for information.

33(B) Every arrest for a violation or attempted violation of an
34offense specified in subdivision (a) of Section 15660 of the Welfare
35and Institutions Code for which the applicant is presently awaiting
36trial, whether the applicant is incarcerated or has been released on
37bail or on his or her own recognizance pending trial.

38(C) Sex offender registration status of the applicant.

39(o) (1) This subdivision shall apply whenever state or federal
40summary criminal history information is furnished by the
P18   1Department of Justice as the result of an application by an
2 authorized agency or organization pursuant to Section 379 or 550
3of the Financial Code, or any statute that incorporates the criteria
4of either of those sections or this subdivision by reference, and the
5information is to be used for employment, licensing, or certification
6purposes.

7(2) Notwithstanding any other law, whenever state summary
8criminal history information is initially furnished pursuant to
9paragraph (1), the Department of Justice shall disseminate the
10following information:

11(A) Every conviction rendered against the applicant for a
12violation or attempted violation of any offense specified in Section
13550 of the Financial Code, except a conviction for which relief
14has been granted pursuant to Section 1203.49.

15(B) Every arrest for a violation or attempted violation of an
16offense specified in Section 550 of the Financial Code for which
17the applicant is presently awaiting trial, whether the applicant is
18incarcerated or has been released on bail or on his or her own
19recognizance pending trial.

20(p) (1) This subdivision shall apply whenever state or federal
21criminal history information is furnished by the Department of
22Justice as the result of an application by an agency, organization,
23or individual not defined in subdivision (k), (l), (m), (n), or (o), or
24by a transportation company authorized pursuant to Section
2511105.3, or any statute that incorporates the criteria of that section
26or this subdivision by reference, and the information is to be used
27for employment, licensing, or certification purposes.

28(2) Notwithstanding any other law, whenever state summary
29criminal history information is initially furnished pursuant to
30paragraph (1), the Department of Justice shall disseminate the
31following information:

32(A) Every conviction rendered against the applicant, except a
33conviction for which relief has been granted pursuant to Section
341203.49.

35(B) Every arrest for an offense for which the applicant is
36presently awaiting trial, whether the applicant is incarcerated or
37has been released on bail or on his or her own recognizance
38pending trial.

39(C) Sex offender registration status of the applicant.

P19   1(q) All agencies, organizations, or individuals defined in
2subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
3Department of Justice for subsequent notification pursuant to
4Section 11105.2. This subdivision shall not supersede sections that
5mandate an agency, organization, or individual to contract with
6the Department of Justice for subsequent notification pursuant to
7Section 11105.2.

8(r) This section does not require the Department of Justice to
9cease compliance with any other statutory notification
10requirements.

11(s) The provisions of Section 50.12 of Title 28 of the Code of
12Federal Regulations are to be followed in processing federal
13criminal history information.

14(t) Whenever state or federal summary criminal history
15information is furnished by the Department of Justice as the result
16of an application by an authorized agency, organization, or
17individual defined in subdivisions (k) to (p), inclusive, and the
18information is to be used for employment, licensing, or certification
19purposes, the authorized agency, organization, or individual shall
20expeditiously furnish a copy of the information to the person to
21whom the information relates if the information is a basis for an
22adverse employment, licensing, or certification decision. When
23furnished other than in person, the copy shall be delivered to the
24last contact information provided by the applicant.

25(u) State summary criminal history information compiled by
26the Attorney General and disseminated pursuant to this section
27shall exclude any charge or conviction for which relief has been
28granted pursuant to Section 236.23.



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