California Legislature—2015–16 Regular Session

Assembly Bill No. 1762

Introduced by Assembly Member Campos

(Principal coauthors: Assembly Members Santiago and Weber)

February 2, 2016

An act to amend Sections 8712, 8811, and 8908 of the Family Code, and to amend Sections 236.1 and 11105 of, to repeal Section 1203.49, and to add Sections 236.24 and 236.25 to, the Penal Code, and relating to human trafficking.

LEGISLATIVE COUNSEL’S DIGEST

AB 1762, as introduced, Campos. Human trafficking: victims: vacating convictions.

(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 violate 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.

Existing law allows a court to issue an order to set aside a verdict of guilty and dismiss an accusation or information against a defendant who has been convicted of solicitation or prostitution if the defendant has completed any term of probation for that conviction and if he or she can establish by clear and convincing evidence that the conviction was a result of his or her status as a victim of human trafficking.

This bill would instead allow an individual convicted of a nonviolent crime while he or she was human trafficking victim to apply to the court to vacate the conviction at any time after it was entered. The bill would allow an individual adjudicated a ward of the juvenile court as the result of a nonviolent crime committed while he or she was a human trafficking victim to apply to have the petition dismissed. If the application is granted, the bill would require court to have all records in the case sealed and to release the defendant from all penalties and disabilities, as provided. The bill would define “human trafficking victim” and “nonviolent crime” for these purposes.

The bill would allow the defendant applying for vacatur to submit evidence containing personal identify information under seal along with a statement under penalty of perjury confirming his or her identity. By expanding the crime of perjury, this bill would impose a state-mandated local program.

(2) 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 state summary criminal history information to exclude any charge or conviction for which relief has been granted pursuant to the provisions of this bill.

(3) 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:

SECTION 1.  

Section 8712 of the Family Code is amended to
read:

8712.  

(a) The department, county adoption agency, or licensed
adoption agency shall require each person who files an application
for adoption to be fingerprinted and shall secure from an
appropriate law enforcement agency any criminal record of that
person to determine whether the person has ever been convicted
of a crime other than a minor traffic violation. The department,
county adoption agency, or licensed adoption agency may also
secure the person’s full criminal record, if begin delete any, with the exception
of any convictions for which relief has been granted pursuant to
Section 1203.49 of the Penal Code. end delete begin insert any. end insert Any federal-level criminal
offender record requests to the Department of Justice shall be
submitted with fingerprint images and related information required
by the Department of Justice for the purposes of obtaining
information as to the existence and content of a record of an
out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal
Bureau of Investigation any requests for federal summary criminal
history information received pursuant to this section. The
Department of Justice shall review the information returned from
the Federal Bureau of Investigation and shall compile and
disseminate a response to the department, county adoption agency,
or licensed adoption agency.

(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be
included in the report to the court.

(c) (1) The department, county adoption agency, or licensed
adoption agency shall not give final approval for an adoptive
placement in any home in which the prospective adoptive parent
or any adult living in the prospective adoptive home has either of
the following:

(A) A felony conviction for child abuse or neglect, spousal
abuse, crimes against a child, including child pornography, or for
a crime involving violence, including rape, sexual assault, or
homicide, but not including other physical assault and battery. For
purposes of this subdivision, crimes involving violence means
those violent crimes contained in clause (i) of subparagraph (A),
and subparagraph (B), of paragraph (1) of subdivision (g) of
Section 1522 of the Health and Safety Code.

(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.

(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.).

(d) Any fee charged by a law enforcement agency for
fingerprinting or for checking or obtaining the criminal record of
the applicant shall be paid by the applicant. The department, county
adoption agency, or licensed adoption agency may defer, waive,
or reduce the fee when its payment would cause economic hardship
to prospective adoptive parents detrimental to the welfare of the
adopted child, when the child has been in the foster care of the
prospective adoptive parents for at least one year, or if necessary
for the placement of a special-needs child.

SEC. 2.  

Section 8811 of the Family Code is amended to read:

8811.  

(a) The department or delegated county adoption agency
shall require each person who files an adoption petition to be
fingerprinted and shall secure from an appropriate law enforcement
agency any criminal record of that person to determine whether
the person has ever been convicted of a crime other than a minor
traffic violation. The department or delegated county adoption
agency may also secure the person’s full criminal record, if begin delete any,
with the exception of any convictions for which relief has been
granted pursuant to Section 1203.49 of the Penal Code. end delete begin insert any. end insert Any
federal-level criminal offender record requests to the Department
of Justice shall be submitted with fingerprint images and related
information required by the Department of Justice for the purposes
of obtaining information as to the existence and content of a record
of an out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal
Bureau of Investigation any requests for federal summary criminal
history information received pursuant to this section. The
Department of Justice shall review the information returned from
the Federal Bureau of Investigation and shall compile and
disseminate a response to the department or delegated county
adoption agency.

(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be
included in the report to the court.

(c) (1) The department or a delegated county adoption agency
shall not give final approval for an adoptive placement in any home
in which the prospective adoptive parent or any adult living in the
prospective adoptive home has either of the following:

(A) A felony conviction for child abuse or neglect, spousal
abuse, crimes against a child, including child pornography, or for
a crime involving violence, including rape, sexual assault, or
homicide, but not including other physical assault and battery. For
purposes of this subdivision, crimes involving violence means
those violent crimes contained in clause (i) of subparagraph (A),
and subparagraph (B), of paragraph (1) of subdivision (g) of
Section 1522 of the Health and Safety Code.

(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.

(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. 670 et seq.).

(d) Any fee charged by a law enforcement agency for
fingerprinting or for checking or obtaining the criminal record of
the petitioner shall be paid by the petitioner. The department or
delegated county adoption agency may defer, waive, or reduce the
fee when its payment would cause economic hardship to the
prospective adoptive parents detrimental to the welfare of the
adopted child, when the child has been in the foster care of the
prospective adoptive parents for at least one year, or if necessary
for the placement of a special-needs child.

SEC. 3.  

Section 8908 of the Family Code is amended to read:

8908.  

(a) A licensed adoption agency shall require each person
filing an application for adoption to be fingerprinted and shall
secure from an appropriate law enforcement agency any criminal
record of that person to determine whether the person has ever
been convicted of a crime other than a minor traffic violation. The
licensed adoption agency may also secure the person’s full criminal
record, if begin delete any, with the exception of any convictions for which
relief has been granted pursuant to Section 1203.49 of the Penal
Code. end delete begin insert any. end insert Any federal-level criminal offender record requests to
the Department of Justice shall be submitted with fingerprint
images and related information required by the Department of
Justice for the purposes of obtaining information as to the existence
and content of a record of an out-of-state or federal conviction or
arrest of a person or information regarding any out-of-state or
federal crimes or arrests for which the Department of Justice
establishes that the person is free on bail, or on his or her own
recognizance pending trial or appeal. The Department of Justice
shall forward to the Federal Bureau of Investigation any requests
for federal summary criminal history information received pursuant
to this section. The Department of Justice shall review the
information returned from the Federal Bureau of Investigation and
shall compile and disseminate a fitness determination to the
licensed adoption agency.

(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be
included in the report to the court.

(c) (1) A licensed adoption agency shall not give final approval
for an adoptive placement in any home in which the prospective
adoptive parent, or any adult living in the prospective adoptive
home, has a felony conviction for either of the following:

(A) Any felony conviction for child abuse or neglect, spousal
abuse, crimes against a child, including child pornography, or for
a crime involving violence, including rape, sexual assault, or
homicide, but not including other physical assault and battery. For
purposes of this subdivision, crimes involving violence means
those violent crimes contained in clause (i) of subparagraph (A),
and subparagraph (B), of paragraph (1) of subdivision (g) of
Section 1522 of the Health and Safety Code.

(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.

(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. 670 et seq.).

(d) Any fee charged by a law enforcement agency for
fingerprinting or for checking or obtaining the criminal record of
the applicant shall be paid by the applicant. The licensed adoption
agency may defer, waive, or reduce the fee when its payment would
cause economic hardship to the prospective adoptive parents
detrimental to the welfare of the adopted child.

SEC. 4.  

Section 236.1 of the Penal Code is amended to read:

236.1.  

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

(b)  begin delete Any end delete begin insert A end insert person who deprives or violates the personal liberty
of another with the intent to effect or maintain a violation of
Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4,
311.5, 311.6, or 518 is guilty of human trafficking and shall be
punished by imprisonment in the state prison for 8, 14, or 20 years
and a fine of not more than five hundred thousand dollars
($500,000).

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

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

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

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

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

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

(g) The Legislature finds that the definition of human trafficking
in this section is equivalent to the federal definition of a severe
form of trafficking found in Section begin delete 7102(8) end delete begin insert 7102(9) end insert of Title 22
of the United States Code.

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

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

(2) “Commercial sex act” means sexual conduct on account of
which anything of value is given or received by begin delete any end delete begin insert a end insert person.

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

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

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

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

begin insert

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

end insert begin delete

(7)

end delete

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

begin delete

(8)

end delete

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

begin insert

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

end insert

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

SEC. 5.  

Section 236.24 is added to the Penal Code, to read:

236.24.  

(a) An individual convicted of a nonviolent crime
committed while that individual was a human trafficking victim
may apply to the court in which the conviction was entered to
vacate the conviction at any time after it is entered. The court shall
grant the application on a finding that the applicant’s participation
in the offense on which the applicant was convicted was a direct
result of the applicant being a human trafficking victim.

(b) Subject to subdivision (c), the application shall identify the
applicant, the offense for which vacatur is sought, and the court
in which the conviction was entered. The applicant shall describe
in the application all the available grounds and evidence for vacatur
of the conviction known to the applicant.

(c) To maintain the confidentiality of the applicant’s status as
a human trafficking victim, the application may be filed identifying
the applicant by initials in any publicly available filing relating to
the application. The applicant shall submit all evidence supporting
the application that contains personal identifying information to
the court under seal along with a statement under penalty of perjury
confirming his or her identity.

(d) The application and all supporting evidence, including,
without limitation, the identity statement and evidence submitted
under seal, shall be served on the state or local prosecutorial agency
that obtained the conviction for which the applicant seeks vacatur.
The state or local prosecutorial agency shall have 30 days for the
date of receipt of service to oppose the application.

(e) If opposition to the application is not filed by the applicable
state or local prosecutorial agency, the court shall deem the
application unopposed and shall grant the application. If the
application is opposed, the court shall hold a hearing on the
application.

(f) If the court finds that the applicant’s participation in the
offense on which the conviction was based was a direct result of
the applicant being a victim of human trafficking, the court shall
grant the application and vacate the conviction, strike the
adjudication of guilt, and order the relief specified in Section
236.25 and may also take additional action and grant additional
relief as it deems appropriate under the circumstances.

(g) If the court denies the application because the evidence is
insufficient to establish grounds for vacatur, the denial shall be
without prejudice. The court shall state the reasons for its denial
in writing and, if those reasons are based on curable deficiencies
in the application, allow the applicant a reasonable time period to
cure the deficiencies upon which the court based the denial.

(h) An individual determined to be a ward of the juvenile court
in a proceeding pursuant to Section 602 of the Welfare and
Institutions Code as a result of a nonviolent crime committed while
that individual was a human trafficking victim may apply to the
juvenile court that made that determination to have the
determination set aside at any time after it was made. The court
shall grant the application on a finding that the applicant’s
participation in the offense on the proceeding was a direct result
of the applicant being a human trafficking victim. Upon making
the finding, the court shall order the relief prescribed in Section
786 of the Welfare and Institutions Code.

(i) In making a determination on an application under either
subdivision (a) or (h), the court may consider any evidence it deems
of sufficient credibility and probative value, including the sworn
statement of the applicant. The statement, alone, is sufficient
evidence to support the vacating of a conviction, provided the court
finds that the statement is credible. Evidence in support of granting
an application may also include, but is not limited to, all of the
following:

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

(2) A sworn statement from a trained professional staff member
of a victim services organization, an attorney, a member of the
clergy, or a medical or other professional from whom the defendant
has sought assistance in addressing the trauma associated with
being trafficked.

(j) The court shall grant an application made under subdivision
(a) or (h) if the conviction or adjudication was based on a crime
constituting or arising from a commercial sex act, including
violation of subdivision (b) of Section 647 or Section 653.22, upon
a finding that the applicant was under the age of 18 years at the
time of the offense on which the conviction is based.

(k) This section and the rights and remedies granted to victims
of human trafficking hereunder apply to any conviction entered
or adjudication made prior to or after January 1, 2017

SEC. 6.  

Section 236.25 is added to the Penal Code, to read:

236.25.  

(a) For any charge, adjudication or conviction for
which a human trafficking victim was granted relief under Section
236.24 of the Penal Code, the court shall order that all records in
the case be sealed pursuant to Section 851.86 and shall grant the
relief provided in subdivision (b) of Section 851.8.

(b) The human trafficking victim shall be released from all
penalties and disabilities resulting from the charge, adjudication
or conviction, and all actions and proceedings by law enforcement
personnel, courts or other government employees that led to the
charge, adjudication or conviction shall be deemed not to have
occurred.

(c) All of the following shall apply to a human trafficking victim
granted relief pursuant to Section 236.24, or under any substantially
equivalent statute of another jurisdiction:

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

(2) The human trafficking victim may not be denied rights or
benefits, including, without limitation, employment, housing,
financial aid, welfare, or a loan or other financial accommodation,
based on the arrest, charge, adjudication or conviction or the
victim’s failure or refusal to disclose the existence of or information
concerning those events.

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

SEC. 7.  

Section 1203.49 of the Penal Code is repealed.

begin delete

1203.49.  

If a defendant has been convicted of solicitation or
prostitution, as described in subdivision (b) of Section 647, and if
the defendant has completed any term of probation for that
conviction, the defendant may petition the court for relief under
this section. If the defendant can establish by clear and convincing
evidence that the conviction was the result of his or her status as
a victim of human trafficking, the court may issue an order that
does all of the following:

(a) Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the crime.

(b) Orders any of the relief described in Section 1203.4.

(c) Notifies the Department of Justice that the petitioner was a
victim of human trafficking when he or she committed the crime
and the relief that has been ordered.

end delete

SEC. 8.  

Section 11105 of the Penal Code is amended to read:

11105.  

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

(2) As used in this section:

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

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

(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:

(1) The courts of the state.

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

(3) District attorneys of the state.

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

(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section
3479 or 3480 of the Civil Code, or Section 11571 of the Health
and Safety Code.

(6) Probation officers of the state.

(7) Parole officers of the state.

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

(9) A public defender or attorney of record when representing
a person in a criminal case, or a parole, mandatory supervision
pursuant to paragraph (5) of subdivision (h) of Section 1170, or
postrelease community supervision revocation or revocation
extension proceeding, and if authorized access by statutory or
decisional law.

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

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

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

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

(14) Health officers of a city, county, city and county, or district
when in the performance of their official duties enforcing Section
120175 of the Health and Safety Code.

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

(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section
14502 of the Corporations Code for the appointment of humane
officers.

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

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

(19) The court of a tribe, or court of a consortium of tribes, that
has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information
may be used only for the purposes specified in Section 16504.5
of the Welfare and Institutions Code and for tribal approval or
tribal licensing of foster care or adoptive homes. Article 6
(commencing with Section 11140) shall apply to officers, members,
and employees of a tribal court receiving criminal record offender
information pursuant to this section.

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

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

(22) A court investigator providing investigations or reviews
in conservatorships pursuant to Section 1826, 1850, 1851, or
2250.6 of the Probate Code.

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

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

(25) A public agency described in subdivision (b) of Section
15975 of the Government Code, for the purpose of oversight and
enforcement policies with respect to its contracted providers.

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

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

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

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

(4) To a peace officer of another country.

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii) Authority for a public utility to request federal level criminal
history information under this paragraph shall commence July 1,
2005.

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

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

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

(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department
of Justice may charge the person or entity making the request a
fee that it determines to be sufficient to reimburse the department
for the cost of furnishing the information. In addition, the
Department of Justice may add a surcharge to the fee to fund
maintenance and improvements to the systems from which the
information is obtained. Notwithstanding any other law, any person
or entity required to pay a fee to the department for information
received under this section may charge the applicant a fee sufficient
to reimburse the person or entity for this expense. All moneys
received by the department pursuant to this section, Sections
11105.3 and 26190, and former Section 13588 of the Education
Code shall be deposited in a special account in the General Fund
to be available for expenditure by the department to offset costs
incurred pursuant to those sections and for maintenance and
improvements to the systems from which the information is
obtained upon appropriation by the Legislature.

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

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

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

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

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

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

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

(A) Every conviction rendered against the applicant.

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

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

(D) Every successful diversion.

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

(F) Sex offender registration status of the applicant.

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

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

(A) Every conviction rendered against the applicant.

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

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

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

(E) Sex offender registration status of the applicant.

(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the
Department of Justice as the result of an application by an
authorized agency or organization pursuant to Section 1522,
1568.09, 1569.17, or 1596.871 of the Health and Safety Code, or
any statute that incorporates the criteria of any of those sections
or this subdivision by reference, and the information is to be used
for employment, licensing, or certification purposes.

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

(A) Every conviction of an offense rendered against the
begin delete applicant, except a conviction for which relief has been granted
pursuant to Section 1203.49. end delete begin insert applicant. end insert

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

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

(D) Sex offender registration status of the applicant.

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

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

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

(B) Section 11105.3 or 11105.4.

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

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

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

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

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

(C) Sex offender registration status of the applicant.

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

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

(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial begin delete Code, except a conviction for which relief
has been granted pursuant to Section 1203.49. end delete begin insert Code. end insert

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

(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o), or
by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that section
or this subdivision by reference, and the information is to be used
for employment, licensing, or certification purposes.

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

(A) Every conviction rendered against the begin delete applicant, except a
conviction for which relief has been granted pursuant to Section
1203.49. end delete begin insert applicant. end insert

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

(C) Sex offender registration status of the applicant.

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

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

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

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

begin insert

(u) State summary criminal history information compiled by
the Attorney General and disseminated pursuant to this section
shall exclude any charge or conviction for which relief has been
granted pursuant to Section 236.24 or 236.25.

end insert

SEC. 9.  

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