Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 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,begin delete to repeal Section 1203.49, andend delete to add Sections 236.24 and 236.25 to,begin insert and to repeal Section 1203.49 of,end insert the Penal Code, and relating to human trafficking.

LEGISLATIVE COUNSEL’S DIGEST

AB 1762, as amended, 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 requirebegin insert theend insert 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:

P2    1

SECTION 1.  

Section 8712 of the Family Code is amended to
2read:

3

8712.  

(a) The department, county adoption agency, or licensed
4adoption agency shall require each person who files an application
5for adoption to be fingerprinted and shall secure from an
6appropriate law enforcement agency any criminal record of that
7person to determine whether the person has ever been convicted
8of a crime other than a minor traffic violation. The department,
9county adoption agency, or licensed adoption agency may also
P3    1secure the person’s full criminal record, if any. Any federal-level
2criminal offender record requests to the Department of Justice
3shall be submitted with fingerprint images and related information
4required by the Department of Justice for the purposes of obtaining
5information as to the existence and content of a record of an
6out-of-state or federal conviction or arrest of a person or
7information regarding any out-of-state or federal crimes or arrests
8for which the Department of Justice establishes that the person is
9free on bail, or on his or her own recognizance pending trial or
10appeal. The Department of Justice shall forward to the Federal
11Bureau of Investigation any requests for federal summary criminal
12history information received pursuant to this section. The
13Department of Justice shall review the information returned from
14the Federal Bureau of Investigation and shall compile and
15disseminate a response to the department, county adoption agency,
16or licensed adoption agency.

17(b) Notwithstanding subdivision (c), the criminal record, if any,
18shall be taken into consideration when evaluating the prospective
19adoptive parent, and an assessment of the effects of any criminal
20history on the ability of the prospective adoptive parent to provide
21adequate and proper care and guidance to the child shall be
22included in the report to the court.

23(c) (1) The department, county adoption agency, or licensed
24adoption agency shall not give final approval for an adoptive
25placement in any home in which the prospective adoptive parent
26or any adult living in the prospective adoptive home has either of
27the following:

28(A) A felony conviction for child abuse or neglect, spousal
29abuse, crimes against a child, including child pornography, or for
30a crime involving violence, including rape, sexual assault, or
31homicide, but not including other physical assault and battery. For
32purposes of this subdivision, crimes involving violence means
33those violent crimes contained in clause (i) of subparagraph (A),
34and subparagraph (B), of paragraph (1) of subdivision (g) of
35Section 1522 of the Health and Safety Code.

36(B) A felony conviction that occurred within the last five years
37for physical assault, battery, or a drug- or alcohol-related offense.

38(2) This subdivision shall become operative on October 1, 2008,
39and shall remain operative only to the extent that compliance with
40its provisions is required by federal law as a condition of receiving
P4    1funding under Title IV-E of the federal Social Security Act (42
2U.S.C. Sec. 670 et seq.).

3(d) Any fee charged by a law enforcement agency for
4fingerprinting or for checking or obtaining the criminal record of
5the applicant shall be paid by the applicant. The department, county
6adoption agency, or licensed adoption agency may defer, waive,
7 or reduce the fee when its payment would cause economic hardship
8to prospective adoptive parents detrimental to the welfare of the
9adopted child, when the child has been in the foster care of the
10prospective adoptive parents for at least one year, or if necessary
11for the placement of a special-needs child.

12

SEC. 2.  

Section 8811 of the Family Code is amended to read:

13

8811.  

(a) The department or delegated county adoption agency
14shall require each person who files an adoption petition to be
15fingerprinted and shall secure from an appropriate law enforcement
16agency any criminal record of that person to determine whether
17the person has ever been convicted of a crime other than a minor
18traffic violation. The department or delegated county adoption
19agency may also secure the person’s full criminal record, if any.
20Any federal-level criminal offender record requests to the
21Department of Justice shall be submitted with fingerprint images
22and related information required by the Department of Justice for
23the purposes of obtaining information as to the existence and
24content of a record of an out-of-state or federal conviction or arrest
25of a person or information regarding any out-of-state or federal
26crimes or arrests for which the Department of Justice establishes
27that the person is free on bail, or on his or her own recognizance
28pending trial or appeal. The Department of Justice shall forward
29to the Federal Bureau of Investigation any requests for federal
30summary criminal history information received pursuant to this
31section. The Department of Justice shall review the information
32returned from the Federal Bureau of Investigation and shall compile
33and disseminate a response to the department or delegated county
34adoption agency.

35(b) Notwithstanding subdivision (c), the criminal record, if any,
36shall be taken into consideration when evaluating the prospective
37adoptive parent, and an assessment of the effects of any criminal
38history on the ability of the prospective adoptive parent to provide
39adequate and proper care and guidance to the child shall be
40included in the report to the court.

P5    1(c) (1) The department or a delegated county adoption agency
2shall not give final approval for an adoptive placement in any home
3in which the prospective adoptive parent or any adult living in the
4prospective adoptive home has either of the following:

5(A) A felony conviction for child abuse or neglect, spousal
6abuse, crimes against a child, including child pornography, or for
7a crime involving violence, including rape, sexual assault, or
8homicide, but not including other physical assault and battery. For
9purposes of this subdivision, crimes involving violence means
10those violent crimes contained in clause (i) of subparagraph (A),
11and subparagraph (B), of paragraph (1) of subdivision (g) of
12Section 1522 of the Health and Safety Code.

13(B) A felony conviction that occurred within the last five years
14for physical assault, battery, or a drug- or alcohol-related offense.

15(2) This subdivision shall become operative on October 1, 2008,
16and shall remain operative only to the extent that compliance with
17its provisions is required by federal law as a condition of receiving
18funding under Title IV-E of the federal Social Security Act (42
19U.S.C. 670 et seq.).

20(d) Any fee charged by a law enforcement agency for
21fingerprinting or for checking or obtaining the criminal record of
22the petitioner shall be paid by the petitioner. The department or
23delegated county adoption agency may defer, waive, or reduce the
24fee when its payment would cause economic hardship to the
25prospective adoptive parents detrimental to the welfare of the
26adopted child, when the child has been in the foster care of the
27prospective adoptive parents for at least one year, or if necessary
28for the placement of a special-needs child.

29

SEC. 3.  

Section 8908 of the Family Code is amended to read:

30

8908.  

(a) A licensed adoption agency shall require each person
31filing an application for adoption to be fingerprinted and shall
32secure from an appropriate law enforcement agency any criminal
33record of that person to determine whether the person has ever
34been convicted of a crime other than a minor traffic violation. The
35licensed adoption agency may also secure the person’s full criminal
36record, if any. Any federal-level criminal offender record requests
37to the Department of Justice shall be submitted with fingerprint
38images and related information required by the Department of
39Justice for the purposes of obtaining information as to the existence
40and content of a record of an out-of-state or federal conviction or
P6    1arrest of a person or information regarding any out-of-state or
2federal crimes or arrests for which the Department of Justice
3establishes that the person is free on bail, or on his or her own
4recognizance pending trial or appeal. The Department of Justice
5shall forward to the Federal Bureau of Investigation any requests
6for federal summary criminal history information received pursuant
7to this section. The Department of Justice shall review the
8information returned from the Federal Bureau of Investigation and
9shall compile and disseminate a fitness determination to the
10licensed adoption agency.

11(b) Notwithstanding subdivision (c), the criminal record, if any,
12shall be taken into consideration when evaluating the prospective
13adoptive parent, and an assessment of the effects of any criminal
14history on the ability of the prospective adoptive parent to provide
15adequate and proper care and guidance to the child shall be
16included in the report to the court.

17(c) (1) A licensed adoption agency shall not give final approval
18for an adoptive placement in any home in which the prospective
19adoptive parent, or any adult living in the prospective adoptive
20home, has a felony conviction for either of the following:

21(A) Any felony conviction for child abuse or neglect, spousal
22abuse, crimes against a child, including child pornography, or for
23a crime involving violence, including rape, sexual assault, or
24homicide, but not including other physical assault and battery. For
25purposes of this subdivision, crimes involving violence means
26those violent crimes contained in clause (i) of subparagraph (A),
27and subparagraph (B), of paragraph (1) of subdivision (g) of
28Section 1522 of the Health and Safety Code.

29(B) A felony conviction that occurred within the last five years
30for physical assault, battery, or a drug- or alcohol-related offense.

31(2) This subdivision shall become operative on October 1, 2008,
32and shall remain operative only to the extent that compliance with
33its provisions is required by federal law as a condition of receiving
34funding under Title IV-E of the federal Social Security Act (42
35U.S.C. 670 et seq.).

36(d) Any fee charged by a law enforcement agency for
37fingerprinting or for checking or obtaining the criminal record of
38the applicant shall be paid by the applicant. The licensed adoption
39agency may defer, waive, or reduce the fee when its payment would
P7    1cause economic hardship to the prospective adoptive parents
2detrimental to the welfare of the adopted child.

3

SEC. 4.  

Section 236.1 of the Penal Code is amended to read:

4

236.1.  

(a) A person who deprives or violates the personal
5liberty of another with the intent to obtain forced labor or services,
6is guilty of human trafficking and shall be punished by
7imprisonment in the state prison for 5, 8, or 12 years and a fine of
8not more than five hundred thousand dollars ($500,000).

9(b) A person who deprives or violates the personal liberty of
10another with the intent to effect or maintain a violation of Section
11266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5,
12311.6, or 518 is guilty of human trafficking and shall be punished
13by imprisonment in the state prison for 8, 14, or 20 years and a
14fine of not more than five hundred thousand dollars ($500,000).

15(c) A person who causes, induces, or persuades, or attempts to
16cause, induce, or persuade, a person who is a minor at the time of
17commission of the offense to engage in a commercial sex act, with
18the intent to effect or maintain a violation of Section 266, 266h,
19266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518
20is guilty of human trafficking. A violation of this subdivision is
21punishable by imprisonment in the state prison as follows:

22(1) Five, 8, or 12 years and a fine of not more than five hundred
23thousand dollars ($500,000).

24(2) Fifteen years to life and a fine of not more than five hundred
25thousand dollars ($500,000) when the offense involves force, fear,
26fraud, deceit, coercion, violence, duress, menace, or threat of
27unlawful injury to the victim or to another person.

28(d) In determining whether a minor was caused, induced, or
29persuaded to engage in a commercial sex act, the totality of the
30circumstances, including the age of the victim, his or her
31relationship to the trafficker or agents of the trafficker, and any
32handicap or disability of the victim, shall be considered.

33(e) Consent by a victim of human trafficking who is a minor at
34the time of the commission of the offense is not a defense to a
35criminal prosecution under this section.

36(f) Mistake of fact as to the age of a victim of human trafficking
37who is a minor at the time of the commission of the offense is not
38a defense to a criminal prosecution under this section.

39(g) The Legislature finds that the definition of human trafficking
40in this section is equivalent to the federal definition of a severe
P8    1form of trafficking found in Section 7102(9) of Title 22 of the
2United States Code.

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

4(1) “Coercion” includes a scheme, plan, or pattern intended to
5cause a person to believe that failure to perform an act would result
6in serious harm to or physical restraint against any person; the
7abuse or threatened abuse of the legal process; debt bondage; or
8providing and facilitating the possession of a controlled substance
9to a person with the intent to impair the person’s judgment.

10(2) “Commercial sex act” means sexual conduct on account of
11which anything of value is given or received by a person.

12(3) “Deprivation or violation of the personal liberty of another”
13includes substantial and sustained restriction of another’s liberty
14accomplished through force, fear, fraud, deceit, coercion, violence,
15duress, menace, or threat of unlawful injury to the victim or to
16another person, under circumstances where the person receiving
17or apprehending the threat reasonably believes that it is likely that
18the person making the threat would carry it out.

19(4) “Duress” includes a direct or implied threat of force,
20violence, danger, hardship, or retribution sufficient to cause a
21reasonable person to acquiesce in or perform an act which he or
22she would otherwise not have submitted to or performed; a direct
23or implied threat to destroy, conceal, remove, confiscate, or possess
24 an actual or purported passport or immigration document of the
25victim; or knowingly destroying, concealing, removing,
26confiscating, or possessing an actual or purported passport or
27immigration document of the victim.

28(5) “Forced labor or services” means labor or services that are
29performed or provided by a person and are obtained or maintained
30through force, fraud, duress, or coercion, or equivalent conduct
31that would reasonably overbear the will of the person.

32(6) “Great bodily injury” means a significant or substantial
33physical injury.

34(7) “Human trafficking victim” means a person who is a victim
35of any of the acts described in subdivision (a), (b), or (c).

36(8) “Minor” means a person less than 18 years of age.

37(9) “Serious harm” includes any harm, whether physical or
38nonphysical, including psychological, financial, or reputational
39harm, that is sufficiently serious, under all the surrounding
40circumstances, to compel a reasonable person of the same
P9    1background and in the same circumstances to perform or to
2continue performing labor, services, or commercial sexual acts in
3order to avoid incurring that harm.

4(10) “Nonviolent crime” means any crime or offense other than
5murder, attempted murder, voluntary manslaughter, mayhem,
6kidnaping, rape, robbery, arson, carjacking, or any other violent
7felony as defined in subdivision (c) of Section 667.5.

8(i) The total circumstances, including the age of the victim, the
9relationship between the victim and the trafficker or agents of the
10trafficker, and any handicap or disability of the victim, shall be
11factors to consider in determining the presence of “deprivation or
12violation of the personal liberty of another,” “duress,” and
13“coercion” as described in this section.

14

SEC. 5.  

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

15

236.24.  

(a) An individual convicted of a nonviolent crime
16committed while that individual was a human trafficking victim
17may apply to the court in which the conviction was entered to
18vacate the conviction at any time after it is entered. The court shall
19grant the application on a finding that the applicant’s participation
20in the offense on which the applicant was convicted was a direct
21result of the applicant being a human trafficking victim.

22(b) Subject to subdivision (c), the application shall identify the
23applicant, the offense for which vacatur is sought, and the court
24in which the conviction was entered. The applicant shall describe
25in the application all the available grounds and evidence for vacatur
26of the conviction known to the applicant.

27(c) To maintain the confidentiality of the applicant’s status as
28a human trafficking victim, the application may be filed identifying
29the applicant by initials in any publicly available filing relating to
30the application. The applicant shall submit all evidence supporting
31the application that contains personal identifying information to
32the court under seal along with a statement under penalty of perjury
33confirming his or her identity.

34(d) The application and all supporting evidence, including,
35without limitation, the identity statement and evidence submitted
36under seal, shall be served on the state or local prosecutorial agency
37that obtained the conviction for which the applicant seeks vacatur.
38The state or local prosecutorial agency shall have 30 days for the
39date of receipt of service to oppose the application.

P10   1(e) If opposition to the application is not filed by the applicable
2 state or local prosecutorial agency, the court shall deem the
3application unopposed and shall grant the application. If the
4application is opposed, the court shall hold a hearing on the
5application.

6(f) If the courtbegin delete findsend deletebegin insert finds, based on clear and convincing
7evidence,end insert
that the applicant’s participation in the offense on which
8the conviction was based was a direct result of the applicant being
9a victim of human trafficking, the court shall grant the application
10and vacate the conviction, strike the adjudication of guilt, and order
11the relief specified in Section 236.25 and may also take additional
12action and grant additional relief as it deems appropriate under the
13circumstances.

14(g) If the court denies the application because the evidence is
15insufficient to establish grounds for vacatur, the denial shall be
16without prejudice. The court shall state the reasons for its denial
17in writing and, if those reasons are based on curable deficiencies
18in the application, allow the applicant a reasonable time period to
19cure the deficiencies upon which the court based the denial.

20(h) An individual determined to be a ward of the juvenile court
21in a proceeding pursuant to Section 602 of the Welfare and
22Institutions Code as a result of a nonviolent crime committed while
23that individual was a human trafficking victim may apply to the
24juvenile court that made that determination to have the
25determination set aside at any time after it was made. The court
26shall grant the applicationbegin delete on a findingend deletebegin insert upon making a finding,
27based on clear and convincing evidence,end insert
that the applicant’s
28participation in the offense on the proceeding was a direct result
29of the applicant being a human trafficking victim. Upon making
30the finding, the court shall order the relief prescribed in Section
31786 of the Welfare and Institutions Code.

32(i) In making a determination on an application under either
33subdivision (a) or (h), the court may consider any evidence it deems
34of sufficient credibility and probative value, including the sworn
35statement of the applicant. The statement, alone, is sufficient
36evidence to support the vacating of a conviction, provided the court
37finds that the statement is credible. Evidence in support of granting
38an application may also include, but is not limited to, all of the
39following:

P11   1(1) Certified records of a federal, state,begin delete tribalend deletebegin insert tribal,end insert or local
2court or governmental agency documenting the person’s status as
3a victim of human trafficking at the time of the offense, including
4identification of a victim of human trafficking by a peace officer
5pursuant to Section 236.2 and certified records of approval notices
6or enforcement certifications generated from federal immigration
7proceedings, create a rebuttable presumption that an offense was
8committed by the defendant as a direct result of being a human
9trafficking victim.

10(2) A sworn statement from a trained professional staff member
11of a victim services organization, an attorney, a member of the
12clergy, or a medical or other professional from whom the defendant
13has sought assistance in addressing the trauma associated with
14being trafficked.

15(j) The court shall grant an application made under subdivision
16(a) or (h) if the conviction or adjudication was based on a crime
17constituting or arising from a commercial sex act, including
18violation of subdivision (b) of Section 647 or Section 653.22, upon
19a finding that the applicant was under the age of 18 years at the
20time of the offense on which the conviction is based.

21(k) This section and the rights and remedies granted to victims
22of human trafficking hereunder apply to any conviction entered
23or adjudication made prior to or after January 1, 2017

24

SEC. 6.  

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

25

236.25.  

(a) For any charge,begin delete adjudicationend deletebegin insert adjudication,end insert or
26conviction for which a human trafficking victim was granted relief
27under Section 236.24 of the Penal Code, the court shall order that
28all records in the case be sealed pursuant to Section 851.86 and
29shall grant the relief provided in subdivision (b) of Section 851.8.

30(b) The human trafficking victim shall be released from all
31penalties and disabilities resulting from the charge,begin delete adjudicationend delete
32begin insert adjudication,end insert or conviction, and all actions and proceedings by
33law enforcement personnel,begin delete courtsend deletebegin insert courts,end insert or other government
34employees that led to the charge,begin delete adjudicationend deletebegin insert adjudication,end insert or
35conviction shall be deemed not to have occurred.

36(c) All of the following shall apply to a human trafficking victim
37granted relief pursuant to Section 236.24, or under any substantially
38equivalent statute of another jurisdiction:

39(1) The human trafficking victim may in all circumstances state
40that he or she has never been arrested for, chargedbegin delete withend deletebegin insert with,end insert or
P12   1convicted of the crime that is the subject of the charge,begin delete adjudicationend delete
2begin insert adjudication,end insert or conviction, including without limitation in
3response to questions on employment, housing, financialbegin delete aidend deletebegin insert aid,end insert
4 or loan applications.

5(2) The human trafficking victim may not be denied rights or
6benefits, including, without limitation, employment, housing,
7financial aid, welfare, or a loan or other financial accommodation,
8based on the arrest, charge,begin delete adjudicationend deletebegin insert adjudication,end insert or conviction
9or the victim’s failure or refusal to disclose the existence of or
10information concerning those events.

11(3) The human trafficking victim may not be thereafter charged
12or convicted of perjury or otherwise of giving a false statement by
13reason of having failed to disclose or acknowledge the existence
14of the charge,begin delete adjudicationend deletebegin insert adjudication,end insert or conviction, or any
15arrest, charge, indictment,begin delete trialend deletebegin insert trial,end insert or other proceedings related
16thereto.

17

SEC. 7.  

Section 1203.49 of the Penal Code is repealed.

18

SEC. 8.  

Section 11105 of the Penal Code is amended to read:

19

11105.  

(a) (1) The Department of Justice shall maintain state
20summary criminal history information.

21(2) As used in this section:

22(A) “State summary criminal history information” means the
23master record of information compiled by the Attorney General
24pertaining to the identification and criminal history of any person,
25such as name, date of birth, physical description, fingerprints,
26photographs, dates of arrests, arresting agencies and booking
27numbers, charges, dispositions, and similar data about the person.

28(B) “State summary criminal history information” does not refer
29to records and data compiled by criminal justice agencies other
30than the Attorney General, nor does it refer to records of complaints
31to or investigations conducted by, or records of intelligence
32information or security procedures of, the office of the Attorney
33General and the Department of Justice.

34(b) The Attorney General shall furnish state summary criminal
35history information to any of the following, if needed in the course
36of their duties, provided that when information is furnished to
37assist an agency, officer, or official of state or local government,
38a public utility, or any other entity, in fulfilling employment,
39certification, or licensing duties, Chapter 1321 of the Statutes of
401974 and Section 432.7 of the Labor Code shall apply:

P13   1(1) The courts of the state.

2(2) Peace officers of the state, as defined in Section 830.1,
3subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
4830.3, subdivision (a) of Section 830.31, and subdivisions (a) and
5(b) of Section 830.5.

6(3) District attorneys of the state.

7(4) Prosecuting city attorneys of any city within the state.

8(5) City attorneys pursuing civil gang injunctions pursuant to
9Section 186.22a, or drug abatement actions pursuant to Section
103479 or 3480 of the Civil Code, or Section 11571 of the Health
11and Safety Code.

12(6) Probation officers of the state.

13(7) Parole officers of the state.

14(8) A public defender or attorney of record when representing
15a person in proceedings upon a petition for a certificate of
16 rehabilitation and pardon pursuant to Section 4852.08.

17(9) A public defender or attorney of record when representing
18a person in a criminal case, or a parole, mandatory supervision
19pursuant to paragraph (5) of subdivision (h) of Section 1170, or
20postrelease community supervision revocation or revocation
21extension proceeding, and if authorized access by statutory or
22decisional law.

23(10) Any agency, officer, or official of the state if the criminal
24history information is required to implement a statute or regulation
25that expressly refers to specific criminal conduct applicable to the
26subject person of the state summary criminal history information,
27and contains requirements or exclusions, or both, expressly based
28upon that specified criminal conduct. The agency, officer, or
29official of the state authorized by this paragraph to receive state
30summary criminal history information may also transmit fingerprint
31images and related information to the Department of Justice to be
32transmitted to the Federal Bureau of Investigation.

33(11) Any city or county, city and county, district, or any officer
34or official thereof if access is needed in order to assist that agency,
35officer, or official in fulfilling employment, certification, or
36licensing duties, and if the access is specifically authorized by the
37city council, board of supervisors, or governing board of the city,
38county, or district if the criminal history information is required
39to implement a statute, ordinance, or regulation that expressly
40refers to specific criminal conduct applicable to the subject person
P14   1of the state summary criminal history information, and contains
2requirements or exclusions, or both, expressly based upon that
3specified criminal conduct. The city or county, city and county,
4district, or the officer or official thereof authorized by this
5paragraph may also transmit fingerprint images and related
6information to the Department of Justice to be transmitted to the
7Federal Bureau of Investigation.

8(12) The subject of the state summary criminal history
9information under procedures established under Article 5
10(commencing with Section 11120).

11(13) Any person or entity when access is expressly authorized
12by statute if the criminal history information is required to
13implement a statute or regulation that expressly refers to specific
14criminal conduct applicable to the subject person of the state
15summary criminal history information, and contains requirements
16or exclusions, or both, expressly based upon that specified criminal
17conduct.

18(14) Health officers of a city, county, city and county, or district
19when in the performance of their official duties enforcing Section
20120175 of the Health and Safety Code.

21(15) Any managing or supervising correctional officer of a
22county jail or other county correctional facility.

23(16) Any humane society, or society for the prevention of cruelty
24to animals, for the specific purpose of complying with Section
2514502 of the Corporations Code for the appointment of humane
26officers.

27(17) Local child support agencies established by Section 17304
28of the Family Code. When a local child support agency closes a
29support enforcement case containing summary criminal history
30information, the agency shall delete or purge from the file and
31destroy any documents or information concerning or arising from
32offenses for or of which the parent has been arrested, charged, or
33convicted, other than for offenses related to the parent’s having
34failed to provide support for minor children, consistent with the
35requirements of Section 17531 of the Family Code.

36(18) County child welfare agency personnel who have been
37delegated the authority of county probation officers to access state
38summary criminal history information pursuant to Section 272 of
39the Welfare and Institutions Code for the purposes specified in
40Section 16504.5 of the Welfare and Institutions Code. Information
P15   1from criminal history records provided pursuant to this subdivision
2shall not be used for any purposes other than those specified in
3this section and Section 16504.5 of the Welfare and Institutions
4Code. When an agency obtains records obtained both on the basis
5of name checks and fingerprint checks, final placement decisions
6shall be based only on the records obtained pursuant to the
7fingerprint check.

8(19) The court of a tribe, or court of a consortium of tribes, that
9has entered into an agreement with the state pursuant to Section
1010553.1 of the Welfare and Institutions Code. This information
11may be used only for the purposes specified in Section 16504.5
12of the Welfare and Institutions Code and for tribal approval or
13tribal licensing of foster care or adoptive homes. Article 6
14(commencing with Section 11140) shall apply to officers, members,
15and employees of a tribal court receiving criminal record offender
16information pursuant to this section.

17(20) Child welfare agency personnel of a tribe or consortium
18of tribes that has entered into an agreement with the state pursuant
19to Section 10553.1 of the Welfare and Institutions Code and to
20whom the state has delegated duties under paragraph (2) of
21subdivision (a) of Section 272 of the Welfare and Institutions Code.
22The purposes for use of the information shall be for the purposes
23specified in Section 16504.5 of the Welfare and Institutions Code
24and for tribal approval or tribal licensing of foster care or adoptive
25homes. When an agency obtains records on the basis of name
26checks and fingerprint checks, final placement decisions shall be
27based only on the records obtained pursuant to the fingerprint
28check. Article 6 (commencing with Section 11140) shall apply to
29child welfare agency personnel receiving criminal record offender
30information pursuant to this section.

31(21) An officer providing conservatorship investigations
32pursuant to Sections 5351, 5354, and 5356 of the Welfare and
33Institutions Code.

34(22) A court investigator providing investigations or reviews
35in conservatorships pursuant to Section 1826, 1850, 1851, or
362250.6 of the Probate Code.

37(23) A person authorized to conduct a guardianship investigation
38pursuant to Section 1513 of the Probate Code.

39(24) A humane officer pursuant to Section 14502 of the
40Corporations Code for the purposes of performing his or her duties.

P16   1(25) A public agency described in subdivision (b) of Section
215975 of the Government Code, for the purpose of oversight and
3enforcement policies with respect to its contracted providers.

4(c) The Attorney General may furnish state summary criminal
5history information and, when specifically authorized by this
6subdivision, federal level criminal history information upon a
7showing of a compelling need to any of the following, provided
8that when information is furnished to assist an agency, officer, or
9official of state or local government, a public utility, or any other
10entity in fulfilling employment, certification, or licensing duties,
11Chapter 1321 of the Statutes of 1974 and Section 432.7 of the
12 Labor Code shall apply:

13(1) Any public utility, as defined in Section 216 of the Public
14Utilities Code, that operates a nuclear energy facility when access
15is needed in order to assist in employing persons to work at the
16facility, provided that, if the Attorney General supplies the data,
17he or she shall furnish a copy of the data to the person to whom
18the data relates.

19(2) To a peace officer of the state other than those included in
20subdivision (b).

21(3) To an illegal dumping enforcement officer as defined in
22subdivision (j) of Section 830.7.

23(4) To a peace officer of another country.

24(5) To public officers, other than peace officers, of the United
25States, other states, or possessions or territories of the United
26States, provided that access to records similar to state summary
27criminal history information is expressly authorized by a statute
28of the United States, other states, or possessions or territories of
29the United States if the information is needed for the performance
30of their official duties.

31(6) To any person when disclosure is requested by a probation,
32parole, or peace officer with the consent of the subject of the state
33summary criminal history information and for purposes of
34furthering the rehabilitation of the subject.

35(7) The courts of the United States, other states, or territories
36or possessions of the United States.

37(8) Peace officers of the United States, other states, or territories
38or possessions of the United States.

P17   1(9) To any individual who is the subject of the record requested
2if needed in conjunction with an application to enter the United
3States or any foreign nation.

4(10) (A) (i) Any public utility, as defined in Section 216 of the
5Public Utilities Code, or any cable corporation as defined in
6subparagraph (B), if receipt of criminal history information is
7needed in order to assist in employing current or prospective
8employees, contract employees, or subcontract employees who,
9in the course of their employment, may be seeking entrance to
10private residences or adjacent grounds. The information provided
11shall be limited to the record of convictions and any arrest for
12which the person is released on bail or on his or her own
13recognizance pending trial.

14(ii) If the Attorney General supplies the data pursuant to this
15paragraph, the Attorney General shall furnish a copy of the data
16to the current or prospective employee to whom the data relates.

17(iii) Any information obtained from the state summary criminal
18history is confidential and the receiving public utility or cable
19corporation shall not disclose its contents, other than for the
20purpose for which it was acquired. The state summary criminal
21history information in the possession of the public utility or cable
22corporation and all copies made from it shall be destroyed not
23more than 30 days after employment or promotion or transfer is
24denied or granted, except for those cases where a current or
25prospective employee is out on bail or on his or her own
26recognizance pending trial, in which case the state summary
27criminal history information and all copies shall be destroyed not
28more than 30 days after the case is resolved.

29(iv) A violation of this paragraph is a misdemeanor, and shall
30give the current or prospective employee who is injured by the
31violation a cause of action against the public utility or cable
32corporation to recover damages proximately caused by the
33violations. Any public utility’s or cable corporation’s request for
34state summary criminal history information for purposes of
35employing current or prospective employees who may be seeking
36entrance to private residences or adjacent grounds in the course
37of their employment shall be deemed a “compelling need” as
38required to be shown in this subdivision.

39(v) This section shall not be construed as imposing any duty
40upon public utilities or cable corporations to request state summary
P18   1criminal history information on any current or prospective
2employees.

3(B) For purposes of this paragraph, “cable corporation” means
4any corporation or firm that transmits or provides television,
5 computer, or telephone services by cable, digital, fiber optic,
6satellite, or comparable technology to subscribers for a fee.

7(C) Requests for federal level criminal history information
8received by the Department of Justice from entities authorized
9pursuant to subparagraph (A) shall be forwarded to the Federal
10Bureau of Investigation by the Department of Justice. Federal level
11criminal history information received or compiled by the
12Department of Justice may then be disseminated to the entities
13referenced in subparagraph (A), as authorized by law.

14(D) (i) Authority for a cable corporation to request state or
15federal level criminal history information under this paragraph
16shall commence July 1, 2005.

17(ii) Authority for a public utility to request federal level criminal
18history information under this paragraph shall commence July 1,
192005.

20(11) To any campus of the California State University or the
21University of California, or any four year college or university
22accredited by a regional accreditation organization approved by
23the United States Department of Education, if needed in
24conjunction with an application for admission by a convicted felon
25to any special education program for convicted felons, including,
26but not limited to, university alternatives and halfway houses. Only
27conviction information shall be furnished. The college or university
28may require the convicted felon to be fingerprinted, and any inquiry
29to the department under this section shall include the convicted
30felon’s fingerprints and any other information specified by the
31department.

32(12) To any foreign government, if requested by the individual
33who is the subject of the record requested, if needed in conjunction
34with the individual’s application to adopt a minor child who is a
35citizen of that foreign nation. Requests for information pursuant
36to this paragraph shall be in accordance with the process described
37in Sections 11122 to 11124, inclusive. The response shall be
38provided to the foreign government or its designee and to the
39individual who requested the information.

P19   1(d) Whenever an authorized request for state summary criminal
2history information pertains to a person whose fingerprints are on
3file with the Department of Justice and the department has no
4criminal history of that person, and the information is to be used
5for employment, licensing, or certification purposes, the fingerprint
6card accompanying the request for information, if any, may be
7stamped “no criminal record” and returned to the person or entity
8making the request.

9(e) Whenever state summary criminal history information is
10furnished as the result of an application and is to be used for
11employment, licensing, or certification purposes, the Department
12of Justice may charge the person or entity making the request a
13fee that it determines to be sufficient to reimburse the department
14for the cost of furnishing the information. In addition, the
15Department of Justice may add a surcharge to the fee to fund
16maintenance and improvements to the systems from which the
17information is obtained. Notwithstanding any other law, any person
18or entity required to pay a fee to the department for information
19received under this section may charge the applicant a fee sufficient
20to reimburse the person or entity for this expense. All moneys
21received by the department pursuant to this section, Sections
2211105.3 and 26190, and former Section 13588 of the Education
23Code shall be deposited in a special account in the General Fund
24to be available for expenditure by the department to offset costs
25incurred pursuant to those sections and for maintenance and
26improvements to the systems from which the information is
27obtained upon appropriation by the Legislature.

28(f) Whenever there is a conflict, the processing of criminal
29fingerprints and fingerprints of applicants for security guard or
30alarm agent registrations or firearms qualification permits
31submitted pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4
32of the Business and Professions Code shall take priority over the
33processing of other applicant fingerprints.

34(g) It is not a violation of this section to disseminate statistical
35or research information obtained from a record, provided that the
36identity of the subject of the record is not disclosed.

37(h) It is not a violation of this section to include information
38obtained from a record in (1) a transcript or record of a judicial or
39 administrative proceeding or (2) any other public record if the
P20   1inclusion of the information in the public record is authorized by
2a court, statute, or decisional law.

3(i) Notwithstanding any other law, the Department of Justice
4or any state or local law enforcement agency may require the
5submission of fingerprints for the purpose of conducting summary
6criminal history information checks that are authorized by law.

7(j) The state summary criminal history information shall include
8any finding of mental incompetence pursuant to Chapter 6
9(commencing with Section 1367) of Title 10 of Part 2 arising out
10of a complaint charging a felony offense specified in Section 290.

11(k) (1) This subdivision applies if state or federal summary
12criminal history information is furnished by the Department of
13Justice as the result of an application by an authorized agency or
14organization and the information is to be used for peace officer
15employment or certification purposes. As used in this subdivision,
16a peace officer is defined in Chapter 4.5 (commencing with Section
17830) of Title 3 of Part 2.

18(2) 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 rendered against the applicant.

23(B) Every arrest for an offense for which the applicant is
24presently awaiting trial, whether the applicant is incarcerated or
25has been released on bail or on his or her own recognizance
26pending trial.

27(C) Every arrest or detention, except for an arrest or detention
28resulting in an exoneration, provided, however, that where the
29records of the Department of Justice do not contain a disposition
30for the arrest, the Department of Justice first makes a genuine effort
31to determine the disposition of the arrest.

32(D) Every successful diversion.

33(E) Every date and agency name associated with all retained
34peace officer or nonsworn law enforcement agency employee
35preemployment criminal offender record information search
36requests.

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

38(l) (1) This subdivision shall apply whenever state or federal
39summary criminal history information is furnished by the
40Department of Justice as the result of an application by a criminal
P21   1justice agency or organization as defined in Section 13101, and
2the information is to be used for criminal justice employment,
3licensing, or certification purposes.

4(2) Notwithstanding any other law, whenever state summary
5criminal history information is initially furnished pursuant to
6paragraph (1), the Department of Justice shall disseminate the
7following information:

8(A) Every conviction rendered against the applicant.

9(B) Every arrest for an offense for which the applicant is
10presently awaiting trial, whether the applicant is incarcerated or
11has been released on bail or on his or her own recognizance
12pending trial.

13(C) Every arrest for an offense for which the records of the
14Department of Justice do not contain a disposition or did not result
15in a conviction, provided that the Department of Justice first makes
16a genuine effort to determine the disposition of the arrest. However,
17information concerning an arrest shall not be disclosed if the
18records of the Department of Justice indicate or if the genuine
19effort reveals that the subject was exonerated, successfully
20completed a diversion or deferred entry of judgment program, or
21the arrest was deemed a detention.

22(D) Every date and agency name associated with all retained
23peace officer or nonsworn law enforcement agency employee
24preemployment criminal offender record information search
25requests.

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

27(m) (1) This subdivision shall apply whenever state or federal
28summary criminal history information is furnished by the
29Department of Justice as the result of an application by an
30authorized agency or organization pursuant to Section 1522,
311568.09, 1569.17, or 1596.871 of the Health and Safety Code, or
32any statute that incorporates the criteria of any of those sections
33or this subdivision by reference, and the information is to be used
34for employment, licensing, or certification purposes.

35(2) Notwithstanding any other provision of law, whenever state
36summary criminal history information is initially furnished
37pursuant to paragraph (1), the Department of Justice shall
38disseminate the following information:

39(A) Every conviction of an offense rendered against the
40 applicant.

P22   1(B) Every arrest for an offense for which the applicant is
2presently awaiting trial, whether the applicant is incarcerated or
3has been released on bail or on his or her own recognizance
4pending trial.

5(C) Every arrest for an offense for which the Department of
6Social Services is required by paragraph (1) of subdivision (a) of
7Section 1522 of the Health and Safety Code to determine if an
8applicant has been arrested. However, if the records of the
9Department of Justice do not contain a disposition for an arrest,
10the Department of Justice shall first make a genuine effort to
11determine the disposition of the arrest.

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

13(3) Notwithstanding the requirements of the sections referenced
14in paragraph (1) of this subdivision, the Department of Justice
15shall not disseminate information about an arrest subsequently
16deemed a detention or an arrest that resulted in either the successful
17completion of a diversion program or exoneration.

18(n) (1) This subdivision shall apply whenever state or federal
19summary criminal history information, to be used for employment,
20licensing, or certification purposes, is furnished by the Department
21of Justice as the result of an application by an authorized agency,
22organization, or individual pursuant to any of the following:

23(A) Paragraph (10) of subdivision (c), when the information is
24to be used by a cable corporation.

25(B) Section 11105.3 or 11105.4.

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

27(D) Any statute that incorporates the criteria of any of the
28statutory provisions listed in subparagraph (A), (B), or (C), or of
29this subdivision, by reference.

30(2) With the exception of applications submitted by
31transportation companies authorized pursuant to Section 11105.3,
32and notwithstanding any other law, whenever state summary
33criminal history information is initially furnished pursuant to
34paragraph (1), the Department of Justice shall disseminate the
35following information:

36(A) Every conviction rendered against the applicant for a
37violation or attempted violation of any offense specified in
38subdivision (a) of Section 15660 of the Welfare and Institutions
39Code. However, with the exception of those offenses for which
40registration is required pursuant to Section 290, the Department
P23   1of Justice shall not disseminate information pursuant to this
2subdivision unless the conviction occurred within 10 years of the
3date of the agency’s request for information or the conviction is
4over 10 years old but the subject of the request was incarcerated
5within 10 years of the agency’s request for information.

6(B) Every arrest for a violation or attempted violation of an
7offense specified in subdivision (a) of Section 15660 of the Welfare
8and Institutions Code for which the applicant is presently awaiting
9trial, whether the applicant is incarcerated or has been released on
10bail or on his or her own recognizance pending trial.

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

12(o) (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 379 or 550
16of the Financial Code, or any statute that incorporates the criteria
17of either of those sections or this subdivision by reference, and the
18information is to be used for employment, licensing, or certification
19purposes.

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

24(A) Every conviction rendered against the applicant for a
25violation or attempted violation of any offense specified in Section
26550 of the Financial Code.

27(B) Every arrest for a violation or attempted violation of an
28offense specified in Section 550 of the Financial Code for which
29the applicant is presently awaiting trial, whether the applicant is
30incarcerated or has been released on bail or on his or her own
31recognizance pending trial.

32(p) (1) This subdivision shall apply whenever state or federal
33criminal history information is furnished by the Department of
34Justice as the result of an application by an agency, organization,
35or individual not defined in subdivision (k), (l), (m), (n), or (o), or
36by a transportation company authorized pursuant to Section
3711105.3, or any statute that incorporates the criteria of that section
38or this subdivision by reference, and the information is to be used
39for employment, licensing, or certification purposes.

P24   1(2) Notwithstanding any other law, whenever state summary
2criminal history information is initially furnished pursuant to
3paragraph (1), the Department of Justice shall disseminate the
4following information:

5(A) Every conviction rendered against the applicant.

6(B) Every arrest for an offense for which the applicant is
7presently awaiting trial, whether the applicant is incarcerated or
8has been released on bail or on his or her own recognizance
9pending trial.

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

11(q) All agencies, organizations, or individuals defined in
12subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
13Department of Justice for subsequent notification pursuant to
14Section 11105.2. This subdivision shall not supersede sections that
15mandate an agency, organization, or individual to contract with
16the Department of Justice for subsequent notification pursuant to
17Section 11105.2.

18(r) This section does not require the Department of Justice to
19cease compliance with any other statutory notification
20requirements.

21(s) The provisions of Section 50.12 of Title 28 of the Code of
22Federal Regulations are to be followed in processing federal
23criminal history information.

24(t) Whenever state or federal summary criminal history
25information is furnished by the Department of Justice as the result
26of an application by an authorized agency, organization, or
27individual defined in subdivisions (k) to (p), inclusive, and the
28information is to be used for employment, licensing, or certification
29purposes, the authorized agency, organization, or individual shall
30expeditiously furnish a copy of the information to the person to
31whom the information relates if the information is a basis for an
32adverse employment, licensing, or certification decision. When
33furnished other than in person, the copy shall be delivered to the
34last contact information provided by the applicant.

35(u) State summary criminal history information compiled by
36the Attorney General and disseminated pursuant to this section
37shall exclude any charge or conviction for which relief has been
38granted pursuant to Section 236.24 or 236.25.

39

SEC. 9.  

No reimbursement is required by this act pursuant to
40Section 6 of Article XIII B of the California Constitution because
P25   1the only costs that may be incurred by a local agency or school
2district will be incurred because this act creates a new crime or
3infraction, eliminates a crime or infraction, or changes the penalty
4for a crime or infraction, within the meaning of Section 17556 of
5the Government Code, or changes the definition of a crime within
6the meaning of Section 6 of Article XIII B of the California
7Constitution.



O

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