Amended in Assembly May 31, 2016

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, to add Sections 236.24 and 236.25 to, and to repeal Section 1203.49 of, the Penal Code,begin delete andend delete 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 wasbegin insert aend insert human trafficking victim to apply to the court to vacate the convictionbegin delete at any time after it was entered.end deletebegin insert if the individual has not been convicted of any crime after successfully completing probation, or if probation is not granted, for 2 years after release from custody.end insert 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 petitionbegin delete dismissed.end deletebegin insert dismissed if the individual has not had a sustained petition for any crime or been convicted of any crime for one year prior to the date of application.end insert If the application is granted, the bill would require the 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 personalbegin delete identifyend deletebegin insert identifyingend insert 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:

P3    1

8712.  

(a) The department, county adoption agency, or licensed
2adoption agency shall require each person who files an application
3for adoption to be fingerprinted and shall secure from an
4appropriate law enforcement agency any criminal record of that
5person to determine whether the person has ever been convicted
6of a crime other than a minor traffic violation. The department,
7county adoption agency, or licensed adoption agency may also
8secure the person’s full criminal record, if any. Any federal-level
9criminal offender record requests to the Department of Justice
10shall be submitted with fingerprint images and related information
11required by the Department of Justice for the purposes of obtaining
12information as to the existence and content of a record of an
13out-of-state or federal conviction or arrest of a person or
14information regarding any out-of-state or federal crimes or arrests
15for which the Department of Justice establishes that the person is
16free on bail, or on his or her own recognizance pending trial or
17appeal. The Department of Justice shall forward to the Federal
18Bureau of Investigation any requests for federal summary criminal
19history information received pursuant to this section. The
20Department of Justice shall review the information returned from
21the Federal Bureau of Investigation and shall compile and
22disseminate a response to the department, county adoption agency,
23or licensed adoption agency.

24(b) Notwithstanding subdivision (c), the criminal record, if any,
25shall be taken into consideration when evaluating the prospective
26adoptive parent, and an assessment of the effects of any criminal
27history on the ability of the prospective adoptive parent to provide
28adequate and proper care and guidance to the child shall be
29included in the report to the court.

30(c) (1) The department, county adoption agency, or licensed
31adoption agency shall not give final approval for an adoptive
32placement in any home in which the prospective adoptive parent
33or any adult living in the prospective adoptive home has either of
34the following:

35(A) A felony conviction for child abuse or neglect, spousal
36abuse, crimes against a child, including child pornography, or for
37a crime involving violence, including rape, sexual assault, or
38homicide, but not including other physical assault and battery. For
39purposes of this subdivision, crimes involving violence means
40those violent crimes contained in clause (i) of subparagraph (A),
P4    1and subparagraph (B), of paragraph (1) of subdivision (g) of
2Section 1522 of the Health and Safety Code.

3(B) A felony conviction that occurred within the last five years
4for physical assault, battery, or a drug- or alcohol-related offense.

5(2) This subdivision shall become operative on October 1, 2008,
6and shall remain operative only to the extent that compliance with
7its provisions is required by federal law as a condition of receiving
8funding under Title IV-E of the federal Social Security Act (42
9U.S.C. Sec. 670 et seq.).

10(d) Any fee charged by a law enforcement agency for
11fingerprinting or for checking or obtaining the criminal record of
12the applicant shall be paid by the applicant. The department, county
13adoption agency, or licensed adoption agency may defer, waive,
14or reduce the fee when its payment would cause economic hardship
15to prospective adoptive parents detrimental to the welfare of the
16adopted child, when the child has been in the foster care of the
17prospective adoptive parents for at least one year, or if necessary
18for the placement of a special-needs child.

19

SEC. 2.  

Section 8811 of the Family Code is amended to read:

20

8811.  

(a) The department or delegated county adoption agency
21shall require each person who files an adoption petition to be
22fingerprinted and shall secure from an appropriate law enforcement
23agency any criminal record of that person to determine whether
24the person has ever been convicted of a crime other than a minor
25traffic violation. The department or delegated county adoption
26agency may also secure the person’s full criminal record, if any.
27Any federal-level criminal offender record requests to the
28Department of Justice shall be submitted with fingerprint images
29and related information required by the Department of Justice for
30the purposes of obtaining information as to the existence and
31content of a record of an out-of-state or federal conviction or arrest
32of a person or information regarding any out-of-state or federal
33crimes or arrests for which the Department of Justice establishes
34that the person is free on bail, or on his or her own recognizance
35pending trial or appeal. The Department of Justice shall forward
36to the Federal Bureau of Investigation any requests for federal
37summary criminal history information received pursuant to this
38section. The Department of Justice shall review the information
39returned from the Federal Bureau of Investigation and shall compile
P5    1and disseminate a response to the department or delegated county
2adoption agency.

3(b) Notwithstanding subdivision (c), the criminal record, if any,
4shall be taken into consideration when evaluating the prospective
5adoptive parent, and an assessment of the effects of any criminal
6history on the ability of the prospective adoptive parent to provide
7adequate and proper care and guidance to the child shall be
8included in the report to the court.

9(c) (1) The department or a delegated county adoption agency
10shall not give final approval for an adoptive placement in any home
11in which the prospective adoptive parent or any adult living in the
12prospective adoptive home has either of the following:

13(A) A felony conviction for child abuse or neglect, spousal
14abuse, crimes against a child, including child pornography, or for
15a crime involving violence, including rape, sexual assault, or
16homicide, but not including other physical assault and battery. For
17purposes of this subdivision, crimes involving violence means
18those violent crimes contained in clause (i) of subparagraph (A),
19and subparagraph (B), of paragraph (1) of subdivision (g) of
20Section 1522 of the Health and Safety Code.

21(B) A felony conviction that occurred within the last five years
22for physical assault, battery, or a drug- or alcohol-related offense.

23(2) This subdivision shall become operative on October 1, 2008,
24and shall remain operative only to the extent that compliance with
25its provisions is required by federal law as a condition of receiving
26funding under Title IV-E of the federal Social Security Act (42
27U.S.C. 670 et seq.).

28(d) Any fee charged by a law enforcement agency for
29fingerprinting or for checking or obtaining the criminal record of
30the petitioner shall be paid by the petitioner. The department or
31delegated county adoption agency may defer, waive, or reduce the
32fee when its payment would cause economic hardship to the
33prospective adoptive parents detrimental to the welfare of the
34adopted child, when the child has been in the foster care of the
35prospective adoptive parents for at least one year, or if necessary
36for the placement of a special-needs child.

37

SEC. 3.  

Section 8908 of the Family Code is amended to read:

38

8908.  

(a) A licensed adoption agency shall require each person
39filing an application for adoption to be fingerprinted and shall
40secure from an appropriate law enforcement agency any criminal
P6    1record of that person to determine whether the person has ever
2been convicted of a crime other than a minor traffic violation. The
3licensed adoption agency may also secure the person’s full criminal
4record, if any. Any federal-level criminal offender record requests
5to the Department of Justice shall be submitted with fingerprint
6images and related information required by the Department of
7Justice for the purposes of obtaining information as to the existence
8and content of a record of an out-of-state or federal conviction or
9arrest of a person or information regarding any out-of-state or
10federal crimes or arrests for which the Department of Justice
11establishes that the person is free on bail, or on his or her own
12recognizance pending trial or appeal. The Department of Justice
13shall forward to the Federal Bureau of Investigation any requests
14for federal summary criminal history information received pursuant
15to this section. The Department of Justice shall review the
16information returned from the Federal Bureau of Investigation and
17shall compile and disseminate a fitness determination to the
18licensed adoption agency.

19(b) Notwithstanding subdivision (c), the criminal record, if any,
20shall be taken into consideration when evaluating the prospective
21adoptive parent, and an assessment of the effects of any criminal
22history on the ability of the prospective adoptive parent to provide
23adequate and proper care and guidance to the child shall be
24included in the report to the court.

25(c) (1) A licensed adoption agency shall not give final approval
26for an adoptive placement in any home in which the prospective
27adoptive parent, or any adult living in the prospective adoptive
28home, has a felony conviction for either of the following:

29(A) Any felony conviction for child abuse or neglect, spousal
30abuse, crimes against a child, including child pornography, or for
31a crime involving violence, including rape, sexual assault, or
32homicide, but not including other physical assault and battery. For
33purposes of this subdivision, crimes involving violence means
34those violent crimes contained in clause (i) of subparagraph (A),
35and subparagraph (B), of paragraph (1) of subdivision (g) of
36Section 1522 of the Health and Safety Code.

37(B) A felony conviction that occurred within the last five years
38for physical assault, battery, or a drug- or alcohol-related offense.

39(2) This subdivision shall become operative on October 1, 2008,
40and shall remain operative only to the extent that compliance with
P7    1its provisions is required by federal law as a condition of receiving
2funding under Title IV-E of the federal Social Security Act (42
3U.S.C. 670 et seq.).

4(d) Any fee charged by a law enforcement agency for
5fingerprinting or for checking or obtaining the criminal record of
6the applicant shall be paid by the applicant. The licensed adoption
7agency may defer, waive, or reduce the fee when its payment would
8cause economic hardship to the prospective adoptive parents
9detrimental to the welfare of the adopted child.

10

SEC. 4.  

Section 236.1 of the Penal Code is amended to read:

11

236.1.  

(a) A person who deprives or violates the personal
12liberty of another with the intent to obtain forced labor or services,
13is guilty of human trafficking and shall be punished by
14imprisonment in the state prison for 5, 8, or 12 years and a fine of
15not more than five hundred thousand dollars ($500,000).

16(b) A person who deprives or violates the personal liberty of
17another with the intent to effect or maintain a violation of Section
18266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5,
19311.6, or 518 is guilty of human trafficking and shall be punished
20by imprisonment in the state prison for 8, 14, or 20 years and a
21fine of not more than five hundred thousand dollars ($500,000).

22(c) A person who causes, induces, or persuades, or attempts to
23cause, induce, or persuade, a person who is a minor at the time of
24commission of the offense to engage in a commercial sex act, with
25the intent to effect or maintain a violation of Section 266, 266h,
26266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518
27is guilty of human trafficking. A violation of this subdivision is
28punishable by imprisonment in the state prison as follows:

29(1) Five, 8, or 12 years and a fine of not more than five hundred
30thousand dollars ($500,000).

31(2) Fifteen years to life and a fine of not more than five hundred
32thousand dollars ($500,000) when the offense involves force, fear,
33fraud, deceit, coercion, violence, duress, menace, or threat of
34unlawful injury to the victim or to another person.

35(d) In determining whether a minor was caused, induced, or
36persuaded to engage in a commercial sex act, the totality of the
37circumstances, including the age of the victim, his or her
38relationship to the trafficker or agents of the trafficker, and any
39handicap or disability of the victim, shall be considered.

P8    1(e) Consent by a victim of human trafficking who is a minor at
2the time of the commission of the offense is not a defense to a
3criminal prosecution under this section.

4(f) Mistake of fact as to the age of a victim of human trafficking
5who is a minor at the time of the commission of the offense is not
6a defense to a criminal prosecution under this section.

7(g) The Legislature finds that the definition of human trafficking
8in this section is equivalent to the federal definition of a severe
9form of trafficking found in Section 7102(9) of Title 22 of the
10United States Code.

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

12(1) “Coercion” includes a scheme, plan, or pattern intended to
13cause a person to believe that failure to perform an act would result
14in serious harm to or physical restraint against any person; the
15abuse or threatened abuse of the legal process; debt bondage; or
16providing and facilitating the possession of a controlled substance
17to a person with the intent to impair the person’s judgment.

18(2) “Commercial sex act” means sexual conduct on account of
19which anything of value is given or received by a person.

20(3) “Deprivation or violation of the personal liberty of another”
21includes substantial and sustained restriction of another’s liberty
22accomplished through force, fear, fraud, deceit, coercion, violence,
23duress, menace, or threat of unlawful injury to the victim or to
24another person, under circumstances where the person receiving
25or apprehending the threat reasonably believes that it is likely that
26the person making the threat would carry it out.

27(4) “Duress” includes a direct or implied threat of force,
28violence, danger, hardship, or retribution sufficient to cause a
29reasonable person to acquiesce in or perform an act which he or
30she would otherwise not have submitted to or performed; a direct
31or implied threat to destroy, conceal, remove, confiscate, or possess
32 an actual or purported passport or immigration document of the
33victim; or knowingly destroying, concealing, removing,
34confiscating, or possessing an actual or purported passport or
35immigration document of the victim.

36(5) “Forced labor or services” means labor or services that are
37performed or provided by a person and are obtained or maintained
38through force, fraud, duress, or coercion, or equivalent conduct
39that would reasonably overbear the will of the person.

P9    1(6) “Great bodily injury” means a significant or substantial
2physical injury.

3(7) “Human trafficking victim” means a person who is a victim
4of any of the acts described in subdivision (a), (b), or (c).

5(8) “Minor” means a person less than 18 years of age.

6(9) “Serious harm” includes any harm, whether physical or
7nonphysical, including psychological, financial, or reputational
8harm, that is sufficiently serious, under all the surrounding
9circumstances, to compel a reasonable person of the same
10background and in the same circumstances to perform or to
11continue performing labor, services, or commercial sexual acts in
12order to avoid incurring that harm.

13(10) “Nonviolent crime” means any crime or offense other than
14murder, attempted murder, voluntary manslaughter, mayhem,
15begin delete kidnaping,end deletebegin insert kidnapping,end insert rape, robbery, arson, carjacking, or any
16other violent felony as defined in subdivision (c) of Section 667.5.

17(i) The total circumstances, including the age of the victim, the
18relationship between the victim and the trafficker or agents of the
19trafficker, and any handicap or disability of the victim, shall be
20factors to consider in determining the presence of “deprivation or
21violation of the personal liberty of another,” “duress,” and
22“coercion” as described in this section.

23

SEC. 5.  

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

24

236.24.  

(a) An individual convicted of a nonviolent crime
25committed while that individual was a human trafficking victim
26may apply to the court in which the conviction was entered to
27vacate the convictionbegin delete at any time after it is entered.end deletebegin insert if the individual
28has not been convicted of any crime after successfully completing
29probation, or if probation is not granted, for two years after release
30from custody.end insert
The court shall grant the application on a finding
31that the applicant’s participation in the offense on which the
32applicant was convicted was a direct result of the applicant being
33a human trafficking victim.

34(b) Subject to subdivision (c), the application shall identify the
35applicant, the offense for which vacatur is sought, and the court
36in which the conviction was entered. The applicant shall describe
37in the application all the available grounds and evidence for vacatur
38of the conviction known to the applicant.

39(c) To maintain the confidentiality of the applicant’s status as
40a human trafficking victim, the application may be filed identifying
P10   1the applicant by initials in any publicly available filing relating to
2the application. The applicant shall submit all evidence supporting
3the application that contains personal identifying information to
4the court under seal along with a statement under penalty of perjury
5confirming his or her identity.

6(d) The application and all supporting evidence, including,
7without limitation, the identity statement and evidence submitted
8under seal, shall be served on the state or local prosecutorial agency
9that obtained the conviction for which the applicant seeks vacatur.
10The state or local prosecutorial agency shall have 30 days for the
11date of receipt of service to oppose the application.

12(e) If opposition to the application is not filed by the applicable
13state or local prosecutorial agency, the court shall deem the
14application unopposed and shall grant the application. If the
15application is opposed, the court shall hold a hearing on the
16application.

17(f) If the court finds, based on clear and convincing evidence,
18that the applicant’s participation in the offense on which the
19conviction was based was a direct result of the applicant being a
20victim of human trafficking, the court shall grant the application
21and vacate the conviction, strike the adjudication of guilt, and order
22the relief specified in Section 236.25 and may also take additional
23action and grant additional relief as it deems appropriate under the
24circumstances.

25(g) If the court denies the application because the evidence is
26insufficient to establish grounds for vacatur, the denial shall be
27without prejudice. The court shall state the reasons for its denial
28in writing and, if those reasons are based on curable deficiencies
29in the application, allow the applicant a reasonable time period to
30cure the deficiencies upon which the court based the denial.

31(h) An individual determined to be a ward of the juvenile court
32in a proceeding pursuant to Section 602 of the Welfare and
33Institutions Code as a result of a nonviolent crime committed while
34that individual was a human trafficking victim may apply to the
35juvenile court that made that determination to have the
36determination set asidebegin delete at any time after it was made.end deletebegin insert if the
37individual has not had a sustained petition for any crime or been
38convicted of any crime for one year prior to the date of application.end insert

39 The court shall grant the application upon making a finding, based
40on clear and convincing evidence, that the applicant’s participation
P11   1in the offense on the proceeding was a direct result of the applicant
2being a human trafficking victim. Upon making the finding, the
3court shall order the relief prescribed in Section 786 of the Welfare
4and Institutions Code.

5(i) In making a determination on an application under either
6subdivision (a) or (h), the court may consider any evidence it deems
7of sufficient credibility and probative value, including the sworn
8statement of the applicant. The statement, alone, is sufficient
9evidence to support the vacating of a conviction, provided the court
10finds that the statement is credible. Evidence in support of granting
11an application may also include, but is not limited to, all of the
12following:

13(1) Certified records of a federal, state, tribal, or local court or
14governmental agency documenting the person’s status as a victim
15of human trafficking at the time of the offense, including
16identification of a victim of human trafficking by a peace officer
17pursuant to Section 236.2 and certified records of approval notices
18or enforcement certifications generated from federal immigration
19proceedings, create a rebuttable presumption that an offense was
20committed by the defendant as a direct result of being a human
21trafficking victim.

22(2) A sworn statement from a trained professional staff member
23of a victim services organization, an attorney, a member of the
24clergy, or a medical or other professional from whom the defendant
25has sought assistance in addressing the trauma associated with
26being trafficked.

27(j) The court shall grant an application made under subdivision
28(a) or (h) if the conviction or adjudication was based on a crime
29constituting or arising from a commercial sex act, including
30violation of subdivision (b) of Section 647 or Section 653.22, upon
31a finding that the applicant was under the age of 18 years at the
32time of the offense on which the conviction is based.

33(k) This section and the rights and remedies granted to victims
34of human trafficking hereunder apply to any conviction entered
35or adjudication made prior to or after January 1, 2017

36

SEC. 6.  

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

37

236.25.  

(a) For any charge, adjudication, or conviction for
38which a human trafficking victim was granted relief under Section
39236.24 of the Penal Code, the court shall order that all records in
P12   1the case be sealed pursuant to Section 851.86 and shall grant the
2relief provided in subdivision (b) of Section 851.8.

3(b) The human trafficking victim shall be released from all
4penalties and disabilities resulting from the charge, adjudication,
5or conviction, and all actions and proceedings by law enforcement
6personnel, courts, or other government employees that led to the
7charge, adjudication, or conviction shall be deemed not to have
8occurred.

9(c) All of the following shall apply to a human trafficking victim
10granted relief pursuant to Section 236.24, or under any substantially
11equivalent statute of another jurisdiction:

12(1) The human trafficking victim may in all circumstances state
13that he or she has never been arrested for, charged with, or
14convicted of the crime that is the subject of the charge,
15adjudication, or conviction, including without limitation in response
16to questions on employment, housing, financial aid, or loan
17applications.

18(2) The human trafficking victim may not be denied rights or
19benefits, including, without limitation, employment, housing,
20financial aid, welfare, or a loan or other financial accommodation,
21based on the arrest, charge, adjudication, or conviction or the
22victim’s failure or refusal to disclose the existence of or information
23concerning those events.

24(3) The human trafficking victim may not be thereafter charged
25or convicted of perjury or otherwise of giving a false statement by
26reason of having failed to disclose or acknowledge the existence
27of the charge, adjudication, or conviction, or any arrest, charge,
28indictment, trial, or other proceedings related thereto.

29

SEC. 7.  

Section 1203.49 of the Penal Code is repealed.

30

SEC. 8.  

Section 11105 of the Penal Code is amended to read:

31

11105.  

(a) (1) The Department of Justice shall maintain state
32summary criminal history information.

33(2) As used in this section:

34(A) “State summary criminal history information” means the
35master record of information compiled by the Attorney General
36pertaining to the identification and criminal history of any person,
37such as name, date of birth, physical description, fingerprints,
38photographs, dates of arrests, arresting agencies and booking
39numbers, charges, dispositions, and similar data about the person.

P13   1(B) “State summary criminal history information” does not refer
2to records and data compiled by criminal justice agencies other
3than the Attorney General, nor does it refer to records of complaints
4to or investigations conducted by, or records of intelligence
5information or security procedures of, the office of the Attorney
6General and the Department of Justice.

7(b) The Attorney General shall furnish state summary criminal
8history information to any of the following, if needed in the course
9of their duties, provided that when information is furnished to
10assist an agency, officer, or official of state or local government,
11a public utility, or any other entity, in fulfilling employment,
12certification, or licensing duties, Chapter 1321 of the Statutes of
131974 and Section 432.7 of the Labor Code shall apply:

14(1) The courts of the state.

15(2) Peace officers of the state, as defined in Section 830.1,
16subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
17830.3, subdivision (a) of Section 830.31, and subdivisions (a) and
18(b) of Section 830.5.

19(3) District attorneys of the state.

20(4) Prosecuting city attorneys of any city within the state.

21(5) City attorneys pursuing civil gang injunctions pursuant to
22Section 186.22a, or drug abatement actions pursuant to Section
233479 or 3480 of the Civil Code, or Section 11571 of the Health
24and Safety Code.

25(6) Probation officers of the state.

26(7) Parole officers of the state.

27(8) A public defender or attorney of record when representing
28a person in proceedings upon a petition for a certificate of
29 rehabilitation and pardon pursuant to Section 4852.08.

30(9) A public defender or attorney of record when representing
31a person in a criminal case, or a parole, mandatory supervision
32pursuant to paragraph (5) of subdivision (h) of Section 1170, or
33postrelease community supervision revocation or revocation
34extension proceeding, and if authorized access by statutory or
35decisional law.

36(10) Any agency, officer, or official of the state if the criminal
37history information is required to implement a statute or regulation
38that expressly refers to specific criminal conduct applicable to the
39subject person of the state summary criminal history information,
40and contains requirements or exclusions, or both, expressly based
P14   1upon that specified criminal conduct. The agency, officer, or
2official of the state authorized by this paragraph to receive state
3summary criminal history information may also transmit fingerprint
4images and related information to the Department of Justice to be
5transmitted to the Federal Bureau of Investigation.

6(11) Any city or county, city and county, district, or any officer
7or official thereof if access is needed in order to assist that agency,
8officer, or official in fulfilling employment, certification, or
9licensing duties, and if the access is specifically authorized by the
10city council, board of supervisors, or governing board of the city,
11county, or district if the criminal history information is required
12to implement a statute, ordinance, or regulation that expressly
13refers to specific criminal conduct applicable to the subject person
14of the state summary criminal history information, and contains
15requirements or exclusions, or both, expressly based upon that
16specified criminal conduct. The city or county, city and county,
17district, or the officer or official thereof authorized by this
18paragraph may also transmit fingerprint images and related
19information to the Department of Justice to be transmitted to the
20Federal Bureau of Investigation.

21(12) The subject of the state summary criminal history
22information under procedures established under Article 5
23(commencing with Section 11120).

24(13) Any person or entity when access is expressly authorized
25by statute if the criminal history information is required to
26implement a statute or regulation that expressly refers to specific
27criminal conduct applicable to the subject person of the state
28summary criminal history information, and contains requirements
29or exclusions, or both, expressly based upon that specified criminal
30conduct.

31(14) Health officers of a city, county, city and county, or district
32when in the performance of their official duties enforcing Section
33120175 of the Health and Safety Code.

34(15) Any managing or supervising correctional officer of a
35county jail or other county correctional facility.

36(16) Any humane society, or society for the prevention of cruelty
37to animals, for the specific purpose of complying with Section
3814502 of the Corporations Code for the appointment of humane
39officers.

P15   1(17) Local child support agencies established by Section 17304
2of the Family Code. When a local child support agency closes a
3support enforcement case containing summary criminal history
4information, the agency shall delete or purge from the file and
5destroy any documents or information concerning or arising from
6offenses for or of which the parent has been arrested, charged, or
7convicted, other than for offenses related to the parent’s having
8failed to provide support for minor children, consistent with the
9requirements of Section 17531 of the Family Code.

10(18) County child welfare agency personnel who have been
11delegated the authority of county probation officers to access state
12summary criminal history information pursuant to Section 272 of
13the Welfare and Institutions Code for the purposes specified in
14Section 16504.5 of the Welfare and Institutions Code. Information
15from criminal history records provided pursuant to this subdivision
16shall not be used for any purposes other than those specified in
17this section and Section 16504.5 of the Welfare and Institutions
18Code. When an agency obtains records obtained both on the basis
19of name checks and fingerprint checks, final placement decisions
20shall be based only on the records obtained pursuant to the
21fingerprint check.

22(19) The court of a tribe, or court of a consortium of tribes, that
23has entered into an agreement with the state pursuant to Section
2410553.1 of the Welfare and Institutions Code. This information
25may be used only for the purposes specified in Section 16504.5
26of the Welfare and Institutions Code and for tribal approval or
27tribal licensing of foster care or adoptive homes. Article 6
28(commencing with Section 11140) shall apply to officers, members,
29and employees of a tribal court receiving criminal record offender
30information pursuant to this section.

31(20) Child welfare agency personnel of a tribe or consortium
32of tribes that has entered into an agreement with the state pursuant
33to Section 10553.1 of the Welfare and Institutions Code and to
34whom the state has delegated duties under paragraph (2) of
35subdivision (a) of Section 272 of the Welfare and Institutions Code.
36The purposes for use of the information shall be for the purposes
37specified in Section 16504.5 of the Welfare and Institutions Code
38and for tribal approval or tribal licensing of foster care or adoptive
39homes. When an agency obtains records on the basis of name
40checks and fingerprint checks, final placement decisions shall be
P16   1based only on the records obtained pursuant to the fingerprint
2check. Article 6 (commencing with Section 11140) shall apply to
3child welfare agency personnel receiving criminal record offender
4information pursuant to this section.

5(21) An officer providing conservatorship investigations
6pursuant to Sections 5351, 5354, and 5356 of the Welfare and
7Institutions Code.

8(22) A court investigator providing investigations or reviews
9in conservatorships pursuant to Section 1826, 1850, 1851, or
102250.6 of the Probate Code.

11(23) A person authorized to conduct a guardianship investigation
12pursuant to Section 1513 of the Probate Code.

13(24) A humane officer pursuant to Section 14502 of the
14Corporations Code for the purposes of performing his or her duties.

15(25) A public agency described in subdivision (b) of Section
1615975 of the Government Code, for the purpose of oversight and
17enforcement policies with respect to its contracted providers.

18(c) The Attorney General may furnish state summary criminal
19history information and, when specifically authorized by this
20subdivision, federal level criminal history information upon a
21showing of a compelling need to any of the following, provided
22that when information is furnished to assist an agency, officer, or
23official of state or local government, a public utility, or any other
24entity in fulfilling employment, certification, or licensing duties,
25Chapter 1321 of the Statutes of 1974 and Section 432.7 of the
26 Labor Code shall apply:

27(1) Any public utility, as defined in Section 216 of the Public
28Utilities Code, that operates a nuclear energy facility when access
29is needed in order to assist in employing persons to work at the
30facility, provided that, if the Attorney General supplies the data,
31he or she shall furnish a copy of the data to the person to whom
32the data relates.

33(2) To a peace officer of the state other than those included in
34subdivision (b).

35(3) To an illegal dumping enforcement officer as defined in
36subdivision (j) of Section 830.7.

37(4) To a peace officer of another country.

38(5) To public officers, other than peace officers, of the United
39States, other states, or possessions or territories of the United
40States, provided that access to records similar to state summary
P17   1criminal history information is expressly authorized by a statute
2of the United States, other states, or possessions or territories of
3the United States if the information is needed for the performance
4of their official duties.

5(6) To any person when disclosure is requested by a probation,
6parole, or peace officer with the consent of the subject of the state
7summary criminal history information and for purposes of
8furthering the rehabilitation of the subject.

9(7) The courts of the United States, other states, or territories
10or possessions of the United States.

11(8) Peace officers of the United States, other states, or territories
12or possessions of the United States.

13(9) To any individual who is the subject of the record requested
14if needed in conjunction with an application to enter the United
15States or any foreign nation.

16(10) (A) (i) Any public utility, as defined in Section 216 of the
17Public Utilities Code, or any cable corporation as defined in
18subparagraph (B), if receipt of criminal history information is
19needed in order to assist in employing current or prospective
20employees, contract employees, or subcontract employees who,
21in the course of their employment, may be seeking entrance to
22private residences or adjacent grounds. The information provided
23shall be limited to the record of convictions and any arrest for
24which the person is released on bail or on his or her own
25recognizance pending trial.

26(ii) If the Attorney General supplies the data pursuant to this
27paragraph, the Attorney General shall furnish a copy of the data
28to the current or prospective employee to whom the data relates.

29(iii) Any information obtained from the state summary criminal
30history is confidential and the receiving public utility or cable
31corporation shall not disclose its contents, other than for the
32purpose for which it was acquired. The state summary criminal
33history information in the possession of the public utility or cable
34corporation and all copies made from it shall be destroyed not
35more than 30 days after employment or promotion or transfer is
36denied or granted, except for those cases where a current or
37prospective employee is out on bail or on his or her own
38recognizance pending trial, in which case the state summary
39criminal history information and all copies shall be destroyed not
40more than 30 days after the case is resolved.

P18   1(iv) A violation of this paragraph is a misdemeanor, and shall
2give the current or prospective employee who is injured by the
3violation a cause of action against the public utility or cable
4corporation to recover damages proximately caused by the
5violations. Any public utility’s or cable corporation’s request for
6state summary criminal history information for purposes of
7employing current or prospective employees who may be seeking
8entrance to private residences or adjacent grounds in the course
9of their employment shall be deemed a “compelling need” as
10required to be shown in this subdivision.

11(v) This section shall not be construed as imposing any duty
12upon public utilities or cable corporations to request state summary
13criminal history information on any current or prospective
14employees.

15(B) For purposes of this paragraph, “cable corporation” means
16any corporation or firm that transmits or provides television,
17 computer, or telephone services by cable, digital, fiber optic,
18satellite, or comparable technology to subscribers for a fee.

19(C) Requests for federal level criminal history information
20received by the Department of Justice from entities authorized
21pursuant to subparagraph (A) shall be forwarded to the Federal
22Bureau of Investigation by the Department of Justice. Federal level
23criminal history information received or compiled by the
24Department of Justice may then be disseminated to the entities
25referenced in subparagraph (A), as authorized by law.

26(D) (i) Authority for a cable corporation to request state or
27federal level criminal history information under this paragraph
28shall commence July 1, 2005.

29(ii) Authority for a public utility to request federal level criminal
30history information under this paragraph shall commence July 1,
312005.

32(11) To any campus of the California State University or the
33University of California, or any four year college or university
34accredited by a regional accreditation organization approved by
35the United States Department of Education, if needed in
36conjunction with an application for admission by a convicted felon
37to any special education program for convicted felons, including,
38but not limited to, university alternatives and halfway houses. Only
39conviction information shall be furnished. The college or university
40may require the convicted felon to be fingerprinted, and any inquiry
P19   1to the department under this section shall include the convicted
2felon’s fingerprints and any other information specified by the
3department.

4(12) To any foreign government, if requested by the individual
5who is the subject of the record requested, if needed in conjunction
6with the individual’s application to adopt a minor child who is a
7citizen of that foreign nation. Requests for information pursuant
8to this paragraph shall be in accordance with the process described
9in Sections 11122 to 11124, inclusive. The response shall be
10provided to the foreign government or its designee and to the
11individual who requested the information.

12(d) Whenever an authorized request for state summary criminal
13history information pertains to a person whose fingerprints are on
14file with the Department of Justice and the department has no
15criminal history of that person, and the information is to be used
16for employment, licensing, or certification purposes, the fingerprint
17card accompanying the request for information, if any, may be
18stamped “no criminal record” and returned to the person or entity
19making the request.

20(e) Whenever state summary criminal history information is
21furnished as the result of an application and is to be used for
22employment, licensing, or certification purposes, the Department
23of Justice may charge the person or entity making the request a
24fee that it determines to be sufficient to reimburse the department
25for the cost of furnishing the information. In addition, the
26Department of Justice may add a surcharge to the fee to fund
27maintenance and improvements to the systems from which the
28information is obtained. Notwithstanding any other law, any person
29or entity required to pay a fee to the department for information
30received under this section may charge the applicant a fee sufficient
31to reimburse the person or entity for this expense. All moneys
32received by the department pursuant to this section, Sections
3311105.3 and 26190, and former Section 13588 of the Education
34Code shall be deposited in a special account in the General Fund
35to be available for expenditure by the department to offset costs
36incurred pursuant to those sections and for maintenance and
37improvements to the systems from which the information is
38obtained upon appropriation by the Legislature.

39(f) Whenever there is a conflict, the processing of criminal
40fingerprints and fingerprints of applicants for security guard or
P20   1alarm agent registrations or firearms qualification permits
2submitted pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4
3of the Business and Professions Code shall take priority over the
4processing of other applicant fingerprints.

5(g) It is not a violation of this section to disseminate statistical
6or research information obtained from a record, provided that the
7identity of the subject of the record is not disclosed.

8(h) It is not a violation of this section to include information
9obtained from a record in (1) a transcript or record of a judicial or
10 administrative proceeding or (2) any other public record if the
11inclusion of the information in the public record is authorized by
12a court, statute, or decisional law.

13(i) Notwithstanding any other law, the Department of Justice
14or any state or local law enforcement agency may require the
15submission of fingerprints for the purpose of conducting summary
16criminal history information checks that are authorized by law.

17(j) The state summary criminal history information shall include
18any finding of mental incompetence pursuant to Chapter 6
19(commencing with Section 1367) of Title 10 of Part 2 arising out
20of a complaint charging a felony offense specified in Section 290.

21(k) (1) This subdivision applies if state or federal summary
22criminal history information is furnished by the Department of
23Justice as the result of an application by an authorized agency or
24organization and the information is to be used for peace officer
25employment or certification purposes. As used in this subdivision,
26a peace officer is defined in Chapter 4.5 (commencing with Section
27830) of Title 3 of Part 2.

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

32(A) Every conviction rendered against the applicant.

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

37(C) Every arrest or detention, except for an arrest or detention
38resulting in an exoneration, provided, however, that where the
39records of the Department of Justice do not contain a disposition
P21   1for the arrest, the Department of Justice first makes a genuine effort
2to determine the disposition of the arrest.

3(D) Every successful diversion.

4(E) Every date and agency name associated with all retained
5peace officer or nonsworn law enforcement agency employee
6preemployment criminal offender record information search
7requests.

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

9(l) (1) This subdivision shall apply whenever state or federal
10summary criminal history information is furnished by the
11Department of Justice as the result of an application by a criminal
12justice agency or organization as defined in Section 13101, and
13the information is to be used for criminal justice employment,
14licensing, or certification purposes.

15(2) Notwithstanding any other law, whenever state summary
16criminal history information is initially furnished pursuant to
17paragraph (1), the Department of Justice shall disseminate the
18following information:

19(A) Every conviction rendered against the applicant.

20(B) Every arrest for an offense for which the applicant is
21presently awaiting trial, whether the applicant is incarcerated or
22has been released on bail or on his or her own recognizance
23pending trial.

24(C) Every arrest for an offense for which the records of the
25Department of Justice do not contain a disposition or did not result
26in a conviction, provided that the Department of Justice first makes
27a genuine effort to determine the disposition of the arrest. However,
28information concerning an arrest shall not be disclosed if the
29records of the Department of Justice indicate or if the genuine
30effort reveals that the subject was exonerated, successfully
31completed a diversion or deferred entry of judgment program, or
32the arrest was deemed a detention.

33(D) 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(E) Sex offender registration status of the applicant.

38(m) (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 an
P22   1authorized agency or organization pursuant to Section 1522,
21568.09, 1569.17, or 1596.871 of the Health and Safety Code, or
3any statute that incorporates the criteria of any of those sections
4or this subdivision by reference, and the information is to be used
5for employment, licensing, or certification purposes.

6(2) Notwithstanding any other provision of law, whenever state
7summary criminal history information is initially furnished
8pursuant to paragraph (1), the Department of Justice shall
9disseminate the following information:

10(A) Every conviction of an offense rendered against the
11 applicant.

12(B) Every arrest for an offense for which the applicant is
13presently awaiting trial, whether the applicant is incarcerated or
14has been released on bail or on his or her own recognizance
15pending trial.

16(C) Every arrest for an offense for which the Department of
17Social Services is required by paragraph (1) of subdivision (a) of
18Section 1522 of the Health and Safety Code to determine if an
19applicant has been arrested. However, if the records of the
20Department of Justice do not contain a disposition for an arrest,
21the Department of Justice shall first make a genuine effort to
22determine the disposition of the arrest.

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

24(3) Notwithstanding the requirements of the sections referenced
25in paragraph (1) of this subdivision, the Department of Justice
26shall not disseminate information about an arrest subsequently
27deemed a detention or an arrest that resulted in either the successful
28completion of a diversion program or exoneration.

29(n) (1) This subdivision shall apply whenever state or federal
30summary criminal history information, to be used for employment,
31licensing, or certification purposes, is furnished by the Department
32of Justice as the result of an application by an authorized agency,
33organization, or individual pursuant to any of the following:

34(A) Paragraph (10) of subdivision (c), when the information is
35to be used by a cable corporation.

36(B) Section 11105.3 or 11105.4.

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

38(D) Any statute that incorporates the criteria of any of the
39statutory provisions listed in subparagraph (A), (B), or (C), or of
40this subdivision, by reference.

P23   1(2) With the exception of applications submitted by
2transportation companies authorized pursuant to Section 11105.3,
3and notwithstanding any other law, whenever state summary
4criminal history information is initially furnished pursuant to
5paragraph (1), the Department of Justice shall disseminate the
6following information:

7(A) Every conviction rendered against the applicant for a
8violation or attempted violation of any offense specified in
9subdivision (a) of Section 15660 of the Welfare and Institutions
10Code. However, with the exception of those offenses for which
11registration is required pursuant to Section 290, the Department
12of Justice shall not disseminate information pursuant to this
13subdivision unless the conviction occurred within 10 years of the
14date of the agency’s request for information or the conviction is
15over 10 years old but the subject of the request was incarcerated
16within 10 years of the agency’s request for information.

17(B) Every arrest for a violation or attempted violation of an
18offense specified in subdivision (a) of Section 15660 of the Welfare
19and Institutions Code for which the applicant is presently awaiting
20trial, whether the applicant is incarcerated or has been released on
21bail or on his or her own recognizance pending trial.

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

23(o) (1) This subdivision shall apply whenever state or federal
24summary criminal history information is furnished by the
25Department of Justice as the result of an application by an
26authorized agency or organization pursuant to Section 379 or 550
27of the Financial Code, or any statute that incorporates the criteria
28of either of those sections or this subdivision by reference, and the
29information is to be used for employment, licensing, or certification
30purposes.

31(2) Notwithstanding any other law, whenever state summary
32criminal history information is initially furnished pursuant to
33paragraph (1), the Department of Justice shall disseminate the
34following information:

35(A) Every conviction rendered against the applicant for a
36violation or attempted violation of any offense specified in Section
37550 of the Financial Code.

38(B) Every arrest for a violation or attempted violation of an
39offense specified in Section 550 of the Financial Code for which
40the applicant is presently awaiting trial, whether the applicant is
P24   1incarcerated or has been released on bail or on his or her own
2recognizance pending trial.

3(p) (1) This subdivision shall apply whenever state or federal
4criminal history information is furnished by the Department of
5Justice as the result of an application by an agency, organization,
6or individual not defined in subdivision (k), (l), (m), (n), or (o), or
7by a transportation company authorized pursuant to Section
811105.3, or any statute that incorporates the criteria of that section
9or this subdivision by reference, and the information is to be used
10for employment, licensing, or certification purposes.

11(2) Notwithstanding any other law, whenever state summary
12criminal history information is initially furnished pursuant to
13paragraph (1), the Department of Justice shall disseminate the
14following information:

15(A) Every conviction rendered against the applicant.

16(B) Every arrest for an offense for which the applicant is
17presently awaiting trial, whether the applicant is incarcerated or
18has been released on bail or on his or her own recognizance
19pending trial.

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

21(q) All agencies, organizations, or individuals defined in
22subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
23Department of Justice for subsequent notification pursuant to
24Section 11105.2. This subdivision shall not supersede sections that
25mandate an agency, organization, or individual to contract with
26the Department of Justice for subsequent notification pursuant to
27Section 11105.2.

28(r) This section does not require the Department of Justice to
29cease compliance with any other statutory notification
30requirements.

31(s) The provisions of Section 50.12 of Title 28 of the Code of
32Federal Regulations are to be followed in processing federal
33criminal history information.

34(t) Whenever state or federal summary criminal history
35information is furnished by the Department of Justice as the result
36of an application by an authorized agency, organization, or
37individual defined in subdivisions (k) to (p), inclusive, and the
38information is to be used for employment, licensing, or certification
39purposes, the authorized agency, organization, or individual shall
40expeditiously furnish a copy of the information to the person to
P25   1whom the information relates if the information is a basis for an
2adverse employment, licensing, or certification decision. When
3furnished other than in person, the copy shall be delivered to the
4last contact information provided by the applicant.

5(u) State summary criminal history information compiled by
6the Attorney General and disseminated pursuant to this section
7shall exclude any charge or conviction for which relief has been
8granted pursuant to Section 236.24 or 236.25.

9

SEC. 9.  

No reimbursement is required by this act pursuant to
10Section 6 of Article XIII B of the California Constitution because
11the only costs that may be incurred by a local agency or school
12district will be incurred because this act creates a new crime or
13infraction, eliminates a crime or infraction, or changes the penalty
14for a crime or infraction, within the meaning of Section 17556 of
15the Government Code, or changes the definition of a crime within
16the meaning of Section 6 of Article XIII B of the California
17Constitution.



O

    97