BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1762


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          Date of Hearing:  March 29, 2016
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                     1762 (Campos) - As Introduced  February 2, 2016


                       As Proposed to be Amended in Committee


          SUMMARY:  Allows 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.  
          Specifically, this bill:  



          1)Allows 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. 

          2)Provides, if the application is granted, that the court shall  
            have all records in the case sealed and mandates release of  
            the defendant from all penalties and disabilities, as  
            provided. 



          3)Defines "human trafficking victim" and "nonviolent crime" for  
            these purposes as follows:









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             a)   "Human trafficking victim" means "a person who is a  
               victim of labor trafficking, sex trafficking, or  
               trafficking of a minor."  

             b)   "Nonviolent crime" means "any crime or offense other  
               than murder, attempted murder, voluntary manslaughter,  
               mayhem, kidnaping, rape, robbery, arson, carjacking, or any  
               other violent felony as defined."



             c)   Specifies a procedure for victims to apply to the court  
               to have their convictions vacated.  The procedure is  
               specified as follows:  



               i)     Provides that any individual convicted of a  
                 nonviolent crime committed while that individual was a  
                 human trafficking victim may apply to the court in which  
                 the conviction was entered to vacate the conviction at  
                 any time after it is entered. 

               ii)    Requires that the court grant the application on a  
                 finding that the applicant's participation in the offense  
                 on which the applicant was convicted was a direct result  
                 of the applicant being a human trafficking victim.



               iii)   Provides that the application shall identify the  
                 applicant, the offense for which vacatur is sought, and  
                 the court in which the conviction was entered. The  
                 applicant shall describe in the application all the  
                 available grounds and evidence for vacatur of the  
                 conviction known to the applicant.



               iv)    Allows the defendant applying for vacatur to submit  








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                 evidence containing personal identify information under  
                 seal along with a statement under penalty of perjury  
                 confirming his or her identity. 



               v)     Provides that the state or local prosecutorial  
                 agency shall have 30 days for the date of receipt of  
                 service to oppose the application once the application  
                 and all relevant information has been served by the  
                 agency; provides that if opposition to the application is  
                 not filed, the court shall deem the application unopposed  
                 and shall grant the application; and specifies that if  
                 the application is opposed, the court shall hold a  
                 hearing on the application.



               vi)    Provides that if the court finds, by clear and  
                 convincing evidence, that the applicant's participation  
                 in the offense on which the conviction was based was a  
                 direct result of the applicant being a victim of human  
                 trafficking, the court shall grant the application and  
                 vacate the conviction, strike the adjudication of guilt,  
                 and order the specified relief and may also take  
                 additional action and grant additional relief as it deems  
                 appropriate under the circumstances.



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



               viii)  Specifies that in making a determination on an  








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                 application the court may consider any evidence it deems  
                 of sufficient credibility and probative value, including  
                 the sworn statement of the applicant. The statement,  
                 alone, is sufficient evidence to support the vacating of  
                 a conviction, provided the court finds that the statement  
                 is credible. Evidence in support of granting an  
                 application may also include, but is not limited to, all  
                 of the following:



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

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



               ix)    Provides that the court shall grant an application  
                 if the conviction or adjudication was based on a crime  
                 constituting or arising from a commercial sex act,  
                 including solicitation for prostitution or loitering with  
                 intent to commit prostitution, upon a finding that the  
                 applicant was under the age of 18 years at the time of  
                 the offense on which the conviction is based.



          EXISTING LAW:  








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          1)Provides if a defendant has been convicted of solicitation or  
            prostitution, and if the defendant has completed any term of  
            probation for that conviction, the defendant may petition the  
            court for relief. If the defendant can establish by clear and  
            convincing evidence that the conviction was the result of his  
            or her status as a victim of human trafficking, the court may  
            issue an order that does all of the following:  (Pen. Code,   
            1203.49.)

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

             b)   Order specified expungement relief; and

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

          2)Allows a court to set aside a conviction of a person who has  
            fulfilled the conditions of probation for the entire period of  
            probation, or has been discharged prior to the termination of  
            the period of probation, or who the court in its discretion  
            and the interests of justice, determines that the person  
            should be granted relief, provided that the person is not then  
            serving a sentence for any other offense, is not on probation  
            for any other offense, and is not being charged with any other  
            offense.  (Pen. Code,  1203.4, subd. (a).)

          3)Provides that the relief pursuant to Penal Code Section 1203.4  
            does not relieve the petitioner of the obligation to disclose  
            the conviction in response to any direct question contained in  
            any questionnaire or application for public office, for  
            licensure by any state or local agency, or for contracting  
            with the California State Lottery Commission.  (Pen. Code,   
            1203.4, subd. (a).)

          4)Provides that a person who was under the age of 18 at the time  
            of commission of a misdemeanor and is eligible for, or has  
            previously received expungement relief, may petition the court  
            for an order sealing the record of conviction and other  








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            official records in the case, including records of arrests  
            resulting in the criminal proceeding and records relating to  
            other offenses charged in the accusatory pleading, whether the  
            defendant was acquitted or charges were dismissed.  Thereafter  
            the conviction, arrest, or other proceeding shall be deemed  
            not to have occurred, and the petitioner may answer  
            accordingly any question relating to their occurrence.  (Pen.  
            Code,  1203.45.)

          5)States that a person who was adjudicated a ward of the court  
            for the commission of a violation of specified provisions  
            prohibiting prostitution may petition a court to have his or  
            her records sealed as these records pertain to the  
            prostitution offenses without showing that he or she has not  
            been subsequently convicted of a felony or misdemeanor  
            involving moral turpitude, or that rehabilitation has been  
            attained.  This relief is not available to a person who paid  
            money or any other valuable thing, or attempted to pay money  
            or any other valuable thing, to any person for the purpose of  
            prostitution as defined.  (Pen. Code,  1203.47.)

          6)States that any person who was under the age of 18 when he or  
            she was arrested for a misdemeanor, may petition the court in  
            which the proceedings occurred or, if there were no court  
            proceedings, the court in whose jurisdiction the arrest  
            occurred, for an order sealing the records in the case,  
            including any records of arrest and detention, in certain  
            circumstances.  (Penal Code,  851.7.) 

          7)Allows in certain cases, a person who has reached the age of  
            18 years to petition the juvenile court for sealing of his or  
            her juvenile record.  (Welf. & Inst. Code,  781.)

          8)Provides that any person who deprives or violates the personal  
            liberty of another with the intent to obtain forced labor or  
            services, is guilty of human trafficking and shall be punished  
            by imprisonment in the state prison for 5, 8, or 12 years and  
            a fine of not more than $500,000.  (Pen. Code,  236.1, subd.  
            (a).) 

          9)States that any person who deprives or violates the personal  
            liberty of another with the intent to effect or maintain a  








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            violation of specified sex crimes is guilty of human  
            trafficking and shall be punished by imprisonment in the state  
            prison for 8, 14, or 20 years and a fine of not more than  
            $500,000.  (Pen. Code,  236.1, subd. (b).)

          10)Provides that DOJ shall maintain state summary criminal  
            history information and authorizes DOJ to furnish state  
            summary criminal history information to statutorily authorized  
            entities for specified purposes including employment and  
            licensing.  (Pen. Code,  11105.6.)

          11)Prohibits an employer, whether a public agency or private  
            individual or corporation, from asking an applicant for  
            employment to disclose, through any written form or verbally,  
            information concerning an arrest or detention that did not  
            result in conviction, or information concerning a referral to,  
            and participation in, any pretrial or posttrial diversion  
            program.  Nor shall any employer seek from any source  
            whatsoever, or utilize, as a factor in determining any  
            condition of employment including hiring, promotion,  
            termination, or any apprenticeship training program or any  
            other training program leading to employment, any record of  
            arrest or detention that did not result in conviction, or any  
            record regarding a referral to, and participation in, any  
            pretrial or posttrial diversion program.  Nothing in this  
            section shall prevent an employer from asking an employee or  
            applicant for employment about an arrest for which the  
            employee or applicant is out on bail or on his or her own  
            recognizance pending trial.  This provision does not apply to  
            employment of peace officers. (Lab. Code,  432.7, subds. (a)  
            & (e).)

          12)States that all persons are capable of committing crimes  
            except persons (unless the crime be punishable with death) who  
            committed the act or made the omission charged under threats  
            or menaces sufficient to show that they had reasonable cause  
            to and did believe their lives would be endangered if they  
            refused. (Pen. Code,  26.)

          FISCAL EFFECT:  Unknown










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          COMMENTS: 


          1)Author's Statement:  "Human trafficking is the most expansive  
            criminal activity devastating lives across the country and the  
            world.


            "Victims of human trafficking include children and adults, men  
            and women, documented and undocumented. Often times these  
            victims have been kidnapped, forced into labor or sexual  
            exploitation, and forced to commit crimes by their  
            traffickers.


            "Current law does not provide an adequate remedy for victims  
            who were convicted for non-violent crimes they were forced to  
            commit by their trafficker. Without a legal remedy, victims of  
            trafficking continue to have a criminal record and are  
            prevented from having access to basic services and programs  
            such as the ability to obtain a student loan, receive housing  
            assistance, or obtain employment.


            "It is our responsibility to help pull trafficking victims  
            from their abusive environments, as well as to assist in  
            paving a clear path for recovery. AB 1762 would ensure that  
            trafficking victims convicted of non-violent crimes their  
            trafficker forced them to commit could have their criminal  
            records cleared. In doing so, this bill will help dismantle  
            the institutional barriers that these victims encounter  
            throughout their lives."


          2)Amendments to be Taken in Committee Address the Lack of an  
            Expressed Burden of Proof:  This bill, as originally drafted,  
            fails to assign a burden of proof to the applicant seeking to  
            vacate his or her prior nonviolent conviction.  Similar  
            legislation has required "clear and convincing evidence" when  
            a petitioner makes a request for an expungement of a  
            prostitution offense because they were a victim of human  
            trafficking.  (Pen. Code,  1203.49.)  The amendments to be  








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            taken in committee establish the same burden of proof that was  
            adopted in AB 1585 (Alejo), Chapter 708 of the Statutes of  
            2014 which enacted Pen. Code  1203.49.  The burden of proof  
            established in the amendments is "clear and convincing  
            evidence."  


          3)Duress and Necessity: This bill provides for vacating  
            nonviolent criminal offenses that were committed by human  
            trafficking victims at the behest of their traffickers.  Under  
            current law, if a victim of human trafficking is forced to  
            commit a crime by their trafficker then they have the defenses  
            of duress and necessity made available to them.  "All persons  
            are capable of committing crimes except persons (unless the  
            crime be punishable with death) who committed the act or made  
            the omission charged under threats or menaces sufficient to  
            show that they had reasonable cause to and did believe their  
            lives would be endangered if they refused." (Pen. Code,   
            26.).


             a)   Duress:  The defendant is not guilty of a crime if he or  
               she acted under duress. The defendant acted under duress  
               if, because of threat or menace, he or she believed that  
               his or her or someone else's life would be in immediate  
               danger if  he or she refused a demand or request to commit  
               the crime. The demand or request may have been expressed or  
               implied.  The defendant's belief must have been reasonable.  
               When deciding whether the defendant's belief was  
               reasonable, consider all the circumstances as they were  
               known to and appeared to the defendant and consider what a  
               reasonable person in the same position as the defendant  
               would have believed. CALCRIM 3402.


             b)   Necessity:  Although evidence may raise both necessity  
               and duress defenses, there is an important distinction  
               between the two concepts. With necessity, the threatened  
               harm is in the immediate future, thereby permitting a  
               defendant to balance alternative courses of conduct.  
               (People v. Condley (1977) 69 Cal.App.3d 999, 1009-1013.)   
               Necessity does not negate any element of the crime, but  








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               rather represents a public policy decision not to punish a  
               defendant despite proof of the crime. (  People v. Heath  
               (1989) 207 Cal.App.3d 892, 901  .)  The duress defense, on  
               the other hand, does negate an element of the crime. The  
               defendant does not have the time to form the criminal  
               intent because of the immediacy of the threatened harm.  
               (Ibid.)


          4)Expungement vs. Vacating a Conviction:  Defendants who have  
            successfully completed probation (including early discharge)  
            can petition the court to set aside a guilty verdict or permit  
            withdrawal of the guilty or nolo contendere plea and dismiss  
            the complaint, accusation, or information.  (Penal Code  
            Section 1203.4.)  Defendants who have successfully completed a  
            conditional sentence also are eligible to petition the court  
            for expungement relief under Penal Code Section 1203.4.   
            (People v. Bishop (1992) 11 Cal.App.4th 1125, 1129.)  Penal  
            Code Section 1203.4 also provides that the court can, in the  
            furtherance of justice, grant this relief if the defendant did  
            not successfully complete probation. (Penal Code Section  
            1203.4; see People v. McLernon (2009) 174 Cal.App.4th 569,  
            577.)



          Expungement relief is not available for convictions of certain  
            offenses.  These include most felony child molestation  
            offenses, other specific sex offenses, and a few traffic  
            offenses.  (Penal Code Sections 1203.4 and 1203.4a.)  It does  
            not prevent the conviction from being pleaded and proved just  
            like any other prior conviction in any subsequent prosecution.  
             (See People v. Diaz (1996) 41 Cal.App.4th 1424.)  

          Expungement relief pursuant to Penal Code Section 1203.4 does  
            not relieve the petitioner of the obligation to disclose the  
            conviction in response to any direct question in any  
            questionnaire or application for public office or for  
            licensure by any state or local agency.  Expungement relief  
            pursuant to Penal Code Section 1203.4a, on the other hand,  
            does not explicitly require the person to disclose the  
            conviction in an application for a state license or public  








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            office.  Penal Code Section 1203.4a is only available for  
            defendants convicted of a misdemeanor and not granted  
            probation.

          By regulation, a private employer may not ask a job applicant  
            about any misdemeanor conviction dismissed under Penal  
            Code1203.4.  (2 Cal. Code of Regs. Section 7287.4(d).])Also,  
            under Labor Code Section 432.7, a private or public employer  
            may not ask an applicant for employment to disclose  
            information concerning an arrest or detention that did not  
            result in conviction, or information concerning a referral to,  
            and participation in, any pretrial or posttrial diversion  
            program.  However, if the employer is an entity statutorily  
            authorized to request criminal background checks on  
            prospective employees, the background check would reveal the  
            expunged conviction with an extra entry noting the dismissal  
            on the record.
            This bill actually proposes vacating convictions of human  
            trafficking victims.  By vacating the conviction, the remedy  
            is actually more forceful than an expungement.  Unlike an  
            expungement, a vacatur effectively means that the conviction  
            never occurred.  Under current California law and criminal  
            procedure, motions to vacate a conviction are generally done  
            through the appellate process.  This bill takes a novel  
            approach of setting up a statutory framework for vacating  
            convictions for a particular class of individuals.   
            Essentially, this bill creates parity between human  
            trafficking victims and those individuals who are found  
            factually innocent of crimes they never committed.  


          5)Current Expungement Law Related to Prostitution:  Under  
            current California law a defendant who has been convicted of  
            solicitation or prostitution may petition the court for, and  
            the court may set aside the conviction if the defendant can  
            show that the conviction was the result of his/her status as a  
            victim of human trafficking.  This provision of law is the  
            result of the passage of AB 1585 (Alejo), Chapter 708 of the  
            Statutes of 2014.  The relief set forth in AB 1585 was limited  
            to expungement of prostitution offenses.  This bill broadly  
            expands upon these remedies to include most non-violent  
            crimes.  








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          6)Inclusion of Labor Trafficking:  Unlike similar legislation in  
            the area of human trafficking, this bill recognized that human  
                                                 trafficking does not only include sex trafficking.  Labor  
            trafficking victims are often not included in policy making  
            discussions about services or benefits.  This bill is broad in  
            its application and permits labor trafficking victims to also  
            seek the same remedies granted to sex trafficking victims.   
            Under this bill, if a labor trafficking victim can show that  
            they were forced to commit a non-violent crime because they  
            were a victim of human trafficking they would be entitled to  
            the same remedies granted to sex trafficking victims, to  
            vacate their convictions.  


          7)Human Trafficking Generally:  Human trafficking involves the  
            recruitment, transportation or sale of people for forced  
            labor.  Through violence, threats and coercion, victims are  
            forced to work in, among other things, the sex trade, domestic  
            labor, factories, hotels and agriculture.  According to the  
            January 2005 United States Department of State's Human  
            Smuggling and Trafficking Center report, "Fact Sheet:   
            Distinctions Between Human Smuggling and Human Trafficking",  
            there is an estimated 600,000 to 800,000 men, women and  
            children trafficked across international borders each year.   
            Of these, approximately 80% are women and girls and up to 50%  
            are minors.  A recent report by the Human Rights Center at the  
            University of California, Berkeley cited 57 cases of forced  
            labor in California between 1998 and 2003, with over 500  
            victims.  The report, "Freedom Denied", notes most of the  
            victims in California were from Thailand, Mexico, and Russia  
            and had been forced to work as prostitutes, domestic slaves,  
            farm laborers or sweatshop employees.  [University of  
            California, Berkeley Human Rights Center, "Freedom Denied:   
            Forced Labor in California" (February, 2005).]  According to  
            the author: 

          "While the clandestine nature of human trafficking makes it  
            enormously difficult to accurately track how many people are  
            affected, the United States government estimates that about  
            17,000 to 20,000 women, men and children are trafficked into  








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            the United States each year, meaning there may be as many as  
            100,000 to 200,000 people in the United States working as  
            modern slaves in homes, sweatshops, brothels, agricultural  
            fields, construction projects and restaurants."

            In 2012, Californians voted to pass Proposition 35, which  
            modified many provisions of California's already tough human  
            trafficking laws.  The proposition increased criminal  
            penalties for human trafficking, including prison sentences up  
            to 15-years-to-life and fines up to $1,500,000.  Additionally,  
            the proposition specified that the fines collected are to be  
            used for victim services and law enforcement.  Proposition 35  
            requires persons convicted of trafficking to register as sex  
            offenders.  Proposition 35 prohibits evidence from being used  
            against a victim in court proceedings if that victim engaged  
            in sexual conduct.  Additionally, the proposition lowered the  
            evidential requirements for showing of force in cases of  
            minors.  

             a)   Trafficking Victims Protection Act of 2000 (22 USC  
               Sections 7101 et seq.):  In October 2000, the Trafficking  
               Victims Protection Act of 2000 (TVPA) was enacted and is  
               comprehensive, addressing the various ways of combating  
               trafficking, including prevention, protection and  
               prosecution.  The prevention measures include the  
               authorization of educational and public awareness programs.  
                Protection and assistance for victims of trafficking  
               include making housing, educational, health-care, job  
               training and other federally funded social service programs  
               available to assist victims in rebuilding their lives.   
               Finally, the TVPA provides law enforcement with tools to  
               strengthen the prosecution and punishment of traffickers,  
               making human trafficking a federal crime.

             b)   Recent Update to Human Trafficking Laws:  In 2012,  
               Californians voted to pass Proposition 35, which modified  
               many provisions of California's already tough human  
               trafficking laws.  Specifically, Proposition 35 increased  
               criminal penalties for human trafficking offenses,  
               including prison sentences up to 15-years-to-life and fines  
               up to $1.5 million.  The proposition specified that the  
               fines collected are to be used for victim services and law  








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               enforcement.  In criminal trials, the proposition prohibits  
               the use of evidence that a person was involved in criminal  
               sexual conduct (such as prostitution) to prosecute that  
               person for that crime if the conduct was a result of being  
               a victim of human trafficking, and makes evidence of sexual  
               conduct by a victim of human trafficking inadmissible for  
               the purposes of attacking the victim's credibility or  
               character in court.  The proposition lowered the  
               evidentiary requirements for showing of force in cases of  
               minors. 

             Proposition 35 also requires persons convicted of human  
               trafficking to register as sex offenders and expanded  
               registration requirements by requiring registered sex  
               offenders to provide the names of their internet providers  
               and identifiers, such as e-mail addresses, user names, and  
               screen names, to local police or sheriff's departments.   
               After passage of Proposition 35, plaintiffs American Civil  
               Liberties Union and Electronic Frontier Foundation filed a  
               law suit claiming that these provisions unconstitutionally  
               restricts the First Amendment rights of registered sex  
               offenders in the states.  A United States District Court  
               judge granted a preliminary injunction prohibiting the  
               implementation or enforcement of Proposition 35's  
               provisions that require registered sex offenders to provide  
               certain information concerning their Internet use to law  
               enforcement.  (Doe v. Harris (N.D. Cal., Jan. 11, 2013, No.  
               C12-5713) 2013 LEXIS 5428.)  
              
          8)Argument in Support:  According to the Coalition to Abolish  
            Slavery and Trafficking (CAST), "AB 1762 ensures that all  
            trafficking survivors - whether sex or labor, adult or child -  
            have an opportunity to fully expunge their criminal record of  
            acts committed during their trafficking experience,  
            facilitating healing and opening doors to economic  
            self-sufficiency.  


            "A community of trafficking survivors, CAST's Survivor  
            Advisory Caucus empowers survivors of human trafficking (both  
            sex and labor) to raise awareness and create policy change in  
            the fight against modern-day slavery.  Members of the Survivor  








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            Advisory Caucus recognize that many trafficking survivors  
            encounter legal obstacles on their journey to full  
            independence.  The National Survivor Network Survey indicates  
            that 80% of trafficking survivors had lost or not received  
            employment because of their criminal conviction and 50%  
            suffered barriers to accessing housing.  That was the case for  
            Cindy (not her real name), a survivor of sex trafficking who  
            was forced to prostitute herself and commit other crimes under  
            the threat of harm to her family.  She was incarcerated due to  
            these crimes and when she was released, she struggled to get  
            custody of her children because of her prior convictions.   
            Housing was continuously denied to her.  Ten years later she  
            is still at risk of becoming homeless.  


            "Criminal convictions create a virtual steel wall for  
            trafficking survivors, compounding trauma by preventing us  
            from securing the vital resources we need to move forward with  
            our recovery.  Furthermore, trafficking victims often have  
            convictions unrelated to prostitution; expunging only  
            prostitution charges will not fully address our legal  
            challenges.  Having a criminal record transforms into shackles  
            that bind us to the past, preventing educational, financial  
            and psychological growth.  


            "AB 1762 enables human trafficking victims to vacate  
            convictions for all non-violent crimes committed as a direct  
            result of human trafficking.  It adjusts the standard of proof  
            required under current law and creates presumptions for  
            proving the trafficking experience to avoid re-traumatizing  
            trafficking victims seeking to clear their record.  AB 1762  
            also fully clears criminal records, as it extends to  
            trafficking victims the same standard of sealing arrest and  
            court records currently provided for factually innocent people  
            wrongly convicted of crimes.  In addition, AB 1762 explicitly  
            permits human trafficking victims to state that they have  
            never been arrested for, charged with or convicted of the  
            crime in question and prohibits the denial of rights or  
            benefits, including employment and housing benefits, based on  
            their arrest, charge or conviction."









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          9)Argument in Opposition:  According to the California District  
            Attorneys Association, "This proposal would create a class of  
            people who would be presumptively exempted from liability for  
            the crimes they commit, as long as the offense 'was a direct  
            result of the applicant being a human trafficking victim.'   
            Traditional defenses to criminal liability are fully adequate  
            to address the issues that victims of trafficking may bring to  
            excuse or justify their criminal conduct.  


            "We believe that AB 1762 would promote criminal conduct by  
            creating an incentive for traffickers to enlist their victims  
            to commit crimes, knowing full well that the people they press  
            into service will not be held responsible for their actions.   
            This proposal would allow a defendant whose claim was heard  
            and rejected at trial to return to court immediately after  
            conviction to vacate his or her conviction, notwithstanding  
            the fact that the trier of fact heard and rejected the  
            defense.  


            "In addition to being poor public policy, the bill fails to  
            provide courts or counsel with any guidance as to how these  
            claims are to be evaluated, and does not even include a burden  
            of proof.  Meanwhile, it amounts to a legislative attempt to  
            strong-arm judges into granting these applications by  
            requiring denials to be in writing.  The applicants need not  
            even show that they acted under duress to succeed in vacating  
            their convictions.  


            "This bill could create speedy exonerations for a wide variety  
            of felony and misdemeanor offenses, including registerable sex  
            offenses, residential burglary, weapons possession, every  
            variety of theft, vehicular manslaughter, elder abuse, child  
            abuse, and a great many crimes of violence not listed in Penal  
            Code section 667.5(c).  


            "Further, crime victims with restitution orders, stay-away  
            orders, and other expectations of protection would be left  








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            unprotected.  


            "Two years ago, AB 1585 (chapter 708, Statutes of 2014) was  
            enacted with near unanimous support, as a measured,  
            fair-minded and reasonable path allowing trafficking victims  
            to clean the slate without inflicting any harm on crime  
            victims."


          10)Related Legislation:


             a)   AB 1760 (Santiago), requires police officers to make a  
               determination if a minor arrestee is victim of human  
               trafficking or has engaged in a commercial sex act.  If  
               such a determination is made, provides the minor with  
               immunity from arrest and prosecution for non-violent  
               offenses committed as a direct result of being a trafficked  
               and immunity from arrest and prosecution for commercial sex  
               acts.  AB 1760 is set for hearing in this committee on  
               April 5, 2016.  


             b)   AB 1761 (Weber) creates an affirmative defense against  
               any nonviolent crime committed as a direct result of being  
               a human trafficking victim, and would make any unproven  
               theories regarding the effect of human trafficking on human  
               trafficking victims admissible in criminal action.  AB 1761  
               is awaiting a hearing in this committee.  


             c)   SB 823 (Block), creates a presumption that if a  
               defendant or person who has been arrested, convicted, or  
               adjudicated a ward of the juvenile court for committing any  
               offense while he or she was a victim of human trafficking  
               shows evidence that the arrest, conviction, or adjudication  
               was the result of his or her status as a victim of human  
               trafficking, the defendant or person has met the  
               requirements for relief under these provisions.  SB 823 is  
               awaiting a hearing in the Senate Public Safety Committee.









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          11)Prior Legislation:

             a)   AB 1585 (Alejo), Chapter, 708, Statutes of 2014,  
               provides that a defendant who has been convicted of  
               solicitation or prostitution may petition the court to set  
               aside the conviction if the defendant can establish by  
               clear and convincing evidence that the conviction was the  
               result of his or her status as a victim of human  
               trafficking.  

             b)   AB 2040 (Swanson), Chapter 197, Statutes of 2012,  
               provides that a person who was adjudicated a ward of the  
               court for the commission of a violation of specified  
               provisions prohibiting prostitution may petition a court to  
               have his or her records sealed as these records pertain to  
               the prostitution offenses without showing that he or she  
               has not been subsequently convicted of a felony or  
               misdemeanor involving moral turpitude, or that  
               rehabilitation has been attained.  

             c)   AB 1940 (Hill), of the 2011-12 Legislative Session,  
               would have authorized a court to seal a record of  
               conviction for prostitution based on a finding that the  
               petitioner is a victim of human trafficking, that the  
               offense is the result of the petitioner's status as a  
               victim of that crime, and that the petitioner is therefore  
               factually innocent.  AB 1940 was held on the Assembly  
               Committee on Appropriations' Suspense File.

             d)   AB 702 (Swanson), of the 2011-12 Legislative Session,  
               would have allowed a person adjudicated a ward of the court  
               or a person convicted of prostitution to have his or her  
               record sealed or conviction expunged without showing that  
               he or she has not been subsequently convicted or that he or  
               she has been rehabilitated.  AB 702 was never heard by this  
               Committee and was returned to the Chief Clerk.

             e)   AB 22 (Lieber), Chapter 240, Statutes of 2005, created  
               the California Trafficking Victims Protection Act, which  
               established civil and criminal penalties for human  
               trafficking and allowed for forfeiture of assets derived  








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               from human trafficking.  In addition, the Act required law  
               enforcement agencies to provide Law Enforcement Agency  
               Endorsement to trafficking victims, providing trafficking  
               victims with protection from deportation and created the  
               human trafficking task force.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Coalition to Abolish Slavery and Trafficking (Sponsor)


          American Civil Liberties Union 


          California Partnership to End Domestic Violence


          California Public Defenders Association  


          Conference of California Bar Associations


          Legal Services for Prisoners with Children  


          National Association of Social Workers 


          Opening Doors, Inc. 




          Opposition








                                                                    AB 1762


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          Alameda County District Attorney


          California District Attorneys Association


          Sacramento County District Attorney  


          
          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744