BILL ANALYSIS Ó
AB 1762
Page 1
Date of Hearing: May 11, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
1762 (Campos) - As Amended April 5, 2016
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill allows an individual convicted of a nonviolent crime,
as defined, while he or she was a human trafficking victim to
apply to the court to vacate the conviction at any time after it
was entered. The prosecutorial agency has 30 days, from the
date of receipt of service of complete application, to oppose
the application, if opposition to the application is not filed,
the court is required to deem the application unopposed and must
grant the application; but if the application is opposed, the
court is required to hold a hearing on the application. If the
defendant prevails, the court is required to seal the records
and release the defendants from all penalties and disabilities,
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and the requirement to disclose the conviction of the crime.
If the court denies the application because the evidence is
insufficient to establish grounds for vacatur, the denial must
be without prejudice. The court is required to state its reasons
in writing and, if those reasons are curable deficiencies, the
court is required to allow the applicant a reasonable time
period to cure the deficiencies upon which the court based the
denial.
FISCAL EFFECT:
Unknown costs to the courts, in the low millions (GF), since
many of these request to vacate will be for misdemeanors and low
level felonies. The Judicial Council expects the courts to
receive thousands of cases, and some of them will be without
merit. However, a full hearing will be prepared for every
application, unless the prosecutorial agency concurs with the
applicant.
COMMENTS:
1)Purpose/Background. According to the author, "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"
This bill provides for vacating nonviolent criminal offenses
that were committed by human trafficking victims at the behest
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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. Current law states, "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."
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.
Defendants who have successfully completed a conditional
sentence are eligible to petition the court for expungement
relief. By vacating the conviction, the remedy in AB 1672 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.
2)Human trafficking. 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
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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, "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 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."
3)Support. According to the Coalition to Abolish Slavery and
Trafficking (CAST), "AB 1762 ensures that all trafficking
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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.
4)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."
5)Related Legislation:
a) AB 1675 (Stone), also on today's calendar, provides
that a minor who commits the crimes of solicitation,
prostitution, or loitering with the intent to commit
prostitution, is subject to the jurisdiction of the
juvenile dependency court rather than delinquency court.
b) AB 1760 (Santiago), also on today's calendar, directs a
peace officer who determines that a minor is a victim of
human trafficking to report such abuse, consult with a
child welfare worker about a safe placement for the minor,
and transport the minor to such placement, unless the minor
is otherwise arrested..
c) SB 823 (Block), in Senate Appropriations' Suspense
file, creates a presumption that if a defendant or person
who has been arrested, convicted, or adjudicated a ward of
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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.
1)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 1940 (Hill), 2012, 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 in this committee's Suspense file.
c) 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.
d) 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.
Analysis Prepared by:Pedro Reyes / APPR. / (916)
319-2081