BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1762


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          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