BILL ANALYSIS Ó
AB 1762
Page 1
ASSEMBLY THIRD READING
AB
1762 (Campos)
As Amended May 31, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Public Safety |5-1 |Jones-Sawyer, Lopez, |Melendez |
| | |Low, Quirk, Santiago | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |14-5 |Gonzalez, Bloom, |Bigelow, Gallagher, |
| | |Bonilla, Bonta, |Jones, Obernolte, |
| | |Calderon, Daly, |Wagner |
| | |Eggman, Eduardo | |
| | |Garcia, Roger | |
| | |Hernández, Holden, | |
| | |Quirk, Santiago, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Allows an individual convicted of a nonviolent crime
while he or she was a human trafficking victim to apply to the
court to vacate the conviction if the individual has not been
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convicted of any crime after successfully completing probation,
or if probation is not granted, for two years after release from
custody. 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:
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
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human trafficking victim may apply to the court in which
the conviction was entered to vacate the conviction if
the individual has not been convicted of any crime after
successfully completing probation, or if probation is not
granted, for two years after release from custody.
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
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
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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
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
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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:
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:
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.
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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.
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.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, unknown costs to the courts, in the low millions
(General Fund), 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. At 10,000 petitions per year, the
cost to the courts would be $2.1 million. A full hearing will
be prepared for every application, unless the prosecutorial
agency concurs with the applicant.
COMMENTS: "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.
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"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."
Analysis Prepared by:
Gabriel Caswell/ PUB. S. / (916) 319-3744 FN:
0003155