BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                    AB 1762


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          ASSEMBLY THIRD READING


          AB  
          1762 (Campos)


          As Amended  May 31, 2016


          Majority vote


           ------------------------------------------------------------------ 
          |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         |                    |
          |                |     |HernŠndez, Holden,    |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Weber, Wood           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          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