BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1762 Hearing Date: June 28, 2016
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|Author: |Campos |
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|Version: |May 31, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Human Trafficking: Victims: Vacating Convictions
HISTORY
Source: The Coalition to Abolish Slavery and Trafficking
National Council of Jewish Women
Prior Legislation:SB 823 (Block) in Assembly Public Safety 2016
AB 1585 (Alejo) - Ch.708, Stats. of 2014
Support: ACT for Women and Girls; American Academy of
Pediatrics, California; American Association of
University Women, Long Beach; American Civil Liberties
Union; The American Medical Women's Association;
California Church IMPACT; California Public Defenders
Association; California Women's Law Center; City of
Los Angeles; Clergy and Laity United for Economic
Justice; Coalition for Humane Immigrant Rights of Los
Angeles; Conference of California Bar Associations;
County of Santa Cruz; Legal Services for Prisoners
with Children; The Jewish Public Affairs Committee of
California; The Los Angeles Alliance for a New
Economy; National Association of Social Workers;
National Council of Jewish Women-California; Religious
Action Center of Reform Judaism
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Opposition:Alameda County District Attorney; California District
Attorneys Association; Judicial Council of California;
Los Angeles County District Attorney's Office; San
Diego County District Attorney
Assembly Floor Vote: 53 - 19
PURPOSE
The purpose of this bill is to allow 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 at any
time after it was entered.
Existing law 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. (Penal Code § 1203.4 (a).)
Existing law 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. The conviction can
be alleged in any subsequent criminal prosecution. If the
underlying conviction bars a person from possessing a firearm,
the dismissal of the conviction does not eliminate that
prohibition. (Penal Code § 1203.4 (a),(b).)
Existing law 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
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thing, to any person for the purpose of prostitution as defined.
(Penal Code § 1203.47.)
Existing law provides that a person who was under the age of 18
at the time of a 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 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. (Penal Code § 1203.45.)
Existing law 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.)
Existing law 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.)
Existing law 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. (Penal Code §
236.1(a).)
Existing law states that any person who deprives or violates the
personal liberty of another with the intent to effect or
maintain a 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. (Penal Code § 236.1 (b).)
Existing law provides that the Department of Justice (DOJ) shall
maintain state summary criminal history information and
authorizes DOJ to furnish state summary criminal history
information to statutorily authorized entities for specified
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purposes including employment and licensing. (Penal Code
§11105.6.)
Existing law prohibits a public or private employer from asking
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 post-trial diversion program; nor shall any employer
seek from any source, or utilize, as a factor in determining any
condition or facet of employment, or any apprenticeship or other
training program leading to employment, any record of arrest or
detention that did not result in conviction, or any record
regarding any pretrial or post-trial 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. (Labor Code § 432.7(a) and (e).)
Existing law allows a court, upon making a finding that a
defendant has been convicted of solicitation or prostitution as
a result of his or her status as a victim of human trafficking,
to issue an order that does all of the following:
Sets forth a finding that the petitioner was a victim of
human trafficking when he or she committed the crime;
Orders expungement relief;
Notifies the Department of Justice (DOJ) that the
petitioner was a victim of human trafficking when he or she
committed the crime and the relief that has been ordered by
the court; and,
Prohibits DOJ from disseminating the petitioner's record
of conviction for specified licensing, employment and
certification requirements. (Penal Code § 1203.49.)
This bill 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.
This bill 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.
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This bill defines "human trafficking victim" as a person who is
a victim of labor trafficking, sex trafficking, or trafficking
of a minor."
This bill defines "nonviolent crime" as "any crime or offense
other than murder, attempted murder, voluntary manslaughter,
mayhem, kidnaping, rape, robbery, arson, carjacking, or any
other violent felony as defined."
This bill specifies a procedure for victims to apply to the
court to have their convictions vacated. The procedure is
specified as follows:
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.
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.
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.
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.
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.
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
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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.
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.
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:
o 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
o 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.
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.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
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demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Besides the psychological damage and physical harm
suffered by victims of trafficking, the often
extensive criminal records trafficking victims
frequently acquire are the most crippling legacy and
long-term barrier to recovery. The record of
convictions remains with the victim for years, and in
many states for life. The victim's criminal record
forecloses or hinders many opportunities for
employment, education and housing that former victims
would otherwise have and thereby makes a normal life
much more difficult.
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Recently, the federal government enacted incentives for
states which have vacatur laws. Section 1002 of the
Justice for Victims of Trafficking Act of 2015 authorizes
preferential grant consideration to applicants in States
that provide a process for human trafficking victims to
move to vacate any arrest or conviction for non-violent
offenses committed as a "direct result" of trafficking (a)
that creates a rebuttable presumption that any arrest or
conviction of an individual for an offense associated with
human trafficking is the result of being a victim of human
trafficking if the victim has documentation of trafficking
issued by a federal, state or local agency, (b) that
protects the identity of human trafficking victims in
courts and other public records and (c) that does not
require a victim of human trafficking to provide official
documentation in order to receive protection under the
vacatur law.
2. Duress and Necessity
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." (Penal Code, § 26.).
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.
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
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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
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.)
3. 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 office. Penal Code Section 1203.4a is only available for
defendants convicted of a misdemeanor and not granted probation.
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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 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.
4. 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, 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.
5. Support
The sponsor of this bill, the Coalition to Abolish Slavery and
Trafficking, states:
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Based on CAST experience as a service provider in
California, trafficking victims who finally escape
from their traffickers and seek to rebuild their lives
then experience the substantial barriers that criminal
convictions create on their pathway to recovery.
These hurdles include barriers to employment, housing,
public benefits, and other supportive systems. Former
trafficking victims are also often stigmatized as
criminals. As one survivor aptly puts it "even after
I was freed I still feel the invisible bonds of
criminal convictions."
Trafficking victims in California have suffered
enough. AB 1762 takes critical steps to fully
eliminate the barriers that criminal convictions
create for trafficking survivors. AB 1762 puts in
place a comprehensive system to ensure that all
trafficking survivors-both sex and labor, both adults
and children - are able to fully clear their criminal
records so that they can leave their trafficking
experience behind them. Because many survivors would
be able to expunge their criminal records after a
longer wait, CAST believes that this measure will not
increase fiscal costs beyond what is already spent on
expunging criminal convictions and might even create a
more streamline system in the long run saving the
state money.
A survey by the National Survivor network showed that
90% of trafficking victims had criminal convictions,
that 20% had been arrested more than 10 times and that
10% had been arrested more than 30 times. CAST's
records show that some victims have been arrested 30
or 40 times in a few years under the control of
traffickers. CAST has worked with one trafficking
victim who was arrested more than 200 times. Criminal
convictions for trafficking victims sometimes create
insurmountable barriers to the very support systems
that survivors need to recover. The National Survivor
Network Survey indicated that 80% of trafficking
survivors surveyed had lost or not received employment
because of their criminal convictions and 50% had
suffered barriers to accessing housing .As NSN survey
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demonstrates, criminal convictions for trafficking
victims create long-term barriers for recovery. They
leave scars that follow victims into later life and
affect them educationally, occupationally,
financially, and psychologically.
Although in the past California has taken steps to
remove convictions from prostitution from trafficking
survivors' records, many of the convictions
trafficking survivors face are not prostitution
related. Clearing only part of a criminal record is
often like not clearing the criminal record at all.
Additionally, past measures have required that
trafficking survivors have to wait to clear their
records until the terms of their probation are
complete and they have paid all fines and fees. Sine
trafficking victims have not committed these crimes,
these burdens create additional barriers to
trafficking victims' recovery and should not have to
be borne by trafficking survivors at all.
AB1762 enables human trafficking victims to vacate
convictions for all non-violent crimes they 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 so that trafficking victims are not
re-traumatized by the process of clearing their
criminal records. AB 1762 also fully clears criminal
records, as it extends to trafficking victims the same
standards of sealing arrest and court records that are
currently provided for factually innocent persons
wrongly convicted of crimes. AB 1762 also explicitly
permits human trafficking victims to state that they
have never been arrested for, charged with or
convicted of the crime in question and it prohibits
the denial of rights or benefits, including employment
and housing benefits, based on the arrest, charge or
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conviction. Finally AB 1762 creates additional
protections for minors as it establishes a conclusive
presumption that commercial sex crime convictions for
acts committed when the victim was under 18 years old
were the direct result of human trafficking, requiring
the resulting conviction to be vacated. [emphasis in
original]
6. Opposition
The California District Attorneys Association opposes this bill
stating:
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
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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).
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.
In addition to repealing the Penal Code section
created by AB 1585, this bill, by contrast, has the
potential to harm both public safety and crime victims
-- END -