BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1762 (Campos) - Human trafficking: victims: vacating
convictions
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|Version: May 31, 2016 |Policy Vote: PUB. S. 5 - 1 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 1762 would allow an individual convicted of a
nonviolent offense while he or she was a victim of human
trafficking to apply to the court to vacate the conviction if
the individual has not been convicted of any crime after
successfully completing probation, or if probation has not been
granted, for two years after release from custody.
Fiscal
Impact:
New hearings : Potentially significant to major ongoing
increase in court workload (General Fund*) to hold hearings on
applications for relief that are opposed by the state or local
prosecutorial agency. The number of hearings prompted by
opposition to applications for relief is unknown but
potentially significant. For every 250 hearings conducted
annually statewide (less than five hearings per county) could
result in increased court costs of $400,000, to $1.6 million
assuming a range of two to eight hours per hearing. To the
extent the number of hearings conducted is greater, costs
AB 1762 (Campos) Page 1 of
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could be substantially higher.
DOJ workload : Ongoing workload to the Department of Justice
(DOJ) of about $85,000 (General Fund) annually to evaluate and
interpret state summary criminal history information to
exclude any charge or conviction for which relief has been
granted pursuant to this bill.
Penalty/fee revenue loss : Potential minor loss of penalty,
fine, and fee revenue (General Fund/LocalFunds/Special Funds)
due to the mandatory relief from all penalties and
disabilities resulting from relief being granted. It is
assumed the majority of outstanding fees/fines, and
specifically Restitution, will have been paid as a condition
of probation.
*Trial Court Trust Fund
Background: 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 offense.
Orders expungement relief.
Notifies the DOJ that the petitioner was a victim of
human trafficking when he or she committed the offense and
the relief that has been ordered by the court.
Prohibits the DOJ from disseminating the petitioner's
record of conviction for specified licensing, employment,
and certification requirements. (Penal Code § 1203.49.)
This bill seeks to extend greater relief to victims of human
trafficking convicted or adjudicated for non-violent offenses
committed during the time the persons were victims of human
trafficking, as specified.
Proposed Law:
This bill would allow an individual convicted or adjudicated of
a nonviolent offense while he or she was a victim of human
trafficking to apply to the court to vacate the conviction or
set aside the determination if the individual has not been
AB 1762 (Campos) Page 2 of
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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:
Specifies a procedure for victims of human trafficking
to apply to the court to have their convictions vacated, as
follows:
o 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 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.
o Requires the court to 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.
o Provides that the application shall identify
the applicant, the offense for which vacatur is
sought, and the court in which the conviction was
entered. Requires the applicant to describe in the
application all the available grounds and evidence for
vacatur of the conviction known to the applicant.
o Allows the defendant applying for vacatur to
submit evidence containing personal identifying
information under seal along with a statement under
penalty of perjury confirming his or her identity.
o Provides that the state or local prosecutorial
agency shall have 30 days from 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.
o 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 trafficking, the court shall grant the
application and vacate the conviction, strike the
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adjudication of guilt, and order specified relief and
may also take additional action and grant additional
relief as it deems appropriate under the
circumstances.
o States that if the court denies the
application because the evidence is insufficient to
establish grounds for vacatur, the denial shall be
without prejudice. Requires the court to 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.
o 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 specified
information.
o Requires the court to 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 was
based.
o Repeals PC § 1203.49, the existing provision
of law which authorizes a court to issue an order
requiring expungement relief to a defendant convicted
of solicitation or prostitution as a result of his or
her status as a victim of human trafficking.
o Requires state summary criminal history
information compiled by the Attorney General and
disseminated pursuant to this section to exclude any
charge or conviction for which relief has been granted
pursuant to 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 determination set aside if the individual has not had a
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sustained petition for any crime or been convicted of any
crime for one year prior to the date of the application.
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.
Defines "human trafficking victim" as a person who is a
victim of labor trafficking, sex trafficking, or
trafficking of a minor.
Defines "nonviolent crime" as "any crime or offense
other than murder, attempted murder, voluntary
manslaughter, mayhem, kidnapping, rape, robbery, arson,
carjacking, or any other violent felony as defined."
Related
Legislation: SB 823 (Block) 2016 would allow a defendant
arrested, adjudicated, or convicted of any nonviolent offense
committed while he or she was a victim of human trafficking to
petition the court for relief, including dismissal of the
conviction or adjudication and the sealing of the related arrest
and court records, as specified. SB 823 is pending hearing in
the Assembly Appropriations Committee.
Prior Legislation: AB 1585 (Alejo) Chapter 708/2014 authorizes
a defendant who has been convicted of solicitation or
prostitution, and has completed a term of probation, to petition
the court to set aside the conviction if the defendant can
establish by clear and convincing evidence that the conviction
was a result of his or her status as a victim of human
trafficking.
AB 795 (Alejo) 2013 was substantially similar to AB 1595
(Alejo). This bill was held on the Suspense File of the Assembly
Appropriations Committee.
Staff
Comments: By establishing a hearing process to review cases in
which an application to vacate a conviction for a non-violent
offense that occurred while a person was a victim of human
trafficking is opposed by the state or local prosecutorial
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agency that obtained the conviction, this bill could result in
significant ongoing court workload to conduct hearings. The
number of potential hearings prompted by opposition to
applications filed would be a subset of the total number of
applications for relief filed annually with the courts, which is
unknown. As an example, for every 250 hearings conducted
annually statewide (less than five hearings per county per
year), the courts could incur increased costs of $400,000, to
$1.6 million (General Fund) assuming a range of two to eight
hours per hearing ($837/hour of court time). To the extent the
number of hearings and/or the duration of the hearings is
greater or less than the ranges assumed above, the annual costs
would be adjusted accordingly.
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