BILL ANALYSIS                                                                                                                                                                                                    



          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  







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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  








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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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