BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1762|
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                                   THIRD READING 


          Bill No:  AB 1762
          Author:   Campos (D), et al.
          Amended:  8/15/16 in Senate
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  5-1, 6/28/16
           AYES:  Hancock, Anderson, Leno, Liu, Monning
           NOES:  Stone
           NO VOTE RECORDED:  Glazer

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 8/11/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  53-19, 6/2/16 - See last page for vote

           SUBJECT:   Human trafficking:  victims:  vacating convictions


          SOURCE:    Coalition to Abolish Slavery and Trafficking LA
                     National Council of Jewish Women

          DIGEST:   This bill 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 at any time after  
          it was entered.  


          ANALYSIS: 


          Existing law:









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          1)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).) 


          2)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).) 


          3)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 thing, to any person for the purpose of  
            prostitution as defined. (Penal Code § 1203.47.) 


          4)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  







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            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.) 


          5)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.)


          6)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.) 


          7)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 five, eight, or 12  
            years and a fine of not more than $500,000. (Penal Code §  
            236.1(a).) 


          8)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  







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            officers. (Labor Code § 432.7(a) and (e).) 


          9)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:


          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" as a person who is a victim  
            of labor trafficking, sex trafficking, or trafficking of a  
            minor." 









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          4)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." 


          5)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 if the  
               individual is not in custody and has not been convicted of  
               any crime for two years immediately preceding the  
               application or has successfully completed probation.

                 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  







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               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  
               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  







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                 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.


          Background


          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.  


             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,  







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             (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.  


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes

          According to the Senate Appropriations Committee:


           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  
            could be substantially higher.


           DOJ workload:  Ongoing workload to 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








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          SUPPORT:   (Verified8/11/16)


          Coalition to Abolish Slavery & Trafficking La (co-source)
          National Council of Jewish Women (co-source)
          ACT for Women and Girls
          American Academy of Pediatrics, California
          American Association of University Women, Long Beach
          American Civil Liberties Union
          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
          National Association of Social Workers
          National Council of Jewish Women-California
          Planned Parenthood Affiliates of California
          Religious Action Center of Reform Judaism
          The American Medical Women's Association
          The Jewish Public Affairs Committee of California
          The Los Angeles Alliance for a New Economy


          OPPOSITION:   (Verified8/11/16)


          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:  53-19, 6/2/16
          AYES:  Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown,  
            Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley,  
            Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,  







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            Roger Hernández, Holden, Irwin, Jones-Sawyer, Lackey, Levine,  
            Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell,  
            Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Wood, Rendon
          NOES:  Achadjian, Travis Allen, Baker, Brough, Dahle, Gallagher,  
            Grove, Harper, Jones, Kim, Maienschein, Mathis, Mayes,  
            Melendez, Obernolte, Patterson, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Bigelow, Chang, Cooper, Beth Gaines, Hadley,  
            Linder, Olsen, Steinorth

          Prepared by:Mary Kennedy / PUB. S. / 
          8/15/16 20:10:08


                                   ****  END  ****