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: 8/17/16 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 & Trafficking
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.
Senate Floor Amendments of 8/17/16 take care of potential
chaptering problems.
ANALYSIS:
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Existing law:
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
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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.)
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
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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).)
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
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victim of labor trafficking, sex trafficking, or trafficking
of a minor."
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;
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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
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
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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.
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
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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.
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
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assumed the majority of outstanding fees/fines, and
specifically Restitution, will have been paid as a condition
of probation.
*Trial Court Trust Fund
SUPPORT: (Verified8/18/16)
Coalition to Abolish Slavery & Trafficking (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: (Verified8/18/16)
Alameda County District Attorney
California District Attorneys Association
Judicial Council of California
Los Angeles County District Attorney's Office
San Diego County District Attorney
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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,
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. /
8/18/16 16:57:24
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