BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1762


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1762 (Campos)


          As Amended  August 19, 2016


          Majority vote


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          |ASSEMBLY:  |53-19 |(June 2, 2016) |SENATE: |26-11 |(August 23,      |
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          Original Committee Reference:  PUB. S.


          SUMMARY:  Allows an individual convicted of a nonviolent crime  
          that was a direct result of the individual being a human  
          trafficking victim to apply to the court to vacate the  
          conviction if the individual is not then in custody and has  
          either not been convicted of any crime for two years or has  
          successfully completed probation for the crime.


          The Senate amendments:


          1)Specify that the victim applying to have his or her conviction  
            vacated must have committed the underlying offense as a direct  
            result of being human trafficked.  


          2)State that a person seeking vacatur may only apply for relief  
            if they are not then in custody and has either not been  








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            convicted of any crime for two years or has successfully  
            completed probation for the crime.


          3)Require the application for vacatur be submitted under penalty  
            of perjury.  


          4)Specify court procedures for adjudication of a petition to  
            vacate a conviction. 


          5)Clarify that sealed records may be accessed and utilized by  
            law enforcement for investigatory purposes for persons other  
            than the defendant.  


          6)Double join this bill with AB 1997 (Mark Stone) to prevent  
            chaptering issues.  




          AS PASSED BY THE ASSEMBLY, this bill:  


          1)Allowed 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)Provided, 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)Defined "human trafficking victim" and "nonviolent crime" for  
            these purposes as follows:










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             a)   "Human trafficking victim" means "a person who is a  
               victim of labor trafficking, sex trafficking, or  
               trafficking of a minor."  


             b)   "Nonviolent crime" means "any crime or offense other  
               than murder, attempted murder, voluntary manslaughter,  
               mayhem, kidnaping, rape, robbery, arson, carjacking, or any  
               other violent felony as defined."


          4)Specified a procedure for victims to apply to the court to  
            have their convictions vacated.  The procedure is specified as  
            follows:  


             a)   Provided 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. 


             b)   Required 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.


             c)   Provided 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.


             d)   Allowed the defendant applying for vacatur to submit  
               evidence containing personal identify information under  
               seal along with a statement under penalty of perjury  








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               confirming his or her identity. 


             e)   Provided 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.


             f)   Provided 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.


             g)   Stated 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.


             h)   Specified 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  








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               may also include, but is not limited to, all of the  
               following:


               i)     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 


               ii)    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.


             i)   Provided 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.


          EXISTING LAW:  


          1)Provides if a defendant has been convicted of solicitation or  
            prostitution, and if the defendant has completed any term of  
            probation for that conviction, the defendant may petition the  
            court for relief.  If the defendant can establish by clear and  
            convincing evidence that the conviction was the result of his  
            or her status as a victim of human trafficking, the court may  
            issue an order that does all of the following:  








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             a)   Sets forth a finding that the petitioner was a victim of  
               human trafficking when he or she committed the crime; 
             b)   Order specified expungement relief; and


             c)   Notifies the Department of Justice that the petitioner  
               was a victim of human trafficking when he or she committed  
               the crime and the relief that has been ordered.


          2)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.  
          3)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.  


          FISCAL EFFECT:  According to the Senate Appropriations Committee


          1)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.









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          2)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.


          3)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


          COMMENTS:  "Human trafficking is the most expansive criminal  
          activity devastating lives across the country and the world.


          "Victims of human trafficking include children and adults, men  
          and women, documented and undocumented.  Often times these  
          victims have been kidnapped, forced into labor or sexual  
          exploitation, and forced to commit crimes by their traffickers.


          "Current law does not provide an adequate remedy for victims who  
          were convicted for non-violent crimes they were forced to commit  
          by their trafficker.  Without a legal remedy, victims of  
          trafficking continue to have a criminal record and are prevented  
          from having access to basic services and programs such as the  
          ability to obtain a student loan, receive housing assistance, or  
          obtain employment.


          "It is our responsibility to help pull trafficking victims from  
          their abusive environments, as well as to assist in paving a  
          clear path for recovery.  AB 1762 would ensure that trafficking  








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          victims convicted of non-violent crimes their trafficker forced  
          them to commit could have their criminal records cleared.  In  
          doing so, this bill will help dismantle the institutional  
          barriers that these victims encounter throughout their lives."


          Please see the policy committee analysis for full discussion of  
          this bill.


          Analysis Prepared by:                                             
                          Gabriel Caswell / PUB. S. / (916) 319-3744  FN:  
          0004802