BILL ANALYSIS Ó
AB 1762
Page 1
GOVERNOR'S VETO
AB
1762 (Campos)
As Enrolled September 2, 2016
2/3 vote
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|ASSEMBLY: |53-19 |(June 2, 2016) |SENATE: |26-11 |(August 23, |
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|ASSEMBLY: |52-24 |(August 29, | | | |
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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
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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
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), Chapter 612,
Statutes of 2016 to prevent chaptering issues.
AS PASSED BY THE ASSEMBLY, this bill:
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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:
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
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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
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
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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
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
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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:
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
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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.
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)
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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
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
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this bill.
GOVERNOR'S VETO MESSAGE:
I am returning Assembly Bill 1762 without my signature.
This bill creates a process for victims of human trafficking to
petition for dismissal of convictions and arrests that occurred
while they were a victim of trafficking.
I signed SB 823 (Block), which accomplishes much the same intent
as this bill, but creates a more balanced procedural approach in
my view.
Analysis Prepared by:
Gabriel Caswell / PUB. S. / (916) 319-3744 FN:
0005146