Amended in Senate March 31, 2016

Senate Bill No. 823

Introduced by Senator Block

January 6, 2016

An act to amend Section 1203.49 of the Penal Code, relating to human trafficking.

LEGISLATIVE COUNSEL’S DIGEST

SB 823, as amended, Block. Criminal procedure: human trafficking.

Existing law defines and proscribes the crimes of human trafficking, solicitation, and prostitution. Existing law provides that if a defendant has been convicted of solicitation or prostitution and 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, and would authorize a court to issue an order that (1) sets forth a finding that the defendant was a victim of human trafficking, as specified, (2) dismisses the accusation or information against the defendant, or orders other relief, and (3) notifies the Department of Justice that the defendant was a victim of human trafficking when he or she committed the crime and the relief that has been ordered.

Existing law authorizes a person who was adjudicated a ward of the juvenile court for solicitation or prostitution to, upon reaching 18 years of age, petition the court to have his or her record sealed, as specified.

This bill would instead create a presumption that if a defendant or person who has been arrested, convicted, or adjudicated a ward of the juvenile court for committing any begin insert nonviolent end insert offense while he or she was a victim of human trafficking shows evidence that the arrest, conviction, or adjudication was the begin insert direct end insert result of begin delete his or her status as a victim of human trafficking, end delete begin insert or in clear connection with a human trafficking scheme of which he or she was a victim, end insert the defendant or person has met the requirements for relief under these provisions. begin insert The bill would require that the petition be made within a reasonable time after the person has ceased to be a victim of human trafficking, or within a reasonable time after the person has sought services for being a victim of human trafficking, whichever is later. end insert The bill would additionally require the order of relief to include sealing related arrest and court records. The bill would provide that official begin delete documentation end delete begin insert documentation, as defined, end insert of a petitioner’s status as a victim of human begin delete trafficking, as defined, shall establish end delete begin insert trafficking establishes end insert a presumption that his or her participation in the offense was the result of the petitioner’s status as a victim of human trafficking. The bill would provide that a petitioner or his or her attorney is not required to appear in person at a hearing for the relief described above, and may appear via alternate specified methods. The bill would prohibit the disclosure of the full name of a petitioner in the record of a proceeding related to his or her petition that is accessible by the public. The bill would authorize a petitioner who has obtained the relief described above to lawfully deny or refuse to acknowledge an arrest, conviction, or adjudication that is set aside pursuant to that relief.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1203.49 of the Penal Code is amended
to read:

1203.49.  

(a) If a defendant has been arrested for or convicted
of any begin insert nonviolent end insert offense committed while he or she was a victim
of human trafficking, including, but not limited to, solicitation or
prostitution, as described in subdivision (b) of Section 647, the
defendant may petition the court for relief under this section. If
the petitioner can establish that the arrest or conviction was the
begin insert direct end insert result of begin delete his or her status as a victim of human trafficking, end delete
begin insert or in clear connection with a human trafficking scheme of which
he or she was a victim, end insert the petitioner shall be entitled to a
presumption that the requirements for relief have been met, and
the court may issue an order that does all of the following:

(1) Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the offense.

(2) Sets aside the verdict of guilty and dismisses the accusation
or information against the petitioner.

(3) Seals the arrest and court records relating to the arrest and
conviction.

(4) 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.

(b) A person who was arrested or found to be a person described
in Section 602 of the Welfare and Institutions Code because he or
she committed begin delete an end delete begin insert a nonviolent end insert offense while he or she was a victim
of human trafficking, including, but not limited to, solicitation or
prostitution, as described in subdivision (b) of Section 647, may
petition the court for relief under this section. If the petitioner can
establish that the arrest or adjudication was the begin insert direct end insert result of begin delete his
or her status as a victim of human trafficking, end delete begin insert or in clear
connection with a human trafficking scheme of which he or she
was a victim, end insert the petitioner shall be entitled to a presumption that
the requirements for relief have been met, and the court may issue
an order that does all of the following:

(1) Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the offense.

(2) Sets aside the verdict of guilty and dismisses the accusation
or information against the petitioner.

(3) Seals the arrest and court records relating to the arrest and
adjudication.

(4) 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.

begin insert

(c) An application pursuant to this section shall be made and
heard within a reasonable time after the person has ceased to be
a victim of human trafficking, or within a reasonable time after
the person has sought services for being a victim of human
trafficking, whichever occurs later, subject to reasonable concerns
for the safety of the person, family members of the person, or other
victims of human trafficking that may be jeopardized by the
bringing of the application, or for other reasons consistent with
the purpose of this section.

end insert begin delete

(c)

end delete

begin insert (d) end insert  For the purposes of this section, official documentation of
a petitioner’s status as a victim of human trafficking shall establish
a presumption that his or her participation in the offense was the
result of his or her status as a victim of human trafficking. For the
purposes of this subdivision, “official documentation” means any
documentation issued by a federal, state, or local agency that tends
to show the petitioner’s status as a victim of human trafficking.
Official documentation shall not be required for the issuance of
an order described in subdivision (a).

begin delete

(d)

end delete

begin insert (e) end insert  A petitioner, or his or her attorney, is not required to appear
in person at a hearing for relief pursuant to this section, and may
appear telephonically, via videoconference, or by other electronic
means established by the court.

begin delete

(e)

end delete

begin insert (f) end insert  Notwithstanding any other law, a petitioner who has obtained
an order pursuant to this section may lawfully deny or refuse to
acknowledge an arrest, conviction, or adjudication that is set aside
pursuant to the order.

begin delete

(f)

end delete

begin insert (g) end insert  Notwithstanding any other law, the records of the arrest,
conviction, or adjudication shall not be distributed to any state
licensing board.

begin delete

(g)

end delete

begin insert (h) end insert  The record of a proceeding related to a petition pursuant to
this section that is accessible by the public shall not disclose the
petitioner’s full name.

begin delete

(h)

end delete

begin insert (i) end insert  A court that grants relief pursuant to this section may take
additional action as appropriate under the circumstances to carry
out the purposes of this section.

begin delete

(i)

end delete

begin insert (j) end insert  If the court denies the petition for relief because the evidence
is insufficient to establish that the arrest, conviction, or adjudication
was the result of the petitioner’s status as a victim of human
trafficking, 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 petition, allow the petitioner
a reasonable time period to cure the deficiencies upon which the
court has based the denial.

begin insert

(k) For the purposes of this section, “nonviolent offense” means
any offense except those listed in subdivision (c) of Section 667.5
of the Penal Code.

end insert

SEC. 2.  

The Legislature finds and declares that Section 1 of
this act, which amends Section 1203.49 of the Penal Code, imposes
a limitation on the public’s right of access to the meetings of public
bodies or the writings of public officials and agencies within the
meaning of Section 3 of Article I of the California Constitution.
Pursuant to that constitutional provision, the Legislature makes
the following findings to demonstrate the interest protected by this
limitation and the need for protecting that interest:

In order to protect the privacy of victims of human trafficking
and to improve their opportunities for recovery, it is necessary that
this act limit the public’s right of access to the full name of a
petitioner who seeks relief from an arrest or conviction for an
offense in which the petitioner participated as a result of his or her
status as a victim of human trafficking.