Amended in Senate March 31, 2016

Senate BillNo. 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 anybegin insert nonviolentend insert offense while he or she was a victim of human trafficking shows evidence that the arrest, conviction, or adjudication was thebegin insert directend insert result ofbegin delete his or her status as a victim of human trafficking,end deletebegin 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 officialbegin delete documentationend deletebegin insert documentation, as defined,end insert of a petitioner’s status as a victim of humanbegin delete trafficking, as defined, shall establishend deletebegin insert trafficking establishesend 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:

P2    1

SECTION 1.  

Section 1203.49 of the Penal Code is amended
2to read:

3

1203.49.  

(a) If a defendant has been arrested for or convicted
4of anybegin insert nonviolentend insert offense committed while he or she was a victim
5of human trafficking, including, but not limited to, solicitation or
6prostitution, as described in subdivision (b) of Section 647, the
7defendant may petition the court for relief under this section. If
P3    1the petitioner can establish that the arrest or conviction was the
2begin insert directend insert result ofbegin delete his or her status as a victim of human trafficking,end delete
3begin insert or in clear connection with a human trafficking scheme of which
4he or she was a victim,end insert
the petitioner shall be entitled to a
5presumption that the requirements for relief have been met, and
6the court may issue an order that does all of the following:

7(1) Sets forth a finding that the petitioner was a victim of human
8trafficking when he or she committed the offense.

9(2) Sets aside the verdict of guilty and dismisses the accusation
10or information against the petitioner.

11(3) Seals the arrest and court records relating to the arrest and
12conviction.

13(4) Notifies the Department of Justice that the petitioner was a
14victim of human trafficking when he or she committed the crime
15and the relief that has been ordered.

16(b) A person who was arrested or found to be a person described
17in Section 602 of the Welfare and Institutions Code because he or
18she committedbegin delete anend deletebegin insert a nonviolentend insert offense while he or she was a victim
19of human trafficking, including, but not limited to, solicitation or
20prostitution, as described in subdivision (b) of Section 647, may
21petition the court for relief under this section. If the petitioner can
22establish that the arrest or adjudication was thebegin insert directend insert result ofbegin delete his
23or her status as a victim of human trafficking,end delete
begin insert or in clear
24connection with a human trafficking scheme of which he or she
25was a victim,end insert
the petitioner shall be entitled to a presumption that
26the requirements for relief have been met, and the court may issue
27an order that does all of the following:

28(1) Sets forth a finding that the petitioner was a victim of human
29trafficking when he or she committed the offense.

30(2) Sets aside the verdict of guilty and dismisses the accusation
31or information against the petitioner.

32(3) Seals the arrest and court records relating to the arrest and
33adjudication.

34(4) Notifies the Department of Justice that the petitioner was a
35victim of human trafficking when he or she committed the crime
36and the relief that has been ordered.

begin insert

37
(c) An application pursuant to this section shall be made and
38heard within a reasonable time after the person has ceased to be
39a victim of human trafficking, or within a reasonable time after
40the person has sought services for being a victim of human
P4    1trafficking, whichever occurs later, subject to reasonable concerns
2for the safety of the person, family members of the person, or other
3victims of human trafficking that may be jeopardized by the
4bringing of the application, or for other reasons consistent with
5the purpose of this section.

end insert
begin delete

6(c)

end delete

7begin insert(d)end insert For the purposes of this section, official documentation of
8a petitioner’s status as a victim of human trafficking shall establish
9a presumption that his or her participation in the offense was the
10result of his or her status as a victim of human trafficking. For the
11purposes of this subdivision, “official documentation” means any
12documentation issued by a federal, state, or local agency that tends
13to show the petitioner’s status as a victim of human trafficking.
14Official documentation shall not be required for the issuance of
15an order described in subdivision (a).

begin delete

16(d)

end delete

17begin insert(e)end insert A petitioner, or his or her attorney, is not required to appear
18in person at a hearing for relief pursuant to this section, and may
19appear telephonically, via videoconference, or by other electronic
20means established by the court.

begin delete

21(e)

end delete

22begin insert(f)end insert Notwithstanding any other law, a petitioner who has obtained
23an order pursuant to this section may lawfully deny or refuse to
24acknowledge an arrest, conviction, or adjudication that is set aside
25pursuant to the order.

begin delete

26(f)

end delete

27begin insert(g)end insert Notwithstanding any other law, the records of the arrest,
28conviction, or adjudication shall not be distributed to any state
29licensing board.

begin delete

30(g)

end delete

31begin insert(h)end insert The record of a proceeding related to a petition pursuant to
32this section that is accessible by the public shall not disclose the
33petitioner’s full name.

begin delete

34(h)

end delete

35begin insert(i)end insert A court that grants relief pursuant to this section may take
36additional action as appropriate under the circumstances to carry
37out the purposes of this section.

begin delete

38(i)

end delete

39begin insert(j)end insert If the court denies the petition for relief because the evidence
40is insufficient to establish that the arrest, conviction, or adjudication
P5    1was the result of the petitioner’s status as a victim of human
2trafficking, the denial shall be without prejudice. The court shall
3state the reasons for its denial in writing and, if those reasons are
4based on curable deficiencies in the petition, allow the petitioner
5a reasonable time period to cure the deficiencies upon which the
6court has based the denial.

begin insert

7
(k) For the purposes of this section, “nonviolent offense” means
8any offense except those listed in subdivision (c) of Section 667.5
9of the Penal Code.

end insert
10

SEC. 2.  

The Legislature finds and declares that Section 1 of
11this act, which amends Section 1203.49 of the Penal Code, imposes
12a limitation on the public’s right of access to the meetings of public
13bodies or the writings of public officials and agencies within the
14meaning of Section 3 of Article I of the California Constitution.
15Pursuant to that constitutional provision, the Legislature makes
16the following findings to demonstrate the interest protected by this
17limitation and the need for protecting that interest:

18In order to protect the privacy of victims of human trafficking
19and to improve their opportunities for recovery, it is necessary that
20this act limit the public’s right of access to the full name of a
21petitioner who seeks relief from an arrest or conviction for an
22offense in which the petitioner participated as a result of his or her
23status as a victim of human trafficking.



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