Amended in Senate May 31, 2016

Amended in Senate March 31, 2016

Senate Bill No. 823

Introduced by Senator Block

January 6, 2016

An act to begin delete amend Section 1203.49 of end delete begin insert add Section 236.13 to end insert 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 begin delete trafficking, and would authorize end delete begin insert trafficking. Existing law authorizes end insert 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 begin delete instead create a presumption that if a defendant or end delete begin insert establish a separate petition process for a end insert person who has been begin delete arrested, convicted, end delete begin insert arrested for, convicted of, end insert or adjudicated a ward of the juvenile court begin delete for committing any nonviolent offense end delete begin insert for, committing a nonviolent offense, as defined, end insert while he or she was a victim of human begin delete trafficking shows evidence end delete begin insert trafficking. The bill would provide that if the petitioner establishes end insert that the arrest, conviction, or adjudication was the direct result begin delete of end delete begin insert of, end insert or in clear connection begin delete with end delete begin insert with, end insert a human trafficking scheme of which he or she was a victim, the begin delete defendant or person has met the requirements for relief under these provisions. end delete begin insert petitioner would be entitled to a presumption that the requirements for relief under the petition process have been met. The bill would authorize the court to vacate the conviction or adjudication and issue an order that provides the relief described above and also provides for the sealing and destruction of the petitioner’s arrest and court records, as specified. end 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. begin delete The bill would additionally require the order of relief to include sealing related arrest and court records. end delete The bill would provide that official documentation, as defined, of a petitioner’s status as a victim of human trafficking establishes 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. begin insert By increasing the number of records local agencies would be required to seal and destroy, this bill would impose a state-mandated local program. end insert

begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

end insert

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:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

begin delete

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 nonviolent 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
direct result of or in clear connection with a human trafficking
scheme of which he or she was a victim, 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 a nonviolent 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 direct result of or
in clear connection with a human trafficking scheme of which he
or she was a victim, 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.

(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.

(d) 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).

(e) 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.

(f) 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.

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

(h) 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.

(i) 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.

(j) 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.

(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 delete

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 236.13 is added to the end insert begin insert Penal Code end insert begin insert , to
read: end insert

begin insert

begin insert 236.13. end insert   

(a) If a person was arrested for or convicted of any
nonviolent offense committed while he or she was a victim of
human trafficking, including, but not limited to, prostitution as
described in subdivision (b) of Section 647, the person may petition
the court for relief under this section. If the petitioner establishes
that the arrest or conviction was the direct result of, or in clear
connection with, a human trafficking scheme of which he or she
was a victim, the petitioner is entitled to a presumption that the
requirements for relief have been met, and the court may vacate
the conviction and 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) Notifies the Department of Justice that the petitioner was a
victim of human trafficking when he or she committed the crime
and of the relief that has been ordered.

(b) A person who was arrested as, or found to be, a person
described in Section 602 of the Welfare and Institutions Code
because he or she committed a nonviolent offense while he or she
was a victim of human trafficking, including, but not limited to,
prostitution, as described in subdivision (b) of Section 647, may
petition the court for relief under this section. If the petitioner
establishes that the arrest or adjudication was the direct result of,
or in clear connection with, a human trafficking scheme of which
he or she was a victim, the petitioner is entitled to a presumption
that the requirements for relief have been met, and the court may
vacate the adjudication and 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) Notifies the Department of Justice that the petitioner was a
victim of human trafficking when he or she committed the crime
and of the relief that has been ordered.

(c) If the court issues an order as described in subdivision (a)
or (b), the court shall also order the law enforcement agency
having jurisdiction over the offense, the Department of Justice,
and any law enforcement agency that arrested the petitioner or
participated in the arrest of the petitioner to seal their records of
the arrest and the court order to seal and destroy the records for
three years from the date of the arrest, or within one year after
the court order is granted, whichever occurs later, and thereafter
to destroy their records of the arrest and the court order to seal
and destroy those records. The court shall give to the petitioner a
copy of any court order concerning the destruction of the arrest
records.

(d) A petition 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
petitioner has sought services for being a victim of human
trafficking, whichever occurs later, subject to reasonable concerns
for the safety of the petitioner, family members of the petitioner,
or other victims of human trafficking who may be jeopardized by
the bringing of the application or for other reasons consistent with
the purposes of this section.

(e) 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).

(f) 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.

(g) 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.

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

(i) 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.

(j) 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.

(k) If the court denies the petition for relief because the evidence
is insufficient to establish that the arrest, conviction, or
adjudication was the direct result of, or in clear connection with,
a human trafficking scheme of which the petitioner was a victim,
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.

(l) For the purposes of this section, the following terms apply:

(1) “Nonviolent offense” means any offense not listed in
subdivision (c) of Section 667.5.

(2) “Vacate” means that the arrest and any adjudications or
convictions suffered by the petitioner are deemed not to have
occurred and that all records in the case are sealed and destroyed
pursuant to this section. The court shall provide the petitioner with
a copy of the orders described in subdivisions (a), (b), and (c), as
applicable, and inform the petitioner that he or she may thereafter
state that he or she was not arrested for the charge, or adjudicated
or convicted of the charge, that was vacated.

(3) “Victim of human trafficking” means the victim of a crime
described in subdivisions (a), (b), and (c) of Section 236.1.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.

end insert

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

The Legislature finds and declares that Section 1 of
this act, which begin delete amends end delete begin insert adds end insert Section begin delete 1203.49 of end delete begin insert 236.13 to end insert 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.