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. Existing law authorizes 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 establish a separate petition process for a person who has been arrested for, convicted of, or adjudicated a ward of the juvenile court for, committing a nonviolent offense, as defined, while he or she was a victim of human trafficking. The bill wouldbegin delete provide that if the petitioner establishesend deletebegin insert require the petitioner to establishend insert that the arrest, conviction, or adjudication was the direct resultbegin delete of, or in clear connection
with, a human trafficking scheme of which he or she was a victim, the petitioner would be entitled to a presumption that the requirements for relief under the petition process have been met.end deletebegin insert of being a victim of human trafficking in order to obtain relief. The bill would require the petition for relief to be submitted under penalty of perjury, thereby expanding the scope of a crime.end insert The bill would authorize thebegin delete courtend deletebegin insert court, upon making specified findings,end insert 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. 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. The bill would provide that official documentation, as defined, of a petitioner’s status as a victim of human traffickingbegin delete establishes a presumptionend deletebegin insert may be introduced as evidenceend insert 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 describedbegin delete above,end deletebegin insert
above if the court finds a compelling reason why the petitioner cannot attend the hearingend insert 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. Bybegin insert expanding the scope of a crime andend insert increasing the number of records local agencies would be required to seal and destroy, this bill would impose a state-mandated local program.
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 deleteThis 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 deleteThe 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 insertbegin insertThis bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
end insertbegin insertWith regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
end insertExisting 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: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 236.13 is added to the Penal Code, to
2read:
(a) If a person was arrested for or convicted of any
4nonviolent offense committed while he or she was a victim of
5human trafficking, including, but not limited to, prostitution as
6described in subdivision (b) of Section 647, the person may petition
7the court forbegin insert vacaturend insert reliefbegin insert of his or her convictions and arrestsend insert
8 under this section.begin delete If the petitioner establishes that the arrest or
9conviction was the direct result of, or in clear connection with, a
10human trafficking scheme of which he or she was a victim, the
11petitioner is entitled to a presumption that the requirements for
12relief have been met, and the court may vacate the conviction and
13issue an order that does all of the following:end delete
14(1) Sets forth a finding that the petitioner was a victim of human
15trafficking when he or she committed
the offense.
P4 1(2) Sets aside the verdict of guilty and dismisses the accusation
2or information against the petitioner.
3(3) Notifies the Department of Justice that the petitioner was a
4victim of human trafficking when he or she committed the crime
5and of the relief that has been ordered.
6
The petitioner shall establish, by clear and convincing evidence,
7that the arrest or conviction was the direct result of being a victim
8of human trafficking.
9
(b) The petition for relief shall be submitted under penalty of
10perjury and shall describe all of the available grounds and
11evidence that the petitioner was a victim of human trafficking and
12the arrest or conviction of a nonviolent offense was the direct result
13of being a victim of human trafficking.
14
(c) The petition for relief and supporting documentation shall
15be served on the state or local prosecutorial agency that obtained
16the conviction for which vacatur is sought or with jurisdiction over
17charging decisions with regard to the arrest. The state or local
18prosecutorial agency
shall have 45 days from the date of receipt
19of service to respond to the petition for relief.
20
(d) If opposition to the petition is not filed by the applicable
21state or local prosecutorial agency, the court shall deem the
22petition unopposed and may grant the petition.
23
(e) The court may, with the agreement of the petitioner and all
24of the involved state or local prosecutorial agencies, consolidate
25into one hearing a petition with multiple convictions from different
26jurisdictions.
27
(f) If the petition
is opposed or if the court otherwise deems it
28necessary, the court shall schedule a hearing on the petition. The
29hearing may consist of the following:
30
(1) Testimony by the petitioner, which may be required in
31support of the petition.
32
(2) Evidence and supporting documentation in support of the
33petition.
34
(3) Opposition evidence presented by any of the involved state
35or local prosecutorial agencies that obtained the conviction.
36
(g) After considering the totality of the evidence presented, the
37court may vacate the conviction and expunge the arrests and issue
38an order if it finds all of the following:
39
(1) That the petitioner was a victim of human trafficking at the
40time the nonviolent crime was committed.
P5 1
(2) The commission of the crime was a direct result of being a
2victim of human trafficking.
3
(3) The victim is engaged in a good faith effort to distance
4himself or herself from the
human trafficking scheme.
5
(4) It is in the best interest of the petitioner and in the interests
6of justice.
7
(h) In issuing an order of vacatur for the convictions, an order
8shall do the following:
9
(1) Set forth a finding that the petitioner was a victim of human
10trafficking when he or she committed the offense.
11
(2) Set aside the
verdict of guilty or the adjudication and dismiss
12the accusation or information against the petitioner.
13
(3) Notify the Department of Justice that the petitioner was a
14victim of human trafficking when he or she committed the crime
15and of the relief that has been ordered.
16
(i) Notwithstanding this section, a petitioner shall not be relieved
17of any financial restitution order that directly benefits the victim
18of a nonviolent crime, unless it has already been paid.
19(b)
end delete
20begin insert(j)end insert A person who was arrested as, or found to be, a person
21described in Section 602 of the Welfare and Institutions Code
22because he or she committed a nonviolent offense while he or she
23was a victim of human trafficking, including, but not limited to,
24prostitution, as described in subdivision (b) of Section 647, may
25petition the court for relief under this section. If the petitioner
26establishes that the arrest or adjudication was the direct resultbegin delete of,
27or in clear connection with, a human trafficking scheme of which
28he or she was a
victim,end delete
29petitioner is entitled to a presumption that the requirements for
30relief have beenbegin delete met, and the court may vacate the adjudication begin insert met.end insert
31and issue an order that does all of the following:end delete
32(1) Sets forth a finding that the petitioner was a victim of human
33trafficking when he or she committed the offense.
34(2) Sets aside the verdict of guilty and dismisses the accusation
35or information against the petitioner.
36(3) Notifies the Department of Justice that the petitioner was a
37victim of human trafficking when he or she committed the crime
38and of the relief that has been ordered.
39(c)
end delete
P6 1begin insert(k)end insert If the court issues an order as described in subdivision (a)
2or (b), the court shall also order the law enforcement agency having
3jurisdiction over the offense, the Department of Justice, and any
4law enforcement agency that arrested the petitioner or participated
5in the arrest of the petitioner to seal their records of the arrest and
6the court order to seal and destroy the records for three years from
7the date of the arrest, or within one year after the court order is
8granted, whichever occurs later, and thereafter to destroy their
9records of the arrest and the court order to seal and destroy those
10records. The court shallbegin delete give toend deletebegin insert
provideend insert the petitioner a copy of
11any court order concerning the destruction of the arrest records.
12(d)
end delete
13begin insert(l)end insert A petition pursuant to this section shall be made and heard
14within a reasonable time after the person has ceased to be a victim
15of human trafficking, or within a reasonable time after the
16petitioner has sought services for being a victim of human
17trafficking, whichever occurs later, subject to reasonable concerns
18for the safety of the petitioner, family members of the petitioner,
19or other victims of human trafficking who may be jeopardized by
20the
bringing of the application or for other reasons consistent with
21the purposes of this section.
22(e)
end delete
23begin insert(m)end insert For the purposes of this section, official documentation of
24a petitioner’s status as a victim of human traffickingbegin delete shall establish begin insert may be introduced as evidenceend insert that his or her
25a presumptionend delete
26participation in the offense was the result of his or her status as a
27victim of human trafficking. For the purposes of this
subdivision,
28“official documentation” means any documentation issued by a
29federal, state, or local agency that tends to show the petitioner’s
30status as a victim of human trafficking. Official documentation
31shall not be required for the issuance of an order described in
32subdivision (a).
33(f)
end delete
34begin insert(n)end insert A petitioner, or his or her attorney,begin delete is not required to appear begin insert may
35in person at a hearing for relief pursuant to this section, andend delete
36be excused from appearing in
person at a hearing for relief
37pursuant to this section only if the court finds a compelling reason
38why the petitioner cannot attend the hearing, in which case the
39petitionerend insert may appear telephonically, via videoconference, or by
40other electronic means established by the court.
P7 1(g)
end delete
2begin insert(o)end insert Notwithstanding any other law, a petitioner who has obtained
3an order pursuant to this section may lawfully deny or refuse to
4acknowledge an arrest, conviction, or adjudication that is set aside
5pursuant to the order.
6(h)
end delete
7begin insert(p)end insert Notwithstanding any other law, the records of the arrest,
8conviction, or adjudication shall not be distributed to any state
9licensing board.
10(i)
end delete
11begin insert(q)end insert The record of a proceeding related to a petition pursuant to
12this section that is accessible by the public shall not disclose the
13petitioner’s full name.
14(j)
end delete
15begin insert(r)end insert A court that grants relief pursuant to this section may take
16additional action as appropriate under the circumstances to carry
17out the purposes of this section.
18(k) If the court denies the petition for relief because the evidence
19is insufficient to establish that the arrest, conviction, or adjudication
20was the direct result of, or in clear connection with, a human
21trafficking scheme of which the petitioner was a victim, the denial
22shall be without prejudice. The court shall state the reasons for its
23denial in writing and, if those reasons are based on curable
24deficiencies in the petition, allow the petitioner a reasonable time
25period to cure the deficiencies upon which the court has based the
26denial.
27
(s) If the court denies the application because the evidence is
28insufficient to establish grounds for vacatur, the denial shall be
29without prejudice. The court may state the reasons for its denial
30in writing or on the record that is memorialized by transcription,
31audio tape, or video tape, and if those reasons are based on curable
32deficiencies in the application, allow the applicant a reasonable
33time period to cure the deficiencies upon which the court based
34the denial.
35(l )
end delete36begin insert(t)end insert For the purposes of this section, the following terms apply:
37(1) “Nonviolent offense” means any offense not listed in
38subdivision (c) of Section 667.5.
39(2) “Vacate” means that the arrest and any adjudications or
40convictions suffered by the petitioner are deemed not to have
P8 1occurred and that all records in the case are sealed and destroyed
2pursuant to this section. The court shall provide the petitioner with
3a copy of the orders described in subdivisions (a), (b), and (c), as
4applicable, and inform the petitioner that he or she may thereafter
5state that he or she was not arrested for the charge, or adjudicated
6or convicted of the charge, that was vacated.
7(3) “Victim of human trafficking” means the victim of a
crime
8described in subdivisions (a), (b), and (c) of Section 236.1.
If the Commission on State Mandates determines that
10this act contains costs mandated by the state, reimbursement to
11local agencies and school districts for those costs shall be made
12pursuant to Part 7 (commencing with Section 17500) of Division
134 of Title 2 of the Government Code.
No reimbursement is required by this act pursuant to
15Section 6 of Article XIII B of the California Constitution for certain
16costs that may be incurred by a local agency or school district
17because, in that regard, this act creates a new crime or infraction,
18eliminates a crime or infraction, or changes the penalty for a crime
19or infraction, within the meaning of Section 17556 of the
20Government Code, or changes the definition of a crime within the
21meaning of Section 6 of Article XIII B of the California
22Constitution.
23
However, if the Commission on State Mandates determines that
24this act contains other costs mandated by the state, reimbursement
25to local agencies and school districts for those costs shall be made
26pursuant to Part 7 (commencing with Section 17500) of Division
274 of Title 2 of the Government Code.
The Legislature finds and declares that Section 1 of
29this act, which adds Section 236.13 to the Penal Code, imposes a
30limitation on the public’s right of access to the
meetings of public
31bodies or the writings of public officials and agencies within the
32meaning of Section 3 of Article I of the California Constitution.
33Pursuant to that constitutional provision, the Legislature makes
34the following findings to demonstrate the interest protected by this
35limitation and the need for protecting that interest:
36In order to protect the privacy of victims of human trafficking
37and to improve their opportunities for recovery, it is necessary that
38this act limit the public’s right of access to the full name of a
39petitioner who seeks relief from an arrest or conviction for an
P9 1offense in which the petitioner participated as a result of his or her
2status as a victim of human trafficking.
O
96