Amended in Assembly August 1, 2016

Amended in Assembly June 27, 2016

Amended in Senate May 31, 2016

Amended in Senate March 31, 2016

Senate BillNo. 823


Introduced by Senator Block

January 6, 2016


An act to add Section 236.13 to 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. 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 would require the petitioner to establish that the arrest, conviction, or adjudication was the direct result 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. The bill would authorize the court, upon making specified findings, 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 trafficking may be introduced as evidence 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 if the court finds a compelling reason why the petitioner cannot attend the hearing 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. By expanding the scope of a crime and 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.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With 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.

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: yes. State-mandated local program: yes.

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

P3    1

SECTION 1.  

Section 236.13 is added to the Penal Code, to
2read:

3

236.13.  

(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 for vacatur relief of his or her convictions and arrests
8under thisbegin delete section.end delete

9begin deleteTheend deletebegin insert section. Theend insert petitioner shall establish, by clear and
10convincing evidence, that the arrest or conviction was the direct
11result of being a victim of human trafficking.

12(b) The petition for relief shall be submitted under penalty of
13perjury and shall describe all of the available grounds and evidence
14that the petitioner was a victim of human trafficking and the arrest
15or conviction of a nonviolent offense was the direct result of being
16a victim of human trafficking.

17(c) The petition for relief and supporting documentation shall
18be served on the state or local prosecutorial agency that obtained
19the conviction for which vacatur is sought or with jurisdiction over
20charging decisions with regard to the arrest. The state or local
21prosecutorial agency shall have 45 days from the date of receipt
22of service to respond to the petition for relief.

23(d) If opposition to the petition is not filed by the applicable
24state or local prosecutorial agency, the court shall deem the petition
25unopposed and may grant the petition.

26(e) The court may, with the agreement of the petitioner and all
27of the involved state or local prosecutorial agencies, consolidate
28into one hearing a petition with multiple convictions from different
29jurisdictions.

P4    1(f) If the petition is opposed or if the court otherwise deems it
2necessary, the court shall schedule a hearing on the petition. The
3hearing may consist of the following:

4(1) Testimony by the petitioner, which may be required in
5support of the petition.

6(2) Evidence and supporting documentation in support of the
7petition.

8(3) Opposition evidence presented by any of the involved state
9or local prosecutorial agencies that obtained the conviction.

10(g) After considering the totality of the evidence presented, the
11court may vacate the conviction and expunge the arrests and issue
12an order if it finds all of the following:

13(1) That the petitioner was a victim of human trafficking at the
14time the nonviolent crime was committed.

15(2) The commission of the crime was a direct result of being a
16victim of human trafficking.

17(3) The victim is engaged in a good faith effort to distance
18himself or herself from the human trafficking scheme.

19(4) It is in the best interest of the petitioner and in the interests
20of justice.

21(h) In issuing an order of vacatur for the convictions, an order
22shall do the following:

23(1) Set forth a finding that the petitioner was a victim of human
24trafficking when he or she committed the offense.

25(2) Set aside the verdict of guilty or the adjudication and dismiss
26the accusation or information against the petitioner.

27(3) Notify the Department of Justice that the petitioner was a
28victim of human trafficking when he or she committed the crime
29and of the relief that has been ordered.

30(i) Notwithstanding this section, a petitioner shall not be relieved
31of any financial restitution order that directly benefits the victim
32of a nonviolent crime, unless it has already been paid.

33(j) A person who was arrested as, or found to be, a person
34described in Section 602 of the Welfare and Institutions Code
35because he or she committed a nonviolent offense while he or she
36was a victim of human trafficking, including, but not limited to,
37prostitution, as described in subdivision (b) of Section 647, may
38petition the court for relief under this section. If the petitioner
39establishes that the arrest or adjudication was the direct result of
40 being a victim of human trafficking the petitioner is entitled to a
P5    1begin insert rebuttableend insert presumption that the requirements for relief have been
2met.

3(k) If the court issues an order as described in subdivision (a)
4orbegin delete (b),end deletebegin insert (j),end insert the court shall also order the law enforcement agency
5having jurisdiction over the offense, the Department of Justice,
6and any law enforcement agency that arrested the petitioner or
7participated in the arrest of the petitioner to seal their records of
8the arrest and the court order to seal and destroy the records for
9three years from the date of the arrest, or within one year after the
10court order is granted, whichever occurs later, and thereafter to
11destroy their records of the arrest and the court order to seal and
12destroy those records. The court shall provide the petitioner a copy
13of any court order concerning the destruction of the arrest records.

14(l) A petition pursuant to this section shall be made and heard
15within a reasonable time after the person has ceased to be a victim
16of human trafficking, or within a reasonable time after the
17petitioner has sought services for being a victim of human
18trafficking, whichever occurs later, subject to reasonable concerns
19for the safety of the petitioner, family members of the petitioner,
20or other victims of human trafficking who may be jeopardized by
21the bringing of the application or for other reasons consistent with
22the purposes of this section.

23(m) For the purposes of this section, official documentation of
24a petitioner’s status as a victim of human trafficking may be
25introduced as evidence that his or her participation in the offense
26was the result of his or her status as a victim of human trafficking.
27For the purposes of this subdivision, “official documentation”
28means any documentation issued by a federal, state, or local agency
29that tends to show the petitioner’s status as a victim of human
30trafficking. Official documentation shall not be required for the
31issuance of an order described in subdivision (a).

32(n) A petitioner, or his or her attorney, may be excused from
33appearing in person at a hearing for relief pursuant to this section
34only if the court finds a compelling reason why the petitioner
35cannot attend the hearing, in which case the petitioner may appear
36telephonically, via videoconference, or by other electronic means
37established by the court.

38(o) Notwithstanding any other law, a petitioner who has obtained
39an order pursuant to this section may lawfully deny or refuse to
P6    1acknowledge an arrest, conviction, or adjudication that is set aside
2pursuant to the order.

3(p) Notwithstanding any other law, the records of the arrest,
4conviction, or adjudication shall not be distributed to any state
5licensing board.

6(q) The record of a proceeding related to a petition pursuant to
7this section that is accessible by the public shall not disclose the
8petitioner’s full name.

9(r) A court that grants relief pursuant to this section may take
10additional action as appropriate under the circumstances to carry
11out the purposes of this section.

12(s) If the court denies the application because the evidence is
13insufficient to establish grounds for vacatur, the denialbegin delete shallend deletebegin insert mayend insert
14 be without prejudice. The court may state the reasons for its denial
15in writing or on the record that is memorialized by transcription,
16audio tape, or video tape, and if those reasons are based on curable
17deficiencies in the application, allow the applicant a reasonable
18time period to cure the deficiencies upon which the court based
19the denial.

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

21(1) “Nonviolent offense” means any offense not listed in
22subdivision (c) of Section 667.5.

23(2) “Vacate” means that the arrest and any adjudications or
24convictions suffered by the petitioner are deemed not to have
25occurred and that all records in the case are sealed and destroyed
26pursuant to this section. The court shall provide the petitioner with
27a copy of the orders described in subdivisions (a),begin delete (b), and (c),end deletebegin insert (j),
28and (k),end insert
as applicable, and inform the petitioner that he or she may
29 thereafter state that he or she was not arrested for the charge, or
30adjudicated or convicted of the charge, that was vacated.

31(3) “Victim of human trafficking” means the victim of a crime
32described in subdivisions (a), (b), and (c) of Section 236.1.

33

SEC. 2.  

No reimbursement is required by this act pursuant to
34Section 6 of Article XIII B of the California Constitution for certain
35costs that may be incurred by a local agency or school district
36because, in that regard, this act creates a new crime or infraction,
37eliminates a crime or infraction, or changes the penalty for a crime
38or infraction, within the meaning of Section 17556 of the
39Government Code, or changes the definition of a crime within the
P7    1meaning of Section 6 of Article XIII B of the California
2Constitution.

3However, if the Commission on State Mandates determines that
4this act contains other costs mandated by the state, reimbursement
5to local agencies and school districts for those costs shall be made
6pursuant to Part 7 (commencing with Section 17500) of Division
74 of Title 2 of the Government Code.

8

SEC. 3.  

The Legislature finds and declares that Section 1 of
9this act, which adds Section 236.13 to the Penal Code, imposes a
10limitation on the public’s right of access to the meetings of public
11bodies or the writings of public officials and agencies within the
12meaning of Section 3 of Article I of the California Constitution.
13Pursuant to that constitutional provision, the Legislature makes
14the following findings to demonstrate the interest protected by this
15limitation and the need for protecting that interest:

16In order to protect the privacy of victims of human trafficking
17and to improve their opportunities for recovery, it is necessary that
18this act limit the public’s right of access to the full name of a
19petitioner who seeks relief from an arrest or conviction for an
20offense in which the petitioner participated as a result of his or her
21status as a victim of human trafficking.



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