Amended in Assembly August 18, 2016

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 Bill No. 823

Introduced by Senator Block

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(Coauthors: Senators Glazer, Hertzberg, and Wieckowski)

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January 6, 2016

An act to add Section begin delete 236.13 end delete begin insert 236.14 end insert 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:

SECTION 1.  

Section begin delete 236.13 end delete begin insert 236.14 end insert is added to the Penal Code,
to read:

begin delete 236.13. end delete

begin insert 236.14. 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 vacatur relief of his or her convictions and arrests
under this section. The petitioner shall establish, by clear and
convincing evidence, that the arrest or conviction was the direct
result of being a victim of human trafficking.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(3) Notify 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.

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

(j) 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
being a victim of human trafficking the petitioner is entitled to a
rebuttable presumption that the requirements for relief have been
met.

(k) If the court issues an order as described in subdivision (a)
or (j), 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 provide the petitioner a copy of any court
order concerning the destruction of the arrest records.

(l) 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.

(m) For the purposes of this section, official documentation 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 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).

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

(o) 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.

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

(q) 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.

(r) 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.

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

(t) 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), (j), and (k), 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.

SEC. 2.  

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

However, if the Commission on State Mandates determines that
this act contains other 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.

SEC. 3.  

The Legislature finds and declares that Section 1 of
this act, which adds Section begin delete 236.13 end delete begin insert 236.14 end insert to 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.