BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 823 Hearing Date: April 12, 2016
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|Author: |Block |
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|Version: |March 31, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Criminal Procedure: Human Trafficking
HISTORY
Source: Author
Prior Legislation:AB 1585 (Alejo) - Ch. 708, Stats. 2014
AB 795 (Alejo) - failed Assembly Appropriations,
2013
AB 694 (Bloom) - Ch. 126, Stats. 2013
AB 1940 (Hill) - failed Assembly Appropriations,
2012
AB 651 (Bradford) - Ch. 787, Stats. 2012
AB 2040 (Swanson) - Ch. 197, Stats. 2012
Proposition 35 of the November 2012 General
Election
AB 22 (Lieber) - Ch. 240, Stats. 2005
Support: California Public Defenders Association; California
Catholic Conference, Inc.; Junior Leagues of
California State Public Affairs Committee; Legal
Services for Prisoners with Children; National
Association of Social Workers
Opposition:California District Attorneys Association
PURPOSE
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The purpose of this bill is to: 1) allow a person who was the
victim of human trafficking to seek dismissal of a conviction or
juvenile adjudication for any non-violent offense committed
during his or her time as human trafficking victim and to have
the arrest and court records for such an offense sealed; 2)
direct the court granting such relief to notify the Department
of Justice about the orders; and 3) set substantive and
procedural rules for a hearing to determine whether a person
seeking relief to prove that she or he was a human trafficking
victim at the time of the offenses for which he or she seeks
relief.
Existing law allows a court to set aside a conviction of a
person who has fulfilled the conditions of probation for the
entire period of probation, or has been discharged prior to the
termination of the period of probation, or who the court in its
discretion and the interests of justice, determines that the
person should be granted relief, provided that the person is not
then serving a sentence for any other offense, is not on
probation for any other offense, and is not being charged with
any other offense. (Pen. Code § 1203.4, subd. (a).)
Existing law provides that the relief pursuant to Penal Code
Section 1203.4 does not relieve the petitioner of the obligation
to disclose the conviction in response to any direct question
contained in any questionnaire or application for public office,
for licensure by any state or local agency, or for contracting
with the California State Lottery Commission. The conviction
can be alleged in any subsequent criminal prosecution. If the
underlying conviction bars a person from possessing a firearm,
the dismissal of the conviction does not eliminate that
prohibition. (Pen. Code § 1203.4, subd. (a)-(b).)
Existing law states that a person who was adjudicated a ward of
the court for the commission of a violation of specified
provisions prohibiting prostitution may petition a court to have
his or her records sealed as these records pertain to the
prostitution offenses without showing that he or she has not
been subsequently convicted of a felony or misdemeanor involving
moral turpitude, or that rehabilitation has been attained. This
relief is not available to a person who paid money or any other
valuable thing, or attempted to pay money or any other valuable
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thing, to any person for the purpose of prostitution as defined.
(Pen. Code § 1203.47.)
Existing law provides that a person who was under the age of 18
at the time of a commission of a misdemeanor and is eligible
for, or has previously received expungement relief, may petition
the court for an order sealing the record of conviction and
other official records in the case, including records of arrests
resulting in the criminal proceeding and records relating to
other offenses charged in the accusatory pleading, whether the
defendant was acquitted or charges were dismissed. Thereafter
the conviction, arrest, or other proceeding shall be deemed not
to have occurred, and the petitioner may answer accordingly any
question relating to their occurrence. (Pen. Code § 1203.45.)
Existing law states that any person who was under the age of 18
when he or she was arrested for a misdemeanor may petition the
court in which the proceedings occurred or, if there were no
court proceedings, the court in whose jurisdiction the arrest
occurred, for an order sealing the records in the case,
including any records of arrest and detention, in certain
circumstances. (Pen. Code § 851.7.)
Existing law allows in certain cases, a person who has reached
the age of 18 years to petition the juvenile court for sealing
of his or her juvenile record. (Welf. & Inst. Code § 781.)
Existing law provides that any person who deprives or violates
the personal liberty of another with the intent to obtain forced
labor or services, is guilty of human trafficking and shall be
punished by imprisonment in the state prison for 5, 8, or 12
years and a fine of not more than $500,000. (Pen. Code § 236.1,
subd. (a).)
Existing law states that any person who deprives or violates the
personal liberty of another with the intent to effect or
maintain a violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than
$500,000. (Pen. Code § 236.1, subd. (b).)
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Existing law provides that the Department of Justice (DOJ) shall
maintain state summary criminal history information and
authorizes DOJ to furnish state summary criminal history
information to statutorily authorized entities for specified
purposes including employment and licensing. (Pen. Code §
11105.6.)
Existing law prohibits a public or private employer from asking
an applicant for employment to disclose, information concerning
an arrest or detention that did not result in conviction, or
information concerning a referral to, and participation in, any
pretrial or post-trial diversion program; nor shall any employer
seek from any source, or utilize, as a factor in determining any
condition or facet of employment, or any apprenticeship or other
training program leading to employment, any record of arrest or
detention that did not result in conviction, or any record
regarding any pretrial or post-trial diversion program. Nothing
in this section shall prevent an employer from asking an
employee or applicant for employment about an arrest for which
the employee or applicant is out on bail or on his or her own
recognizance pending trial. This provision does not apply to
employment of peace officers. (Lab. Code § 432.7(a) and (e).)
Existing law allows a court, upon making a finding that a
defendant has been convicted of solicitation or prostitution as
a result of his or her status as a victim of human trafficking,
to issue an order that does all of the following:
Sets forth a finding that the petitioner was a victim of
human trafficking when he or she committed the crime;
Orders expungement relief;
Notifies the Department of Justice (DOJ) that the
petitioner was a victim of human trafficking when he or she
committed the crime and the relief that has been ordered by
the court; and,
Prohibits DOJ from disseminating the petitioner's record
of conviction for specified licensing, employment and
certification requirements. (Pen. Code § 1203.49.)
This bill extends the relief available under Penal Code Section
1203.49 for dismissal of adult prostitution convictions suffered
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by human trafficking victims to dismissal of any non-violent
offenses (that is, offenses not listed in subdivision (c) of
Penal Code section 667.5) committed as a result of or in clear
connection with a human trafficking scheme of which the person
was a victim.
This bill extends the expanded relief for dismissal of
non-violent human trafficking crimes to a person who was subject
to juvenile court adjudications for such an offense.
This bill provides that where a human trafficking victim is
granted dismissal of an adult conviction or a juvenile
adjudication suffered as a result of the person's status as a
human trafficking victim, the arrest and court records of that
offense shall be sealed.
This bill provides that a person who was arrested for a crime
allegedly committed while the person was a human trafficking
victim may petition for a judicial finding of his or her status
as a human trafficking victim at the time of the offense and an
order that the arrest record be sealed.
This bill provides that the following standards and procedures
shall apply in a petition for relief by a human trafficking
victim from the consequences of an arrest or arrest and
conviction:
The petition shall be made and heard within a reasonable
time after the person ceased being a human trafficking
victim or receiving services as a human trafficking victim,
subject to concerns about at-risk family members or other
human trafficking victims.
Official documentation of the petitioner's victim status
shall create a presumption that the person's offenses were
the result of her or his status as a victim of human
trafficking.
Official documentation is that issued by a government
agency that tends to show the petitioner's status as a
human trafficking victim.
The petitioner, or counsel, is not required to appear
personally at a hearing for relief, but may instead by
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electronic means.
A petitioner granted relief under this law may lawfully
deny or refuse to acknowledge an arrest, conviction or
adjudication as to which relief was granted and his or her
records shall not be distributed to any state licensing
board.
The record of a proceeding for relief that is publically
accessible shall not include the full name of the
petitioner.
A court may take any additional appropriate action to
carry out the purposes of this law
Denial of a petition on grounds of insufficient evidence
of the petitioner's victim status shall be without
prejudice and the court shall state the reasons for denial
on the record and allow the petitioner reasonable time to
cure the deficiencies in the petition.
A non-violent offense is one not listed in Penal Code
Section 667.5, subdivision (c).
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
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In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
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1.Need for This Bill
According to the author:
Victims of human trafficking are caught in a vicious
cycle of injustice that continues long after they have
escaped from their traffickers. Specifically, victims
face criminal stigmatization from ? acts that they
were forced to commit during their exploitation.
Reports from organizations like the State Courts
Collaborative and the Polaris Project show that
victims are often charged and convicted of a variety
of crimes beyond prostitution and solicitation, like
drug offenses, theft, using false identification, and
more. The reports state that these crimes are usually
committed at the direction of the victim's trafficker,
straddling victims with long criminal records that
limit access to employment opportunities, housing,
financial aid and other services necessary to get back
on their feet.
Perhaps most notably, victims with a criminal record
face a serious obstacle in gaining stable employment.
A paper from the National Institute of Justice asserts
that a criminal record will keep many people from
"obtaining employment, even if they have already paid
their dues, are qualified for the job and unlikely to
reoffend". Research from the American Journal of
Sociology shows that the chances of a person with a
criminal record getting a callback after a job
interview are reduced by more than 50%. It is unfair
that survivors of human trafficking, after escaping
from abuse and coercion, must face the difficulties
that come with a criminal record caused by their
victimization.
The state has removed a few barriers for victims, but
there is much more to be done. Current law does not
offer a complete remedy for the many offenses that
victims of human trafficking may have on their
criminal records. Penal Code Section 1203.49 allows
courts to grant expungement relief to victims if the
convictions are solely for solicitation or
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prostitution. The law limits the remedy to only two
classes of crime, when in reality victims can have
many different types of arrests and convictions on
their records.
Since 2014, fifteen states have passed legislation
that creates a process for victims to vacate or
expunge a conviction that relates to their experience
as human trafficking victims. In particular, vacatur
laws are seen as the best legal remedy for clearing
convictions in comparison with expungement provisions.
Vacatur laws offer a more complete reprieve for
victims of human trafficking by offering a clean
slate. SB 823 would provide this legal remedy to any
nonviolent offense if certain criteria are met so that
victims can truly get back on their feet.
2.Dismissal of Prior Convictions Generally
Convicted defendants who have successfully completed probation
or a conditional sentence can petition the court to set aside a
guilty verdict or permit the person to withdraw his or her
guilty or nolo contendere plea and dismiss the complaint,
accusation, or information. (Penal Code § 1203.4; People v.
Bishop (1992) 11 Cal.App.4th 1125, 1129.) Where the defendant
fulfills the conditions of probation without violation or
obtains early discharge, he or she has a right to dismissal of
the underlying conviction. (People v. Bradus (2007) 149
Cal.App.4th 636.)
Although this form of relief is colloquially described as
"expungement," the relief granted has substantial limits. The
conviction can be alleged in any subsequent prosecution. The
dismissal does not restore a person's right to possess a firearm
and does not permit a person to hold public office if barred by
the dismissed conviction. The conviction must be disclosed in
an application for public office or licensure by any state or
local agency, or in seeking a contract with the state lottery.
The relief is not available for specified sex and child
pornography or specified vehicle safety misdemeanors.
3. Relief for a Victim of Human Trafficking under Existing Law
Recently enacted legislation - AB 1585 (Alejo) Ch. 708, Stats.
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2014 - provides that in cases where a person has been convicted
of solicitation or prostitution, has completed probation, and
can show the court that he or she was convicted of the offense
because he or she was a victim of human trafficking, the court
may offer relief under Penal Code Section 1203.4 for dismissal
of a guilty verdict of the setting aside of a guilty or no
contest plea. The court shall also notify the Department of
Justice that the person was a victim of human trafficking when
he or she committed the offense. Generally, when the Department
of Justice sends out background information they include
convictions that have later been dismissed under Penal Code
Section 1203.4. A prostitution offense (Pen. Code § 647, subd.
(b)) that is dismissed pursuant to Penal Code Section 1203.49
for a victim of human trafficking is not included in background
check information.
4. Broad Relief for Human Trafficking Victims - Background
Checks and State Licensing Issues
The relief granted pursuant to this bill can reasonably be
described as true expungement. The bill provides:
"Notwithstanding any other law, the records of the arrest,
conviction or adjudication shall not be distributed to any state
licensing board." Further, unlike the relief granted under
Section 1203.4, the records of the arrest and conviction shall
be sealed.
It is not explicitly stated in the bill that the expungement
would excuse a person granted the relief from disclosing the
arrest or conviction in an application for a license issued by a
local entity. The bill does not explicitly state that a person
granted the relief under this bill would be entitled to possess
a firearm, if otherwise barred from possession of a firearm by
any felony conviction or a specified misdemeanor. As noted
above, a person whose conviction was dismissed pursuant to
Section 1203.4 cannot possess a firearm. Given that the relief
provided by this bill includes the sealing of the record of
arrest or conviction for a covered offense, it can be argued
that no adverse consequences of the conviction remain after
relief is granted.
- END -
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