BILL ANALYSIS                                                                                                                                                                                                    Ó






           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        SB 823|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 


                                   THIRD READING 


          Bill No:  SB 823
          Author:   Block (D) 
          Amended:  5/31/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  5-1, 4/12/16
           AYES:  Hancock, Glazer, Leno, Liu, Monning
           NOES:  Stone
           NO VOTE RECORDED:  Anderson

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/27/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Criminal procedure:  human trafficking


          SOURCE:    Author

          DIGEST:  This bill 1) allows a human trafficking victim to seek  
          dismissal of a conviction or juvenile adjudication for any  
          non-violent offense committed while he or she was a human  
          trafficking victim and to have the arrest and court records for  
          such an offense sealed and destroyed; 2) directs the court  
          granting such relief to notify the Department of Justice about  
          the orders; 3) sets 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; 4) provides that the  
          records of arrest shall be sealed for three years from the  
          latter of the date of arrest or the date the order was issued;  
          and 5) requires the agency holding the arrest records to destroy  
          the records and the court order granting relief after the  








                                                                     SB 823  
                                                                    Page  2


          records have been sealed for the applicable three-year period.

          ANALYSIS:  
          
          Existing law:

           1) 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).)

           2) 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).) 

           3) 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 thing, to any person for the purpose of  
             prostitution as defined.  (Pen. Code § 1203.47.) 

           4) 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  







                                                                     SB 823  
                                                                    Page  3


             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.) 

           5) 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.) 

           6) 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.) 

           7) 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).) 

           8) 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).)

           9) 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.) 

           10)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  







                                                                     SB 823  
                                                                    Page  4


             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).) 

           11)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: 

              a)    Sets forth a finding that the petitioner was a victim  
                of human trafficking when he or she committed the crime; 
              b)    Orders expungement relief; 
              c)    Notifies the 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,
              d)    Prohibits DOJ from disseminating the petitioner's  
                record of conviction for specified licensing, employment  
                and certification requirements. (Pen. Code § 1203.49.)

          This bill:

           1) Extends the relief available under Penal Code Section  
             1203.49 for dismissal of adult prostitution convictions  
             suffered 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.

           2) Places this new form of relief for human trafficking victims  
             in the part of the Penal Code that includes the other human  
             trafficking statutes.

           3) Extends the expanded relief for dismissal of non-violent  







                                                                     SB 823  
                                                                    Page  5


             human trafficking crimes to a person who was subject to  
             juvenile court adjudications for such an offense.

           4) 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.  

           5) 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.   

           6) 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:

              a)    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.
              b)    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.
              c)    Official documentation is that issued by a government  
                agency that tends to show the petitioner's status as a  
                human trafficking victim.
              d)    The petitioner, or counsel, is not required to appear  
                personally at a hearing for relief, but may instead by  
                electronic means.
              e)    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.
              f)    The record of a proceeding for relief that is  
                publically accessible shall not include the full name of  
                the petitioner.
              g)    A court may take any additional appropriate action to  
                carry out the purposes of this law.







                                                                     SB 823  
                                                                    Page  6


              h)    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. 

           7) Provides that a non-violent offense is one not listed in  
             Penal Code Section 667.5, subdivision (c).

           8) Requires a law enforcement agency that receives a court  
             order granting a human trafficking victim relief under this  
             bill, including that the petitioner's conviction be vacated  
             and the records destroyed, to do the following:

              a)    Seal the agency's records of arrest for the latter of  
                three years from the date of arrest or from the date of  
                the court order.
              b)    Seal the court order for the latter of three years  
                from the date of arrest or from the date of the court  
                order.
              c)    Destroy the records of arrest and the court order at  
                the end of the applicable three-year period. 
          
          Background

          According to the author:

             Victims of human trafficking are caught in a vicious  
             cycle of injustice long after they have escaped from  
             their traffickers.  Research demonstrates that victims  
             are often charged and convicted of crimes beyond  
             prostitution and solicitation, like drug offenses,  
             theft, using false identification, and more, usually  
             committed at the direction of the victim's trafficker.   
             These convictions saddle victims with long criminal  
             records that limit access to employment, housing and  
             other services necessary to get back on their feet. 

             Victims with a criminal record face a serious obstacle  
             in gaining stable employment.  The National Institute of  
             Justice states 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."  The chances of a person with a  







                                                                     SB 823  
                                                                    Page  7


             criminal record getting a callback after a job interview  
             are reduced by more than 50%.  

             The state has removed a few barriers for victims, but  
             does not offer a complete remedy for victims of human  
             trafficking.  Penal Code Section 1203.49 allows courts  
             to grant limited expungement relief to victims if their  
             convictions are solely for solicitation or prostitution,  
             although trafficking victims can have many different  
             types of arrests and convictions on their records. 

             Fifteen states have created a process for victims to  
             vacate or totally expunge a conviction was associated  
             with human trafficking.  Vacatur laws offer victims a  
             true 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.

          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 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.

          Existing law provides that where a person has been convicted of  
          a prostitution offense, completed probation, and demonstrates  
          that he or she was convicted of the offense because he or she  
          was a victim of human trafficking, the court may grant relief  







                                                                     SB 823  
                                                                    Page  8


          under Penal Code Section 1203.4 for dismissal of a guilty  
          verdict, or to set aside a plea of guilty or no contest. The  
          court shall also notify the DOJ that the person was a victim of  
          human trafficking when he or she committed the offense.   
          Generally, background information provided by DOJ includes  
          convictions that have been dismissed under Penal Code Section  
          1203.4, although a human trafficking victim's dismissed  
          prostitution offense is not included in background check  
          information.  

          The relief granted pursuant to this bill can 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 and later  
          destroyed.  

          It is not explicitly stated in this 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.  This 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 and eventual  
          destruction 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.  



          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          According to the Senate Appropriations Committee:


           New petitions for relief:  Potential major ongoing increase in  
            court workload (General Fund*) for new filings for relief due  
            to 1) the expanded population of individuals eligible to file  







                                                                     SB 823  
                                                                    Page  9


            to include those arrested or adjudicated, 2) the extension of  
            relief for any non-violent offense, and 3) revising the  
            standard under which individuals may petition. Over 740,000  
            misdemeanor dispositions occur annually. To the extent even  
            one percent or 7,400 new petitions are filed as a result of  
            this measure would result in increased court costs of $1.5  
            million, assuming 15 minutes of court time per petition. For  
            context, for the non-violent offense of misdemeanor  
            prostitution alone, over 10,000 arrests are made each year.  
            While the number of individuals ultimately eligible for relief  
            may be limited, more individuals may file petitions for court  
            review than are eligible. 


           Petitioner options to appear:  Potentially significant costs  
            (General Fund*) to individual courts to the extent petitioners  
            allowed to appear via telephone, video or other electronic  
            means causes scheduling delays and/or operational costs. A  
            court may have various means established to conduct hearings  
            but may not necessarily be implementing them or utilizing them  
            on a full-time basis.


           Sealing/destruction of records:  Potentially significant  
            state-reimbursable local law enforcement agency costs (General  
            Fund) to seal and destroy arrest records of petitioners. The  
            CHP has indicated minor and absorbable costs (Special Fund**).  



           DOJ: Minor ongoing costs (General Fund) to receive court  
            notifications of relief granted. Potential costs (General  
            Fund) to seal and destroy records as ordered by the court.


          SUPPORT:   (Verified5/31/16)


          California Catholic Conference
          California Public Defenders Association
          Junior Leagues of California State Public Affairs Committee
          Legal Services for Prisoners with Children
          National Association of Social Workers








                                                                     SB 823  
                                                                    Page  10



          OPPOSITION:   (Verified5/31/16)




          California District Attorneys Association




          Prepared by:Jerome McGuire / PUB. S. / 
          5/31/16 20:45:25


                                   ****  END  ****