BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 823|
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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OPPOSITION: (Verified5/31/16)
California District Attorneys Association
Prepared by:Jerome McGuire / PUB. S. /
5/31/16 20:45:25
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