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 ****