BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 823


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          Date of Hearing:  June 21, 2016


          Counsel:               David Billingsley








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          SB  
          823 (Block) - As Amended May 31, 2016


                       As Proposed to be Amended in Committee








          SUMMARY:  Allows a person arrested or convicted of a nonviolent  
          crime while he or she was a human trafficking victim to apply to  
          the court to vacate the conviction and seal and destroy records  
          of arrest.  Specifically, this bill:  









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          1)Allows a person who has been arrested for, or convicted of, or  
            adjudicated a ward of the juvenile court for, any nonviolent  
            offense, as defined, while he or she was a victim of human  
            trafficking, to petition the court for relief from the arrest  
            and conviction, or adjudication.

          2)Requires the petitioner to establish by clear and convincing  
            evidence that the arrest or conviction was the direct result  
            of being a victim of human trafficking to be eligible for  
            relief. 



          3)Requires the petition for relief to be submitted under penalty  
            of perjury, and to describe all of the available grounds and  
            evidence that the Petitioner was a victim of human trafficking  
            and the arrest or conviction of a non-violent offense was the  
            direct result of being a victim of human trafficking. 



          4)Requires the petition for relief and supporting documentation  
            to be served on the state or local prosecutorial agency that  
            obtained the conviction for which relief is sought. The state  
            or local prosecutorial agency shall have 45 days from the date  
            of receipt of service to respond to the application for  
            relief.



          5)States that if opposition to the application is not filed by  
            the applicable state or local prosecutorial agency, the court  
            shall deem the application unopposed and may grant the  
            application.











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          6)Specifies that 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. 



          7)Allows the court to schedule a hearing on the petition. 



          8)States that a hearing on the petition may consist of:



             a)   Testimony by the petitioner in support of the petition; 

             b)   Evidence and supporting documentation in support of the  
               petition; and



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



          9)Provides that after considering the totality of the evidence  
            presented, the court may vacate the conviction(s) and arrests  
            and issue an order if it finds the following:

             a)   That the Petitioner was a victim of human trafficking at  
               the time the non-violent crime was committed;

             b)   The commission of the crime was a direct result of being  
               a victim of human trafficking;









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             c)   The victim is engaged in a good faith effort to distance  
               themselves from the human trafficking scheme, and 



             d)   It is in the best interest of the petitioner and in the  
               interest of justice.



          10)Authorizes the court to vacate the conviction or adjudication  
            and issue an order. 

          11)States that order shall do all of the following:  



             a)   Sets forth a finding that the petitioner was a victim of  
               human trafficking when he or she committed the non-violent  
               offense.

             b)   Sets aside the verdict of guilty and dismisses the  
               accusation or information against the petitioner.

             c)   Notifies 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.

          12)States that 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  








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            those records. 

          13)Requires 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. 

          14)States 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. 



          15)Provides that 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, and may appear via alternate specified  
            methods. 



          16)Prohibits 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. 



          17)Allows 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.



          18)States that notwithstanding any other law, the records of the  








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            arrest, conviction, or adjudication shall not be distributed  
            to any state licensing board.



          19)Specifies that notwithstanding an order of relief, the  
            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



          20)Provides that if the court denies the petition for relief  
            because the evidence is insufficient to establish that the  
            arrest, conviction, or adjudication was the direct result of,  
            or in clear connection with, a human trafficking scheme of  
            which the petitioner was a victim, the denial shall be without  
            prejudice.

          21)States that the court may state the reasons for its denial of  
            a petition, and if those reasons are based on deficiencies in  
            the application that can be fixed, allow the applicant a  
            reasonable time period to cure the deficiencies upon which the  
            court based the denial. 



          22)Specifies that for purposes of the language in this bill,  
            "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 the language of this bill.

          EXISTING LAW:  



          1)Provides if a defendant has been convicted of solicitation or  
            prostitution, and if the defendant has completed any term of  








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            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, the court may  
            issue an order that does all of the following:  (Pen. Code, §  
            1203.49.)



             a)   Sets forth a finding that the petitioner was a victim of  
               human trafficking when he or she committed the crime; 

             b)   Order specified expungement relief; and

             c)   Notifies the Department of Justice that the petitioner  
               was a victim of human trafficking when he or she committed  
               the crime and the relief that has been ordered.

          2)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).)

          3)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.  (Pen. Code, §  
            1203.4, subd. (a).)

          4)Provides that a person who was under the age of 18 at the time  
            of commission of a misdemeanor and is eligible for, or has  
            previously received expungement relief, may petition the court  








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            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.)

          5)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.)

          6)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.  (Penal Code, § 851.7.) 

          7)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.)

          8)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.  








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            (a).) 

          9)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).)

          10)Provides that 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.)

          11)Prohibits an employer, whether a public agency or private  
            individual or corporation, from asking an applicant for  
            employment to disclose, through any written form or verbally,  
            information concerning an arrest or detention that did not  
            result in conviction, or information concerning a referral to,  
            and participation in, any pretrial or posttrial diversion  
            program.  Nor shall any employer seek from any source  
            whatsoever, or utilize, as a factor in determining any  
            condition of employment including hiring, promotion,  
            termination, or any apprenticeship training program or any  
            other training program leading to employment, any record of  
            arrest or detention that did not result in conviction, or any  
            record regarding a referral to, and participation in, any  
            pretrial or posttrial diversion program. (Lab. Code, § 432.7,  
            subds. (a) & (e).)





          FISCAL EFFECT:  Unknown











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          COMMENTS:  



          1)Author's Statement:  According to the author, "SB 823 would  
            give victims of human trafficking a fresh start by creating a  
            pathway to erase any nonviolent arrests and convictions from  
            their records. Victims of human trafficking are caught in a  
            vicious cycle of injustice that continues long after they have  
            escaped their traffickers. They face stigmatization from being  
            criminalized for crimes they were forced to commit during  
            their exploitation, which limit access to good employment and  
            create barriers to a variety of services such as housing and  
            education. Current California law does not do enough to ensure  
            that victims have a chance to completely re-start their lives  
            after they escape from their traffickers and the life of  
            coercion associated with it. 

          "Under the bill, a victim who has left the life or is receiving  
            services to leave the life can  petition the court for removal  
            of their offenses if they can demonstrate a direct or clear  
            connection to their offenses and  their life as a victim. The  
            judge then determines whether the standard has been met. The  
            measure also offers other relief to victims, such as allowing  
            petitioners to appear at a hearing through electronic means.  
            SB 823 would broaden current law and provide a track that  
            effectively allows victims of human trafficking to erase their  
            records and restart their lives."

          2)Expungement vs. Vacating a Conviction:  Defendants who have  
            successfully completed probation (including early discharge)  
            can petition the court to set aside a guilty verdict or permit  
            withdrawal of the guilty or nolo contendere plea and dismiss  
            the complaint, accusation, or information.  (Penal Code  
            Section 1203.4.)  Defendants who have successfully completed a  
            conditional sentence also are eligible to petition the court  
            for expungement relief under Penal Code Section 1203.4.   








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            (People v. Bishop (1992) 11 Cal.App.4th 1125, 1129.)  Penal  
            Code Section 1203.4 also provides that the court can, in the  
            furtherance of justice, grant this relief if the defendant did  
            not successfully complete probation. (Penal Code Section  
            1203.4; see People v. McLernon (2009) 174 Cal.App.4th 569,  
            577.)



          Expungement relief is not available for convictions of certain  
            offenses.  These include most felony child molestation  
            offenses, other specific sex offenses, and a few traffic  
            offenses.  (Penal Code Sections 1203.4 and 1203.4a.)  It does  
            not prevent the conviction from being pleaded and proved just  
            like any other prior conviction in any subsequent prosecution.  
             (See People v. Diaz (1996) 41 Cal.App.4th 1424.)  

          Expungement 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 in any  
            questionnaire or application for public office or for  
            licensure by any state or local agency.  Expungement relief  
            pursuant to Penal Code Section 1203.4a, on the other hand,  
            does not explicitly require the person to disclose the  
            conviction in an application for a state license or public  
            office.  Penal Code Section 1203.4a is only available for  
            defendants convicted of a misdemeanor and not granted  
            probation.

          By regulation, a private employer may not ask a job applicant  
            about any misdemeanor conviction dismissed under Penal  
            Code1203.4.  (2 Cal. Code of Regs. Section 7287.4(d).])  Also,  
            under Labor Code Section 432.7, a private or public employer  
            may not ask 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 posttrial diversion  
            program.  However, if the employer is an entity statutorily  
            authorized to request criminal background checks on  








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            prospective employees, the background check would reveal the  
            expunged conviction with an extra entry noting the dismissal  
            on the record.
            This bill actually proposes a way to vacate convictions of  
            human trafficking victims.  By vacating the conviction, the  
            remedy is actually more forceful than an expungement.  Unlike  
            an expungement, getting a conviction vacated effectively means  
            that the conviction never occurred.  Under current California  
            law and criminal procedure, motions to vacate a conviction are  
            generally done through the appellate process.  This bill takes  
            a novel approach of setting up a statutory framework for  
            vacating convictions for a particular class of individuals.   
            Essentially, this bill creates parity between human  
            trafficking victims and those individuals who are found  
            factually innocent of crimes they never committed.  


          3)Current Expungement Law Related to Prostitution:  Under  
            current California law a defendant who has been convicted of  
            solicitation or prostitution may petition the court for, and  
            the court may set aside the conviction if the defendant can  
            show that the conviction was the result of his/her status as a  
            victim of human trafficking.  This provision of law is the  
            result of the passage of AB 1585 (Alejo), Chapter 708 of the  
            Statutes of 2014.  The relief set forth in AB 1585 was limited  
            to expungement of prostitution offenses.  This bill broadly  
            expands upon these remedies to include most non-violent  
            crimes.  This bill provides more extensive relief than AB 1585  
            because it vacates the conviction as opposed to setting aside  
            the conviction (expungement).  This bill also provides that  
            the court records connected to the conviction will be sealed.

          4)Duress and Necessity: This bill provides for vacating  
            nonviolent criminal offenses that were committed by human  
            trafficking victims at the behest of their traffickers.  Such  
            relief would come available after the individual had been  
            through the criminal process and been convicted.  Under  
            current law, if a victim of human trafficking is forced to  
            commit a crime by their trafficker then they have the defenses  








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            of duress and necessity available to them.   "All persons are  
            capable of committing crimes except persons (unless the crime  
            be punishable with death) who committed the act or made the  
            omission charged under threats or menaces sufficient to show  
            that they had reasonable cause to and did believe their lives  
            would be endangered if they refused." (Pen. Code, § 26.).


             a)   Duress:  The defendant is not guilty of a crime if he or  
               she acted under duress. The defendant acted under duress  
               if, because of threat or menace, he or she believed that  
               his or her or someone else's life would be in immediate  
               danger if he or she refused a demand or request to commit  
               the crime. The demand or request may have been expressed or  
               implied.  The defendant's belief must have been reasonable.  
               When deciding whether the defendant's belief was  
               reasonable, consider all the circumstances as they were  
               known to and appeared to the defendant and consider what a  
               reasonable person in the same position as the defendant  
               would have believed. CALCRIM 3402.


             b)   Necessity:  Although evidence may raise both necessity  
               and duress defenses, there is an important distinction  
               between the two concepts. With necessity, the threatened  
               harm is in the immediate future, thereby permitting a  
               defendant to balance alternative courses of conduct.  
               (People v. Condley (1977) 69 Cal.App.3d 999, 1009-1013.)   
               Necessity does not negate any element of the crime, but  
               rather represents a public policy decision not to punish a  
               defendant despite proof of the crime. (  People v. Heath  
               (1989) 207 Cal.App.3d 892, 901  .)  The duress defense, on  
               the other hand, does negate an element of the crime. The  
               defendant does not have the time to form the criminal  
               intent because of the immediacy of the threatened harm.  
               (Ibid.)


            These defenses can potentially be raised by a victim of human  








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            trafficking during a criminal case where they face charges  
            based on conduct they engaged in as result of being a victim  
            of human trafficking.  This bill provides a mechanism to  
            vacate a conviction after the criminal case is complete.  The  
            provisions of this bill allow an individual to petition to get  
            a non-violent conviction vacated based on a showing that it  
            was a result of their status as a victim of human trafficking,  
            whether or not they raised that defense during the underlying  
            criminal proceeding.


          5)As Proposed to be Amended In Committee:  The amendments  
            proposed to be adopted in Committee are as follows:

             a)   Require the petitioner to establish by clear and  
               convincing evidence that the arrest or conviction was the  
               direct result of being a victim of human trafficking.

             b)   Require the petition for relief to describe all of the  
               available grounds and evidence that the petitioner was a  
               victim of human trafficking and the arrest or conviction of  
               a non-violent offense was the direct result of that status.  


             c)   Requires the petition for relief and supporting  
               documentation to be served on the state or local  
               prosecutorial agency that obtained the conviction for which  
               relief is sought. 

             d)   Specify that if opposition to the application is not  
               filed by the applicable state or local prosecutorial  
               agency, the court shall deem the application unopposed and  
               may grant the application.

             e)   Provide that 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. 








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             f)   Provide a structure for an evidentiary court hearing on  
               the petition. 

             g)   State that the court may vacate the conviction(s) and  
               arrests and issue an order based on specified findings.



          6)Argument in Support:  According to The California Public  
            Defenders Association, "SB 823 would amend Penal Code section  
            1203.49 to allow an individual who petitions for relief and  
            shows that they were a victim of human trafficking and shows  
            that any nonviolent offense committed was connected to being a  
            victim of human trafficking is entitled to have the conviction  
            dismissed and the police reports and court records sealed. 

          "Most victims of human traffickers are young people. SB 823 is  
            practical help for one of California's most vulnerable  
            populations-its youth. Records of conviction can have a major  
            impact on a young person's future. An unsealed criminal record  
            can appear on a background check, and lead to being rejected  
            for employment or housing.  Research has repeatedly  
            demonstrated that without stable employment and housing, there  
            is a higher chance that a young person will reoffend thus  
            costing taxpayers more in the long term. SB 823 is good public  
            policy. For a small investment now, it saves money and  
            protects the community."

          7)Argument in Opposition:  According to The California District  
            Attorneys Association, "This proposal would create a class of  
            people who would be presumptively exempted from liability for  
            the crimes they commit, as long as the offense "was a direct  
            result of the applicant being a human trafficking victim."   
            Traditional defenses to criminal liability are fully adequate  
            to address the issues that victims of trafficking may bring to  
            excuse or justify their criminal conduct.

          "We believe that SB 823 would promote criminal conduct by  








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            creating an incentive for traffickers to enlist their victims  
            to commit crimes, knowing full well that the people they press  
            into service will not be held responsible for their actions.   
            This proposal would allow a defendant whose claim was heard  
            and rejected at trial to return to court immediately after  
            conviction to vacate his or her conviction, notwithstanding  
            the fact that the trier of fact heard and rejected the  
            defense.

          "In addition to being poor public policy, the bill, by not  
            defining what constitutes a "human trafficking victim", fails  
            to provide courts or counsel with any guidance as to how these  
            claims are to evaluated, and does not even include a burden of  
            proof.  Meanwhile, it amounts to a legislative attempt to  
            strong-arm judges into granting these applications by  
            requiring denials to be in writing.  The applicants need not  
            even show that they acted under duress or were coerced to  
            succeed in vacating their convictions.

          "This bill could create speedy exonerations for a wide variety  
            of felony and misdemeanor offenses, including registerable sex  
            offenses, residential burglary, weapons possession, every  
            variety of theft, vehicular manslaughter, elder abuse, child  
            abuse, and a great many crimes of violence not listed in Penal  
            Code section 667.5(c).

          8)Related Legislation: 

             a)   AB 1762, (Campos), allows an individual convicted of a  
               nonviolent crime while he or she was human trafficking  
               victim to apply to the court to vacate the conviction upon  
               a showing of clear and convincing evidence.  AB 1762 is  
               awaiting assignment in Senate Rules Committee.

             b)   AB 1761 (Weber) creates an affirmative defense against  
               any nonviolent crime committed as a direct result of being  
               a human trafficking victim, and would make any unproven  
               theories regarding the effect of human trafficking on human  
               trafficking victims admissible in criminal action.  AB 1761  








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               is awaiting a hearing in the Senate Public Safety  
               Committee.


          9)Prior Legislation:  

             a)   AB 1585 (Alejo), Chapter, 708, Statutes of 2014,  
               provides that a defendant who has been convicted of  
               solicitation or prostitution may petition the court to set  
               aside the conviction 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.  

             b)   AB 2040 (Swanson), Chapter 197, Statutes of 2012,  
               provides 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.  

             c)   AB 1940 (Hill), of the 2011-12 Legislative Session,  
               would have authorized a court to seal a record of  
               conviction for prostitution based on a finding that the  
               petitioner is a victim of human trafficking, that the  
               offense is the result of the petitioner's status as a  
               victim of that crime, and that the petitioner is therefore  
               factually innocent.  AB 1940 was held on the Assembly  
               Committee on Appropriations' Suspense File.

             d)   AB 702 (Swanson), of the 2011-12 Legislative Session,  
               would have allowed a person adjudicated a ward of the court  
               or a person convicted of prostitution to have his or her  
               record sealed or conviction expunged without showing that  
               he or she has not been subsequently convicted or that he or  
               she has been rehabilitated.  AB 702 was never heard by this  








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               Committee and was returned to the Chief Clerk.

             e)   AB 22 (Lieber), Chapter 240, Statutes of 2005, created  
               the California Trafficking Victims Protection Act, which  
               established civil and criminal penalties for human  
               trafficking and allowed for forfeiture of assets derived  
               from human trafficking.  In addition, the Act required law  
               enforcement agencies to provide Law Enforcement Agency  
               Endorsement to trafficking victims, providing trafficking  
               victims with protection from deportation and created the  
               human trafficking task force.


          REGISTERED SUPPORT / OPPOSITION:





          Support


          


          California Catholic Conference


          California Public Defenders Association
          Junior Leagues of California 
          Junior League of San Diego
          Generate Hope
          Legal Services for Prisoners with Children
          National Association of Social Workers, California Chapter



          Opposition









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          Alameda County District Attorney, Nancy O'Malley


          California District Attorneys Association
          Judicial Council of California
          Los Angeles County District Attorney's Office
          
          Analysis Prepared by:David Billingsley / PUB. S. / (916)  
          319-3744