BILL ANALYSIS Ó SB 823 Page 1 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: SB 823 Page 2 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. SB 823 Page 3 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; SB 823 Page 4 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 SB 823 Page 5 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 SB 823 Page 6 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 SB 823 Page 7 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 SB 823 Page 8 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. SB 823 Page 9 (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 SB 823 Page 10 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. SB 823 Page 11 (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 SB 823 Page 12 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 SB 823 Page 13 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 SB 823 Page 14 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. SB 823 Page 15 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 SB 823 Page 16 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 SB 823 Page 17 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 SB 823 Page 18 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 SB 823 Page 19 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