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