BILL ANALYSIS Ó
SB 823
Page 1
Date of Hearing: August 3, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
SB 823
(Block) - As Amended August 1, 2016
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|Policy |Public Safety |Vote:|6 - 0 |
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill allows an individual convicted of a nonviolent crime,
as defined, while he or she was a human trafficking victim to
apply to the court to vacate the conviction at any time after it
was entered. The prosecutorial agency has 45 days, from the
date of receipt of service of complete application, to oppose
the application, if opposition to the application is not filed,
the court is required to deem the application unopposed and must
grant the application; but if the application is opposed, the
court is required to hold a hearing on the application. If the
defendant prevails, the court is required to seal the records
and release the defendants from all penalties - except financial
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restitution- and disabilities, and the requirement to disclose
the conviction of the crime.
If the court denies the application because the evidence is
insufficient to establish grounds for vacating a conviction, the
denial may be without prejudice. The court may state its
reasons; if those reasons are curable deficiencies, the court
may allow the applicant a reasonable time period to cure the
deficiencies upon which the court based the denial.
FISCAL EFFECT:
1)Unknown costs to the courts, since many of the requests to
vacate will be for misdemeanors and low-level felonies.
However, if the prosecutorial agency opposes the request, the
court must hold a hearing. For illustrative purposes, 100
such hearings would result in a cost of $167,000 (Trial Court
Trust Fund) for two-hour hearings, and $670,000 for full-day
hearings.
2)First-year cost of approximately $60,000 and ongoing cost of
$90,000 (General Fund) to the Department of Justice for one
position to address the workload to seal approximately700
records annually.
COMMENTS:
1)Purpose. According to the author, this bill would provide
victims of human trafficking a pathway to erase any nonviolent
arrests and convictions from their records and give them a
chance for a fresh start. These victims face stigmatization
from being criminalized for crimes they were forced to commit
during their exploitation, which limit access to good
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employment and create barriers to a variety of services such
as housing and education. The author states, "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."
2)Background. Under current law, if a victim of human
trafficking is forced to commit a crime by their trafficker
then they have the defenses of duress and necessity made
available to them. Under current law, all persons are capable
of committing crimes except persons 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.
3)Human trafficking. Human trafficking involves the recruitment,
transportation or sale of people for forced labor. Through
violence, threats and coercion, victims are forced to work in,
among other things, the sex trade, domestic labor, factories,
hotels and agriculture. According to the January 2005 United
States Department of State's Human Smuggling and Trafficking
Center report, "Fact Sheet: Distinctions Between Human
Smuggling and Human Trafficking", an estimated 600,000 to
800,000 men, women and children are trafficked across
international borders each year. Of these, approximately 80%
are women and girls and up to 50% are minors. A recent report
by the Human Rights Center at the University of California,
Berkeley cited 57 cases of forced labor in California between
1998 and 2003, with over 500 victims. The report, "Freedom
Denied", notes most of the victims in California were from
Thailand, Mexico, and Russia and had been forced to work as
prostitutes, domestic slaves, farm laborers or sweatshop
employees. [University of California, Berkeley Human Rights
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Center, "Freedom Denied: Forced Labor in California"
(February, 2005).]
4)Related Legislation:
a) AB 1672 (Campos), awaiting a hearing in Senate
Appropriations, allows an individual convicted of a
nonviolent crime while he or she was a human trafficking
victim to apply to the court to vacate the conviction if
the individual has not been convicted of any crime after
successfully completing probation, or if probation is not
granted, for two years after release from custody.
b) AB 1675 (Stone), awaiting a hearing in Senate
Appropriations, provides that a minor who commits the
crimes of solicitation, prostitution, or loitering with the
intent to commit prostitution, is subject to the
jurisdiction of the juvenile dependency court rather than
delinquency court.
c) AB 1760 (Santiago), held in this Committee's Suspense
file earlier this year, would have directed a peace officer
who determines that a minor is a victim of human
trafficking to report such abuse, consult with a child
welfare worker about a safe placement for the minor, and
transport the minor to such placement, unless the minor is
otherwise arrested..
1)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.
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b) AB 1940 (Hill), 2012, 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 in this committee's Suspense file.
c) 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
Committee and was returned to the Chief Clerk.
d) 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.
Analysis Prepared by:Pedro Reyes / APPR. / (916)
319-2081
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