BILL ANALYSIS Ó
SB 823
Page 1
SENATE THIRD READING
SB
823 (Block)
As Amended August 18, 2016
Majority vote
SENATE VOTE: 25-13
--------------------------------------------------------------------
|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Public Safety |6-0 |Jones-Sawyer, Lackey, | |
| | |Lopez, Low, Quirk, | |
| | |Santiago | |
| | | | |
|----------------+-----+-----------------------+---------------------|
|Appropriations |14-5 |Gonzalez, Bloom, |Bigelow, Gallagher, |
| | |Bonilla, Bonta, |Jones, Obernolte, |
| | |Calderon, Daly, |Wagner |
| | |Eggman, Eduardo | |
| | |Garcia, Holden, Quirk, | |
| | |Santiago, Weber, Wood, | |
| | |McCarty | |
| | | | |
| | | | |
--------------------------------------------------------------------
SB 823
Page 2
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:
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
those records.
13)Requires that the petition be made within a reasonable time
after the person has ceased to be a victim of human
SB 823
Page 5
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
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
SB 823
Page 6
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 a
human trafficking scheme of which the petitioner was a victim,
the denial may 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
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:
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
SB 823
Page 7
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.
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.
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
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.
5)States that a person who was adjudicated a ward of the court
for the commission of a violation of specified provisions
SB 823
Page 8
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.
FISCAL: According to the Assembly Appropriations Committee:
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: 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.
SB 823
Page 9
"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."
Please see the policy committee analysis for a full discussion
of this bill.
Analysis Prepared by:
David Billingsley / PUB. S. / (916) 319-3744
FN: 0004307