BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 823|
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UNFINISHED BUSINESS
Bill No: SB 823
Author: Block (D), et al.
Amended: 8/18/16
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-1, 4/12/16
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Stone
NO VOTE RECORDED: Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/27/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SENATE FLOOR: 25-13, 6/2/16
AYES: Allen, Beall, Block, De León, Galgiani, Glazer, Hall,
Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara,
Leno, Leyva, Liu, McGuire, Mitchell, Monning, Nguyen, Pan,
Pavley, Wieckowski, Wolk
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines,
Huff, Moorlach, Morrell, Nielsen, Roth, Stone, Vidak
NO VOTE RECORDED: Mendoza, Runner
ASSEMBLY FLOOR: 57-21, 8/23/16 - See last page for vote
SUBJECT: Criminal procedure: human trafficking
SOURCE: Author
DIGEST: This bill 1) allows a person who was the victim of
human trafficking to petition for dismissal of a conviction or
juvenile adjudication for any non-violent offense committed as a
direct result of being a human trafficking victim and to have
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the arrest and court records for such an offense sealed; and 2)
set substantive and procedural rules for a hearing on the
petition for relief.
Assembly Amendments 1) tighten standards for eligibility for
relief, including that petitioners seeking relief for adult
convictions must meet a clear and convincing evidence standard
and that the petition must be submitted under penalty of
perjury; 2) provide for a rebuttable presumption of eligibility
for relief concerning juvenile matters if the petitioner
establishes required criteria; 3) provide that the petitioner
will not be relieved of restitution obligations; and 4) make
technical and organizational changes.
ANALYSIS:
Existing law:
1) 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).)
2) 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.
The conviction can be alleged in any subsequent criminal
prosecution. If the underlying conviction bars a person from
possessing a firearm, the dismissal of the conviction does
not eliminate that prohibition. (Pen. Code § 1203.4, subd.
(a)-(b).)
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3) 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.)
4) Provides that a person who was under the age of 18 at the
time of a 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. (Pen.
Code § 1203.45.)
5) 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. (Pen. Code § 851.7.)
6) 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.)
7) 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
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12 years and a fine of not more than $500,000. (Pen. Code §
236.1, subd. (a).)
8) 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).)
9) Provides that the Department of Justice (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.)
10)Prohibits a public or private employer from asking 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 post-trial diversion program; nor shall any
employer seek from any source, or utilize, as a factor in
determining any condition or facet of employment, or any
apprenticeship or other training program leading to
employment, any record of arrest or detention that did not
result in conviction, or any record regarding any pretrial or
post-trial diversion program. Nothing in this section shall
prevent an employer from asking an employee or applicant for
employment about an arrest for which the employee or
applicant is out on bail or on his or her own recognizance
pending trial. This provision does not apply to employment
of peace officers. (Lab. Code § 432.7(a) and (e).)
11)Allows a court, upon making a finding that a defendant has
been convicted of solicitation or prostitution as a result of
his or her status as a victim of human trafficking, to 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) Orders expungement relief;
c) Notifies the DOJ that the petitioner was a victim of
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human trafficking when he or she committed the crime and
the relief that has been ordered by the court; and,
d) Prohibits DOJ from disseminating the petitioner's
record of conviction for specified licensing, employment
and certification requirements. (Pen. Code § 1203.49.)
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 (an offense not listed in Penal Code Section 667.5,
subd. (c)) 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 describe all 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)Provides that if the petitioner's establishes that his or her
juvenile arrest or adjudication was the result of human
trafficking, this creates a rebuttable presumption of
eligibility for relief.
5)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.
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6)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, with or without a hearing in the court's
discretion.
7)Specifies that the court may, with the agreement of the
petitioner and all of the involved prosecutorial agencies,
consolidate into one hearing a petition with multiple
convictions from different jurisdictions.
8)Allows the court to schedule a hearing on the petition.
9)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.
10)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;
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.
11)Authorizes the court to vacate the conviction or adjudication
and issue an order.
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12)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, but not
relieve the petitioner of the obligation to pay
restitution.
c) Notifies the DOJ that the petitioner was a victim of
human trafficking when he or she committed the crime and of
the relief that has been ordered.
13)States that the court shall also order the law enforcement
agency having jurisdiction over the offense, the DOJ, 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.
14)Requires that the petition be made within a reasonable time
after the person has ceased being a human trafficking victim,
or within a reasonable time after the person has sought
services for such victimization, whichever is later.
15)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.
16)Provides that a petitioner or his or her attorney may be
excused from appearing in person at a hearing for relief
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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.
17)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.
18)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.
19)States that notwithstanding any other law, the records of the
arrest, conviction, or adjudication shall not be distributed
to any state licensing board.
20)Specifies that the petitioner shall not be relieved of any
financial restitution order that directly benefits the victim
of a nonviolent crime.
21)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.
22)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.
23)Specifies that for purposes of the language in this bill,
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"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.
Background
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 would
broaden current law and provide a track that
effectively allows victims of human trafficking to
erase their records and restart their lives.
Convicted defendants who have successfully completed probation
or a conditional sentence can petition the court to set aside a
guilty verdict or permit the person to withdraw his or her
guilty or nolo contendere plea and dismiss the complaint,
accusation, or information. (Penal Code § 1203.4; People v.
Bishop (1992) 11 Cal.App.4th 1125, 1129.) Where the defendant
fulfills the conditions of probation without violation or
obtains early discharge, he or she has a right to dismissal of
the underlying conviction. (People v. Bradus (2007) 149
Cal.App.4th 636.)
Although this form of relief is colloquially described as
"expungement," the relief has substantial limits. The
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conviction can be alleged in any subsequent prosecution. The
dismissal does not restore a person's right to possess a firearm
and does not permit a person to hold public office if barred by
the dismissed conviction. The conviction must be disclosed in
an application for public office or licensure by any state or
local agency, or in seeking a contract with the state lottery.
The relief is not available for specified sex and child
pornography or specified vehicle safety misdemeanors.
A person who has been convicted of a prostitution offense,
completed probation, and demonstrated that he or she was a
victim of human trafficking, may obtain dismissal of a guilty
verdict, or the setting aside of guilty or no contest plea.
(Pen. Code § 1203.4.) The court granting relief shall notify the
DOJ that the person was a victim of human trafficking when he or
she committed the offense. Generally, background information
provided by DOJ includes convictions that have been dismissed
under Penal Code Section 1203.4, although a human trafficking
victim's dismissed prostitution offense is not included in
background check information.
The relief granted pursuant to this bill can be described as
true expungement. The bill provides: "Notwithstanding any
other law, the records of the arrest, conviction or adjudication
shall not be distributed to any state licensing board."
Further, unlike the relief granted under Section 1203.4, the
records of the arrest and conviction shall be sealed and later
destroyed. Given that the relief provided by this bill includes
the sealing and eventual destruction of the record of arrest or
conviction for a covered offense, it can be argued that no
adverse consequences of the conviction remain after relief is
granted.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Assembly Appropriations Committee:
Unknown cost to the courts. While many of the petitions will be
for misdemeanors and low-level felonies, if the prosecutor
opposes the request, the court must hold a hearing. For
illustrative purposes, 100 such hearings would result in a cost
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of $167,000 for two-hour hearings, and $670,000 for full-day
hearings.
First-year cost of approximately $60,000 and ongoing cost of
$90,000 to the DOJ for one position to address the workload to
seal approximately700 records annually.
SUPPORT: (Verified8/23/16)
Alameda County District Attorney's Office
California Catholic Conference
California Public Defenders Association
Generate Hope
Judicial Council of California
Junior League of San Diego
Junior Leagues of California State Public Affairs Committee
Legal Services for Prisoners with Children
National Association of Social Workers, California Chapter
National Council of Jewish Women, California
OPPOSITION: (Verified8/23/16)
Department of Finance
ASSEMBLY FLOOR: 57-21, 8/23/16
AYES: Alejo, Arambula, Atkins, Baker, Bloom, Bonilla, Bonta,
Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu,
Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier,
Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
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Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin,
Jones-Sawyer, Lackey, Levine, Lopez, Low, Maienschein,
McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Weber, Williams, Wood, Rendon
NOES: Achadjian, Travis Allen, Bigelow, Brough, Chang, Dahle,
Beth Gaines, Grove, Hadley, Harper, Jones, Mathis, Mayes,
Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner,
Waldron, Wilk
NO VOTE RECORDED: Kim, Linder
Prepared by:Jerome McGuire / PUB. S. /
8/24/16 9:26:59
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