BILL NUMBER: AB 2665 CHAPTERED 09/30/00 CHAPTER 972 FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2000 APPROVED BY GOVERNOR SEPTEMBER 29, 2000 PASSED THE ASSEMBLY AUGUST 30, 2000 PASSED THE SENATE AUGUST 28, 2000 AMENDED IN SENATE AUGUST 23, 2000 AMENDED IN SENATE MAY 30, 2000 INTRODUCED BY Assembly Member Ackerman (Coauthors: Assembly Members Ashburn, Bates, Battin, Campbell, Cox, Dickerson, Florez, Leach, Robert Pacheco, Pescetti, and Zettel) (Coauthor: Senators Monteith and Morrow) FEBRUARY 25, 2000 An act to amend Section 11105.3 of the Penal Code, to amend Section 15660 of, and to add Section 15660.1 to, the Welfare and Institutions Code, relating to crime prevention. LEGISLATIVE COUNSEL'S DIGEST AB 2665, Ackerman. Crime prevention: criminal record reporting. (1) Existing law authorizes a human resource agency or an employer to request from the Department of Justice records of all convictions or any arrest for which the person is released on bail or on his or her own recognizance pending trial, involving any sex crimes, drug crimes, or crimes of violence, as defined. Existing law requires the department to furnish records to a requester if, among other things, the subject of the request has a total of 3 or more felony or misdemeanor convictions within the immediately preceding 10-year period or if the subject has a felony or misdemeanor conviction within 10 years of the employer's request, as specified, for any of a number of specified violations, provided that the subject of the request has a total of 3 or more felony or misdemeanor convictions within the immediate preceding 10-year period. This bill would also require that records be furnished if the subject of the request for criminal records has been incarcerated for any of the convictions within the 10-year period following the convictions or, in the case of a felony conviction that is over 10 years old, if the subject was incarcerated within 10 years of the employer's request. (2) Existing law requires the Department of Justice to secure any criminal record of a person to determine whether the person has been convicted within the last 10 years of a sex offense against a minor or of a violation of other specified crimes, including any felony, if, for purposes of the In-Home Supportive Services program, an employer of the person requests the determination and submits fingerprints of the person to the department. Likewise, under existing law, if it is found that the person has been convicted within the last 10 years of these offenses, the department is required to notify the employer of that fact or provide a statement of the fact that no criminal record is found. This bill would additionally require that the department secure a criminal record or notify the employer if the person was incarcerated within the last 10 years for these offenses. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 11105.3 of the Penal Code is amended to read: 11105.3. (a) Notwithstanding any other law, a human resource agency or an employer may request from the Department of Justice records of all convictions or any arrest pending adjudication involving the offenses specified in subdivision (h) of a person who applies for a license, employment, or volunteer position, in which he or she would have supervisory or disciplinary power over a minor or any person under his or her care. The department shall furnish the information to the requesting employer and shall also send a copy of the information to the applicant. (b) Any request for records under subdivision (a) shall include the applicant's fingerprints, which may be taken by the requester, and any other data specified by the department. The request shall be on a form approved by the department, and the department may charge a fee to be paid by the employer, human resource agency, or applicant for the actual cost of processing the request. However, no fee shall be charged a nonprofit organization. The department shall destroy an application within six months after the requested information is sent to the employer and applicant. (c) (1) Where a request pursuant to this section reveals that a prospective employee or volunteer has been convicted of an offense specified in paragraph (1) of subdivision (h), and where the agency or employer hires the prospective employee or volunteer, the agency or employer shall notify the parents or guardians of any minor who will be supervised or disciplined by the employee or volunteer. The notice shall be given to the parents or guardians with whom the child resides, and shall be given at least 10 days prior to the day that the employee or volunteer begins his or her duties or tasks. Notwithstanding any other provision of law, any person who conveys or receives information in good faith conformity with this section is exempt from prosecution under Section 11142 or 11143 for that conveying or receiving of information. Notwithstanding subdivision (d), the notification requirements of this subdivision shall apply as an additional requirement of any other provision of law requiring criminal record access or dissemination of criminal history information. (2) The notification requirement pursuant to paragraph (1) shall not apply to a misdemeanor conviction for violating Section 261.5 or to a conviction for violating Section 262 or 273.5. Nothing in this paragraph shall preclude an employer from requesting records of convictions for violating Section 261.5, 262, or 273.5 from the Department of Justice pursuant to this section. (d) Nothing in this section supersedes any law requiring criminal record access or dissemination of criminal history information. In any conflict with another statute, dissemination of criminal history information shall be pursuant to the mandatory statute. This subdivision applies to, but is not limited to, requirements pursuant to Article 1 (commencing with Section 1500) of Chapter 3 of, and Chapter 3.2 (commencing with Section 1569) and Chapter 3.4 (commencing with Section 1596.70) of, Division 2 of, and Section 1522 of, the Health and Safety Code, and Sections 8712, 8811, and 8908 of the Family Code. (e) The department may adopt regulations to implement the provisions of this section as necessary. (f) As used in this section, "employer" means any nonprofit corporation or other organization specified by the Attorney General which employs or uses the services of volunteers in positions in which the volunteer or employee has supervisory or disciplinary power over a child or children. (g) As used in this section, "human resource agency" means a public or private entity, excluding any agency responsible for licensing of facilities pursuant to the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500)), the California Residential Care Facilities for the Elderly Act (Chapter 3.2 (commencing with Section 1569)), Chapter 3.01 (commencing with Section 1568.01), and the California Child Day Care Facilities Act (Chapter 3.4 (commencing with Section 1596.70)) of Division 2 of the Health and Safety Code, responsible for determining the character and fitness of a person who is (1) applying for a license, employment, or as a volunteer within the human services field that involves the care and security of children, the elderly, the handicapped, or the mentally impaired, or (2) applying to adopt a child or to be a foster parent. (h) Records of the following offenses shall be furnished as provided in subdivision (a): (1) Violations or attempted violations of Section 220, 261.5, 262, 273a, 273d, or 273.5, or any sex offense listed in Section 290, except for the offense specified in subdivision (d) of Section 243.4. (2) Any crime described in the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code), provided that, except as otherwise provided in subdivision (c), no record of a misdemeanor conviction shall be transmitted to the requester unless the subject of the request has a total of three or more misdemeanor or felony convictions defined in this section within the immediately preceding 10-year period or has been incarcerated as a result of any of those convictions within the preceding 10 years. (3) Any felony or misdemeanor conviction within 10 years of the date of the employer's request under subdivision (a) or any felony conviction that is over 10 years old if the subject of the request was incarcerated within 10 years of the employer's request, for a violation or attempted violation of Chapter 3 (commencing with Section 207), Section 211 or 215, wherein it is charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of Section 12022, in the commission of that offense, Section 217.1, Chapter 8 (commencing with Section 236), Chapter 9 (commencing with Section 240), and for a violation of any of the offenses specified in subdivision (c) of Section 667.5, provided that no record of a misdemeanor conviction shall be transmitted to the requester unless the subject of the request has a total of three or more misdemeanor or felony convictions defined in this section within the immediately preceding 10-year period or has been incarcerated for any of those convictions within the preceding 10 years. (4) A conviction for a violation or attempted violation of an offense committed outside the State of California shall be furnished if the offense would have been a crime as defined in this section if committed in California. (i) Except as provided in subdivision (c), any criminal history information obtained pursuant to this section is confidential and no recipient shall disclose its contents other than for the purpose for which it was acquired. SEC. 2. Section 15660 of the Welfare and Institutions Code is amended to read: 15660. (a) The Department of Justice shall secure any criminal record of a person to determine whether the person has been convicted or incarcerated within the last 10 years as the result of committing a sex offense against a minor, a violation of Section 243.4, 273a, 273d, or subdivision (a) or (b) of Section 368, of the Penal Code, theft, robbery, burglary, or any felony, if both of the following conditions are met: (1) An employer of the person requests the determination and submits fingerprints of the person to the Department of Justice. For purposes of this paragraph, "employer" includes, but is not limited to, an in-home supportive services recipient, as defined by Section 12302.2 and any recipient of personal care services under the Medi-Cal program pursuant to Section 14132.95. (2) The person is unlicensed and provides nonmedical domestic or personal care to an aged or disabled adult in the adult's own home. (b) (1) If it is found that the person has been convicted or incarcerated within the last 10 years as the result of committing a sex offense against a minor, a violation of Section 243.4, 273a, 273d, or subdivision (a) or (b) of Section 368, of the Penal Code, theft, robbery, burglary, or any felony, the Department of Justice shall notify the employer of that fact. If no criminal record information has been recorded, the Department of Justice shall provide the employer with a statement of that fact. (2) Any employer may deny employment to any person who is the subject of a report under paragraph (1) when the report indicates that the person has committed any of the crimes identified in paragraph (1). (3) Nothing in this section shall be construed to require any employer to hire any person who is the subject of a report under paragraph (1) when the report indicates that the person has not committed any of the crimes indicated in paragraph (1). (c) (1) Fingerprints shall be on a card provided by the Department of Justice for the purpose of obtaining a set of fingerprints. The employer shall submit the fingerprints to the Department of Justice. Within 30 calendar days of the receipt of the fingerprints, the Department of Justice shall notify the employer of the criminal record information, as provided in this subdivision. If no criminal record information has been recorded, the Department of Justice shall provide the employer with a statement of that fact as soon as possible, but not later than 30 calender days of receipt of the fingerprints. If new fingerprints are required for processing, the Department of Justice shall, as soon as possible, but not later than 30 calendar days from the date of receipt of the fingerprints, notify the employer that the fingerprints were illegible. (2) Fingerprints may be taken by any local law enforcement officer or agency for purposes of paragraph (1). (3) Counties shall notify any recipient of, or applicant for, in-home supportive services or personal care services under the Medi-Cal program, upon his or her application for in-home supportive services or personal care services or during his or her annual redetermination, or upon the recipient's changing providers, that a criminal record check is available, and that the check can be performed by the Department of Justice. (d) The Department of Justice shall charge a fee to the employer to cover the costs of administering this section. (e) It is the intent of the Legislature that the Department of Justice charge a fee to cover its cost in providing services in accordance with this section to comply with the 30 calendar day requirement for provision to the department of the criminal record information, as contained in subdivision (c). SEC. 3. Section 15660.1 is added to the Welfare and Institutions Code, to read: 15660.1. Section 15660 shall also apply to persons who have been incarcerated within the past 10 years as a result of committing any of the offenses listed in that section. SEC. 4. Section 3 of this bill, adding Section 15660.1 to the Welfare and Institutions Code, shall become operative only if both this bill and Assembly Bill 2137 are enacted and become effective on or before January 1, 2001, and each bill proposes to amend Section 15660 of the Welfare and Institutions Code, in which case Section 2 of this bill, amending Section 15660 of the Welfare and Institutions Code, shall not become operative.