BILL ANALYSIS
AB 2068
Page 1
Date of Hearing: March 23, 2010
Counsel: Meghan Masera
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2068 (Hill) - As Introduced: February 18, 2010
SUMMARY : Authorizes the court, in its discretion and in the
interest of justice, to afford a defendant expungement from a
former misdemeanor conviction. Specifically, this bill provides
that a court, in its discretion and in the interest of justice,
can determine that a defendant, who has been convicted of a
misdemeanor and not granted probation, should be granted
expungement relief after the lapse of one year from the date of
pronouncement of the judgment.
EXISTING LAW :
1)States that every defendant convicted of a misdemeanor and not
granted probation shall, at any time after the lapse of one
year from the date of pronouncement of judgment, if he or she
has fully complied with and performed the sentence of the
court, is not then serving a sentence for any offense and is
not under charge of commission of any crime and has, since the
pronouncement of judgment, lived an honest and upright life
and has conformed to and obeyed the laws of the land, be
permitted by the court to withdraw his or her plea of guilty
or nolo contendere and enter a plea of not guilty; or if he or
she has been convicted after a plea of not guilty, the court
shall set aside the verdict of guilty; and in either case the
court shall thereupon dismiss the accusatory pleading against
the defendant, who shall thereafter be released from all
penalties and disabilities resulting from the offense of which
he or she has been convicted. [Penal Code Section
1203.4a(a).]
2)Provides that in any case where the defendant 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 in any other case in which a
court, in its discretion and the interests of justice,
determines that a defendant should be granted expungement
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relief, the defendant shall at any time after the termination
of the period of probation be allowed to withdraw his or her
plea of guilty, or if he or she has been convicted after a
plea of not guilty, the court shall set aside the verdict of
guilty; and in either case, the court shall dismiss the
accusation against the defendant, and, except as noted, the
defendant shall be released from all penalties and
disabilities. [Penal Code Section 1203.4(a).]
3)Prohibits the expungement of the record of conviction for
persons convicted of child molestation, continuous sexual
abuse of a child, sodomy with a child under the age of 14,
oral copulation with a child under the age of 14, and sexual
penetration of a child under the age of 14. [Penal Code
Section 1203.4(b).]
4)States that dismissal of an accusation or information pursuant
to Penal Code Section 1203.4 does not permit a person to own,
possess, or have in his or her custody or control any firearm
or prevent him or her from being convicted of the offense of
being an ex-felon in possession of a firearm. [Penal Code
Section 1203.4(a).]
5)States that an order of dismissal does not relieve him or her
of the obligation to disclose the conviction in response to
any questions contained in any questionnaire or application
for public office, or for licensure for any state or local
agency. [Penal Code Section 1203.4(a).]
6)Provides that, despite the accusatory pleading having been
dismissed, in any other subsequent prosecution of the
defendant for any other offense, the prior conviction may be
pleaded and proved and shall have the same effect as if
probation had not been granted or the accusation or
information dismissed. [Penal Code Section 1203.4(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill
amends California Penal Code section 1203.4a to provide the
courts with discretion to dismiss misdemeanor convictions
where the person has not been sentenced to probation. The
proposed amendment to Penal Code section 1203.4a would mirror
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the language found in 1203.4 and bring consistency and
equity to the statutory scheme.
"AB 2068 will give the court additional discretion to provide
expungement to individuals whose good behavior and reformation
are proven. In today's world, criminal background checks are
common when applying for jobs, housing, and other everyday
life transactions. Having a misdemeanor on a person's record,
especially when a person has been reformed, can make it very
difficult for them to be a productive member of society. This
bill will help people get back on their feet and give them an
opportunity to successfully reintegrate."
2)Background : According to information provided by the author,
"California's expungement process is currently inconsistent
and unfair. Penal Code section 1203.4, which applies to cases
where the judge sentences someone to probation, allows the
courts to exercise their discretion to dismiss a conviction
'in the interest of justice.' However, there is no parallel
provision in Penal Code section 1203.4a, which applies to
misdemeanor cases where the judge did not order probation. By
amending Penal Code section 1203.4a to empower the courts to
exercise their discretion 'in the interests of justice,' AB
2068 will equalize the statutory scheme, with no additional
cost to the judicial system.
"An expungement assists people who have served their sentences,
paid their fines, fees and restitution, and demonstrated
significant rehabilitation to give back to their communities
and supports their families. An expungement does not seal or
purge a past conviction. The main benefit is that the
expunged conviction can be omitted on applications for most
private jobs and provides evidence of rehabilitation to state
licensing boards. An expunged conviction must be disclosed
for jobs working with children, people with disabilities and
seniors and for most public employment. In addition, the
conviction is not sealed and can still be used as a prior
conviction in a new criminal proceeding.
"Expunging a conviction can help people provide for themselves
and their families by increasing their opportunity to find a
job, obtain an occupational license from the State and secure
housing. Currently, Penal Code section 1203.4a does not allow
the courts to exercise discretion to grant expungement relief,
even where the defendant has shown sufficient evidence of
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rehabilitation. This creates unfair limitations for people
for people seeking meaningful reentry and reintegration in
both the employment and housing contexts."
3)Statutory Differences : In order to understand the
implications of this bill, it is necessary to contrast the
pertinent language of Penal Code Sections 1203.4 and 1203.4a,
respectively. "Each provides a procedure, under specified
circumstances, under which one convicted of certain criminal
offenses may have his conviction set aside and the criminal
action dismissed. Each of the sections states, in identical
language, that upon such a dismissal a defendant 'shall
thereafter be released from all penalties and disabilities
resulting from the offense of which he has been convicted.'
"[Penal Code] section 1203.4, however, applies only to a
defendant who has been placed on probation. It is not limited
to those convicted of misdemeanors only, but also applies to
probationers who are convicted of felonies. [Penal Code]
section 1203.4a applies only to a defendant who is convicted
of a misdemeanor, and who is not granted probation." [People
v. Chandlee, 90 Cal. App. 3d Supp. 13, 16 153 Cal. Rptr. 188,
189 (1979).]
Penal Code Section 1203.4 includes language giving discretion to
the court, in the interest of justice, to grant expungement to
an individual. Penal Code Section 1203.4a does not have a
similar provision.
Penal Code Section 1203.4a "contains the following language not
found in [Penal Code section 1203.4: 'and has, since the
pronouncement of judgment, lived an honest and upright life
and has conformed to and obeyed the laws of the land.' " (Id.
at 19, 191).
4)Equal Protection : In Newland v. Board of Governors, the Board
of Governors of the California Community Colleges rejected a
teacher's application for a credential on the ground he had
been convicted of lewd conduct in a public, a misdemeanor;
that the Education Code barred issuance of a credential to
anyone convicted of a "sex offense;" and refused to conduct a
hearing to determine the teacher's teaching fitness. [Newland
v. Board of Governors, 19 Cal. 3d 705, 139 Cal. Rptr. 620
(1977).]
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The Supreme Court of California held the Board of Governors
could not constitutionally deny the plaintiff, a misdemeanant,
a community college credential, while issuing credentials to
convicted felons. The statutory classification discriminated
against misdemeanants and, lacking a rational relationship to
the legislative goals, denied misdemeanants the equal
protection of the laws. Accordingly, the Court held that
since plaintiff had fulfilled two of the three requirements
for relief, and the remaining requirement could not
constitutionally be invoked to deny relief to misdemeanants,
the Board could not rely on the Education Code to deny
plaintiff's application for a community college credential.
(Id. at 714, 626).
5)Arguments in Support : According to the East Bay Community Law
Center (the sponsor of this bill), "California faces
significant reentry challenges, with one in five adults
showing a criminal record on a background check. Studies have
shown that the economic support provided by employment reduces
recidivism. The dismissal remedy (also known as an
'expungement') that is available in California provides
evidence of rehabilitation for employment and licensing
purposes and removes barriers to employment and housing.
Currently there is an inconsistency in California's
expungement statutes, [Penal Code sections] 1203.4 and
1203.4a. Penal Code section 1203.4 (which applies to cases
where probation in sentenced) empowers judges to exercise
their discretion to dismiss a conviction 'in the interests of
justice.' However, there is no parallel provision in Penal
Code section 1203.4a, which applies to non-probation
misdemeanor cases."
6)Related Legislation : AB 2582 (Adams) provides that any
defendant convicted of an infraction, except specified motor
vehicle-related infractions, and any defendant convicted of a
misdemeanor and not granted probation in any other case in
which a court, in its discretion and in the interests of
justice, determines that a defendant should be granted the
above relief, shall be permitted to seek dismissal of charges
and release from all penalties and disabilities resulting from
the offense of which he or she has been convicted, as
specified. AB 2582 is pending re-referral by the Assembly
Rules Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
All of Us or None, Project of Legal Services
for Prisoners with Children
American Civil Liberties Union
East Bay Community Law Center
Free at Last
Giving Something Back, Inc.
Job Train, Inc.
Office of the Public Defender, City and
County of San Francisco
Office of the Public Defender, County of Santa Clara
Two private individuals
Opposition
None
Analysis Prepared by : Meghan Masera / PUB. S. / (916)
319-3744