BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2068 (Hill) 8
As Amended April 29, 2010
Hearing date: June 15, 2010
Penal Code
MK:dl
EXPUNGEMENT STANDARDS
HISTORY
Source: East Bay Community Law Center
Prior Legislation: None
Support: Office of the Public Defender, City and County of San
Francisco; Stanford Community Law Clinic; SEIU; The
National Employment Law Project; ACLU; Santa Clara
County Public Defender's Office; Give Something Back,
Inc.; Free at Last; All of Us or None; The Women's
Employment Rights Clinic of Golden Gate University;
JobTrain; Law Office of Alejandro I. J?come; Law Office
of Mitri Hanania; The California Public Defenders
Association
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 45 - Noes 29
KEY ISSUE
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AB 2068 (Hill)
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SHOULD A COURT, IN ITS DISCRETION AND IN THE INTEREST OF
JUSTICE, BE PERMITTED TO 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 THE PRONOUNCEMENT OF JUDGMENT?
PURPOSE
The purpose of this bill is to provide 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 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 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 1203.4(a).)
Existing law 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 1203.4(b).)
Existing law 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
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AB 2068 (Hill)
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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 1203.4(a).)
Existing law 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 1203.4(a).)
Existing law 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 1203.4(a).)
Existing law 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 1203.4a(a).)
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.
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This bill clarifies that its expungement provisions shall not
apply to a person who is convicted and serves jail time for a
misdemeanor lewd and lascivious act on a child under 14 when the
perpetrator was 10 or more years older than the victim.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
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. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
---------------------------
<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
California's expungement process is currently inconsistent.
Penal Code 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 interests of
justice." However, there is no parallel provision in Penal
Code 1203.4a, which applies to misdemeanor cases where the
judge did not order probation. By amending Penal Code
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 community and
support 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 1203.4a does not allow the
courts to exercise discretion to grant expungement relief,
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even where the defendant has shown sufficient evidence of
rehabilitation. This creates unfair limitations for people
seeking meaningful reentry and reintegration in both the
employment and housing contexts.
AB 2068 creates equity by providing the court the discretion
to dismiss all misdemeanors regardless of the sentence
imposed. By making the expungement statutes fair and
consistent, the legislature will increase and expand work
opportunities for people with past convictions and decrease
the rate of recidivism, thereby protecting the community at
large.
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2. Consistency in Expungement Sections
This bill cleans up an inconsistency in California's expungement
statutes. Penal Code Section 1203.4 provides for the
expungement (dismissal) of both misdemeanors and felonies at the
judges discretion in cases where probation has been granted if
the defendant has fulfilled the terms of probation and has not
been charged with another offense. Under Penal Code Section
1203.4 the defendant withdraws their earlier plea of guilty or a
conviction is set aside and the court then dismisses the
accusation or information against the defendant. However, a
misdemeanant who is not granted probation falls under Penal Code
Section 1203.4a which is not clear as to whether the court has
discretion to grant the same type of expungement after a person
has served his or her sentence. This bill clarifies that the
judge has discretion to expunge misdemeanor convictions whether
or not the person has been granted probation.
3. Support
The East Bay Community Law Center, sponsor of this bill, states:
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 provides 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, Cal. Penal Code 1203.4 and 1203.4a. Penal
Code 1203.4 (which applies to cases where probation is
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
1203.4a, which applies to non-probation misdemeanor
cases.
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We are in support of revising 1203.4a, in order to make
the dismissal remedy available to all misdemeanors even
when probation is not ordered. Specifically, the bill
would mirror the discretion already available to the
judiciary found in Cal. Penal Code 1203.4. Currently,
under Penal Code 1203.4a, judges do not have
discretion to grant expungement relief even where the
defendant has demonstrated strong evidence of
rehabilitation. The result is that people with minor
misdemeanors are barred from getting these cases
expunged, which creates limitations for people seeking
meaningful reentry and reintegration in both the
employment and housing contexts.
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