BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2068|
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THIRD READING
Bill No: AB 2068
Author: Hill (D)
Amended: 8/9/10 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/15/10
AYES: Leno, Cedillo, Hancock, Steinberg, Wright
NOES: Cogdill, Huff
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 45-29, 5/3/10 - See last page for vote
SUBJECT : Expungement standards
SOURCE : East Bay Community Law Center
DIGEST : 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.
Senate Floor Amendments of 8/9/10 (1) clarify that the
expungement shall only apply if the person who was not
granted probation for the misdemeanor has fully complied
with and performed the sentence of the court, is not
serving a sentence for any offense, and is not under charge
of commission of any crime, (2) provide for double-jointing
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language to avoid chaptering out AB 2582 (Adams), Chapter
99, Statutes of 2010, and (3) make technical changes.
ANALYSIS : 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/her plea of guilty, or if he/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. (Section 1203.4(a) of the
Penal Code [PEN])
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. (PEN Section 1203.4(b))
Existing law states that dismissal of an accusation or
information pursuant to PEN Section 1203.4 does not permit
a person to own, possess, or have in his/her custody or
control any firearm or prevent him/her from being convicted
of the offense of being an ex-felon in possession of a
firearm. (PEN Section 1203.4(a))
Existing law states that an order of dismissal does not
relieve him/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. (PEN Section
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
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same effect as if probation had not been granted or the
accusation or information dismissed. (PEN Section
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/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/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/she has been convicted. (PEN Section
1203.4a(a))
This bill makes this relief unavailable for convictions of
specified sex offenses that apply if the victim is a child
14 or 15 years of age or a dependent person. This bill
authorizes the court, in its discretion and in the
interests of justice, to afford a defendant that relief as
to other charges to which these provisions apply if, after
a lapse of one year from the date of pronouncement of
judgment, the defendant has fully complied with his or her
sentence, is not currently serving a sentence for any
offense, and is not under charge of commission of any
crime.
This bill changes an obsolete cross-reference that
determines which misdemeanors are exempt from dismissal and
relief pursuant to these provisions.
This bill incorporates additional changes in Section
1203.4a of the Penal Code made by AB 2582 that becomes
operative if both bills are enacted and this bill is
chaptered last.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/10/10)
East Bay Community Law Center (source)
All of Us or None
American Civil Liberties Union
California Public Defenders Association
Free at Last
Give Something Back, Inc.
JobTrain
Law Office of Alejandro I. J?come
Law Office of Mitri Hanania
National Employment Law Project
Office of the Public Defender, City and County of San
Francisco
Santa Clara County Public Defender's Office
Service Employees International Union
Stanford Community Law Clinic
Women's Employment Rights Clinic of Golden Gate University
OPPOSITION : (Verified 8/11/10)
California District Attorneys Association
ARGUMENTS IN SUPPORT : The East Bay Community Law Center,
the bill's sponsor, 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 Sections 1203.4 and 1203.4a.
Penal Code Section 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 Section 1203.4a, which applies to
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non-probation misdemeanor cases.
"We are in support of revising Section 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 Section 1203.4. Currently, under Penal Code Section
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."
ARGUMENTS IN OPPOSITION : The California District
Attorneys Association states:
"This bill would allow a court, in the interest of
justice and under certain conditions, to expunge a
misdemeanor conviction of a defendant who is not granted
probation.
Under existing law, persons convicted of a misdemeanor
and granted probation can be granted expungement relief
if they meet particular conditions or in the interest of
justice. The statute that governs expungement for
misdemeanants who are not granted probation does not
allow a court to grant expungement relief in the interest
of justice. In other words, there is no fallback in
terms of seeking an expungement for a misdemeanant who is
not granted probation and does not meet the terms and
conditions set out in the statute.
"The proponents argue that current law is inconsistent
and unfair given the disparate treatment of misdemeanants
who are granted probation and those who are not. While
the statutes are different, we would argue that it is not
inappropriate to recognize the difference between those
granted probation and those who are not.
"Additionally, criminal history can be an important
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factor in employment decisions, especially when they
involve persons who will be working in sensitive
positions (e.g. with and around children, handling
financial or personal information, etc.). We are not
convinced of the need to open the door to expungement to
a class of offenders who were not granted probation and
were otherwise unable to comply with the existing
conditions that precede expungement."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Bass, Beall, Block,
Blumenfield, Bradford, Brownley, Buchanan, Caballero,
Charles Calderon, Carter, Chesbro, Coto, Davis, De La
Torre, De Leon, Eng, Evans, Feuer, Fong, Fuentes,
Furutani, Galgiani, Hayashi, Hernandez, Hill, Huffman,
Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning, V.
Manuel Perez, Ruskin, Salas, Saldana, Skinner, Swanson,
Torlakson, Torres, Torrico, Yamada
NOES: Anderson, Bill Berryhill, Tom Berryhill, Blakeslee,
Conway, Cook, DeVore, Emmerson, Fletcher, Fuller, Gaines,
Garrick, Gilmore, Hagman, Harkey, Huber, Jeffries,
Knight, Logue, Miller, Nestande, Niello, Nielsen,
Portantino, Silva, Smyth, Audra Strickland, Tran,
Villines
NO VOTE RECORDED: Hall, Nava, Norby, Solorio, John A.
Perez, Vacancy
RJG:mwk 8/11/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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