BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2582(Adams) 2
As Amended : May 5, 2010
Hearing date: June 22, 2010
Penal Code
MK:dl
INFRACTIONS: DISMISSAL OF CHARGE
HISTORY
Source: Conference of California Bar Association
Prior Legislation: None
Support: East Bay Community Law Center; The Santa Clara County
Bar Association
Opposition:None known
Assembly Floor Vote: Ayes 70 - Noes 2
KEY ISSUE
SHOULD THE LAW AUTHORIZE THE COURT TO EXPUNGE A FORMER CONVICTION
FOR A NON-VEHICULAR INFRACTION?
PURPOSE
The purpose of this bill is to authorize the court to expunge a
former conviction for a non-vehicular infraction.
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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
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
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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 a petition for dismissal of an infraction
pursuant to this section shall be by written declaration, except
upon a showing of compelling need. Dismissal of an infraction
shall not be granted under this section unless the prosecuting
attorney has been given at least 15 days' notice of the petition
for dismissal. It shall be presumed that the prosecuting
attorney has received notice if proof of service is filed with
the court.
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
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-- 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.)
. . .
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
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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. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This bill
According to the author:
Existing law, Penal Code 1203.4a, permits a person
convicted of a misdemeanor and not granted (or
successfully completed) probation who has "fully
complied with and performed the sentence of the court,
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<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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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" to petition the court to have the conviction
removed from his or her record after one year. The
section specifies that it does not apply to any
misdemeanor falling within Vehicle Code 42001(b) "or to
any infraction." Petitioners with the ability to pay may
be required to reimburse both the court and the city for
costs associated with processing the petition, up to a
maximum of $60 for each.
The exclusion of infractions from the record-clearance
provisions of 1203.4a creates a serious inequity by
permitting an individual to remove convictions for more
serious crimes from his or her record, but not
permitting him or her to remove supposedly lesser (but
still serious-appearing) offenses - such as disturbing
the peace, fighting in public, attempt to purchase
alcohol by a minor, and driving without a license -
which can prove fatal to his or her ability to get a
job. Although most employees are not required to
disclose infraction convictions on job applications, if
an employer does conduct a criminal history background
check (and all employers have access to criminal record
information pertaining to non-traffic related
infractions) infractions will appear; convictions for
infractions, traffic-related or not, are included in
criminal history background checks performed by pretty
much any screening agency (many of which advertise on
the internet), unless excluded by the jurisdiction in
question. And even in those latter cases, the
information can be easily obtained in this information
age for just a few dollars more, if the prospective
employer is interested. In many cases, any conviction,
including a conviction for an infraction, will
disqualify a person from obtaining employment. This is
also true with many county and city agencies. Many
lawyers can cite examples of being contacted by clients
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who want to clear infractions because of the background
check process, after being told by potential employers
that any conviction will disqualify them from
employment.
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Persons convicted of misdemeanors or infractions both
have convictions on their record, are therefore
similarly situated, and are subject to the much the same
penalties and liabilities with respect to employment.
Yet only those who plead to or are convicted of
misdemeanors can petition for clearance. Indeed,
lawyers who practice in the field can cite examples of
persons "pleading up" from infractions to misdemeanors,
so that they can clear the offense from their record
after a year. Not only is this unfair (and ironic,
since it is only those convicted of the arguably more
serious crimes who are afforded relief), but it would
appear to constitute unequal treatment under the law and
raises the issue of equal protection.
AB 2582 addresses this issue by permitting persons
convicted on non-vehicular infractions to petition the
court to have the convictions removed from their record,
under exactly the same conditions and in exactly the
same manner as persons convicted of misdemeanors (and
not granted probation) can.<2> This will remove the
inequity in current law, and will help reduce recidivism
by removing an unnecessary impediment to persons being
able to get jobs.
AB 2582 also corrects an erroneous cross-reference in
existing Penal Code 1203.4a(b). As noted above, the
subdivision currently states that the section does not
apply to any misdemeanor falling within Vehicle Code
42001(b). However, no provision of Vehicle Code 42001
applies to any misdemeanor; the Vehicle Code section was
amended in 2006 by AB 1850 (Mountjoy) to remove
subdivision (b) and reenact its provisions as new
42002.1, but no corresponding change was made to PC
1203.4a. AB 2582 will correct this oversight by
referencing the correct section of the Vehicle Code with
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<2> Misdemeanants who have been granted probation can also clear
their records upon successful completion of the requirements of
probation under a different code section, Penal Code 1203.4.
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respect to misdemeanors, as well as making clear that
the new ability to expunge infractions does not include
traffic-related infractions.
2. Expungement for Misdemeanors
This bill allows for expungement of non-Vehicle Code infractions
in the same manner that misdemeanors may be expunged.
Supporters argue that this rectifies an inequity that allows
more serious offenses to be expunged while keeping those that
are less serious on one's record. Specifically the East Bay
Community Law Center 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 provided by employment reduces the rate of
recidivism. The dismissal remedy in California (also
known as "expungement") applies to specific crimes and
requires individuals to prove their rehabilitation to a
judge. Evidence of rehabilitation in the form of an
expungement has the power to remove barriers in
employment, licensing, and housing.
Currently, non-traffic infractions cannot be dismissed
under California's expungement statutes, codified at
1203.4 and 1203.4a of the California Penal Code. Most
non-traffic infractions are for petty offenses such as
shoplifting, which are pled down from a misdemeanor. The
statutory scheme should also provide a remedy for the
least serious convictions to encourage employment
opportunities and increase public safety. We support AB
2582 because it will increase access to California's
expungement remedies, and thus offer more people access
to employment options they deserve, which will reduce
the rate of recidivism and promote public safety.
3. Related Legislation
AB 2068 (Hill), which passed this Committee on June 15,
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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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