BILL ANALYSIS �
AB 1940
Page 1
Date of Hearing: May 8, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1940 (Hill) - As Amended: March 29, 2012
SUMMARY : Authorizes a court to seal a record of conviction for
an offense relating to solicitation or prostitution based on a
finding that the petitioner is a victim of human trafficking and
the offense is the result of the petitioner's status as a victim
of that crime. Specifically, this bill :
1)Requires a copy of the petition to be served on the
prosecuting attorney of the county or city in which the
accusatory pleading was filed at least 10 days prior to the
hearing on the petitioner's factual assistance.
2)Allows the prosecuting attorney to present declarations,
affidavits, police reports or other evidence which is
material, relevant and reliable to the court at the hearing.
3)States that if the court finds the petitioner to be factually
innocent of the charges of which he or she was convicted, the
court shall set aside the conviction and grant the
petitioner's request to seal and subsequently destroy his or
her record, and may take any other additional action it deems
appropriate under the circumstances or as justice requires.
4)Declares that a convicted person is factually innocent in any
case in which that person's participation in an offense
relating to solicitation or prostitution was a result of
having been a victim of human trafficking under state or
federal law.
5)Provides that official documentation of the petitioner's
status as a victim of human trafficking at the time of the
offense from a federal, state, or local government agency or
documentation that another person has been convicted of human
trafficking in relation to the petitioner's violation of a
solicitation or prostitution offense shall create a
presumption that the petitioner's participation in the offense
AB 1940
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was the result of having been a victim of human trafficking,
but is not required in order to be granted relief.
6)States that the court may grant relief to the petitioner
notwithstanding the fact that there may have been reasonable
cause to believe the petitioner committed the offense at the
time of his or her conviction.
7)Requires a finding that a petitioner is factually innocent
based on the fact that the petitioner's participation in the
offense was a result of having been a victim of human
trafficking to be admissible as evidence in a civil action
brought by the petitioner, or his or her estate or
representative, against an individual or entity for damages
arising from the individual or entity's alleged involvement in
human trafficking.
8)Requires a waiver of time restriction based on good cause to
be interpreted broadly in favor of granting relief for
petitions brought pursuant to the provisions of this bill.
9)Mandates a court, when evaluating whether good cause exists,
to take into consideration relevant factors including, but not
limited to, when the petitioner ceased to be a victim of
trafficking or trafficking in persons, reasonable concern for
the safety of the petitioner and the petitioner's family, the
age and capacity of the petitioner, the petitioner's ability
to obtain legal services, and other obstacles that may have
prevented the petitioner form filing the petition within the
time period.
EXISTING LAW:
1)Provides in any case where a person has been arrested and no
accusatory pleading has been filed, the person arrested may
petition the law enforcement agency having jurisdiction over
the offense to destroy its records of the arrest. A copy of
the petition shall be served upon the prosecuting attorney of
the county or city having jurisdiction over the offense. The
law enforcement agency having jurisdiction over the offense,
upon a determination that the person arrested is factually
innocent, shall, with the concurrence of the prosecuting
attorney, seal its arrest records, and the petition for relief
under this section for three years from the date of the arrest
and thereafter destroy its arrest records and the petition.
AB 1940
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�Penal Code Section 851.8(a).]
2)States that if, after receipt by both the law enforcement
agency and the prosecuting attorney of a petition for relief,
the law enforcement agency and prosecuting attorney do not
respond to the petition by accepting or denying the petition
within 60 days after the running of the relevant statute of
limitations or within 60 days after receipt of the petition in
cases where the statute of limitations has previously lapsed,
then the petition shall be deemed to be denied. �Penal Code
Section 851.8(b).]
3)Allows a petition to be made to the superior court that would
have had territorial jurisdiction over the matter if the
petition of an arrestee to the law enforcement agency to have
an arrest record destroyed is denied. A copy of the petition
shall be served on the law enforcement agency and the
prosecuting attorney of the county or city having jurisdiction
over the offense at least 10 days prior to the hearing
thereon. The prosecuting attorney and the law enforcement
agency through the district attorney may present evidence to
the court at the hearing. �Penal Code Section 851.8(b).]
4)States that a finding of factual innocence and an order for
the sealing and destruction of records shall not be made
unless the court finds that no reasonable cause exists to
believe that the arrestee committed the offense for which the
arrest was made. In any court hearing to determine the
factual innocence of a party, the initial burden of proof
shall rest with the petitioner to show that no reasonable
cause exists to believe that the arrestee committed the
offense for which the arrest was made. If the court finds
that this showing of no reasonable cause has been made by the
petitioner, then the burden of proof shall shift to the
respondent to show that a reasonable cause exists to believe
that the petitioner committed the offense for which the arrest
was made. �Penal Code Section 851.8(b).]
5)Provides if the court finds the arrestee to be factually
innocent of the charges for which the arrest was made, then
the court shall order the law enforcement agency having
jurisdiction over the offense, the Department of Justice
(DOJ), and any law enforcement agency which arrested the
petitioner or participated in the arrest of the petitioner for
an offense for which the petitioner has been found factually
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innocent under this section to seal their records of the
arrest and the court order to seal and destroy the records,
for three years from the date of the arrest and thereafter to
destroy their records of the arrest and the court order to
seal and destroy those records. The court shall also order
the law enforcement agency having jurisdiction over the
offense and DOJ to request the destruction of any records of
the arrest which they have given to any local, state, or
federal agency, person or entity. Each state or local agency,
person or entity within California receiving such a request
shall destroy its records of the arrest and the request to
destroy the records, unless otherwise provided in this
section. The court shall give to the petitioner a copy of any
court order concerning the destruction of the arrest records.
�Penal Code Section 851.8(b).]
6)Allows a defendant, in any case where he or she has been
arrested, and an accusatory pleading has been filed, but where
no conviction has occurred, at any time after dismissal of the
action, to petition the court that dismissed the action for a
finding that the defendant is factually innocent of the
charges for which the arrest was made. A copy of the petition
shall be served on the prosecuting attorney of the county or
city in which the accusatory pleading was filed at least 10
days prior to the hearing on the petitioner's factual
innocence. The prosecuting attorney may present evidence to
the court at the hearing. If the court finds the petitioner
to be factually innocent of the charges for which the arrest
was made, then the court shall grant the relief requested.
�Penal Code Section 851.8(c).]
7)Authorizes a court, with the concurrence of the prosecuting
attorney, to grant the relief requested at the time of the
dismissal of the accusatory pleading in any case where a
person has been arrested and an accusatory pleading has been
filed, but where no conviction has occurred. �Penal Code
Section 851.8(d).]
8)Authorizes a court to grant relief requested in the petition
whenever any person is acquitted of a charge and it appears to
the judge presiding at the trial at which the acquittal
occurred that the defendant was factually innocent of the
charge. �Penal Code Section 851.8(e).]
9)States that any person who solicits or who agrees to engage in
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or who engages in any act of prostitution is guilty of
misdemeanor disorderly conduct. A person agrees to engage in
an act of prostitution when, with specific intent to so
engage, he or she manifests an acceptance of an offer or
solicitation to so engage, regardless of whether the offer or
solicitation was made by a person who also possessed the
specific intent to engage in prostitution. No agreement to
engage in an act of prostitution shall constitute a violation
of this subdivision unless some act, in addition to the
agreement, is done within California in furtherance of the
commission of an act of prostitution by the person agreeing to
engage in that act. "Prostitution" includes any lewd act
between persons for money or other consideration. �Penal Code
Section 647(b).]
10)States that it is unlawful for a person to loiter in a public
place with intent to commit prostitution. Intent is evidenced
by acting in a manner and under circumstances which openly
demonstrate the purpose of inducing, enticing, or soliciting
prostitution, or procuring another to commit prostitution.
(Penal Code Section 653.22.)
11)Provides that any person who deprives or violates the
personal liberty of another with the intent to effect or
maintain a felony violation of enticement of a minor into
prostitution, pimping or pandering, abduction of a minor for
the purposes of prostitution, extortion, or to obtain forced
labor or services, is guilty of human trafficking. �Penal
Code Section 236.1(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Human
trafficking is an industry based on the victimization of
vulnerable people for profit, it is the epitome of everything
that is vile in humankind and it happens in our state.
California is one of the states most affected by this terrible
crime. Since December of 2007, the National Human Trafficking
Resource Center hotline has received over 5,300 calls from
California alone - more than in any other state. As a state,
we need to do everything we can so that trafficked victims are
not treated like criminals, but instead are recognized and
treated as victims. AB 1940 gets us a little closer to this
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goal."
2)Background : According to background information provided by
the author, "Traffickers prey on women and children that come
from broken families, have low self-esteem, lack a support
network, and are already marginalized by society.
Traffickers, also known as pimps, identify the physical and/or
psychological needs of a victim and then try to fulfill these
needs to create a dependency between the victim and
themselves. Traffickers are expert manipulators and they
will use any means to control their victims including physical
and sexual violence, isolation, economic dependence, emotional
manipulation and forced drug use.
"Traffickers will also destroy any credibility the victim holds
in the eyes of law enforcement. 'A study on the demand for
sex trafficking conducted by Shared Hope International found
that traffickers often provided drugs to their victims to both
sell and take' which further marginalizes and criminalizes the
victim making it difficult for the victim to get away.
"When victims come in contact with law enforcement, they are
often identified as delinquents, habitual runaways, drug
dealers, and prostitutes and it is an assertion that is not
contested. Often times victims of sex trafficking do not
self-identify as victims. Many times the denial results from
fear of physical and psychological abuse inflicted by the
trafficker and/or the trauma bond that is developed through
the victimization process. Victims are often coached to lie
to authorities and due to the trauma bond will often return to
the person who is exploiting them. This makes it very
difficult for law enforcement to see the person as a victim.
Instead the victim is seen as criminal, which leads to a
criminal record that will have lasting effects on the victim's
life. This is an injustice that must be remedied."
3)Statutory Purpose of Penal Code Section 851.8 : The Penal Code
section governing sealing and destruction of records and
determination of factual innocence is for the benefit of those
defendants who have not committed a crime. "It permits those
petitioners who can show that the state should never have
subjected them to the compulsion of the criminal law --
because no objective factors justified official action -- to
purge the official records of any reference to such action."
�People v. Chagoyan (2003) 107 Cal. App. 4th 810, 816.] This
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bill expands the scope of people intended to be granted relief
under Penal Code Section 851.8. Currently, the statute only
applies to people who have not been convicted of crime with
the rationale that people who have not committed a crime and
no objective factors existed that justified arrest or
prosecution should be entitled to a judicial remedy to make up
for wrongfully putting the person through criminal
proceedings. Adding persons who have been found guilty of an
offense goes against the statutory purpose of the bill.
4)Factual Innocence : Only those persons who are found to be
factually innocent can be granted the relief provided in Penal
Code Section 851.8. A finding of factual innocence for the
purposes of Penal Code Section 851.8 "entails establishing as
a prima facie matter not necessarily just that the defendant
had a viable substantive defense to the crime charged, but
more fundamentally that there was no reasonable cause to
arrest him in the first place." �People v. Adair (2003) 29
Cal.4th 895, 905.] Reasonable or probable cause to arrest
exists when the facts known to the arresting officer would
lead a person of ordinary care and prudence to entertain an
honest and strong suspicion that the person arrested is guilty
of a crime. (Id. at pg. 904.)
In People v. Gerold, the court found the defendant guilty of the
charged offenses after completion of the initial stage of the
trial. Upon conclusion of the sanity phase, the court found
defendant not guilty by reason of insanity. The defendant
filed a petition pursuant to Penal Code Section 851.8 to have
his arrest records for the underlying offenses sealed and
destroyed. The court denied relief and reasoned that "�e]ven
with the benefit of hindsight, it could not be said that an
officer, knowing that defendant was legally insane when
committing the underlying offenses, would not have had
reasonable cause to arrest him. Nor could it be said, in
retrospect, that defendant should not have been subjected to
the compulsion of the criminal law-because no objective
factors justified official action. There was no disagreement
regarding whether defendant actually committed the acts of
assaulting his father with a knife and verbally threatening to
kill him. While defendant was determined not to have been
sufficiently mentally competent to sustain punishment for his
acts, that determination did not equate with factual innocence
of the acts underlying the charges against him." �People v.
Gerold (2009) 174 Cal. App. 4th 781, 791.]
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This bill deems a person to be factually innocent of a crime for
which he or she has been convicted. For the purposes of Penal
Code Section 851.8, a finding of factual innocence requires a
showing that there was no reasonable cause to arrest the
person in the first place. The reasonable-cause-to-arrest
standard allows a court to look at the circumstances that
existed at the time of arrest to determine whether a
reasonable person would have believed that the person was had
committed a crime. If the court determines there was no
reasonable cause for the arrest, the available remedy is to
seal and destroy the record of arrest because the state should
never have subjected the person to the compulsion of criminal
law. However, in a case where a person committed the act and
was convicted either through a plea or after a jury trial, the
rationale for providing this remedy does not exist. As
illustrated in the Gerold case, even if an officer knew that a
person is engaging in prostitution under the direction of a
pimp, an officer would still have reasonable cause to arrest
the person for committing a crime as long as there was some
evidence that the person was engaging in an unlawful act.
In order to address the issue of reasonable cause to arrest,
this bill provides that even if there was reasonable cause to
believe the petitioner committed the offense, the court may
grant relief to the petitioner. These sections provide a way
for people to get the benefit of record sealing without
meeting the legal requirements. The bill places more
stringent standards on petitioners who have not been convicted
of a crime than those who have by stating that those who have
been convicted may still be granted relief even if they are
not factually innocent. It also improperly allows a court to
overturn a sentencing court and jury decisions without
ordering a new trial or going through the appeals or habeas
process.
5)Relief for Convicted Persons : Existing law provides relief to
persons who have been convicted of an offense by authorizing
courts to expunge a person's record of conviction. Under
Penal Code Section 1203.4, the petitioner may have his or her
conviction set aside or dismissed upon a showing that the
petitioner has completed probation, he or she is not then
serving a sentence for any other offense, is not on probation
for any other offense, and is not being charged with any other
offense. Expungement is available for misdemeanor and felony
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offenses, with a few specified exceptions. Once a conviction
has been expunged, a person need not disclose the prior
conviction for most job or school applications. A person is
only required to disclose this information if the person is
applying for public office, or for licensure for any state or
local agency. A difference between sealing records and
expungement of records is that when records are sealed, those
records are subsequently destroyed. If the petitioner was a
victim of human trafficking and the perpetrator is later
prosecuted, the record of arrest and any court transcripts
would not be available to assist in that prosecution.
6)Equal Protection : The Equal Protection Clause of the
Fourteenth Amendment, Section 1, commands that no state shall
"deny to any person within its jurisdiction the equal
protection of the laws." The California Constitution has a
similar provision. An equal protection challenge is a claim
that a law discriminates against a person by unequal treatment
or unequal results. Although usually equal protection is used
to analyze government action that draws a distinction among
people, sometimes it is used if the government discriminates
among people as to the exercise of a fundamental right, such
as marriage, procreation, voting, and access to the judicial
process. If the government action infringes on a fundamental
right, the strict scrutiny test applies. The law will be
upheld if it is necessary to achieve a compelling government
purpose. The government must have a truly significant reason
for discriminating and it must show that it cannot achieve its
objective through less discriminatory means.
Access to the courts is a fundamental right subjected to strict
scrutiny. Although at times the Supreme Court has spoken in
terms of a right of access to the courts, its decisions all
have involved challenges to particular impediments in the
legal system. The U.S. Supreme Court has held that the
"constitutional guaranties of due process and equal protection
both call from procedures in criminal trials which allow no
invidious discriminations between persons and different groups
of persons." �Griffin v. Illinois (1956) 351 U.S. 12, 17.]
Query whether the this bill violates the principle of equal
protection by allowing one group of convicted defendants to
have additional consideration and benefits not given to other
convicted defendants.
7)Argument in Support : According to the Polaris Project ,
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"Victims of sex trafficking are unwilling participants in
sexual activity that financially benefits their traffickers.
They are carefully groomed by their traffickers to look and
act like willing prostitutes in order to appeal to customers,
often under the threat of extreme physical or sexual violence
if they try to escape or otherwise refuse to comply. As a
result, these victims are routinely mistaken for criminals.
They are arrested for and often convicted of crimes, when in
fact it is they who are the victims.
"In addition to the obvious miscarriage of justice that a
conviction for prostitution under these circumstances brings,
a criminal record can make it nearly impossible for a sex
trafficking victim to fully recover and reintegrate into
normal society. Even if expunged, a victim's criminal record
may be discovered through background checks, may be used
against them in subsequent civil and criminal matters, as well
as prevent them from holding public office, obtaining jobs,
professional licenses, housing, public assistance, and, in the
case of foreign national victims, may even affect their
immigration status.
"AB 1940 would give victims of sex trafficking recourse by
allowing them to petition the court for a finding of factual
innocence if they can prove that at the time of the
prostitution-related offense, they were a victim of human
trafficking, and that the offense was committed as a result of
their being trafficked. If granted, the court would then set
aside the conviction, as well as order that the arrest records
be sealed and destroyed, and would notify the Department of
Justice to do the same."
8)Related Legislation :
a) AB 702 (Swanson) allows a person adjudicated a ward of
the court or a person convicted of prostitution to have his
or her record sealed or conviction expunged without showing
that he or she has not been subsequently convicted or that
he or she has been rehabilitated. AB 702 was never heard
by this Committee and was returned to the Chief Clerk.
b) AB 2040 (Swanson) is substantially similar to AB 702.
AB 2040 is currently on the Assembly Appropriations
Committee's Suspense File.
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c) AB 2371 (Butler) authorizes a court to grant restorative
relief to a veteran and in part authorizes a court to seal
a record of arrest or court records if a veteran meets
specified criteria. AB 2371 is pending a vote on the
Assembly Floor.
d) AB 12 (Swanson), Chapter 75, Statutes of 2011, provides
that any person convicted of soliciting or engaging in an
act of prostitution, where the person involved in the
solicitation or the act was under 18 years of age, shall be
ordered by the court, to pay an additional fine not to
exceed $25,000.
e) AB 799 (Swanson), Chapter 51, Statutes of 2011, extends
the repeal date to January 1, 2017 of a provision in
existing law that authorizes the Alameda County District
Attorney to create a pilot project, contingent upon local
funding, for the comprehensive, replicative,
multidisciplinary model to address the needs and effective
treatment of commercially sexually exploited minors.
9)Previous Legislation :
a) AB 22 (Lieber), Chapter 240, Statutes of 2005, created
the California Trafficking Victims Protection Act, which
established civil and criminal penalties for human
trafficking and allowed for forfeiture of assets derived
from human trafficking. In addition, the Act required law
enforcement agencies to provide Law Enforcement Agency
Endorsement to trafficking victims, providing trafficking
victims with protection from deportation and created the
human trafficking task force.
b) AB 2319 (Swanson), Statutes of 2009-10, would have
expanded the scope of the crime of human trafficking to
include to cause or induce a person under the age of 18 to
commit a commercial sex act with the intent to commit
specified felonies. AB 2319 was held on the Assembly
Committee on Appropriations' Suspense File.
c) AB 559 (Swanson), Statutes of 2009-10, would have
expanded the scope of human trafficking to include
persuading a minor to engage in a commercial sex act
punishable by four, six, or eight years in the state
prison. AB 559 failed passage in this Committee.
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d) AB 988 (Brownley), Statutes of 2009-10, would have
required the Commission on Peace Officer Standards and
Training to create and make available training content on
the U Visa including training on how to inform victims
about the U Visa and how to apply for a U Visa. AB 988 was
vetoed.
e) AB 2810 (Brownley), Chapter 358, Statutes of 2008,
requires law enforcement agencies to use due diligence to
identify victims of human trafficking, regardless of the
person's citizenship; under specified circumstances,
consider whether specified indicators of human trafficking
are present; and allows any person who claims to have been
forced to commit an act of prostitution because he or she
is a victim of human trafficking to have his or her name
and address kept confidential, under an exception to the
Public Records Act.
REGISTERED SUPPORT / OPPOSITION :
Support
Junior Leagues of California (Co-Sponsor)
Polaris Project (Co-Sponsor)
California Against Slavery
California Attorneys for Criminal Justice
Center for Juvenile Law and Policy
Coalition to Abolish Slavery and Trafficking
ECPAT-USA
Junior League of San Francisco
Legal Services for Prisoners with Children
National Association for Social Workers - California Chapter
National Center for Youth Law
Not for Sale
Sisters of Mercy West Midwest Community
Sisters of the Holy Family
State Public Affairs Committee of the Junior Leagues of
California
SAGE (Standing Against Global Exploitation) Project
WestCoast Children's Clinic
Opposition
None
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Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744