BILL ANALYSIS �
AB 2040
Page 1
Date of Hearing: March 27, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2040 (Swanson) - As Introduced: February 23, 2012
SUMMARY : Allows a person who was adjudicated as a ward of the
court or convicted of an act of prostitution to have his or her
record sealed or expunged without having to show that he or she
has not been subsequently convicted of an offense involving
moral turpitude or has been rehabilitated. Specifically, this
bill :
1)Provides that a person who was adjudicated as a ward of the
court for an offense involving an act of prostitution, may
upon reaching 18 years of age, petition the court to have his
or her record sealed without requiring the person to show that
he or she has not been convicted of a felony or of any
misdemeanor involving moral turpitude, or that rehabilitation
has been attained to the satisfaction of the court.
2)Provides that a person who was 18 years of age or older at the
time of the offense or a person who was under 18 years of age
but tried as an adult may petition a court to withdraw his or
her guilty plea, and requires the court to grant the petition
if the court finds in its discretion that the petitioner has
made a satisfactory showing that the violation was a result of
the petitioner being a victim of human trafficking.
3)States that the conviction of a another person under existing
laws prohibiting human trafficking in relation to the
petitioner's conviction for prostitution or solicitation shall
be strongly considered as evidence that the petitioner was a
victim of human trafficking.
4)Provides that evidence that the prostitution or solicitation
offense was the result of having been a victim of human
trafficking may include, but is not limited to, any of the
following:
a) Certified records of federal or state court proceedings
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that demonstrate that the defendant was a victim of a
trafficker who was charged with a trafficking offense;
b) Certified records of approval notices or law enforcement
certifications generated from federal immigration
proceedings available to the victim;
c) A sworn statement from a trained professional staff
member of a victim services organization, an attorney, a
member of the clergy or a medical or other professional
from whom the defendant sought assistance in addressing the
trauma associated with being trafficked; and
d) Any evidence of probative value that the court deems
sufficiently credible.
5)Makes ineligible for relief a person who paid or attempted to
pay money or any other valuable thing to any person for the
purpose of prostitution.
6)Specifies that the provisions of this bill apply
retroactively.
7)Clarifies that this bill does not authorize the sealing of any
part of a person's record that is unrelated to an act of
prostitution.
EXISTING LAW :
1)Allows a person who has reached 18 years of age to petition a
court to seal all records relating to the person's case in the
custody of a juvenile court if he or she has not been
subsequently convicted of a felony or misdemeanor involving
moral turpitude and if rehabilitation has been attained to the
satisfaction of the court. Once the court has ordered the
person's records sealed, the proceedings in the case shall be
deemed never to have occurred, and the person may properly
reply accordingly to any inquiry about the events, the records
of which are ordered sealed. The court shall send a copy of
the order to each agency and official named therein, directing
the agency to seal its records and stating the date thereafter
to destroy the sealed records. �Welfare and Institutions Code
Section 781(a).]
2)Allows a judge of the juvenile court in which a petition was
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filed, at any time before the minor reaches the age of 21
years, to dismiss the petition or may set aside the findings
and dismiss the petition if the court finds that the interests
of justice and the welfare of the minor require such dismissal
or if it finds that the minor is not in need of treatment or
rehabilitation. The court shall have jurisdiction to order
such dismissal or setting aside of the findings and dismissal
regardless of whether the minor is, at the time of such order,
a ward or dependent child of the court. (Welfare and
Institutions Code Section 782.)
3)Allows a person to have a misdemeanor conviction set aside if
the court, in its discretion and the interests of justice,
determines that the person should be granted relief, provided
that the person 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. �Penal Code Section
1203.4.]
4)Provides that in a case in which a person was under the age of
18 years at the time of commission of a misdemeanor and is
eligible for, or has previously received, the relief provided
by laws relating to expungement, that person may petition the
court for an order sealing the record of conviction and other
official records in the case, including records of arrests
resulting in the criminal proceeding and records relating to
other offenses charged in the accusatory pleading, whether
defendant was acquitted or charges were dismissed. If the
court finds that the person was under the age of 18 at the
time of the commission of the misdemeanor, and is eligible for
relief under laws relating to expungement, or has previously
received that relief, it may issue its order granting the
relief prayed for. Thereafter the conviction, arrest, or
other proceeding shall be deemed not to have occurred, and the
petitioner may answer accordingly any question relating to
their occurrence. (Penal Code Section 1203.45.)
5)States that any person who solicits or who agrees to engage in
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
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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).]
6)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.)
7)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, "Victims of
human trafficking are often forced into prostitution and other
crimes against their will. When these victims try to leave
the sex trade, their criminal records often follow them,
limiting their employment and housing opportunities and making
it difficult for them to integrate back into society and a
safe environment.
"Current laws authorizing the sealing of juvenile court records
and the setting aside of misdemeanor convictions do not take
into account the fact that many convictions were the direct
result of human trafficking.
"AB 2040 assists persons who were victims of human trafficking
in two significant ways: 1) With respect to record sealing,
AB 2040 deletes the requirement that a petitioner show the he
or she has not been subsequently convicted of a felony or
misdemeanor involving moral turpitude or that rehabilitation
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has been attained. Rehabilitation is an impossible legal
hurdle to prove for someone whose crime was caused by their
commercial sexual exploitation. By deleting the
rehabilitation requirement, AB 2040 makes it easier for those
victims to get their juvenile records sealed. 2) With respect
to petitions to withdraw pleas and set aside convictions, AB
2040 would require a court to grant the petition for setting
aside certain convictions for prostitution if the petitioner
has demonstrated that the violation was a result of the
petitioner having been a victim of human trafficking. The
bill also describes some of the types of evidence a court
should consider in making that determination."
2)Domestic Trafficking is an Increasing Problem : Although Penal
Code Section 236.1 was added due to an increase in women and
children being shipped into the United States from abroad for
purposes of sexual exploitation or forced labor, those women
and children now live in the United States and are being
shuttled from city to city also for sexual exploitation.
According to the Polaris Project, "Much like the majority of
other countries affected by human trafficking, the U.S. has a
large internal or 'domestic' component of human trafficking
for the purposes of both sexual and labor exploitation. One
of the largest forms of domestic sex trafficking in the U.S.
involves traffickers who coerce women and children to enter
the commercial sex industry through the use of a variety of
recruitment and control mechanisms in strip clubs,
street-based prostitution, escort services, and brothels.
Domestic sex traffickers, commonly referred to as 'pimps',
particularly target vulnerable youth, such as runaway and
homeless youth, and reinforce the reality that the average age
of entry into prostitution is 12-13 years old in the U.S.
Experts estimate that at least 100,000 children are sexually
exploited each year."
()
3)Necessity for this Bill ? Existing provisions of law for
expungement and sealing of records provide relief to juveniles
adjudicated for most offenses and adults convicted of most
misdemeanors, including prostitution offenses. For offenses
committed as a juvenile, the petitioner may have his or her
record sealed upon reaching 18 years of age if he or she has
not been subsequently convicted of a felony or misdemeanor
involving moral turpitude and if the court is satisfied that
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the petitioner has been rehabilitated. In the alternative,
the petitioner may file a petition any time before reaching
the age of 21 to dismiss the petition if the court finds that
the interests of justice and the welfare of the minor require
such dismissal, or if it finds that the minor is not in need
of treatment or rehabilitation. For misdemeanor offenses
committed as an adult, 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.
These provisions of law have broad application which includes
acts of prostitution. Is there a need to create a special
expungement or record sealing procedure for prostitution
offenses committed by victims of human trafficking when relief
is already available under other existing provisions of law?
Is it good policy to grant a petitioner relief without
requiring a showing of rehabilitation, completion of
probation, or that the petitioner is not continuing to engage
in acts of prostitution or other criminal acts?
4)Argument in Support : According to California Catholic
Conference , "From the early days of the slave trade to present
reality, we have been challenged by the global movement of
vulnerable people across borders for various forms of slave
labor. California is currently one of the top destinations
for human trafficking. More public awareness will allow
individuals more opportunities to recognize and combat this
assault on personal dignity and liberty. And certainly, more
humane treatment of the victims through protection, support
and care will help restore their dignity and self-worth."
5)Argument in Opposition : According to the California District
Attorneys Association , "This bill would effectively negate the
requirements of existing law that a convicted person complete
any punishment and/or supervision and refrain from future
criminal acts in order to qualify for expungement relief. A
person convicted of a qualifying offense could arguably apply
for this relief the day following his or her conviction and
presumably while he or she is still incarcerated or on
probation. Additionally, these offenses can be used as prior
offenses to enhance punishment for future crimes and it is
inappropriate to make it easier to purge that criminal
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history.
"We do not deny the pernicious effects of human trafficking, but
the bottom line is that adults who commit crimes face
consequences. Existing law provides a procedure to expunge
certain offenses and we feel it is unnecessary to create a
special process for one class of offenses and one class of
offenders."
6)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 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.
c) 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.
d) AB 702 (Swanson), of the 2011-12 Legislative Session,
was substantially similar to this bill. AB 702 was never
heard by this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
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California Catholic Conference
California Probation, Parole and Correctional Association
California State PTA
Crime Victims United of California
National Association of Social Workers, California Chapter
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744