BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 2040|
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THIRD READING
Bill No: AB 2040
Author: Swanson (D)
Amended: 5/25/12 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/26/12
AYES: Hancock, Anderson, Liu, Price, Steinberg
NOES: Calderon, Harman
ASSEMBLY FLOOR : 49-21, 5/31/12 - See last page for vote
SUBJECT : Juvenile prostitution offenses: sealing of
records
SOURCE : Author
DIGEST : This bill (1) provides that an adult who was
previously adjudicated to be a ward of the juvenile court
because he or she committed a prostitution offense may
petition the court to seal the records of the offense,
regardless of the person's criminal record or proof of
rehabilitation; and( 2) provides that this relief shall not
be available if the person exchanged, or offered to
exchange, anything of value in the prostitution offense.
ANALYSIS : Existing law provides that a minor (under the
age of 18) who violates any criminal law is within the
jurisdiction of the juvenile court and may be declared a
ward of the court. (Welfare and Institutions Code (WIC)
Section 602.)
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Existing law allows a person who has reached 18 years of
age to petition a court to seal all his or her juvenile
court records if he or she has not been subsequently
convicted of a felony or misdemeanor involving moral
turpitude and the court finds he or she has been
rehabilitated. Upon sealing of the records, the
proceedings shall be deemed never to have occurred. The
court shall order each applicable agency to seal its
record. (WIC Section 781, subd. (a))
Existing law provides that the records shall be destroyed
when the subject of the records reaches the age of 38,
except that records concerning a crime listed in Welfare
and Institutions Code Section 707, subdivision (b), shall
not be destroyed. (WIC Section 781, subd. (d))
Existing law authorizes a juvenile court to dismiss a
petition if the court finds that the interests of justice
and the welfare of the minor require dismissal, or if it
finds that the minor is not in need of treatment or
rehabilitation. The court has jurisdiction to make these
orders regardless of whether the minor is then a ward or
dependent child of the court. (WIC Code Section 782.)
Existing law provides that where a defendant has fulfilled
the terms of probation, or been discharged from probation,
or where the court determines that a defendant should be
granted relief in the interests of justice, the defendant
may petition for dismissal of the underlying conviction
under the following terms and circumstances:
The application can be made at any time after the
termination of probation.
The person must not be serving a sentence for any
offense, on probation for any offense, or charged with
any offense.
The court shall dismiss the conviction or allow the
defendant to withdraw his or her guilty plea.
The court shall then dismiss the accusations against the
defendant.
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In any subsequent prosecution the prior conviction may be
pleaded and proved and shall have the same effect as if
probation had not been granted or the accusations
dismissed.
An order of dismissal does not relieve the petitioner 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 Section 1203.4.)
Existing law provides a person who was convicted of a
misdemeanor and not granted probation may move the court,
in its discretion and in the interests of justice, to set
aside the conviction. The following shall apply in such
cases:
The application can be made one year or more past the
judgment.
The person may withdraw his or her guilty plea.
The court shall dismiss the charges.
The person must have fully complied with and performed
the sentence of the court.
The person seeking relief must not be serving a sentence,
or be on probation, or facing charges for any other
offense.
The person must have lived an honest, upright and
law-abiding life. (Penal Code Section 1203.4a, subd. (a))
The court may grant the person relief if he or she has
fully complied with and performed the sentence and is not
then serving a sentence for any offense, although the
person does not meet the other qualifications set out in
subdivision (a). (Penal Code Section1203.4a, subd. (b))
Existing law provides that where a person was a minor when
he or she committed a misdemeanor, and he or she is
eligible for or received expungement of the record under
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Penal Code Sections 1203.4 or 1203.4a, the following shall
apply:
The person may petition for an order sealing the record
of adjudication and other official records in the case.
These records include the records of arrest and records
relating to other charged offenses and the resolution of
the charges.
If the court finds that the person was under the age of
18 at the time of the commission of the misdemeanor, and
was granted or is eligible for expungement of the
adjudication, it may order the relief. Thereafter, the
petitioner may state that the offense and related
procedures did not occur. (Penal Code Section 1203.45.)
Existing law states that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty
of misdemeanor. This crime does not occur unless the
person specifically intends to engage in an act of
prostitution and some act is done in furtherance of agreed
upon act. Prostitution includes any lewd act between
persons for money or other consideration. (Penal Code
Section 647, subd. (b))
Existing law states that it is unlawful for a person to
loiter in a public place with intent to commit
prostitution. (Penal Code Section 653.22.)
Existing law 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, subd. (a))
This bill 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. The person
need not show that he or she has not been convicted of a
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felony or any misdemeanor involving moral turpitude. The
person need not show that he or she has been rehabilitated.
This bill provides that a person who paid or attempted to
pay money or any other valuable thing to any person for the
purpose of prostitution is not eligible for the relief
authorized by this bill.
This bill specifies that the provisions of this bill shall
apply retroactively.
This bill does not authorize the sealing of any part of a
person's record that is unrelated to an act of
prostitution.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/5/12)
California Attorneys for Criminal Justice
California Catholic Conference;
California Probation, Parole and Correctional Association
California State PTA
Crime Victims United of California
National Association of Social Workers, California Chapter
West Coast Children's Clinic
ARGUMENTS IN SUPPORT : According to the author:
The National Center for Missing and Exploited Children
estimates that approximately 100,000 U.S. children are
exploited through prostitution every year. California
is one of the states most affected by the crime. In
fact, since December of 2007, the national human
trafficking hotline received more than 5,300 calls
directly from California - more calls than any other
state.
Further, according to the U.S. Trafficking Victims
Protection Act (TVPA), the U.S. State Department's
Trafficking in Human Persons Report sealing judgments
for commercially sexually exploited children ensures
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that the victims are not inappropriately penalized for
unlawful acts committed as a direct result of being
trafficked.
Under existing law, a person who reaches 18 years of
age may petition the court to seal all records
relating to their cases in juvenile court. The court
may approve the petition if the person has not been
subsequently convicted of a felony or misdemeanor
involving moral turpitude and if the court is
satisfied that the petitioner has been rehabilitated.
These rehabilitation requirements make little sense
with regard to prostitution offenses. Minors are
unable to legally consent to sex, so it is critical
that our state begins to recognize commercially
sexually exploited minors as victims by not requiring
them to show that they've been "rehabilitated" of a
crime that was actually committed against them.
Therefore, AB 2040 deletes these rehabilitation
requirements with respect to prostitution offenses,
making it a little easier for persons prostituted as
minors to clean up their records and integrate back
into society and the workforce.
ASSEMBLY FLOOR : 49-21, 5/31/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Block, Blumenfield, Bonilla, Bradford, Brownley,
Buchanan, Butler, Campos, Carter, Cedillo, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani,
Gatto, Gordon, Halderman, Hall, Hayashi, Roger Hern�ndez,
Hill, Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma,
Mitchell, Pan, Perea, V. Manuel P�rez, Skinner, Solorio,
Swanson, Torres, Wieckowski, Williams, Yamada, John A.
P�rez
NOES: Bill Berryhill, Conway, Donnelly, Beth Gaines,
Garrick, Gorell, Grove, Hagman, Harkey, Jeffries, Jones,
Knight, Logue, Miller, Morrell, Nestande, Nielsen, Olsen,
Silva, Smyth, Wagner
NO VOTE RECORDED: Charles Calderon, Chesbro, Cook,
Fletcher, Mansoor, Mendoza, Monning, Norby, Portantino,
Valadao
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RJG:nl 7/5/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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