BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
2
6
AB 2263 (Bradford) 3
As Amended May 2, 2012
Hearing date: July 3, 2012
Penal Code
JM:dl
VOTE ONLY
PERSONS SENTENCED TO JAIL FOR A FELONY CONVICTION
APPLICATION TO DISMISS THE CONVICTION
HISTORY
Source: American Civil Liberties Union; Lawyers' Committee for
Civil Rights of the San Francisco Bay Area
Prior Legislation: AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
Support: A New Way of Life Reentry Project; California Public
Defenders Association;
Californians United for a Responsible Budget; City and
County of San Francisco, Mayor's Office; San Francisco
County Adult Probation Department; San Francisco
District Attorney; San Francisco County Public
Defender; Congress of Racial Equality of California;
Drug Policy Alliance; East Bay Community Law Center;
Legal Services for Prisoners with Children; National
Employment Law Project; Rubicon Programs; San
Francisco Branch of the National Association for the
Advancement of Colored People; Watsonville Law Center;
(More)
AB 2263 (Bradford)
PageB
All of Us or None; County of Alameda; Legal Aid
Society - Employment Law Center; Community works;
Facts Education Fund; Friends Committee on Legislation
of California; California State Conference of the
National Association for the Advancement of Colored
People; American Federation of State, County, and
Municipal Employees
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 42 - Noes 30
KEY ISSUE
SHOULD A PERSON WHO HAS BEEN SENTENCED TO JAIL FOR A FELONY
CONVICTION UNDER CRIMINAL JUSTICE REALIGNMENT BE AUTHORIZED TO APPLY
FOR DISMISSAL OF HIS OR HER CONVICTION AND THE UNDERLYING CHARGE?
PURPOSE
The purpose of this bill is to authorize a person who was
sentenced for a jail felony (Pen. Code �1170, subd. (h)) to
apply for dismissal of his or her conviction and the underlying
charge.
Existing law provides that any defendant who has not been
convicted in the current or a prior case of one of a specified
class of felonies shall be sentenced to a term of imprisonment
in the county jail for a term of 16 months, two years or three
years, or the term provided in the crime of conviction. (Pen.
Code �1170, subd. (h).)
Existing law provides that defendants currently or previously
convicted of the following felonies are excluded from a jail
sentence and must serve any felony sentence in prison:
A serious felony (Pen. Code � 1192.7, subd. (c).)
(More)
AB 2263 (Bradford)
PageC
A violent felony (Pen. Code � 667.5, subd. (c).)
A felony for which sex offender registration is
required. (Pen. Code �290)
A felony conviction with a white-collar crime excessive
theft or loss enhancement (Pen. Code �186.11) (Pen. Code �
1170, subd. (h).)
Existing law provides that where a court sentences a defendant
for a jail felony pursuant to Penal Code Section 1170,
subdivision (h), the court may impose the sentence as follows:
The full lower, middle or upper term for the offense.
The term for the offense, but with the last portion of
the term spent under supervision by the probation
department in the community. (Pen. Code �1170, subd.
(h)(5)(A)-(B).)
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 shall, at any time
after the termination of probation, if he or she is not then
serving a sentence for any offense, on probation for any
offense, or charged with any offense, shall, upon application,
be granted the following relief: 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. (Pen. Code � 1203.4, subd. (a).)
Existing law provides that in any subsequent prosecution of the
defendant, 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. (Pen. Code � 1203.4, subd. (a).)
Existing law states that 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. (Pen. Code � 1203.4, subd. (a).)
(More)
AB 2263 (Bradford)
PageD
This bill provides that a defendant convicted of a felony and
sentenced pursuant to Penal Code Section 1170, subdivision (h)
to county jail for full term, or split sentenced to a split term
of jail confinement and community supervision may petition the
court to withdraw his or her guilty plea or for a dismissal of
the conviction under the following circumstances:
The defendant must have fulfilled the conditions of
probation for the entire period of probation or to have
been discharged prior to the termination of the period of
probation.
The defendant must not be serving a sentence for any
offense, be on probation for any offense, or be facing
charges for any offense.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
(More)
AB 2263 (Bradford)
PageE
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
(More)
AB 2263 (Bradford)
PageF
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
This bill addresses a deficiency in criminal justice
realignment by allowing individuals sentenced to local
jail terms under realignment to petition for "set
aside and dismissal" under Penal Code � 1203.4.
Realignment created a new sentencing structure for
lower-level felonies. These new sentences are not
clearly addressed in the expungement statues. Under
realignment, a person convicted of a non-serious,
non-violent, non-sex offense may be sentenced to a
term in county jail, as set out in Penal Code Section
1170(h)(5). In addition, the individual may not have
any prior serious, violent, or sex offenses on his or
her record. (Pen. Code � 1170(h)(3).) The law does
not specify whether people receiving a county jail
sentence under Section 1170(h)(5) may petition for
expungement.
This bill clarifies that individuals sentenced to jail
pursuant to Penal Code � 1170(h)(5) may petition for
set aside and dismissal under Penal Code � 1203.4. To
qualify, the defendant cannot currently be serving a
(More)
AB 2263 (Bradford)
PageG
sentence for any offense, be on probation or under
supervision for any offense, or be charged with any
offense. The court has the discretion whether to
grant the relief, and the defendant must show that the
relief "serves the interests of justice."
When relief is granted under Penal Code � 1203.4, the
conviction is set aside and dismissed. While this
relief is commonly called expungement, the conviction
is not removed from the record. It can be used to
enhance punishment in any subsequent prosecution and
the expunged conviction must still be disclosed in
applications for occupational licenses, for jobs
working with children, the disabled and seniors, and
for most public employment.
Correcting the expungement laws is critical if
California is going to reduce recidivism and improve
public safety through realignment. Realignment
created alternative, non-prison sanctions for people
with low-level convictions with the express purpose of
facilitating reintegration. (Penal Code �
17.5(a)(5).) Expungement is critical to reintegration
because it enables people who have served their
sentences and demonstrated rehabilitation to clear
their records. Expungement creates better access to
stable jobs and housing, factors proven to reduce
recidivism and increase self-sufficiency. Finally,
expungement is one of the critical reentry tools for
counties as they take on greater responsibility for
corrections and seek to maximize efficient use of
public safety dollars.
2. Issue Whether or not a Jail Felon who was not Granted
Probation Qualifies for Dismissal of a Conviction
The Bill may not Provide Relief for its Intended Beneficiaries
This bill provides that a person who was sentenced for a jail
(More)
AB 2263 (Bradford)
PageH
felony (Pen. Code � 1170, subd. (h)(5)), may petition the court
for dismissal of the conviction and the underlying charge. The
bill does this through the terms of new subdivision (d) of Penal
Code �1203.4. However, the bill requires a defendant seeking
this relief to meet the requirements of subdivision (a) of
Section 1203.4, which largely concerns defendants who have
successfully completed probation.
In relevant part, subdivision (a) of Section 1203.4 provides:
(a) (1) In any case in which a 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 the relief available under this
section the defendant shall at any time after the
termination of the period of probation, if he or she
is not then serving a sentence for any offense, on
probation for any offense, or charged with the
commission of any offense, �the court shall set aside
the guilty verdict or allow the defendant to withdraw
his or her guilty plea].
(More)
Subdivision (a) of Section 1203.4 does refer to "any other case
in which a court?determines that a defendant should be granted
the relief." This could be interpreted to mean the relief is
available to defendants who were not on probation. However, the
subdivision also states that the relief can be granted "at any
time after the termination of the term of probation?" This
appears to restrict the relief to defendants who completed
probation or who were discharged from probation on positive
terms.
In the limited number of appellate cases considering the issue,
the courts held that the relief is only available to defendants
who were granted probation. (People v. Mendez (1991) 234
Cal.App.3d 1773, 1780 - defendant convicted of a felony and
committed to the Youth Authority; People v. Morrison (1984) 162
Cal.App.3d 995, 997-998 - defendant found not guilty by reason
of insanity People v. Borja (1980) 110 Cal.App.3d 378, 382-383
- defendant successfully completed parole.)
A defendant who was sentenced under Section 1170, subdivision
(h) for a jail felony would not have been placed on probation.
Thus, it appears that the bill could be interpreted to not allow
a sentenced jail felon to not qualify for the relief ostensibly
authorized under this bill.
Suggested amendment to implement the intent of the author and
sponsors: Allow a sentenced jail felon to apply for dismissal of
the underlying conviction without community supervision in the
interests of justice.
It appears that the author and supporters intend the bill to
allow defendants who were sentenced to jail term for a felony
and not granted probation to apply for a dismissal of the
conviction and underlying charges. Objections were raised to
the bill with that understanding. As noted above, the bill does
not clearly allow that relief, as it would likely be interpreted
to require a defendant to successfully complete probation before
a court could grant the relief requested.
(More)
AB 2263 (Bradford)
PageJ
If the author intends to authorize a sentenced jail felon to
apply for a dismissal of the underlying conviction, the bill
should be amended to clearly state that. In particular, the
bill could be amended to state that in any case where a
defendant was sentenced to jail pursuant to Section 1170,
subdivision (h)(5), he or she may apply for the relief provided
in subdivision (a) of Section 1203.4, "in the court's discretion
and the interests of justice, if he or she is not then under
supervision pursuant to subparagraph (B) of paragraph (5) of
Section 1170, subdivision (h), is not serving a sentence for any
offense, on probation for any offense, or charged with the
commission of any offense."
This would be similar to the procedure and standards for
defendants who were placed on probation and did not either 1)
fulfill the conditions of probation for the entire term, or 2)
obtain early discharge from probation. Where the defendant
fulfills the conditions of probation without violation or
obtains early discharge, he or she has a right to dismissal of
the underlying conviction. (People v. Bradus (2007) 149
Cal.App.4th 636.) In other circumstances the court has
discretion to dismiss the prior conviction after the defendant
completes probation. For example, the court has discretion to
dismiss the conviction if the defendant violated the terms of
probation, but eventually completed probation, the court has
discretion to dismiss the underlying conviction and charge.
(People v. McLernon (2009) 174 Cal.App.4th 569, 572-578.) In
such cases, the court can consider the defendant's behavior
after completion of probation and any other relevant factors.
(Ibid.)
This bill does not set out guidelines for the court in
determining whether or not to dismiss a sentenced jail felon's
conviction. While it appears that a person could apply for
relief upon release from jail, a court would have little factual
basis for the decision. Courts would very likely look for
evidence that the defendant has been rehabilitated before
dismissing a jail felony. As the court could not weigh the
defendant's behavior on probation or other supervision, the
court would likely rely on the defendant's conduct since release
AB 2263 (Bradford)
PageK
from jail. In the McLernon case the defendant demonstrated six
years of exemplary behavior when he brought the original request
for relief under Section 1203.4. At the time the Court of
Appeal ruled that he could apply for relief, he demonstrated 12
years of exemplary behavior. (Id, at p. 577.)
SHOULD THIS BILL BE AMENDED TO CLEARLY AND DIRECTLY STATE THAT A
DEFENDANT WHO HAS SERVED A FELONY JAIL SENTENCE MAY APPLY FOR
DISMISSAL OF HIS OR HER CONVICTION AND THE UNDERLYING CHARGE IN
THE INTERESTS OF JUSTICE IF HE OR SHE IS NOT SERVING A SENTENCE,
ON PROBATION OR FACING OTHER CHARGES?
WHAT FACTORS WOULD A COURT CONSIDER IN DETERMINING WHETHER OR
NOT TO DISMISS A SENTENCED JAIL FELON'S UNDERLYING CONVICTION?
3. Defendants Sentenced to a Split Term for a Jail Felony
Realignment has created a class of inmates who are given a split
sentence of a term in jail followed by supervision in the
community. Penal Code Section 1170, subdivision (h)(5)(A)-(B)
describes the options for the court in sentencing an inmate
convicted of a jail felony who was not placed on probation:
(5) The court, when imposing a sentence pursuant to
paragraph (1) or (2) of this subdivision,<1> may
commit the defendant to county jail as follows:
(A) For a full term in custody as determined in
accordance with the applicable sentencing law.
(B) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a
concluding portion of the term selected in the court's
discretion, during which time the defendant shall be
supervised by the county probation officer in
accordance with the terms, conditions, and procedures
----------------------
<1> These paragraphs respectively refer to defendant subject to
the default felony term of 16 months, two years or three years,
or the term provided in the penalty provisions for the specific
crime.
AB 2263 (Bradford)
PageL
generally applicable to persons placed on probation,
for the remaining unserved portion of the sentence
imposed by the court. The period of supervision shall
be mandatory, and may not be earlier terminated except
by court order. During the period when the defendant
is under such supervision, unless in actual custody
related to the sentence imposed by the court, the
defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court.
(Bold italics added.)
Thus, the governing law states that the period of community
supervision after the defendant serves a realignment jail term
is very similar or equivalent to a period of probation.
Further, defendants who are granted probation are often required
to serve a term in the county jail as a condition of probation.
Thus, defendants serving split sentences under Section 1170,
subdivision (h) and felony probationers are similarly situated.
The bill could be amended to provide that any defendant who is
sentenced to a term in jail with a period of community
supervision should be authorized to apply to the court to
withdraw his or her guilty plea or to have his or her conviction
dismissed.
COULD THE BILL SPECIFICALLY PROVIDE THAT A JAIL FELONY
DEFENDANT WHO WAS SENTENCED TO JAIL TERM, WITH SUSPENSION
OF THE CONCLUDING PORTION OF THE TERM WHILE ON SUPERVISION
IN THE COMMUNITY, MAY APPLY TO WITHDRAW THE UNDERLYING PLEA
OR DISMISS THE CONVICTION FOR THE OFFENSE?
4. Argument in Opposition of the California District Attorneys
Association
The California District Attorneys Association argues in
opposition:
Currently, pursuant to Penal Code Section 1203.4, a
defendant who was placed on probation may have the
underlying conviction expunged. A defendant who was
sentenced to prison, which necessarily means that
AB 2263 (Bradford)
PageM
probation was denied, cannot have the underlying
conviction expunged. Penal Code Section 1203.4
applies only to defendants who were granted probation.
(People. v. Borja (198) 110 Cal.App.3d 378.)
Felons sentenced to jail under realignment are
similarly situated to felons sentenced to prison.
Conversely, felons sentenced under realignment are not
similarly situated to probationers. The simple change
in where sentenced felons serve their terms under
realignment is not appropriate grounds to afford
sentenced jail felons the relief available under Penal
Code Section 1203.4
5. Argument in Support by the California Public Defenders
Association
The California Public Defenders Association argues in support:
Realignment requires sentences for specified low-level
felonies be served in a county jail. The main thrust
of realignment is to realize a successful transition
of a defendant into the community by allowing him or
her to obtaining the skills and services at the local
level where family members and support networks are
located.
AB 2263 will reduce unemployment and boost the economy
by providing hope to those sentenced to jail that they
can demonstrate that that they have earned expungement
relief under Penal Code Section 1203.4. AB 2263
maintains the discretion of the court to grant relief
under Penal Code Section 1203.4 in the interests of
justice. The relief is not a right; it must be
earned. When a person demonstrates rehabilitation,
the court sets aside and dismisses the conviction.
Although the conviction remains on the person's
record, the relief significantly improves his or her
ability to finds jobs and housing.
AB 2263 (Bradford)
PageN
**********