BILL ANALYSIS �
AB 1585
Page 1
Date of Hearing: March 11, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1585 (Alejo) - As Introduced: February 3, 2014
SUMMARY : Provides that a defendant who has been convicted of
solicitation or prostitution may petition the court to set aside
the conviction if the defendant can establish by clear and
convincing evidence that the conviction was the result of his or
her status as a victim of human trafficking. Specifically, this
bill :
1)Allows a court to issue an order that does all of the
following:
a) Sets forth a finding that the petitioner was a victim of
human trafficking when he or she committed the crime;
b) Orders expungement relief; and
c) Notifies the Department of Justice (DOJ) that the
petitioner was a victim of human trafficking when he or she
committed the crime and the relief that has been ordered by
the court.
2)Prohibits DOJ from disseminating the petitioner's record of
conviction for applications and petitions related to
adoptions, and other specified licensing, employment and
certification requirements.
EXISTING LAW :
1)Allows a court to set aside a conviction of a person who 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 who 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
AB 1585
Page 2
offense. (Pen. Code, � 1203.4, subd. (a).)
2)Provides that the relief pursuant to Penal Code Section 1203.4
does not relieve the petitioner of the obligation to disclose
the conviction in response to any direct question contained in
any questionnaire or application for public office, for
licensure by any state or local agency, or for contracting
with the California State Lottery Commission. (Pen. Code, �
1203.4, subd. (a).)
3)Provides that a person who was under the age of 18 at the time
of commission of a misdemeanor and is eligible for, or has
previously received expungement relief, 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. 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. (Pen.
Code, � 1203.45.)
4)States that a person who was adjudicated a ward of the court
for the commission of a violation of specified provisions
prohibiting prostitution may petition a court to have his or
her records sealed as these records pertain to the
prostitution offenses without showing that he or she has not
been subsequently convicted of a felony or misdemeanor
involving moral turpitude, or that rehabilitation has been
attained. This relief is not available to a person who paid
money or any other valuable thing, or attempted to pay money
or any other valuable thing, to any person for the purpose of
prostitution as defined. (Pen. Code, � 1203.47.)
5)States that any person who was under the age of 18 when he or
she was arrested for a misdemeanor, may petition the court in
which the proceedings occurred or, if there were no court
proceedings, the court in whose jurisdiction the arrest
occurred, for an order sealing the records in the case,
including any records of arrest and detention, in certain
circumstances. (Penal Code, � 851.7.)
6)Allows in certain cases, a person who has reached the age of
18 years to petition the juvenile court for sealing of his or
AB 1585
Page 3
her juvenile record. (Welf. & Inst. Code, � 781.)
7)Provides that any person who deprives or violates the personal
liberty of another with the intent to obtain forced labor or
services, is guilty of human trafficking and shall be punished
by imprisonment in the state prison for 5, 8, or 12 years and
a fine of not more than $500,000. (Pen. Code, � 236.1, subd.
(a).)
8)States that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than
$500,000. (Pen. Code, � 236.1, subd. (b).)
9)Provides that DOJ shall maintain state summary criminal
history information and authorizes DOJ to furnish state
summary criminal history information to statutorily authorized
entities for specified purposes including employment and
licensing. (Pen. Code, � 11105.6.)
10)Prohibits an employer, whether a public agency or private
individual or corporation, from asking an applicant for
employment to disclose, through any written form or verbally,
information concerning an arrest or detention that did not
result in conviction, or information concerning a referral to,
and participation in, any pretrial or posttrial diversion
program. Nor shall any employer seek from any source
whatsoever, or utilize, as a factor in determining any
condition of employment including hiring, promotion,
termination, or any apprenticeship training program or any
other training program leading to employment, any record of
arrest or detention that did not result in conviction, or any
record regarding a referral to, and participation in, any
pretrial or posttrial diversion program. Nothing in this
section shall prevent an employer from asking an employee or
applicant for employment about an arrest for which the
employee or applicant is out on bail or on his or her own
recognizance pending trial. This provision does not apply to
employment of peace officers. (Lab. Code, � 432.7, subds. (a)
& (e).)
FISCAL EFFECT : Unknown
AB 1585
Page 4
COMMENTS :
1)Author's Statement : According to the author, "Human
trafficking has become a serious issue in our state, with
people being bought, sold and smuggled like modern-day slaves.
It affects people of all races, religions and backgrounds,
and can have long lasting effects on victims and their
families. The purpose of this bill is to help those most
affected by human trafficking create a new life and move
beyond their harsh past. A person forced into a life of
prostitution should not be branded as a criminal."
2)Expungement Relief Generally : Defendants who have
successfully completed probation (including early discharge)
can petition the court to set aside a guilty verdict or permit
withdrawal of the guilty or nolo contendere plea and dismiss
the complaint, accusation, or information. (Penal Code
Section 1203.4.) Defendants who have successfully completed a
conditional sentence also are eligible to petition the court
for expungement relief under Penal Code Section 1203.4.
[People v. Bishop (1992) 11 Cal.App.4th 1125, 1129.] Penal
Code Section 1203.4 also provides that the court can, in the
furtherance of justice, grant this relief if the defendant did
not successfully complete probation. [Penal Code Section
1203.4; see People v. McLernon (2009) 174 Cal.App.4th 569,
577.]
Expungement relief is not available for convictions of certain
offenses. These include most felony child molestation
offenses, other specific sex offenses, and a few traffic
offenses. (Penal Code Sections 1203.4 and 1203.4a.) It does
not prevent the conviction from being pleaded and proved just
like any other prior conviction in any subsequent prosecution.
[See People v. Diaz (1996) 41 Cal.App.4th 1424.]
Expungement relief pursuant to Penal Code Section 1203.4 does
not relieve the petitioner of the obligation to disclose the
conviction in response to any direct question in any
questionnaire or application for public office or for
licensure by any state or local agency. Expungement relief
pursuant to Penal Code Section 1203.4a, on the other hand,
does not explicitly require the person to disclose the
conviction in an application for a state license or public
office. Penal Code Section 1203.4a is only available for
defendants convicted of a misdemeanor and not granted
AB 1585
Page 5
probation.
By regulation, a private employer may not ask a job applicant
about any misdemeanor conviction dismissed under 1203.4. [2
Cal. Code of Regs. Section 7287.4(d).] Also, under Labor Code
Section 432.7, a private or public employer may not ask an
applicant for employment to disclose information concerning an
arrest or detention that did not result in conviction, or
information concerning a referral to, and participation in,
any pretrial or posttrial diversion program. However, if the
employer is an entity statutorily authorized to request
criminal background checks on prospective employees, the
background check would reveal the expunged conviction with an
extra entry noting the dismissal on the record.
3)Equal Protection Concerns : The Equal Protection Clause of the
Fourteenth Amendment 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.
(Cal. Const., art. I, � 7.) An equal protection challenge is
a claim that a law discriminates against a person by unequal
treatment or unequal results.
Under current law, expungement relief does not erase a
conviction, rather it provides additional information in an
individual's criminal record showing that the conviction was
set aside or dismissed. This bill establishes a separate
procedure only available for one class of defendants and
provides this class with the additional benefit of prohibiting
DOJ from releasing information about the prior conviction for
specified licensing, employment or certification requirements.
This additional benefit is not available to other defendants
who successfully petition for expungement relief. A state law
that provides favorable treatment to one class of defendants
based solely on their status, while denying all other classes
of defendants the same treatment, may run afoul of the Equal
Protection clause.
4)Argument in Support : California Communities United Institute
writes, "The current law is unfair and does not adequately
protect victims from future harm. Often, prostitutes are
quickly arrested, charged, and sentenced with little to no
investigation into their personal backgrounds. However, in
many cases, if an inquiry had been made, it would become clear
that these women and men were victims of human trafficking.
AB 1585
Page 6
"The stigma that is attached to their prostitution-related
charges can inhibit their ability to lead productive lives.
Often, when they apply for a job, the employer will check
their criminal record. A record of prostitution could kill
any chance of finding a good job."
5)Related Legislation :
a) AB 1747 (Holden), states the intent of the Legislature
to enact legislation to prevent human trafficking and
prostitution in massage therapy establishments. AB 1747 is
pending referral by the Rules Committee.
b) AB 1610 (Bonta), authorizes the defendant or the people
to apply for an order that the witness be examined
conditionally when the material witness is a victim of or
witness to a felony prosecution involving human
trafficking, commercial sex acts, or forced labor or
services. AB 1610 is pending hearing by this Committee.
c) AB 795 (Alejo) was substantially similar to this bill.
AB 795 was held on the Committee on Appropriations'
Suspense File.
d) AB 694 (Bloom), Chapter 126, Statutes of 2013, prohibits
the admissibility of evidence that a victim has engaged in
any commercial sexual act as a result of being a victim of
human trafficking in order to prove the victim's criminal
liability for the commercial sexual act.
e) AB 156 (Holden) would have expanded the provisions
authorizing interception of wire or electronic
communications to apply if a judge determines that, among
other things, there is probable cause to believe that an
individual is committing, has committed, or is about to
commit a violation of human trafficking. AB 156 was held
on the Committee on Appropriations' Suspense file.
f) ACR 6 (Donnelly), Chapter 5, Statutes of 2013,
recognizes the month of January 2013, and each following
January, as National Slavery and Human Trafficking
Prevention Month, and it would recognize February 1, 2013,
and each following February 1, as California's Free From
Slavery Day.
AB 1585
Page 7
g) SB 1085 (Walters) prohibits the granting of probation
to, or the suspension of sentence for, a person who is
convicted of human trafficking. SB 1085 is pending hearing
by the Senate Committee on Public Safety.
h) SB 327 (Yee) allows a writ of habeas corpus when
competent and substantial evidence of human trafficking was
not presented at trial and to provide that the Board of
Parole Hearings shall give great weight to evidence that a
prisoner was a victim of human trafficking. SB 327 was
held on the Committee on Appropriations' Suspense file.
i) SB 60 (Wright), Chapter 147, Statutes of 2013, includes
victims of human trafficking within the definition of
crimes that are eligible for compensation from the
restitution fund administered by the California Victim
Compensation and Government Claims Board.
6)Prior Legislation :
a) AB 2040 (Swanson), Chapter 197, Statutes of 2012,
provides that a person who was adjudicated a ward of the
court for the commission of a violation of specified
provisions prohibiting prostitution may petition a court to
have his or her records sealed as these records pertain to
the prostitution offenses without showing that he or she
has not been subsequently convicted of a felony or
misdemeanor involving moral turpitude, or that
rehabilitation has been attained.
b) AB 1940 (Hill), of the 2011-12 Legislative Session,
would have authorized a court to seal a record of
conviction for prostitution based on a finding that the
petitioner is a victim of human trafficking, that the
offense is the result of the petitioner's status as a
victim of that crime, and that the petitioner is therefore
factually innocent. AB 1940 was held on the Committee on
Appropriations' Suspense File.
c) AB 702 (Swanson), of the 2011-12 Legislative Session,
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
AB 1585
Page 8
rehabilitated. AB 702 was never heard by this Committee
and was returned to the Chief Clerk.
d) 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference of Bishops
California Communities United Institute
Californians for Safety and Justice
Citizens for Law and Order
City and County of San Francisco
Crime Victims Action Alliance
Crime Victims United of California
Taxpayers for Improving Public Safety
Eight private individuals
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744