California Legislature—2013–14 Regular Session

Assembly Bill No. 1887

Introduced by Assembly Member Campos

February 19, 2014

An act to amend Section 851.8 of the Penal Code, relating to prostitution.

LEGISLATIVE COUNSEL’S DIGEST

AB 1887, as introduced, Campos. Prostitution: human trafficking: sealing and destruction of arrest records.

Existing law authorizes a person who has been arrested but is not convicted to petition the court for a finding that the defendant is factually innocent of the charges. If the petitioner is found factually innocent, existing law requires the court to order the records of the arrest to be sealed and destroyed, as specified.

This bill would authorize a person to petition a court to set aside a conviction for an offense relating to solicitation or prostitution, as specified, based on a finding that the person is factually innocent of the charge if the person is a victim of human trafficking and the offense is a result of the petitioner’s status as a victim of that crime. In that case, the bill would require the court to order the records of the arrest to be sealed and destroyed, and to take other action appropriate under the circumstances or as justice requires.

The bill would also provide that a finding that the petitioner is factually innocent pursuant to this provision shall 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’s or entity’s alleged involvement in human trafficking.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 851.8 of the Penal Code is amended to
read:

851.8.  

(a) 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. The
law enforcement agency having jurisdiction over the offense shall
notify the Department of Justice, and any law enforcement agency
that arrested the petitioner or participated in the arrest of the
petitioner for an offense for which the petitioner has been found
factually innocent under this subdivision, of the sealing of the
arrest records and the reason therefor. The Department of Justice
and any law enforcement agency so notified shall forthwith seal
their records of the arrest and the notice of sealing for three years
from the date of the arrest, and thereafter destroy their records of
the arrest and the notice of sealing. The law enforcement agency
having jurisdiction over the offense and the Department of Justice
shall request the destruction of any records of the arrest which they
have given to any local, state, or federal agency or to any other
person or entity. Each agency, person, or entity within the State
of California receiving the request shall destroy its records of the
arrest and the request, unless otherwise provided in this section.

(b) If, after receipt by both the law enforcement agency and the
prosecuting attorney of a petition for relief under subdivision (a),
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. In any case where the petition of an arrestee
to the law enforcement agency to have an arrest record destroyed
is denied, petition may be made to the superior court that would
have had territorial jurisdiction over the matter. 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.
Notwithstanding Section 1538.5 or 1539, any judicial determination
of factual innocence made pursuant to this section may be heard
and determined upon declarations, affidavits, police reports, or
any other evidence submitted by the parties which is material,
relevant, and reliable. begin delete A end delete begin insert Except as provided for in paragraph (2)
of subdivision (g), a end insert finding of factual innocence and an order for
the sealing and destruction of records pursuant to this section 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.
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, 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
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 the Department of Justice 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 the State of 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.

(c) In any case where a person has been arrested, and an
accusatory pleading has been filed, but where no conviction has
occurred, the defendant may, at any time after dismissal of the
action, 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. The hearing shall be
conducted as provided in subdivision (b). 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 as provided
in subdivision (b).

(d) In any case where a person has been arrested and an
accusatory pleading has been filed, but where no conviction has
occurred, the court may, with the concurrence of the prosecuting
attorney, grant the relief provided in subdivision (b) at the time of
the dismissal of the accusatory pleading.

(e) 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, the judge
may grant the relief provided in subdivision (b).

begin insert

(f) In any case in which a person has been convicted of a charge
under subdivision (a), (b), or (d) of Section 647 or subdivision (a)
of Section 653.22, and the person’s participation in the offense
was a result of having been a victim of human trafficking under
Section 236.1 or trafficking in persons under the federal Trafficking
Victims Protection Act (22 U.S.C. Sec. 7101 et seq.), the person
may petition the court to set aside the conviction based on a finding
that the person is factually innocent of the charge. 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. The hearing shall be conducted as provided in subdivision
(b). 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 relief as provided in subdivision (b),
and may take any other additional action it deems appropriate
under the circumstances or as justice requires.

end insert begin insert

(g) For purposes of determining whether a person is factually
innocent pursuant to subdivisions (a) to (f), inclusive, in any case
in which a person has been arrested for, charged with, or convicted
of a violation of subdivision (a), (b), or (d) of Section 647, or
subdivision (a) of Section 653.22, and the person’s participation
in the offense was a result of having been a victim of human
trafficking under Section 236.1 or trafficking in persons under the
federal Trafficking Victims Protection Act (22 U.S.C. Sec. 7101
et seq.), the person shall be deemed factually innocent of the
charge.

end insert begin insert

(1) 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 pursuant to Section 236.1 in relation to the
petitioner’s violation of subdivision (a), (b), or (d) of Section 647,
or of subdivision (a) of Section 653.22, creates a presumption that
the petitioner’s participation in the offense was the result of having
been a victim of human trafficking or trafficking in persons, but
is not required for relief under this section.

end insert begin insert

(2) For purposes of this subdivision, the relief provided for in
subdivision (a), (b), or (f) may be granted 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.

end insert begin delete

(f)

end delete

begin insert (h) end insert  In any case where a person who has been arrested is granted
relief pursuant to subdivision begin delete (a) end delete begin insert (a), (b), end insert or begin delete (b), end delete begin insert (f), end insert the law
enforcement agency having jurisdiction over the offense or court
shall issue a written declaration to the arrestee stating that it is the
determination of the law enforcement agency having jurisdiction
over the offense or court that the arrestee is factually innocent of
the charges for which the person was arrested and that the arrestee
is thereby exonerated. Thereafter, the arrest shall be deemed not
to have occurred and the person may answer accordingly any
question relating to its occurrence.

begin delete

(g)

end delete

begin insert (i) end insert  The Department of Justice shall furnish forms to be utilized
by persons applying for the destruction of their arrest records and
for the written declaration that one person was found factually
innocent under subdivisions begin delete (a) and (b). end delete begin insert (a), (b), or (f). end insert

begin delete

(h)

end delete

begin insert (j) end insert  Documentation of arrest records destroyed pursuant to
subdivision (a), (b), (c), (d), begin insert (e), end insert or begin delete (e) end delete begin insert (f), end insert that are contained in
investigative police reports shall bear the notation “Exonerated”
whenever reference is made to the arrestee. The arrestee shall be
notified in writing by the law enforcement agency having
jurisdiction over the offense of the sealing and destruction of the
arrest records pursuant to this section.

begin delete

(i)

end delete

begin insert (k) end insert  (1) Any finding that an arrestee is factually innocent
pursuant to subdivision (a), (b), (c), (d), begin insert (e), end insert or begin delete (e) end delete begin insert (f) end insert shall not be
admissible as evidence in any action.

(2) Notwithstanding paragraph (1), a finding that begin delete an arrestee end delete begin insert a
petitioner end insert is factually innocent pursuant to subdivisions (a) to begin delete (e), end delete
begin insert (f), end insert inclusive, shall be admissible as evidence at a hearing before
the California Victim Compensation and Government Claims
Board.

begin insert

(3) Notwithstanding paragraph (1), 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 shall 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’s or entity’s alleged involvement in human
trafficking.

end insert begin delete

(j)

end delete

begin insert end insert
begin insert ( end insert begin insert l end insert begin insert ) end insert  Destruction of records of arrest pursuant to subdivision (a),
(b), (c), (d), begin insert (e), end insert or begin delete (e) end delete begin insert (f) end insert shall be accomplished by permanent
obliteration of all entries or notations upon the records pertaining
to the arrest, and the record shall be prepared again so that it
appears that the arrest never occurred. However, where (1) the
only entries on the record pertain to the arrest and (2) the record
can be destroyed without necessarily affecting the destruction of
other records, then the document constituting the record shall be
physically destroyed.

begin delete

(k)

end delete

begin insert (m) end insert  No records shall be destroyed pursuant to subdivision (a),
(b), (c), (d), begin insert (e), end insert or begin delete (e) end delete begin insert (f) end insert if the arrestee or a codefendant has filed
a civil action against the peace officers or law enforcement
jurisdiction which made the arrest or instituted the prosecution
and if the agency which is the custodian of the records has received
a certified copy of the complaint in the civil action, until the civil
action has been resolved. Any records sealed pursuant to this
section by the court in the civil actions, upon a showing of good
cause, may be opened and submitted into evidence. The records
shall be confidential and shall be available for inspection only by
the court, jury, parties, counsel for the parties, and any other person
authorized by the court. Immediately following the final resolution
of the civil action, records subject to subdivision (a), (b), (c), (d),
begin insert (e), end insert or begin delete (e) end delete begin insert (f) end insert shall be sealed and destroyed pursuant to subdivision
(a), (b), (c), (d), begin insert (e), end insert or begin delete (e). end delete begin insert (f). end insert

begin delete

(l)

end delete

begin insert (n) end insert  For arrests occurring on or after January 1, 1981, and for
accusatory pleadings filed on or after January 1, 1981, petitions
for relief under this section may be filed up to two years from the
date of the arrest or filing of the accusatory pleading, whichever
is later. Until January 1, 1983, petitioners can file for relief under
this section for arrests which occurred or accusatory pleadings
which were filed up to five years prior to the effective date of the
statute. begin delete Any time restrictions on filing for relief under this section
may be waived upon a showing of good cause by the petitioner
and in the absence of prejudice. end delete

begin insert

(1) Any time restrictions on filing for relief under this section
may be waived upon a showing of good cause by the petitioner
and in the absence of prejudice.

end insert begin insert

(2) For petitions brought pursuant to this section by persons
determined to have been victims of human trafficking under Section
236.1 or trafficking in persons under the federal Trafficking Victims
Protection Act (22 U.S.C. Sec. 7101 et seq.), the waiver of time
restriction upon showing of good cause shall be interpreted broadly
in favor of granting the petitioner relief. When evaluating whether
good cause exists, the court shall take into consideration relevant
factors, including, but not limited to, when the petitioner ceased
to be a victim of human 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 from filing the petition
within the time period.

end insert begin delete

(m)

end delete

begin insert (o) end insert  Any relief which is available to a petitioner under this section
for an arrest shall also be available for an arrest which has been
deemed to be or described as a detention under Section 849.5 or
851.6.

begin delete

(n)

end delete

begin insert (p) end insert  This section shall not apply to any offense which is classified
as an infraction.

begin delete

(o)

end delete

begin insert (q) end insert  (1) This section shall be repealed on the effective date of a
final judgment based on a claim under the California or United
States Constitution holding that evidence that is relevant, reliable,
and material may not be considered for purposes of a judicial
determination of factual innocence under this section. For purposes
of this subdivision, a judgment by the appellate division of a
superior court is a final judgment if it is published and if it is not
reviewed on appeal by a court of appeal. A judgment of a court of
appeal is a final judgment if it is published and if it is not reviewed
by the California Supreme Court.

(2) Any decision referred to in this subdivision shall be stayed
pending appeal.

(3) If not otherwise appealed by a party to the action, any
decision referred to in this subdivision which is a judgment by the
appellate division of the superior court shall be appealed by the
Attorney General.

begin delete

(p)

end delete

begin insert (r) end insert  A judgment of the court under subdivision (b), (c), (d), begin insert (e), end insert
or begin delete (e) end delete begin insert (f), end insert is subject to the following appeal path:

(1) In a felony case, appeal is to the court of appeal.

(2) In a misdemeanor case, or in a case in which no accusatory
pleading was filed, appeal is to the appellate division of the superior
court.