BILL ANALYSIS �
AB 1887
Page 1
Date of Hearing: April 8, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1887 (Campos) - As Introduced: February 19, 2014
SUMMARY : Authorizes a court to seal a record of conviction for
an offense relating to solicitation or prostitution based on a
finding that the petitioner is a victim of human trafficking and
the offense is the result of the petitioner's status as a victim
of that crime. Specifically, this bill :
1)Allows in any case in which a person has been convicted of
soliciting or engaging in lewd or dissolute conduct in a
public place or place exposed to public view; soliciting or
engaging in prostitution; loitering in or about a public
toilet for the purpose of engaging in or soliciting any lewd
or lascivious or any unlawful act; or loitering in a public
place with the intent to commit prostitution, and the person's
participation in the offense was a result of having been a
victim of human trafficking, the person to petition the court
to set aside the conviction based on a finding that the person
is factually innocent of the charge.
2)Requires a copy of the petition to 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 assistance, and allows the
prosecuting attorney to present declarations, affidavits,
police reports, or other evidence that is material, relevant
and reliable to the court at the hearing.
3)Requires the court to set aside the conviction and grant the
petitioner's request to seal and subsequently destroy his or
her record, and allows the court to take any other additional
action it deems appropriate under the circumstances or as
justice requires, if the court finds the petitioner to be
factually innocent of the charges of which he or she was
convicted.
4)Declares that a convicted person is factually innocent in any
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case in which that person's participation in an offense
relating to solicitation or prostitution was a result of
having been a victim of human trafficking under state or
federal law.
5)Provides that 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 of human
trafficking in relation to the petitioner's violation of a
solicitation or prostitution offense creates a presumption
that the petitioner's participation in the offense was the
result of having been a victim of human trafficking, but is
not required in order for relief to be granted.
6)Allows the court to grant relief to the petitioner
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.
7)Requires 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 to 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 or entity's alleged involvement in
human trafficking.
8)Requires a waiver of time restriction based on good cause to
be interpreted broadly in favor of granting relief for
petitions brought pursuant to this bill.
9)Mandates a court, when evaluating whether good cause exists,
to take into consideration relevant factors including, but not
limited to, when the petitioner ceased to be a victim of
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.
EXISTING LAW :
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1)States that evidence that a victim of human trafficking, as
defined, has engaged in any commercial sexual act as a result
of being a victim of human trafficking is inadmissible to
prove the victim's criminal liability for the commercial
sexual act. (Evid. Code, � 1161, subd. (a).)
2)States that evidence of sexual history or history of any
commercial sexual act of a victim of human trafficking, as
defined, is inadmissible to attack the credibility or impeach
the character of the victim in any civil or criminal
proceeding. (Evid. Code, � 1161, subd. (b).)
3)Provides that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
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. (Pen. Code, � 236.1.)
4)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
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. (Pen. Code,
� 647, subd. (b).)
5)States that it is unlawful for a person to loiter in a public
place with intent to commit prostitution. Provides that
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. (Pen. Code, � 653.22.)
6)Provides 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
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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.
(Pen. Code, � 851.8, subd. (a).)
7)States that if, after receipt by both the law enforcement
agency and the prosecuting attorney of a petition for relief,
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. (Pen. Code, �
851.8, subd. (b).)
8)Allows a petition to be made to the superior court that would
have had territorial jurisdiction over the matter if the
petition of an arrestee to the law enforcement agency to have
an arrest record destroyed is denied. 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. (Pen. Code, � 851.8, subd. (b).)
9)States that a finding of factual innocence and an order for
the sealing and destruction of records 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
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was made. (Pen. Code, � 851.8, subd. (b).)
10)Provides 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
(DOJ), 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 DOJ 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 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.
(Pen. Code, � 851.8, subd. (b).)
11)Allows a defendant, in any case where he or she has been
arrested, and an accusatory pleading has been filed, but where
no conviction has occurred, at any time after dismissal of the
action, to 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. 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 requested.
(Pen. Code, � 851.8, subd. (c).)
12)Authorizes a court, with the concurrence of the prosecuting
attorney, to grant the relief requested at the time of the
dismissal of the accusatory pleading in any case where a
person has been arrested and an accusatory pleading has been
filed, but where no conviction has occurred. (Pen. Code, �
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851.8, subd. (d).)
13)Authorizes a court to grant relief requested in the petition
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. (Pen. Code, � 851.8, subd. (e).)
14)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, as provided. (Pen. Code, � 1203.47.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Human
trafficking is the fastest growing criminal industry in the
world.
"Victims of human sex trafficking often include children and
adults, especially young girls and boys. Women and women
[sic], documented and undocumented foreign nationals, and U.S.
citizens have all been victims of this heinous crime. Often
times these victims have been kidnapped, sold or forced into
labor or commercial exploitation.
"Current law provides no suitable remedy for sex trafficking
victims who were convicted for being forced to engage in
commercial sex. Without a legal remedy, victims of sex
trafficking continue to have a criminal record, and are
prevented from obtaining some of the most basic necessities in
life.
"These include the ability to obtain a student loan, receive
housing assistance, get a state license or state certification
and can prevent a person from obtaining employment.
"Even after they escape from sex trafficking, the criminal
record victimizes them for life. AB 1887 would give victims of
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human sex trafficking the ability to clear their criminal
record if they were convicted of prostitution."
2)Statutory Purpose of Penal Code Section 851.8 : The Penal Code
section governing sealing and destruction of records for
adults and determination of factual innocence is for the
benefit of those defendants who have not committed a crime.
"It permits those petitioners who can show that the state
should never have subjected them to the compulsion of the
criminal law -- because no objective factors justified
official action -- to purge the official records of any
reference to such action." (People v. Chagoyan (2003) 107
Cal.App.4th 810, 816.) This bill expands the scope of people
intended to be granted relief under Penal Code section 851.8.
Currently, the statute applies only to individuals who have
not been convicted of a crime, with the rationale being that
people who have not committed a crime, and where no objective
factors existed that justified arrest or prosecution, should
be entitled to a judicial remedy to make up for wrongfully
putting that person through criminal proceedings. Adding
persons who have been found guilty of an offense goes against
the statutory purpose of the bill.
3)Factual Innocence : Only those persons who are found to be
factually innocent can be granted the relief provided in Penal
Code section 851.8. A finding of factual innocence for the
purposes of Penal Code section 851.8 "entails establishing as
a prima facie matter not necessarily just that the defendant
had a viable substantive defense to the crime charged, but
more fundamentally that there was no reasonable cause to
arrest him in the first place." (People v. Adair (2003) 29
Cal.4th 895, 905.) Reasonable or probable cause to arrest
exists when the facts known to the arresting officer would
lead a person of ordinary care and prudence to entertain an
honest and strong suspicion that the person arrested is guilty
of a crime. (Id. at p. 904.)
In People v. Gerold (2009) 174 Cal.App.4th 781, the court found
the defendant guilty of the charged offenses after completion
of the initial stage of the trial. Upon conclusion of the
sanity phase, the court found defendant not guilty by reason
of insanity. The defendant filed a petition pursuant to Penal
Code section 851.8 to have his arrest records for the
underlying offenses sealed and destroyed. The court denied
relief and reasoned that "[e]ven with the benefit of
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hindsight, it could not be said that an officer, knowing that
defendant was legally insane when committing the underlying
offenses, would not have had reasonable cause to arrest him.
Nor could it be said, in retrospect, that defendant should not
have been subjected to the compulsion of the criminal
law-because no objective factors justified official action.
There was no disagreement regarding whether defendant actually
committed the acts of assaulting his father with a knife and
verbally threatening to kill him. While defendant was
determined not to have been sufficiently mentally competent to
sustain punishment for his acts, that determination did not
equate with factual innocence of the acts underlying the
charges against him." (Id. at p. 791.)
This bill deems a person to be factually innocent of a crime for
which he or she has been convicted. For the purposes of Penal
Code section 851.8, a finding of factual innocence requires a
showing that there was no reasonable cause to arrest the
person in the first place. The reasonable-cause-to-arrest
standard allows a court to look at the circumstances that
existed at the time of arrest to determine whether a
reasonable person would have believed that the person
committed a crime. If the court determines there was no
reasonable cause for the arrest, the available remedy is to
seal and destroy the record of arrest, because the state never
should have subjected the person to the compulsion of criminal
law. In a case where a person committed the act and was
convicted either through a plea or after a jury trial,
however, the rationale for providing this remedy does not
exist. As illustrated in the Gerold case, even if an officer
knew that a person is engaging in prostitution under the
direction of a pimp, an officer still would have reasonable
cause to arrest the person for committing a crime as long as
there was some evidence that the person was engaging in an
unlawful act.
In order to address the issue of reasonable cause to arrest,
this bill provides that even if there was reasonable cause to
believe the petitioner committed the offense, the court may
grant relief to the petitioner. These sections provide a way
for people to get the benefit of record sealing without
meeting the legal requirements. This bill places more
stringent standards on petitioners who have not been convicted
of a crime than those who have by stating that those who have
been convicted still may be granted relief even if they are
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not factually innocent. It also improperly allows a court to
overturn a sentencing court and jury decisions without
ordering a new trial or going through the appeals or habeas
process.
4)Relief for Convicted Persons : Existing law provides relief to
persons who have been convicted of an offense by authorizing
courts to dismiss a person's record of conviction. For
example, under Penal Code section 1203.4, the petitioner may
have his or her conviction set aside and dismissed upon a
showing that the petitioner has completed probation, he or she
is not currently serving a sentence for any other offense, is
not on probation for any other offense, and is not being
charged with any other offense. Dismissals are available for
infraction and misdemeanor offenses and many felony
convictions, with specified exceptions. (See Pen. Code, ��
1203.4, 1203.4a, and 1203.41) Once a conviction has been
dismissed, a person need not disclose the prior conviction for
most job or school applications. A person is required to
disclose the conviction only if the person is applying for
public office or for licensure for any state or local agency.
A difference between the sealing records and the dismissal of
records is that when records are sealed, those records are
subsequently destroyed. If the petitioner was a victim of
human trafficking and the perpetrator is later prosecuted, the
record of arrest and any court transcripts would not be
available to assist in that prosecution.
5)Equal Protection : The Equal Protection Clause of the
Fourteenth Amendment, Section 1, 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. An equal protection challenge is a claim
that a law discriminates against a person by unequal treatment
or unequal results. Although usually equal protection is used
to analyze government action that draws a distinction among
people, sometimes it is used if the government discriminates
among people as to the exercise of a fundamental right, such
as marriage, procreation, voting, and access to the judicial
process. If the government action infringes on a fundamental
right, the strict scrutiny test applies. The law will be
upheld if it is necessary to achieve a compelling government
purpose. The government must have a truly significant reason
for discriminating and it must show that it cannot achieve its
objective through less discriminatory means.
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Access to the courts is a fundamental right subjected to strict
scrutiny. Although at times the Supreme Court has spoken in
terms of a right of access to the courts, its decisions all
have involved challenges to particular impediments in the
legal system. The U.S. Supreme Court has held that the
"constitutional guaranties of due process and equal protection
both call from procedures in criminal trials which allow no
invidious discriminations between persons and different groups
of persons." (Griffin v. Illinois (1956) 351 U.S. 12, 17.)
Query whether this bill violates the principle of equal
protection by allowing one group of convicted defendants to
have additional consideration and benefits not given to other
convicted defendants.
6)Arguments in Support :
a) As argued by the California Public Defenders
Association , "This bill offers just, restorative relief to
people whose crimes were essentially the product of their
victimization. The bill affords these victims an
opportunity for a fresh start, allowing them to avoid
potential bars to employment, education, professional
licensing, or services created by criminal convictions and
arrests for which they were not ultimately responsible."
b) According to California Communities United Institute ,
"The current law is unfair and does not adequately protect
victims from future harm. Often, prostitutes are quickly
arrested, charged and sentenced with little or no
investigation into their personal backgrounds. However, in
many cases, if an inquiry has been made, it would become
clear that these women and men were victims of human
trafficking. [] The stigma that is attached to their
prostitution-related charges can inhibit their ability to
lead productive lives."
c) Taxpayers for Improving Public Safety claims that "This
legislation has two obvious benefits. First, it provides a
carrot for those who are involved in the sex trade to come
forward to aid in the prosecution of the individuals who
control them knowing that they need have no fear of
criminal prosecution. Second, the individuals who are
involuntarily involved in the sex trade will be granted
evidentiary immunity for their conduct."
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7)Current Legislation : AB 1585 (Alejo) seeks to allow a
defendant who has been convicted of solicitation or
prostitution to 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. AB 1585 is pending
in the Assembly Committee on Appropriations.
8)Prior Legislation :
a) 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, is to be
ordered by the court, to pay an additional fine not to
exceed $25,000.
b) AB 702 (Swanson), of the 2011-2012 Legislative Session,
would have allowed 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 rehabilitated. AB 702 was never heard by this
committee.
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 1940 (Hill), of the 2011-2012 Legislative Session,
was identical to this bill. AB 1940 was held on the
Assembly Committee on Appropriations' Suspense File.
e) AB 2040 (Swanson), Chapter 197, Statutes of 2012, was
substantially similar to AB 702 of that legislative
session.
f) AB 2371 (Butler), Chapter 403, Statutes of 2012,
provides restorative relief to a veteran defendant who
acquires a criminal record due to a mental disorder
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stemming from military service.
g) AB 2319 (Swanson), Statutes of 2009-10, would have
expanded the scope of the crime of human trafficking to
include to cause or induce a person under the age of 18 to
commit a commercial sex act with the intent to commit
specified felonies. AB 2319 was held on the Assembly
Committee on Appropriations' Suspense File.
h) AB 559 (Swanson), Statutes of 2009-10, would have
expanded the scope of human trafficking to include
persuading a minor to engage in a commercial sex act
punishable by four, six, or eight years in the state
prison. AB 559 failed passage in this Committee.
i) AB 988 (Brownley), Statutes of 2009-10, would have
required the Commission on Peace Officer Standards and
Training to create and make available training content on
the U Visa including training on how to inform victims
about the U Visa and how to apply for a U Visa. AB 988 was
vetoed.
j) AB 2810 (Brownley), Chapter 358, Statutes of 2008,
requires law enforcement agencies to use due diligence to
identify victims of human trafficking, regardless of the
person's citizenship; under specified circumstances,
consider whether specified indicators of human trafficking
are present; and allows any person who claims to have been
forced to commit an act of prostitution because he or she
is a victim of human trafficking to have his or her name
and address kept confidential, under an exception to the
Public Records Act.
aa) 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 :
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Support
American Federation of State, County and Municipal Employees,
AFL-CIO
California Catholic Conference of Bishops
California Communities United Institute
California Partnership to End Domestic Violence
California Police Chiefs Association
California Public Defenders Association
Californians for Safety and Justice
Chief Probation Officers of California
Crime Victims United of California
Peace Officers Research Association of California
Taxpayers for Improving Public Safety
Fifty-five private individuals
Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744