California Legislature—2013–14 Regular Session

Assembly Bill No. 2396

Introduced by Assembly Member Bonta

February 21, 2014

An act to amend Section 1203.41 of the Penal Code, relating to expungement.

LEGISLATIVE COUNSEL’S DIGEST

AB 2396, as introduced, Bonta. Convictions: expungement.

Existing law authorizes a court to allow a defendant sentenced to a county jail for a felony to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty after the lapse of one or 2 years following the defendant’s completion of the sentence, as specified, provided that the defendant is not under supervision, as specified, and is not serving a sentence for, on probation for, or charged with the commission of any offense. Existing law releases the defendant from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as specified.

This bill would make a technical, nonsubstantive change to these provisions.

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 1203.41 of the Penal Code is amended
to read:

1203.41.  

(a) If a defendant is sentenced pursuant to paragraph
(5) of subdivision (h) of Section 1170, the court, in its discretion
and in the interests of justice, may order the following relief,
subject to the conditions of subdivision (b):

(1) The court may permit the defendant to withdraw his or her
plea of guilty or plea of nolo contendere and enter a plea of not
guilty, or, if he or she has been convicted after a plea of not guilty,
the court shall set aside the verdict of guilty, and, in either case,
the court shall thereupon dismiss the accusations or information
against the defendant and he or she shall thereafter be released
from all penalties and disabilities resulting from the offense of
which he or she has been convicted, except as provided in Section
13555 of the Vehicle Code.

(2) The relief available under this section may be granted only
after the lapse of one year following the defendant’s completion
of the sentence, if the sentence was imposed pursuant to
subparagraph (B) of paragraph (5) of subdivision (h) of Section
1170, or after the lapse of two years following the defendant’s
completion of the sentence, if the sentence was imposed pursuant
to subparagraph (A) of paragraph (5) of subdivision (h) of Section
1170.

(3) The relief available under this section may be granted only
if the defendant is not under supervision pursuant to subparagraph
(B) of paragraph (5) of subdivision (h) of Section 1170, and is not
serving a sentence for, on probation for, or charged with the
commission of any offense.

(4) The defendant shall be informed, either orally or in writing,
of the provisions of this section and of his or her right, if any, to
petition for a certificate of rehabilitation and pardon at the time he
or she is sentenced.

(5) The defendant may make the application and change of plea
in person or by attorney, or by a probation officer authorized in
writing.

(b) Relief granted pursuant to subdivision (a) is subject to the
following conditions:

(1) In begin delete any end delete begin insert a end insert subsequent prosecution of the defendant for any
other offense, the prior conviction may be pleaded and proved and
shall have the same effect as if the accusation or information had
not been dismissed.

(2) The order shall state, and the defendant shall be informed,
that the order does not relieve him or her 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.

(3) Dismissal of an accusation or information pursuant to this
section does not permit a person to own, possess, or have in his or
her custody or control any firearm or prevent his or her conviction
under Chapter 2 (commencing with Section 29800) of Division 9
of Title 4 of Part 6.

(4) Dismissal of an accusation or information underlying a
conviction pursuant to this section does not permit a person
prohibited from holding public office as a result of that conviction
to hold public office.

(c) This section applies to any conviction specified in
subdivision (a) that occurred before, on, or after January 1, 2014.

(d) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred fifty
dollars ($150), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred fifty dollars
($150), and to reimburse any city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred fifty dollars ($150). Ability to make
this reimbursement shall be determined by the court using the
standards set forth in paragraph (2) of subdivision (g) of Section
987.8 and shall not be a prerequisite to a person’s eligibility under
this section. The court may order reimbursement in any case in
which the petitioner appears to have the ability to pay, without
undue hardship, all or any portion of the costs for services
established pursuant to this subdivision.

(e) (1) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days’ notice of the petition
for relief. The probation officer shall notify the prosecuting attorney
when a petition is filed, pursuant to this section.

(2) It shall be presumed that the prosecuting attorney has
received notice if proof of service is filed with the court.

(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.