Bill Text: CA AB1762 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Human trafficking: victims: vacating convictions.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Vetoed) 2016-09-26 - Vetoed by Governor. [AB1762 Detail]
Download: California-2015-AB1762-Amended.html
Bill Title: Human trafficking: victims: vacating convictions.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Vetoed) 2016-09-26 - Vetoed by Governor. [AB1762 Detail]
Download: California-2015-AB1762-Amended.html
BILL NUMBER: AB 1762 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 17, 2016
AMENDED IN SENATE AUGUST 15, 2016
AMENDED IN ASSEMBLY MAY 31, 2016
AMENDED IN ASSEMBLY APRIL 5, 2016
INTRODUCED BY Assembly Member Campos
(Principal coauthors: Assembly Members Santiago and Weber)
FEBRUARY 2, 2016
An act to amend Sections 8712, 8811, and 8908 of the Family Code,
and to amend Sections 236.1 and 11105 of, to add Sections 236.24 and
236.25 to, and to repeal Section 1203.49 of, the Penal Code, relating
to human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 1762, as amended, Campos. Human trafficking: victims: vacating
convictions.
(1) Under existing law, as amended by Proposition 35, an
initiative measure approved by the voters at the November 6, 2012,
statewide general election, a person who deprives or violate another
person's personal liberty with the intent to obtain forced labor or
services or who deprives or violates another person's personal
liberty for the purpose of prostitution or sexual exploitation is
guilty of human trafficking, a felony. Proposition 35 provides that
it may be amended by a statute in furtherance of its objectives by a
majority of the membership of each house of the Legislature
concurring.
Existing law allows a court to issue an order to set aside a
verdict of guilty and dismiss an accusation or information against a
defendant who has been convicted of solicitation or prostitution if
the defendant has completed any term of probation for that conviction
and if he or she can establish by clear and convincing evidence that
the conviction was a result of his or her status as a victim of
human trafficking.
This bill would instead allow an individual convicted of a
nonviolent crime that was a direct result of the individual being a
human trafficking victim to apply to the court to vacate the
conviction if the individual is not then in custody and has either
not been convicted of any crime for two years or has successfully
completed probation for the crime. The bill would allow an individual
adjudicated a ward of the juvenile court as the result of a
nonviolent crime committed while he or she was a human trafficking
victim to apply to have the petition dismissed if the individual has
not had a sustained petition for any crime or been convicted of any
crime for one year prior to the date of application. The bill would
specify various court procedures for adjudication of an application.
If the application is granted, the bill would require the court to
have all records in the case sealed and to release the defendant from
all penalties and disabilities, as provided. The bill would define
"human trafficking victim" and "nonviolent crime" for these purposes.
The bill would require the individual applying for vacatur to
submit the application and all evidence in support of the application
under penalty of perjury. By expanding the crime of perjury, this
bill would impose a state-mandated local program.
(2) Existing law requires the Attorney General to compile and
disseminate state summary criminal history information pertaining to
the identification and criminal history of any person.
This bill would require the state summary criminal history
information to exclude any charge or conviction for which relief has
been granted pursuant to the provisions of this bill.
(3) This bill would incorporate additional changes to Section 8712
of the Family Code, proposed by AB 1997, that would become operative
only if this bill and AB 1997 are enacted and become effective on or
before January 1, 2017, and this bill is chaptered last.
(3)
(4) The California Constitution requires the state to
reimburse local agencies and school districts for certain costs
mandated by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8712 of the Family Code is amended to read:
8712. (a) The department, county adoption agency, or licensed
adoption agency shall require each person who files an application
for adoption to be fingerprinted and shall secure from an appropriate
law enforcement agency any criminal record of that person to
determine whether the person has ever been convicted of a crime other
than a minor traffic violation. The department, county adoption
agency, or licensed adoption agency may also secure the person's full
criminal record, if any. Any federal-level criminal offender record
requests to the Department of Justice shall be submitted with
fingerprint images and related information required by the Department
of Justice for the purposes of obtaining information as to the
existence and content of a record of an out-of-state or federal
conviction or arrest of a person or information regarding any
out-of-state or federal crimes or arrests for which the Department of
Justice establishes that the person is free on bail, or on his or
her own recognizance pending trial or appeal. The Department of
Justice shall forward to the Federal Bureau of Investigation any
requests for federal summary criminal history information received
pursuant to this section. The Department of Justice shall review the
information returned from the Federal Bureau of Investigation and
shall compile and disseminate a response to the department, county
adoption agency, or licensed adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) The department, county adoption agency, or licensed
adoption agency shall not give final approval for an adoptive
placement in any home in which the prospective adoptive parent or any
adult living in the prospective adoptive home has either of the
following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A), and subparagraph
(B), of paragraph (1) of subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the applicant
shall be paid by the applicant. The department, county adoption
agency, or licensed adoption agency may defer, waive, or reduce the
fee when its payment would cause economic hardship to prospective
adoptive parents detrimental to the welfare of the adopted child,
when the child has been in the foster care of the prospective
adoptive parents for at least one year, or if necessary for the
placement of a special-needs child.
SEC. 1.5. Section 8712 of the Family
Code is amended to read:
8712. (a) (1) The department, county
adoption agency, or licensed adoption agency shall require each
person who files an application for adoption to be fingerprinted and
shall secure from an appropriate law enforcement agency any criminal
record of that person to determine whether the person has ever been
convicted of a crime other than a minor traffic violation. The
department, county adoption agency, or licensed adoption agency may
also secure the person's full criminal record, if any, with
the exception of any convictions for which relief has been granted
pursuant to Section 1203.49 of the Penal Code. any.
Any federal-level criminal offender record requests to the
Department of Justice shall be submitted with fingerprint images and
related information required by the Department of Justice for the
purposes of obtaining information as to the existence and content of
a record of an out-of-state or federal conviction or arrest of a
person or information regarding any out-of-state or federal crimes or
arrests for which the Department of Justice establishes that the
person is free on bail, or on his or her own recognizance pending
trial or appeal. The Department of Justice shall forward to the
Federal Bureau of Investigation any requests for federal summary
criminal history information received pursuant to this section. The
Department of Justice shall review the information returned from the
Federal Bureau of Investigation and shall compile and disseminate a
response to the department, county adoption agency, or licensed
adoption agency.
(2) The department, county adoption agency, or licensed adoption
agency may obtain arrest or conviction records or reports from any
law enforcement agency as necessary to the performance of its duties,
as provided in this section.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) The department, county adoption agency, or licensed
adoption agency shall not give final approval for an adoptive
placement in any home in which the prospective adoptive parent or any
adult living in the prospective adoptive home has either of the
following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A), and subparagraph
(B), of paragraph (1) of subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. Sec. 670 et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the applicant
shall be paid by the applicant. The department, county adoption
agency, or licensed adoption agency may defer, waive, or reduce the
fee when its payment would cause economic hardship to prospective
adoptive parents detrimental to the welfare of the adopted child,
when the child has been in the foster care of the prospective
adoptive parents for at least one year, or if necessary for the
placement of a special-needs child.
SEC. 2. Section 8811 of the Family Code is amended to read:
8811. (a) The department or delegated county adoption agency
shall require each person who files an adoption petition to be
fingerprinted and shall secure from an appropriate law enforcement
agency any criminal record of that person to determine whether the
person has ever been convicted of a crime other than a minor traffic
violation. The department or delegated county adoption agency may
also secure the person's full criminal record, if any. Any
federal-level criminal offender record requests to the Department of
Justice shall be submitted with fingerprint images and related
information required by the Department of Justice for the purposes of
obtaining information as to the existence and content of a record of
an out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal Bureau
of Investigation any requests for federal summary criminal history
information received pursuant to this section. The Department of
Justice shall review the information returned from the Federal Bureau
of Investigation and shall compile and disseminate a response to the
department or delegated county adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) The department or a delegated county adoption agency shall
not give final approval for an adoptive placement in any home in
which the prospective adoptive parent or any adult living in the
prospective adoptive home has either of the following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A), and subparagraph
(B), of paragraph (1) of subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. 670 et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the petitioner
shall be paid by the petitioner. The department or delegated county
adoption agency may defer, waive, or reduce the fee when its payment
would cause economic hardship to the prospective adoptive parents
detrimental to the welfare of the adopted child, when the child has
been in the foster care of the prospective adoptive parents for at
least one year, or if necessary for the placement of a special-needs
child.
SEC. 3. Section 8908 of the Family Code is amended to read:
8908. (a) A licensed adoption agency shall require each person
filing an application for adoption to be fingerprinted and shall
secure from an appropriate law enforcement agency any criminal record
of that person to determine whether the person has ever been
convicted of a crime other than a minor traffic violation. The
licensed adoption agency may also secure the person's full criminal
record, if any. Any federal-level criminal offender record requests
to the Department of Justice shall be submitted with fingerprint
images and related information required by the Department of Justice
for the purposes of obtaining information as to the existence and
content of a record of an out-of-state or federal conviction or
arrest of a person or information regarding any out-of-state or
federal crimes or arrests for which the Department of Justice
establishes that the person is free on bail, or on his or her own
recognizance pending trial or appeal. The Department of Justice shall
forward to the Federal Bureau of Investigation any requests for
federal summary criminal history information received pursuant to
this section. The Department of Justice shall review the information
returned from the Federal Bureau of Investigation and shall compile
and disseminate a fitness determination to the licensed adoption
agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) A licensed adoption agency shall not give final approval
for an adoptive placement in any home in which the prospective
adoptive parent, or any adult living in the prospective adoptive
home, has a felony conviction for either of the following:
(A) Any felony conviction for child abuse or neglect, spousal
abuse, crimes against a child, including child pornography, or for a
crime involving violence, including rape, sexual assault, or
homicide, but not including other physical assault and battery. For
purposes of this subdivision, crimes involving violence means those
violent crimes contained in clause (i) of subparagraph (A), and
subparagraph (B), of paragraph (1) of subdivision (g) of Section 1522
of the Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. 670 et seq.).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the applicant
shall be paid by the applicant. The licensed adoption agency may
defer, waive, or reduce the fee when its payment would cause economic
hardship to the prospective adoptive parents detrimental to the
welfare of the adopted child.
SEC. 4. Section 236.1 of the Penal Code is amended to read:
236.1. (a) A 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
five hundred thousand dollars ($500,000).
(b) A person who deprives or violates the personal liberty of
another with the intent to effect or maintain a violation of Section
266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6,
or 518 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 five hundred thousand dollars ($500,000).
(c) A person who causes, induces, or persuades, or attempts to
cause, induce, or persuade, a person who is a minor at the time of
commission of the offense to engage in a commercial sex act, with the
intent to effect or maintain a violation of Section 266, 266h, 266i,
266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is
guilty of human trafficking. A violation of this subdivision is
punishable by imprisonment in the state prison as follows:
(1) Five, 8, or 12 years and a fine of not more than five hundred
thousand dollars ($500,000).
(2) Fifteen years to life and a fine of not more than five hundred
thousand dollars ($500,000) when the offense involves force, fear,
fraud, deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person.
(d) In determining whether a minor was caused, induced, or
persuaded to engage in a commercial sex act, the totality of the
circumstances, including the age of the victim, his or her
relationship to the trafficker or agents of the trafficker, and any
handicap or disability of the victim, shall be considered.
(e) Consent by a victim of human trafficking who is a minor at the
time of the commission of the offense is not a defense to a criminal
prosecution under this section.
(f) Mistake of fact as to the age of a victim of human trafficking
who is a minor at the time of the commission of the offense is not a
defense to a criminal prosecution under this section.
(g) The Legislature finds that the definition of human trafficking
in this section is equivalent to the federal definition of a severe
form of trafficking found in Section 7102(9) of Title 22 of the
United States Code.
(h) For purposes of this chapter, the following definitions apply:
(1) "Coercion" includes a scheme, plan, or pattern intended to
cause a person to believe that failure to perform an act would result
in serious harm to or physical restraint against any person; the
abuse or threatened abuse of the legal process; debt bondage; or
providing and facilitating the possession of a controlled substance
to a person with the intent to impair the person's judgment.
(2) "Commercial sex act" means sexual conduct on account of which
anything of value is given or received by a person.
(3) "Deprivation or violation of the personal liberty of another"
includes substantial and sustained restriction of another's liberty
accomplished through force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim or to
another person, under circumstances where the person receiving or
apprehending the threat reasonably believes that it is likely that
the person making the threat would carry it out.
(4) "Duress" includes a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to cause a
reasonable person to acquiesce in or perform an act which he or she
would otherwise not have submitted to or performed; a direct or
implied threat to destroy, conceal, remove, confiscate, or possess an
actual or purported passport or immigration document of the victim;
or knowingly destroying, concealing, removing, confiscating, or
possessing an actual or purported passport or immigration document of
the victim.
(5) "Forced labor or services" means labor or services that are
performed or provided by a person and are obtained or maintained
through force, fraud, duress, or coercion, or equivalent conduct that
would reasonably overbear the will of the person.
(6) "Great bodily injury" means a significant or substantial
physical injury.
(7) "Human trafficking victim" means a person who is a victim of
any of the acts described in subdivision (a), (b), or (c).
(8) "Minor" means a person less than 18 years of age.
(9) "Serious harm" includes any harm, whether physical or
nonphysical, including psychological, financial, or reputational
harm, that is sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the same background
and in the same circumstances to perform or to continue performing
labor, services, or commercial sexual acts in order to avoid
incurring that harm.
(10) "Nonviolent crime" means any crime or offense other than
murder, attempted murder, voluntary manslaughter, mayhem, kidnapping,
rape, robbery, arson, carjacking, or any other violent felony as
defined in subdivision (c) of Section 667.5.
(i) The total circumstances, including the age of the victim, the
relationship between the victim and the trafficker or agents of the
trafficker, and any handicap or disability of the victim, shall be
factors to consider in determining the presence of "deprivation or
violation of the personal liberty of another," "duress," and
"coercion" as described in this section.
SEC. 5. Section 236.24 is added to the Penal Code, to read:
236.24. (a) An individual convicted of a nonviolent crime
committed while that individual was a human trafficking victim may
apply to the court in which the conviction was entered to vacate the
conviction if the individual is not in custody and has either not
been convicted of any crime for the two years immediately preceding
the application or has successfully completed probation for the
nonviolent crime. The court may grant the application on a finding
that the applicant's participation in the nonviolent crime was a
direct result of the applicant being a human trafficking victim.
(b) The court may, with the agreement of the applicant and all
involved state or local prosecutorial agencies, consolidate into one
hearing a petition with respect to multiple convictions from
different jurisdictions.
(c) Subject to subdivision (d), the application shall identify the
applicant, the offense for which vacatur is sought, and the court in
which the conviction was entered. The applicant shall describe in
the application, which shall be submitted under penalty of perjury,
all the available grounds and evidence for vacatur of the conviction
known to the applicant.
(d) To maintain the confidentiality of the applicant's status as a
human trafficking victim, the application may be filed identifying
the applicant by initials in any publicly available filing relating
to the application. The applicant shall submit all evidence under
penalty of perjury supporting the application that contains personal
identifying information to the court under seal along with a
statement under penalty of perjury confirming his or her identity.
(e) The application and all supporting evidence, including,
without limitation, the identity statement and evidence submitted
under penalty of perjury and under seal, shall be served on the state
or local prosecutorial agency that obtained the conviction for which
the applicant seeks vacatur. The state or local prosecutorial agency
shall have 45 days for the date of receipt of service to oppose the
application.
(f) If opposition to the application is not filed by the
applicable state or local prosecutorial agency, the court shall deem
the application unopposed and shall grant the application. If the
application is opposed, the court shall hold a hearing on the
application, at which time the applicant may be required to testify.
(g) If the court finds, based on clear and convincing evidence,
that the applicant's participation in the nonviolent crime was a
direct result of the applicant being a victim of human trafficking,
the court may grant the application and vacate the conviction, strike
the adjudication of guilt, and order the relief specified in Section
236.25.
(h) If the court denies the application because the evidence is
insufficient to establish grounds for vacatur, the denial may be
without prejudice. If the court denies the application without
prejudice, it may state the reasons for its denial in writing or on
the record that is memorialized by transcription, audio recording, or
video recording and, if those reasons are based on curable
deficiencies in the application, allow the applicant a reasonable
time period to cure the deficiencies upon which the court based the
denial.
(i) An individual determined to be a ward of the juvenile court in
a proceeding pursuant to Section 602 of the Welfare and Institutions
Code as a result of a nonviolent crime committed while that
individual was a human trafficking victim may apply to the juvenile
court that made that determination to have the determination set
aside if the individual has not had a sustained petition for any
crime or been convicted of any crime for one year prior to the date
of application. The court may grant the application upon making a
finding, based on clear and convincing evidence, that the applicant's
participation in the offense on the proceeding was a direct result
of the applicant being a human trafficking victim. Upon making the
finding, the court may order the relief prescribed in Section 786 of
the Welfare and Institutions Code.
(j) In making a determination on an application under either
subdivision (a) or (i), the court may consider any evidence it deems
of sufficient credibility and probative value, including the sworn
statement of the applicant presented under penalty of perjury. If
opposition to the application is not filed by the applicable state or
local prosecutorial agency, the court may deem the application
unopposed. The applicant's statement alone may be sufficient evidence
to support the vacating of a conviction, provided the court finds
that the statement is credible.
(k) If the application is opposed, the court shall hold a hearing
on the application, at which time the applicant may be required to
testify and be subject to cross examination. A petitioner, or his or
her attorney, may be excused from appearing in person at a hearing
for relief pursuant to this section only if the court finds a
compelling reason why the petitioner cannot attend the hearing, in
which case the petitioner may appear telephonically, by
videoconference, or by other electronic means established by the
court.
( l ) Evidence in support of granting an application
may also include, but is not limited to, all of the following:
(1) Certified records of a federal, state, tribal, or local court
or governmental agency documenting the person's status as a victim of
human trafficking at the time of the offense, including
identification of a victim of human trafficking by a peace officer
pursuant to Section 236.2 and certified records of approval notices
or enforcement certifications generated from federal immigration
proceedings, create a rebuttable presumption that an offense was
committed by the defendant as a direct result of being a human
trafficking victim.
(2) A sworn statement from a trained professional staff member of
a victim services organization, an attorney, a member of the clergy,
or a medical or other professional from whom the defendant has sought
assistance in addressing the trauma associated with being
trafficked.
(m) The court may grant an application made under subdivision (a)
or (i) if the conviction or adjudication was based on a crime
constituting or arising from a commercial sex act, including
violation of subdivision (b) of Section 647 or Section 653.22, upon a
finding that the applicant was under the age of 18 years at the time
of the offense on which the conviction is based.
(n) This section and the rights and remedies granted to victims of
human trafficking hereunder apply to any conviction entered or
adjudication made prior to or after January 1, 2017.
SEC. 6. Section
236.25 is added to the Penal Code, to read:
236.25. (a) For any charge, adjudication, or conviction for which
a human trafficking victim was granted relief under Section 236.24
of the Penal Code, the court shall order that all records in the case
be sealed pursuant to Section 851.86 and shall grant the relief
provided in subdivision (b) of Section 851.8.
(b) The human trafficking victim shall be released from all
penalties and disabilities resulting from the charge, adjudication,
or conviction, and all actions and proceedings by law enforcement
personnel, courts, or other government employees that led to the
charge, adjudication, or conviction shall be deemed not to have
occurred.
(c) All of the following shall apply to a human trafficking victim
granted relief pursuant to Section 236.24, or under any
substantially equivalent statute of another jurisdiction:
(1) The human trafficking victim may in all circumstances state
that he or she has never been arrested for, charged with, or
convicted of the crime that is the subject of the charge,
adjudication, or conviction, including without limitation in response
to questions on employment, housing, financial aid, or loan
applications.
(2) The human trafficking victim may not be denied rights or
benefits, including, without limitation, employment, housing,
financial aid, welfare, or a loan or other financial accommodation,
based on the arrest, charge, adjudication, or conviction or the
victim's failure or refusal to disclose the existence of or
information concerning those events.
(3) The human trafficking victim may not be thereafter charged or
convicted of perjury or otherwise of giving a false statement by
reason of having failed to disclose or acknowledge the existence of
the charge, adjudication, or conviction, or any arrest, charge,
indictment, trial, or other proceedings related thereto.
SEC. 7. Section 1203.49 of the Penal Code is repealed.
SEC. 8. Section 11105 of the Penal Code is amended to read:
11105. (a) (1) The Department of Justice shall maintain state
summary criminal history information.
(2) As used in this section:
(A) "State summary criminal history information" means the master
record of information compiled by the Attorney General pertaining to
the identification and criminal history of any person, such as name,
date of birth, physical description, fingerprints, photographs, dates
of arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person.
(B) "State summary criminal history information" does not refer to
records and data compiled by criminal justice agencies other than
the Attorney General, nor does it refer to records of complaints to
or investigations conducted by, or records of intelligence
information or security procedures of, the office of the Attorney
General and the Department of Justice.
(b) The Attorney General shall furnish state summary criminal
history information to any of the following, if needed in the course
of their duties, provided that when information is furnished to
assist an agency, officer, or official of state or local government,
a public utility, or any other entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321 of the Statutes of
1974 and Section 432.7 of the Labor Code shall apply:
(1) The courts of the state.
(2) Peace officers of the state, as defined in Section 830.1,
subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section
830.3, subdivision (a) of Section 830.31, and subdivisions (a) and
(b) of Section 830.5.
(3) District attorneys of the state.
(4) Prosecuting city attorneys of any city within the state.
(5) City attorneys pursuing civil gang injunctions pursuant to
Section 186.22a, or drug abatement actions pursuant to Section 3479
or 3480 of the Civil Code, or Section 11571 of the Health and Safety
Code.
(6) Probation officers of the state.
(7) Parole officers of the state.
(8) A public defender or attorney of record when representing a
person in proceedings upon a petition for a certificate of
rehabilitation and pardon pursuant to Section 4852.08.
(9) A public defender or attorney of record when representing a
person in a criminal case, or a parole, mandatory supervision
pursuant to paragraph (5) of subdivision (h) of Section 1170, or
postrelease community supervision revocation or revocation extension
proceeding, and if authorized access by statutory or decisional law.
(10) Any agency, officer, or official of the state if the criminal
history information is required to implement a statute or regulation
that expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information,
and contains requirements or exclusions, or both, expressly based
upon that specified criminal conduct. The agency, officer, or
official of the state authorized by this paragraph to receive state
summary criminal history information may also transmit fingerprint
images and related information to the Department of Justice to be
transmitted to the Federal Bureau of Investigation.
(11) Any city or county, city and county, district, or any officer
or official thereof if access is needed in order to assist that
agency, officer, or official in fulfilling employment, certification,
or licensing duties, and if the access is specifically authorized by
the city council, board of supervisors, or governing board of the
city, county, or district if the criminal history information is
required to implement a statute, ordinance, or regulation that
expressly refers to specific criminal conduct applicable to the
subject person of the state summary criminal history information, and
contains requirements or exclusions, or both, expressly based upon
that specified criminal conduct. The city or county, city and county,
district, or the officer or official thereof authorized by this
paragraph may also transmit fingerprint images and related
information to the Department of Justice to be transmitted to the
Federal Bureau of Investigation.
(12) The subject of the state summary criminal history information
under procedures established under Article 5 (commencing with
Section 11120).
(13) Any person or entity when access is expressly authorized by
statute if the criminal history information is required to implement
a statute or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the state summary
criminal history information, and contains requirements or
exclusions, or both, expressly based upon that specified criminal
conduct.
(14) Health officers of a city, county, city and county, or
district when in the performance of their official duties enforcing
Section 120175 of the Health and Safety Code.
(15) Any managing or supervising correctional officer of a county
jail or other county correctional facility.
(16) Any humane society, or society for the prevention of cruelty
to animals, for the specific purpose of complying with Section 14502
of the Corporations Code for the appointment of humane officers.
(17) Local child support agencies established by Section 17304 of
the Family Code. When a local child support agency closes a support
enforcement case containing summary criminal history information, the
agency shall delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or of which
the parent has been arrested, charged, or convicted, other than for
offenses related to the parent's having failed to provide support for
minor children, consistent with the requirements of Section 17531 of
the Family Code.
(18) County child welfare agency personnel who have been delegated
the authority of county probation officers to access state summary
criminal history information pursuant to Section 272 of the Welfare
and Institutions Code for the purposes specified in Section 16504.5
of the Welfare and Institutions Code. Information from criminal
history records provided pursuant to this subdivision shall not be
used for any purposes other than those specified in this section and
Section 16504.5 of the Welfare and Institutions Code. When an agency
obtains records obtained both on the basis of name checks and
fingerprint checks, final placement decisions shall be based only on
the records obtained pursuant to the fingerprint check.
(19) The court of a tribe, or court of a consortium of tribes,
that has entered into an agreement with the state pursuant to Section
10553.1 of the Welfare and Institutions Code. This information may
be used only for the purposes specified in Section 16504.5 of the
Welfare and Institutions Code and for tribal approval or tribal
licensing of foster care or adoptive homes. Article 6 (commencing
with Section 11140) shall apply to officers, members, and employees
of a tribal court receiving criminal record offender information
pursuant to this section.
(20) Child welfare agency personnel of a tribe or consortium of
tribes that has entered into an agreement with the state pursuant to
Section 10553.1 of the Welfare and Institutions Code and to whom the
state has delegated duties under paragraph (2) of subdivision (a) of
Section 272 of the Welfare and Institutions Code. The purposes for
use of the information shall be for the purposes specified in Section
16504.5 of the Welfare and Institutions Code and for tribal approval
or tribal licensing of foster care or adoptive homes. When an agency
obtains records on the basis of name checks and fingerprint checks,
final placement decisions shall be based only on the records obtained
pursuant to the fingerprint check. Article 6 (commencing with
Section 11140) shall apply to child welfare agency personnel
receiving criminal record offender information pursuant to this
section.
(21) An officer providing conservatorship investigations pursuant
to Sections 5351, 5354, and 5356 of the Welfare and Institutions
Code.
(22) A court investigator providing investigations or reviews in
conservatorships pursuant to Section 1826, 1850, 1851, or 2250.6 of
the Probate Code.
(23) A person authorized to conduct a guardianship investigation
pursuant to Section 1513 of the Probate Code.
(24) A humane officer pursuant to Section 14502 of the
Corporations Code for the purposes of performing his or her duties.
(25) A public agency described in subdivision (b) of Section 15975
of the Government Code, for the purpose of oversight and enforcement
policies with respect to its contracted providers.
(c) The Attorney General may furnish state summary criminal
history information and, when specifically authorized by this
subdivision, federal level criminal history information upon a
showing of a compelling need to any of the following, provided that
when information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or any other
entity in fulfilling employment, certification, or licensing duties,
Chapter 1321 of the Statutes of 1974 and Section 432.7 of the Labor
Code shall apply:
(1) Any public utility, as defined in Section 216 of the Public
Utilities Code, that operates a nuclear energy facility when access
is needed in order to assist in employing persons to work at the
facility, provided that, if the Attorney General supplies the data,
he or she shall furnish a copy of the data to the person to whom the
data relates.
(2) To a peace officer of the state other than those included in
subdivision (b).
(3) To an illegal dumping enforcement officer as defined in
subdivision (j) of Section 830.7.
(4) To a peace officer of another country.
(5) To public officers, other than peace officers, of the United
States, other states, or possessions or territories of the United
States, provided that access to records similar to state summary
criminal history information is expressly authorized by a statute of
the United States, other states, or possessions or territories of the
United States if the information is needed for the performance of
their official duties.
(6) To any person when disclosure is requested by a probation,
parole, or peace officer with the consent of the subject of the state
summary criminal history information and for purposes of furthering
the rehabilitation of the subject.
(7) The courts of the United States, other states, or territories
or possessions of the United States.
(8) Peace officers of the United States, other states, or
territories or possessions of the United States.
(9) To any individual who is the subject of the record requested
if needed in conjunction with an application to enter the United
States or any foreign nation.
(10) (A) (i) Any public utility, as defined in Section 216 of the
Public Utilities Code, or any cable corporation as defined in
subparagraph (B), if receipt of criminal history information is
needed in order to assist in employing current or prospective
employees, contract employees, or subcontract employees who, in the
course of their employment, may be seeking entrance to private
residences or adjacent grounds. The information provided shall be
limited to the record of convictions and any arrest for which the
person is released on bail or on his or her own recognizance pending
trial.
(ii) If the Attorney General supplies the data pursuant to this
paragraph, the Attorney General shall furnish a copy of the data to
the current or prospective employee to whom the data relates.
(iii) Any information obtained from the state summary criminal
history is confidential and the receiving public utility or cable
corporation shall not disclose its contents, other than for the
purpose for which it was acquired. The state summary criminal history
information in the possession of the public utility or cable
corporation and all copies made from it shall be destroyed not more
than 30 days after employment or promotion or transfer is denied or
granted, except for those cases where a current or prospective
employee is out on bail or on his or her own recognizance pending
trial, in which case the state summary criminal history information
and all copies shall be destroyed not more than 30 days after the
case is resolved.
(iv) A violation of this paragraph is a misdemeanor, and shall
give the current or prospective employee who is injured by the
violation a cause of action against the public utility or cable
corporation to recover damages proximately caused by the violations.
Any public utility's or cable corporation's request for state summary
criminal history information for purposes of employing current or
prospective employees who may be seeking entrance to private
residences or adjacent grounds in the course of their employment
shall be deemed a "compelling need" as required to be shown in this
subdivision.
(v) This section shall not be construed as imposing any duty upon
public utilities or cable corporations to request state summary
criminal history information on any current or prospective employees.
(B) For purposes of this paragraph, "cable corporation" means any
corporation or firm that transmits or provides television, computer,
or telephone services by cable, digital, fiber optic, satellite, or
comparable technology to subscribers for a fee.
(C) Requests for federal level criminal history information
received by the Department of Justice from entities authorized
pursuant to subparagraph (A) shall be forwarded to the Federal Bureau
of Investigation by the Department of Justice. Federal level
criminal history information received or compiled by the Department
of Justice may then be disseminated to the entities referenced in
subparagraph (A), as authorized by law.
(D) (i) Authority for a cable corporation to request state or
federal level criminal history information under this paragraph shall
commence July 1, 2005.
(ii) Authority for a public utility to request federal level
criminal history information under this paragraph shall commence July
1, 2005.
(11) To any campus of the California State University or the
University of California, or any four year college or university
accredited by a regional accreditation organization approved by the
United States Department of Education, if needed in conjunction with
an application for admission by a convicted felon to any special
education program for convicted felons, including, but not limited
to, university alternatives and halfway houses. Only conviction
information shall be furnished. The college or university may require
the convicted felon to be fingerprinted, and any inquiry to the
department under this section shall include the convicted felon's
fingerprints and any other information specified by the department.
(12) To any foreign government, if requested by the individual who
is the subject of the record requested, if needed in conjunction
with the individual's application to adopt a minor child who is a
citizen of that foreign nation. Requests for information pursuant to
this paragraph shall be in accordance with the process described in
Sections 11122 to 11124, inclusive. The response shall be provided to
the foreign government or its designee and to the individual who
requested the information.
(d) Whenever an authorized request for state summary criminal
history information pertains to a person whose fingerprints are on
file with the Department of Justice and the department has no
criminal history of that person, and the information is to be used
for employment, licensing, or certification purposes, the fingerprint
card accompanying the request for information, if any, may be
stamped "no criminal record" and returned to the person or entity
making the request.
(e) Whenever state summary criminal history information is
furnished as the result of an application and is to be used for
employment, licensing, or certification purposes, the Department of
Justice may charge the person or entity making the request a fee that
it determines to be sufficient to reimburse the department for the
cost of furnishing the information. In addition, the Department of
Justice may add a surcharge to the fee to fund maintenance and
improvements to the systems from which the information is obtained.
Notwithstanding any other law, any person or entity required to pay a
fee to the department for information received under this section
may charge the applicant a fee sufficient to reimburse the person or
entity for this expense. All moneys received by the department
pursuant to this section, Sections 11105.3 and 26190, and former
Section 13588 of the Education Code shall be deposited in a special
account in the General Fund to be available for expenditure by the
department to offset costs incurred pursuant to those sections and
for maintenance and improvements to the systems from which the
information is obtained upon appropriation by the Legislature.
(f) Whenever there is a conflict, the processing of criminal
fingerprints and fingerprints of applicants for security guard or
alarm agent registrations or firearms qualification permits submitted
pursuant to Section 7583.9, 7583.23, 7596.3, or 7598.4 of the
Business and Professions Code shall take priority over the processing
of other applicant fingerprints.
(g) It is not a violation of this section to disseminate
statistical or research information obtained from a record, provided
that the identity of the subject of the record is not disclosed.
(h) It is not a violation of this section to include information
obtained from a record in (1) a transcript or record of a judicial or
administrative proceeding or (2) any other public record if the
inclusion of the information in the public record is authorized by a
court, statute, or decisional law.
(i) Notwithstanding any other law, the Department of Justice or
any state or local law enforcement agency may require the submission
of fingerprints for the purpose of conducting summary criminal
history information checks that are authorized by law.
(j) The state summary criminal history information shall include
any finding of mental incompetence pursuant to Chapter 6 (commencing
with Section 1367) of Title 10 of Part 2 arising out of a complaint
charging a felony offense specified in Section 290.
(k) (1) This subdivision applies if state or federal summary
criminal history information is furnished by the Department of
Justice as the result of an application by an authorized agency or
organization and the information is to be used for peace officer
employment or certification purposes. As used in this subdivision, a
peace officer is defined in Chapter 4.5 (commencing with Section 830)
of Title 3 of Part 2.
(2) Notwithstanding any other law, whenever state summary criminal
history information is initially furnished pursuant to paragraph
(1), the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest or detention, except for an arrest or detention
resulting in an exoneration, provided, however, that where the
records of the Department of Justice do not contain a disposition for
the arrest, the Department of Justice first makes a genuine effort
to determine the disposition of the arrest.
(D) Every successful diversion.
(E) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(F) Sex offender registration status of the applicant.
(l) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by a criminal justice
agency or organization as defined in Section 13101, and the
information is to be used for criminal justice employment, licensing,
or certification purposes.
(2) Notwithstanding any other law, whenever state summary criminal
history information is initially furnished pursuant to paragraph
(1), the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the records of the
Department of Justice do not contain a disposition or did not result
in a conviction, provided that the Department of Justice first makes
a genuine effort to determine the disposition of the arrest. However,
information concerning an arrest shall not be disclosed if the
records of the Department of Justice indicate or if the genuine
effort reveals that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program, or the
arrest was deemed a detention.
(D) Every date and agency name associated with all retained peace
officer or nonsworn law enforcement agency employee preemployment
criminal offender record information search requests.
(E) Sex offender registration status of the applicant.
(m) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 1522, 1568.09, 1569.17, or 1596.871
of the Health and Safety Code, or any statute that incorporates the
criteria of any of those sections or this subdivision by reference,
and the information is to be used for employment, licensing, or
certification purposes.
(2) Notwithstanding any other provision of law, whenever state
summary criminal history information is initially furnished pursuant
to paragraph (1), the Department of Justice shall disseminate the
following information:
(A) Every conviction of an offense rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Every arrest for an offense for which the Department of Social
Services is required by paragraph (1) of subdivision (a) of Section
1522 of the Health and Safety Code to determine if an applicant has
been arrested. However, if the records of the Department of Justice
do not contain a disposition for an arrest, the Department of Justice
shall first make a genuine effort to determine the disposition of
the arrest.
(D) Sex offender registration status of the applicant.
(3) Notwithstanding the requirements of the sections referenced in
paragraph (1) of this subdivision, the Department of Justice shall
not disseminate information about an arrest subsequently deemed a
detention or an arrest that resulted in either the successful
completion of a diversion program or exoneration.
(n) (1) This subdivision shall apply whenever state or federal
summary criminal history information, to be used for employment,
licensing, or certification purposes, is furnished by the Department
of Justice as the result of an application by an authorized agency,
organization, or individual pursuant to any of the following:
(A) Paragraph (10) of subdivision (c), when the information is to
be used by a cable corporation.
(B) Section 11105.3 or 11105.4.
(C) Section 15660 of the Welfare and Institutions Code.
(D) Any statute that incorporates the criteria of any of the
statutory provisions listed in subparagraph (A), (B), or (C), or of
this subdivision, by reference.
(2) With the exception of applications submitted by transportation
companies authorized pursuant to Section 11105.3, and
notwithstanding any other law, whenever state summary criminal
history information is initially furnished pursuant to paragraph (1),
the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in
subdivision (a) of Section 15660 of the Welfare and Institutions
Code. However, with the exception of those offenses for which
registration is required pursuant to Section 290, the Department of
Justice shall not disseminate information pursuant to this
subdivision unless the conviction occurred within 10 years of the
date of the agency's request for information or the conviction is
over 10 years old but the subject of the
request was incarcerated within 10 years of the
agency's request for information.
(B) Every arrest for a violation or attempted violation of an
offense specified in subdivision (a) of Section 15660 of the Welfare
and Institutions Code for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been released on
bail or on his or her own recognizance pending trial.
(C) Sex offender registration status of the applicant.
(o) (1) This subdivision shall apply whenever state or federal
summary criminal history information is furnished by the Department
of Justice as the result of an application by an authorized agency or
organization pursuant to Section 379 or 550 of the Financial Code,
or any statute that incorporates the criteria of either of those
sections or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other law, whenever state summary criminal
history information is initially furnished pursuant to paragraph
(1), the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant for a
violation or attempted violation of any offense specified in Section
550 of the Financial Code.
(B) Every arrest for a violation or attempted violation of an
offense specified in Section 550 of the Financial Code for which the
applicant is presently awaiting trial, whether the applicant is
incarcerated or has been released on bail or on his or her own
recognizance pending trial.
(p) (1) This subdivision shall apply whenever state or federal
criminal history information is furnished by the Department of
Justice as the result of an application by an agency, organization,
or individual not defined in subdivision (k), (l), (m), (n), or (o),
or by a transportation company authorized pursuant to Section
11105.3, or any statute that incorporates the criteria of that
section or this subdivision by reference, and the information is to
be used for employment, licensing, or certification purposes.
(2) Notwithstanding any other law, whenever state summary criminal
history information is initially furnished pursuant to paragraph
(1), the Department of Justice shall disseminate the following
information:
(A) Every conviction rendered against the applicant.
(B) Every arrest for an offense for which the applicant is
presently awaiting trial, whether the applicant is incarcerated or
has been released on bail or on his or her own recognizance pending
trial.
(C) Sex offender registration status of the applicant.
(q) All agencies, organizations, or individuals defined in
subdivisions (k), (l), (m), (n), (o), and (p) may contract with the
Department of Justice for subsequent notification pursuant to Section
11105.2. This subdivision shall not supersede sections that mandate
an agency, organization, or individual to contract with the
Department of Justice for subsequent notification pursuant to Section
11105.2.
(r) This section does not require the Department of Justice to
cease compliance with any other statutory notification requirements.
(s) The provisions of Section 50.12 of Title 28 of the Code of
Federal Regulations are to be followed in processing federal criminal
history information.
(t) Whenever state or federal summary criminal history information
is furnished by the Department of Justice as the result of an
application by an authorized agency, organization, or individual
defined in subdivisions (k) to (p), inclusive, and the information is
to be used for employment, licensing, or certification purposes, the
authorized agency, organization, or individual shall expeditiously
furnish a copy of the information to the person to whom the
information relates if the information is a basis for an adverse
employment, licensing, or certification decision. When furnished
other than in person, the copy shall be delivered to the last contact
information provided by the applicant.
(u) State summary criminal history information compiled by the
Attorney General and disseminated pursuant to this section shall
exclude any charge or conviction for which relief has been granted
pursuant to Section 236.24 or 236.25.
SEC. 9. Section 1.5 of this bill incorporates
amendments to Section 8712 of the Family Code proposed by both this
bill and Assembly Bill 1997. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2017, (2) each bill amends Section 8712 of the Family Code, and (3)
this bill is enacted after Assembly Bill 1997, in which case Section
1 of this bill shall not become operative.
SEC. 9. SEC. 10. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.
