Bill Text: CA AB1726 | 2023-2024 | Regular Session | Enrolled
Bill Title: Crimes: sentences.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Vetoed) 2024-01-30 - Consideration of Governor's veto stricken from file. [AB1726 Detail]
Download: California-2023-AB1726-Enrolled.html
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Enrolled
September 18, 2023 |
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Passed
IN
Senate
September 12, 2023 |
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Passed
IN
Assembly
September 13, 2023 |
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Amended
IN
Senate
July 03, 2023 |
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Amended
IN
Assembly
April 13, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 1726
| Introduced by Assembly Member Kalra |
February 17, 2023 |
An act to amend Sections 653.29, 1170.21, and 1170.22 of the Penal Code, relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
AB 1726, Kalra.
Crimes: sentences.
Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.
This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.
Existing law, until January 1, 2018, made a defendant guilty of a felony
if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.
This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.
This bill would also make related findings and declarations.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares all of the following:(a) Former Section 653.22 of the Penal Code was enforced in an arbitrary and discriminatory manner.
(b) For example, in the City of Los Angeles, Black adults comprised 56.1 percent of the charges, despite making
up only 8.9 percent of the city’s population. Women accounted for 67.1 percent of all former Section 653.22 of the Penal Code charges.
(c) Likewise, vagueness of former Section 653.22 of the Penal Code also led to a dismissal rate in the County of Los Angeles almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three former Section 653.22 of the Penal Code cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence.
(d) Former Section 647f of the Penal Code, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner.
(e) For example, women made up 45 percent of those who came into contact with the criminal justice system under former Section 647f of the Penal
Code, but women are only 12 percent of the HIV-positive population in California.
(f) Likewise, Black and Latino people comprised over two-thirds (68 percent) of the people who came into contact with the criminal justice system under former Section 647f of the Penal Code, although just over one-half (56 percent) of people living with HIV in California are Black and Latino.
(g) White men were also significantly more likely to be released and not charged under former Section 647f of the Penal Code. White men who were arrested for violating former Section 647f of the Penal code were not charged in 70 percent of cases, while all other racial/ethnic groups were not charged in 39 to 47 percent of solicitation incidents.
(h) Dedicated to the integrity of convictions free from racial bias, the Legislature passed the
California Racial Justice Act of 2020 (Ch. 317, Stats. 2020) to require that “[t]he state . . . not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (subd. (a), Sec. 745, Pen. Code).
SEC. 2.
Section 653.29 of the Penal Code is amended to read:653.29.
(a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable.(2) All convictions of former Section 653.22 are
presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:
(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.
(B) Because it was imposed against a defendant who was acting under duress.
(C) Due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a
conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.
(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party
opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid
and shall seal the conviction as legally invalid.
(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed.
(2) All convictions of former Section 653.22 are presumed
legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:
(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.
(B) Because it was imposed against a defendant who was acting under duress.
(C) Due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A
finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.
(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the
petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid.
(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).
(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications
provided in this section.
SEC. 3.
Section 1170.21 of the Penal Code is amended to read:1170.21.
A conviction for a violation of Section 647f as it read on December 31, 2017, is legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individual’s arrest, charge, or conviction for violation of Section 647f shall not, without the individual’s consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate.SEC. 4.
Section 1170.22 of the Penal Code is amended to read:1170.22.
(a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case.(2) All convictions of Section 647f as
it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:
(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.
(B) Because it was imposed against a defendant who was acting under duress.
(C) Due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion
brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.
(b) If the court’s records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction
and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.
(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.
(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.
(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.
(g) A resentencing hearing ordered under this section shall constitute a “post-conviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.
(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of
an offense or would not have been guilty of an offense governed by this section.
(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section.
