Bill Text: CA AB1887 | 2013-2014 | Regular Session | Introduced
Bill Title: Prostitution: human trafficking: sealing and destruction of arrest records.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-05-23 - In committee: Set, second hearing. Held under submission. [AB1887 Detail]
Download: California-2013-AB1887-Introduced.html
BILL NUMBER: AB 1887 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Campos
FEBRUARY 19, 2014
An act to amend Section 851.8 of the Penal Code, relating to
prostitution.
LEGISLATIVE COUNSEL'S DIGEST
AB 1887, as introduced, Campos. Prostitution: human trafficking:
sealing and destruction of arrest records.
Existing law authorizes a person who has been arrested but is not
convicted to petition the court for a finding that the defendant is
factually innocent of the charges. If the petitioner is found
factually innocent, existing law requires the court to order the
records of the arrest to be sealed and destroyed, as specified.
This bill would authorize a person to petition a court to set
aside a conviction for an offense relating to solicitation or
prostitution, as specified, based on a finding that the person is
factually innocent of the charge if the person is a victim of human
trafficking and the offense is a result of the petitioner's status as
a victim of that crime. In that case, the bill would require the
court to order the records of the arrest to be sealed and destroyed,
and to take other action appropriate under the circumstances or as
justice requires.
The bill would also provide that a finding that the petitioner is
factually innocent pursuant to this provision shall be admissible as
evidence in a civil action brought by the petitioner, or his or her
estate or representative, against an individual or entity for damages
arising from the individual's or entity's alleged involvement in
human trafficking.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 851.8 of the Penal Code is amended to read:
851.8. (a) In any case where a person has been arrested and no
accusatory pleading has been filed, the person arrested may petition
the law enforcement agency having jurisdiction over the offense to
destroy its records of the arrest. A copy of the petition shall be
served upon the prosecuting attorney of the county or city having
jurisdiction over the offense. The law enforcement agency having
jurisdiction over the offense, upon a determination that the person
arrested is factually innocent, shall, with the concurrence of the
prosecuting attorney, seal its arrest records, and the petition for
relief under this section for three years from the date of the arrest
and thereafter destroy its arrest records and the petition. The law
enforcement agency having jurisdiction over the offense shall notify
the Department of Justice, and any law enforcement agency that
arrested the petitioner or participated in the arrest of the
petitioner for an offense for which the petitioner has been found
factually innocent under this subdivision, of the sealing of the
arrest records and the reason therefor. The Department of Justice and
any law enforcement agency so notified shall forthwith seal their
records of the arrest and the notice of sealing for three years from
the date of the arrest, and thereafter destroy their records of the
arrest and the notice of sealing. The law enforcement agency having
jurisdiction over the offense and the Department of Justice shall
request the destruction of any records of the arrest which they have
given to any local, state, or federal agency or to any other person
or entity. Each agency, person, or entity within the State of
California receiving the request shall destroy its records of the
arrest and the request, unless otherwise provided in this section.
(b) If, after receipt by both the law enforcement agency and the
prosecuting attorney of a petition for relief under subdivision (a),
the law enforcement agency and prosecuting attorney do not respond to
the petition by accepting or denying the petition within 60 days
after the running of the relevant statute of limitations or within 60
days after receipt of the petition in cases where the statute of
limitations has previously lapsed, then the petition shall be deemed
to be denied. In any case where the petition of an arrestee to the
law enforcement agency to have an arrest record destroyed is denied,
petition may be made to the superior court that would have had
territorial jurisdiction over the matter. A copy of the petition
shall be served on the law enforcement agency and the prosecuting
attorney of the county or city having jurisdiction over the offense
at least 10 days prior to the hearing thereon. The prosecuting
attorney and the law enforcement agency through the district attorney
may present evidence to the court at the hearing. Notwithstanding
Section 1538.5 or 1539, any judicial determination of factual
innocence made pursuant to this section may be heard and determined
upon declarations, affidavits, police reports, or any other evidence
submitted by the parties which is material, relevant, and reliable.
A Except as provided for in paragraph (2) of
subdivision (g), a finding of factual innocence and an order
for the sealing and destruction of records pursuant to this section
shall not be made unless the court finds that no reasonable cause
exists to believe that the arrestee committed the offense for which
the arrest was made. In any court hearing to determine the factual
innocence of a party, the initial burden of proof shall rest with the
petitioner to show that no reasonable cause exists to believe that
the arrestee committed the offense for which the arrest was made. If
the court finds that this showing of no reasonable cause has been
made by the petitioner, then the burden of proof shall shift to the
respondent to show that a reasonable cause exists to believe that the
petitioner committed the offense for which the arrest was made. If
the court finds the arrestee to be factually innocent of the charges
for which the arrest was made, then the court shall order the law
enforcement agency having jurisdiction over the offense, the
Department of Justice, and any law enforcement agency which arrested
the petitioner or participated in the arrest of the petitioner for an
offense for which the petitioner has been found factually innocent
under this section to seal their records of the arrest and the court
order to seal and destroy the records, for three years from the date
of the arrest and thereafter to destroy their records of the arrest
and the court order to seal and destroy those records. The court
shall also order the law enforcement agency having jurisdiction over
the offense and the Department of Justice to request the destruction
of any records of the arrest which they have given to any local,
state, or federal agency, person or entity. Each state or local
agency, person or entity within the State of California receiving
such a request shall destroy its records of the arrest and the
request to destroy the records, unless otherwise provided in this
section. The court shall give to the petitioner a copy of any court
order concerning the destruction of the arrest records.
(c) In any case where a person has been arrested, and an
accusatory pleading has been filed, but where no conviction has
occurred, the defendant may, at any time after dismissal of the
action, petition the court that dismissed the action for a finding
that the defendant is factually innocent of the charges for which the
arrest was made. A copy of the petition shall be served on the
prosecuting attorney of the county or city in which the accusatory
pleading was filed at least 10 days prior to the hearing on the
petitioner's factual innocence. The prosecuting attorney may present
evidence to the court at the hearing. The hearing shall be conducted
as provided in subdivision (b). If the court finds the petitioner to
be factually innocent of the charges for which the arrest was made,
then the court shall grant the relief as provided in subdivision (b).
(d) In any case where a person has been arrested and an accusatory
pleading has been filed, but where no conviction has occurred, the
court may, with the concurrence of the prosecuting attorney, grant
the relief provided in subdivision (b) at the time of the dismissal
of the accusatory pleading.
(e) Whenever any person is acquitted of a charge and it appears to
the judge presiding at the trial at which the acquittal occurred
that the defendant was factually innocent of the charge, the judge
may grant the relief provided in subdivision (b).
(f) In any case in which a person has been convicted of a charge
under subdivision (a), (b), or (d) of Section 647 or subdivision (a)
of Section 653.22, and the person's participation in the offense was
a result of having been a victim of human trafficking under Section
236.1 or trafficking in persons under the federal Trafficking Victims
Protection Act (22 U.S.C. Sec. 7101 et seq.), the person may
petition the court to set aside the conviction based on a finding
that the person is factually innocent of the charge. A copy of the
petition shall be served on the prosecuting attorney of the county or
city in which the accusatory pleading was filed at least 10 days
prior to the hearing on the petitioner's factual innocence. The
prosecuting attorney may present evidence to the court at the
hearing. The hearing shall be conducted as provided in subdivision
(b). If the court finds the petitioner to be factually innocent of
the charges of which he or she was convicted, the court shall set
aside the conviction and grant the relief as provided in subdivision
(b), and may take any other additional action it deems appropriate
under the circumstances or as justice requires.
(g) For purposes of determining whether a person is factually
innocent pursuant to subdivisions (a) to (f), inclusive, in any case
in which a person has been arrested for, charged with, or convicted
of a violation of subdivision (a), (b), or (d) of Section 647, or
subdivision (a) of Section 653.22, and the person's participation in
the offense was a result of having been a victim of human trafficking
under Section 236.1 or trafficking in persons under the federal
Trafficking Victims Protection Act (22 U.S.C. Sec. 7101 et seq.), the
person shall be deemed factually innocent of the charge.
(1) Official documentation of the petitioner's status as a victim
of human trafficking at the time of the offense from a federal,
state, or local government agency or documentation that another
person has been convicted pursuant to Section 236.1 in relation to
the petitioner's violation of subdivision (a), (b), or (d) of Section
647, or of subdivision (a) of Section 653.22, creates a presumption
that the petitioner's participation in the offense was the result of
having been a victim of human trafficking or trafficking in persons,
but is not required for relief under this section.
(2) For purposes of this subdivision, the relief provided for in
subdivision (a), (b), or (f) may be granted notwithstanding the fact
that there may have been reasonable cause to believe the petitioner
committed the offense at the time of his or her conviction.
(f)
(h) In any case where a person who has been arrested is
granted relief pursuant to subdivision (a)
(a), (b), or (b), (f), the law
enforcement agency having jurisdiction over the offense or court
shall issue a written declaration to the arrestee stating that it is
the determination of the law enforcement agency having jurisdiction
over the offense or court that the arrestee is factually innocent of
the charges for which the person was arrested and that the arrestee
is thereby exonerated. Thereafter, the arrest shall be deemed not to
have occurred and the person may answer accordingly any question
relating to its occurrence.
(g)
(i) The Department of Justice shall furnish forms to be
utilized by persons applying for the destruction of their arrest
records and for the written declaration that one person was found
factually innocent under subdivisions (a) and (b).
(a), (b), or (f).
(h)
(j) Documentation of arrest records destroyed pursuant
to subdivision (a), (b), (c), (d), (e), or (e)
(f), that are contained in investigative police
reports shall bear the notation "Exonerated" whenever reference is
made to the arrestee. The arrestee shall be notified in writing by
the law enforcement agency having jurisdiction over the offense of
the sealing and destruction of the arrest records pursuant to this
section.
(i)
(k) (1) Any finding that an arrestee is factually
innocent pursuant to subdivision (a), (b), (c), (d), (e),
or (e) (f) shall not be admissible as
evidence in any action.
(2) Notwithstanding paragraph (1), a finding that an
arrestee a petitioner is factually innocent
pursuant to subdivisions (a) to (e), (f),
inclusive, shall be admissible as evidence at a hearing before
the California Victim Compensation and Government Claims Board.
(3) Notwithstanding paragraph (1), a finding that a petitioner is
factually innocent based on the fact that the petitioner's
participation in the offense was a result of having been a victim of
human trafficking shall be admissible as evidence in a civil action
brought by the petitioner, or his or her estate or representative,
against an individual or entity for damages arising from the
individual's or entity's alleged involvement in human trafficking.
(j)
( l ) Destruction of
records of arrest pursuant to subdivision (a), (b), (c), (d),
(e), or (e) (f) shall be
accomplished by permanent obliteration of all entries or notations
upon the records pertaining to the arrest, and the record shall be
prepared again so that it appears that the arrest never occurred.
However, where (1) the only entries on the record pertain to the
arrest and (2) the record can be destroyed without necessarily
affecting the destruction of other records, then the document
constituting the record shall be physically destroyed.
(k)
(m) No records shall be destroyed pursuant to
subdivision (a), (b), (c), (d), (e), or (e)
(f) if the arrestee or a codefendant has filed a
civil action against the peace officers or law enforcement
jurisdiction which made the arrest or instituted the prosecution and
if the agency which is the custodian of the records has received a
certified copy of the complaint in the civil action, until the civil
action has been resolved. Any records sealed pursuant to this section
by the court in the civil actions, upon a showing of good cause, may
be opened and submitted into evidence. The records shall be
confidential and shall be available for inspection only by the court,
jury, parties, counsel for the parties, and any other person
authorized by the court. Immediately following the final resolution
of the civil action, records subject to subdivision (a), (b), (c),
(d), (e), or (e) (f) shall be
sealed and destroyed pursuant to subdivision (a), (b), (c), (d),
(e), or (e). (f).
(l)
(n) For arrests occurring on or after January 1, 1981,
and for accusatory pleadings filed on or after January 1, 1981,
petitions for relief under this section may be filed up to two years
from the date of the arrest or filing of the accusatory pleading,
whichever is later. Until January 1, 1983, petitioners can file for
relief under this section for arrests which occurred or accusatory
pleadings which were filed up to five years prior to the effective
date of the statute. Any time restrictions on filing for
relief under this section may be waived upon a showing of good cause
by the petitioner and in the absence of prejudice.
(1) Any time restrictions on filing for relief under this section
may be waived upon a showing of good cause by the petitioner and in
the absence of prejudice.
(2) For petitions brought pursuant to this section by persons
determined to have been victims of human trafficking under Section
236.1 or trafficking in persons under the federal Trafficking Victims
Protection Act (22 U.S.C. Sec. 7101 et seq.), the waiver of time
restriction upon showing of good cause shall be interpreted broadly
in favor of granting the petitioner relief. When evaluating whether
good cause exists, the court shall take into consideration relevant
factors, including, but not limited to, when the petitioner ceased to
be a victim of human trafficking or trafficking in persons,
reasonable concern for the safety of the petitioner and the
petitioner's family, the age and capacity of the petitioner, the
petitioner's ability to obtain legal services, and other obstacles
that may have prevented the petitioner from filing the petition
within the time period.
(m)
(o) Any relief which is available to a petitioner under
this section for an arrest shall also be available for an arrest
which has been deemed to be or described as a detention under Section
849.5 or 851.6.
(n)
(p) This section shall not apply to any offense which
is classified as an infraction.
(o)
(q) (1) This section shall be repealed on the effective
date of a final judgment based on a claim under the California or
United States Constitution holding that evidence that is relevant,
reliable, and material may not be considered for purposes of a
judicial determination of factual innocence under this section. For
purposes of this subdivision, a judgment by the appellate division of
a superior court is a final judgment if it is published and if it is
not reviewed on appeal by a court of appeal. A judgment of a court
of appeal is a final judgment if it is published and if it is not
reviewed by the California Supreme Court.
(2) Any decision referred to in this subdivision shall be stayed
pending appeal.
(3) If not otherwise appealed by a party to the action, any
decision referred to in this subdivision which is a judgment by the
appellate division of the superior court shall be appealed by the
Attorney General.
(p)
(r) A judgment of the court under subdivision (b), (c),
(d), (e), or (e) (f), is
subject to the following appeal path:
(1) In a felony case, appeal is to the court of appeal.
(2) In a misdemeanor case, or in a case in which no accusatory
pleading was filed, appeal is to the appellate division of the
superior court.
