Bill Text: CA SB393 | 2017-2018 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Arrests: sealing.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2017-10-11 - Chaptered by Secretary of State. Chapter 680, Statutes of 2017. [SB393 Detail]
Download: California-2017-SB393-Amended.html
Bill Title: Arrests: sealing.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2017-10-11 - Chaptered by Secretary of State. Chapter 680, Statutes of 2017. [SB393 Detail]
Download: California-2017-SB393-Amended.html
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July 17, 2017 |
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June 28, 2017 |
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May 03, 2017 |
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April 17, 2017 |
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March 20, 2017 |
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Senate Bill | No. 393 |
| Introduced by Senators Lara and Mitchell |
February 15, 2017 |
An act to amend Section 1786.18 of the Civil Code, and to amend Sections 851.87, 851.90, 1000.4, and 1001.9 of, and to add Sections 851.91 and 851.92 to, the Penal Code, relating to arrests.
LEGISLATIVE COUNSEL'S DIGEST
SB 393, as amended, Lara.
Arrests: sealing.
Existing law authorizes a person who was arrested and has successfully completed a prefiling diversion program, a person who has successfully completed a specified drug diversion program, and a person who has successfully completed a specified deferred entry of judgment program to petition the court to seal his or her arrest records. Existing law also specifies that, with regards to arrests that resulted in the defendant participating in certain other deferred entry of judgment programs, the arrest upon which the judgment was deferred shall be deemed not to have occurred.
This bill would also authorize a person who has suffered an arrest that did not result in a conviction to petition the court to have his or her arrest sealed. Under the bill, a person would be ineligible for this relief under specified circumstances, including if he or she
may still be charged with any offense upon which the arrest was based.
The bill would provide that a person who is eligible to have his or her arrest sealed is entitled, as a matter of right, to that sealing unless the person has been charged with certain crimes, including, among others, domestic violence if the petitioner’s record demonstrates a pattern of domestic violence arrests, convictions, or both, in which case the person may obtain sealing of his or her arrest only upon a showing that the sealing would serve the interests of justice. The bill would specify that the petitioner has the initial burden of proof to show that he or she is either entitled to have his or her arrest sealed as a matter of right or that sealing would serve the interests of justice and, if the court finds that petitioner has satisfied his or her burden of proof, then the burden of proof shall shift to respondent prosecuting attorney.
The bill
would require, if the petition is granted, the court to issue a written ruling and order that, among other things, states that the arrest is deemed not to have occurred and that, except as otherwise provided, the petitioner is released from all penalties and disabilities resulting from the arrest. The bill would prohibit, if an arrest is sealed pursuant to the above provisions or pursuant to the specified provisions of existing law that authorize the sealing of arrest records after successfully completing a prefiling diversion program, a specified drug diversion program, or a specified deferred entry of judgment program, or if an arrest is deemed to have never occurred after a defendant participates in certain other deferred entry of judgment programs, the disclosure of the arrest, or information about the arrest that is contained in other records, from being disclosed to the public, consumer reporting agencies, or any other person or entity, except as specified.
The bill would subject a person to a civil penalty if he or she disseminates or fails to destroy information relating to a sealed arrest unless he or she is specifically authorized to disseminate that information. Because this bill would impose new duties on local agencies, this bill would impose a state-mandated local program.
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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1786.18 of the Civil Code is amended to read:1786.18.
(a) Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information:(1) Bankruptcies that, from the date of the order for relief, antedate the report by more than 10 years.
(2) Suits that, from the date of filing, and satisfied judgments that, from the date of entry, antedate the report by more than seven years.
(3) Unsatisfied judgments that, from the date of entry, antedate the report by more than seven years.
(4) Unlawful detainer actions where the defendant was the prevailing party or where the action is resolved by settlement agreement.
(5) Paid tax liens that, from the date of payment, antedate the report by more than seven years.
(6) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years.
(7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon
has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of an arrest that resulted in an indictment, information, or misdemeanor complaint may be reported pending pronouncement of judgment on the particular subject matter of those records.
(8) Records of any arrest that did not result in an indictment, information, or misdemeanor complaint.
(9) Any other adverse information that antedates the report by more than seven years.
(b) The provisions of subdivision (a) are not applicable in either of the following circumstances:
(1) If the investigative consumer report
is to be used in the underwriting of life insurance involving, or that may reasonably be expected to involve, an amount of two hundred fifty thousand dollars ($250,000) or more.
(2) If the investigative consumer report is to be used by an employer who is explicitly required by a governmental regulatory agency to check for records that are prohibited by subdivision (a) when the employer is reviewing a consumer’s qualification for employment.
(c) Except as otherwise provided in Section 1786.28, an investigative consumer reporting agency shall not furnish an investigative consumer report that includes information that is a matter of public record and that relates to an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment, unless the agency has
verified the accuracy and completeness of the information during the 30-day period ending on the date on which the report is furnished. In the case of information relating to an arrest, the duty to verify the accuracy and completeness of the information includes the duty to inquire with either the trial court in each county or the Department of Justice on a weekly basis to determine which, if any, arrests obtain any file that the relevant county court makes available that lists all records of arrest, records of an indictment, records of an information, or records of a misdemeanor complaint, which are not sealed or expunged, and any file that identifies arrests that have been sealed, as described in paragraph (4) of subdivision (b) of Section 851.92 of the
Penal Code or have resulted in a disposition other than conviction. conviction, except when the records are furnished as required by a subpoena, court order, warrant, regulatory order, or similar mandatory governmental request. If the court makes those files available, the consumer reporting agency shall update its database of records to reflect the contents of those files as soon as possible and in no case more than 30 days after the date when the court makes the files available.
(d) An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a
personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted or who has knowledge of the item of information, unless either (1) the investigative consumer reporting agency has followed reasonable procedures to obtain confirmation of the information, from an additional source that has independent and direct knowledge of the information, or (2) the person interviewed is the best possible source of the information.
SEC. 2.
Section 851.87 of the Penal Code is amended to read:851.87.
(a) (1) In any case where a person is arrested and successfully completes a prefiling diversion program administered by a prosecuting attorney in lieu of filing an accusatory pleading, the person may petition the superior court that would have had jurisdiction over the matter to issue an order to seal the records pertaining to an arrest and the court may order those records sealed as described in Section 851.92. 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, who may request a hearing within 60 days of receipt of the petition. The court may hear the matter no less than 60 days from the date the law enforcement agency and the prosecuting attorney receive a copy of the petition. The prosecuting attorney and the law enforcement agency, through the prosecuting attorney, may present evidence to the court at the hearing.(2) If the order is made, the court shall give a copy of the order to the person and inform the person that he or she may thereafter state that he or she was not arrested for the charge.
(3) The person may, except as specified in subdivisions (b) and (c), indicate in response to any question concerning the person’s prior criminal record that the person was not arrested.
(4) Subject to subdivisions (b) and (c), a record pertaining to the arrest shall not, without the person’s permission, be used in any way that could result
in the denial of any employment, benefit, or certificate.
(b) The person shall be advised that, regardless of the person’s successful completion of the program, the arrest shall be disclosed by the Department of Justice in response to any peace officer application request, and that, notwithstanding subdivision (a), this section does not relieve the person of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The person shall be advised that an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed
arrests, as described in Section 851.92.
(d) As used in this section, “prefiling diversion” is a diversion from prosecution that is offered to a person by the prosecuting attorney in lieu of, or prior to, the filing of an accusatory pleading in court as set forth in Section 950.
SEC. 3.
Section 851.90 of the Penal Code is amended to read:851.90.
(a) (1) Whenever a person is diverted pursuant to a drug diversion program administered by a superior court pursuant to Section 1000.5 or is admitted to a deferred entry of judgment program pursuant to Section 1000 or 1000.8, and the person successfully completes the program, the judge may order those records pertaining to the arrest to be sealed as described in Section 851.92, upon the written or oral motion of any party in the case, or upon the court’s own motion, and with notice to all parties in the case.(2) If the order is made, the court shall give a copy of the order to the defendant and inform the defendant that he or she may
thereafter state that he or she was not arrested for the charge.
(3) The defendant may, except as specified in subdivisions (b) and (c), indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or granted statutorily authorized drug diversion or deferred entry of judgment for the offense.
(4) Subject to subdivisions (b) and (c), a record pertaining to an arrest resulting in the successful completion of a statutorily authorized drug diversion or deferred entry of judgment program shall not, without the defendant’s permission, be used in any way that could result in the denial of any employment, benefit, or certificate.
(b) The defendant shall
be advised that, regardless of the defendant’s successful completion of a statutorily authorized drug diversion or deferred entry of judgment program, the arrest upon which the case was based shall be disclosed by the Department of Justice in response to any peace officer application request, and that, notwithstanding subdivision (a), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The defendant shall be advised that, regardless of the defendant’s successful completion of a statutorily authorized drug diversion or deferred entry of judgment program, an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice
agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
SEC. 4.
Section 851.91 is added to the Penal Code, immediately following Section 851.90, to read:851.91.
(a) (1) (A) A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest and related records sealed, as described in Section 851.92.(B) For purposes of this section, an arrest did not result in a conviction if any of the following are true:
(i) The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on
the arrest.
(ii) The prosecuting attorney filed an accusatory pleading based on the arrest, but no conviction occurred, all of the charges have either been dismissed or the arrestee has been acquitted of them, and none of the charges may be refiled. but, with respect to all charges, one or more of the following has occurred:
(iii)The prosecuting attorney filed an accusatory pleading based on the arrest, a conviction or convictions occurred, but all of the convictions have been vacated or reversed on appeal and none of the charges may be refiled.
(I) No conviction occurred, the charge has been dismissed, and the charge may not be refiled.
(II) No conviction occurred and the arrestee has been acquitted of the charges.
(III) A conviction occurred, but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled.
(2) A person is not eligible for relief under this section in any of the following circumstances:
(A) He or she may still be charged with any of the offenses upon which the arrest was based.
(B) Any of the
arrest charges, as specified by the law enforcement agency that conducted the arrest, or any of the charges in the accusatory pleading based on the arrest, if filed, is a charge of murder or any other offense for which there is no statute of limitations, except when the person has been acquitted or found factually innocent of the charge.
(C) The petitioner avoided prosecution
intentionally evaded law enforcement efforts to prosecute the arrest, including by absconding from the jurisdiction in which the arrest took place. The existence of bench warrants or failures to appear that were adjudicated before the case closed with no conviction do not establish intentional evasion.
(D) The petitioner avoided prosecution intentionally evaded law enforcement efforts to prosecute the arrest by engaging in identity
fraud. fraud and was subsequently charged with a crime for that act of identity fraud.
(b) (1) A petition to seal an arrest shall:
(A) Be verified.
(B) Be filed in the court in which the accusatory pleading based on the arrest was filed or, if no accusatory pleading was filed, in a court with criminal jurisdiction in the city or county in which the arrest occurred.
(C) Be filed at least 15 days prior to the hearing on the petition.
(D) Be served, by copy, upon the prosecuting attorney of
the city or county in which the arrest occurred and upon the law enforcement agency that made the arrest at least 15 days prior to the hearing on the petition.
(E) Include all of the following information:
(i) The petitioner’s name and date of birth.
(ii) The date of the arrest for which sealing is sought.
(iii) The city and county where the arrest took place.
(iv) The law enforcement agency that made the arrest.
(v) Any other information identifying the arrest that is available from the law enforcement agency that conducted the arrest or from the
court in which the accusatory pleading, if any, based on the arrest was filed, including, but not limited to, the case number for the police investigative report documenting the arrest, and the court number under which the arrest was reviewed by the prosecuting attorney or under which the prosecuting attorney filed an accusatory pleading.
(vi) The offenses upon which the arrest was based or, if an accusatory pleading was filed based on the arrest, the charges in the accusatory pleading.
(vii)The basis identified in subparagraph (B) of paragraph (1) of subdivision (a) upon which the petitioner is eligible for relief.
(viii)
(vii) A statement that the petitioner is entitled to have his or her arrest sealed as a matter of right or, if the petitioner is requesting to have his or her arrest sealed in the interests of justice, how the interests of justice would be served by granting the petition, accompanied by declarations made directly and verified by the petitioner, his or her supporting declarants, or both.
(2) The court may deny a petition for failing to meet any of the requirements described in paragraph (1).
(c)(1)At a hearing on a petition under this section, the petitioner, the prosecuting attorney, and, through the prosecuting attorney, the arresting agency, may present evidence to the court. Notwithstanding Section 1538.5 or 1539, the hearing may be heard and determined upon declarations, affidavits, police investigative reports, copies of state summary criminal history information and local summary criminal history information, or any other evidence submitted by the parties that is material, relevant, and
reliable.
(2)The petitioner has the initial burden of proof to show that he or she is entitled to have his or her arrest sealed as a matter of right or that sealing would serve the interests of justice. If the court finds that petitioner has satisfied his or her burden of proof, then the burden of proof shall shift to respondent prosecuting attorney.
(3)The court shall not grant the petition unless the court finds that petitioner is eligible pursuant to subdivision (a) and the prosecuting attorney does not successfully rebut the petitioner’s eligibility.
(3) The Department of Justice shall furnish forms to be utilized by a person applying to have his or her arrest sealed pursuant to this section. The petition form shall include all of the information required to be included in the petition by paragraph (1) of subdivision (b), shall be available in English, Spanish, Chinese, Vietnamese, and Korean, and shall include a statement that the petition form is available in additional languages and the Internet Web site where the form is available in alternative languages. The forms shall include notice of other means to address arrest records, including a determination of factual innocence under Section 851.8 and deeming an arrest a detention under Section 849.5.
(d)
(c) A petition to seal an arrest record pursuant to this section may be granted as a matter of right or in the interests of justice.
(1) A petitioner who is eligible for relief under subdivision (a) is entitled to have his or her arrest sealed as a matter of right unless he or she is subject to paragraph (2).
(2) (A) (i) A petitioner may have his or her arrest sealed only upon a showing that the sealing would serve the interests of justice if any of the offenses upon which the arrest was based, as specified by the law enforcement agency that made the arrest, or, if an accusatory pleading was filed, any of the charges in the accusatory pleading, was one of the following:
(I) Domestic violence, if the petitioner’s record demonstrates a pattern of domestic violence arrests, convictions, or both.
(II) Child abuse, if the petitioner’s record demonstrates a pattern of child abuse arrests, convictions, or both.
(III) Elder abuse, if the petitioner’s record demonstrates a pattern of elder abuse arrests, convictions, or both.
(ii) For purposes of this subparagraph, “pattern” means two or more convictions, or five or more arrests, for separate offenses occurring on separate occasions within three years from at least one of the other convictions or arrests.
(B) In determining whether the interests of justice would be served by
sealing an arrest record pursuant to this section, the court may consider any relevant factors, including, but not limited to, any of the following:
(i) Hardship to the petitioner caused by the arrest that is the subject of the petition.
(ii) Declarations or evidence regarding the petitioner’s good character.
(iii) Declarations or evidence regarding the arrest.
(iv) The petitioner’s record of convictions.
(d) (1) At a hearing on a petition under this section, the petitioner, the prosecuting attorney, and, through the
prosecuting attorney, the arresting agency may present evidence to the court. Notwithstanding Section 1538.5 or 1539, the hearing may be heard and determined upon declarations, affidavits, police investigative reports, copies of state summary criminal history information and local summary criminal history information, or any other evidence submitted by the parties that is material, relevant, and reliable.
(2) The petitioner has the initial burden of proof to show that he or she is entitled to have his or her arrest sealed as a matter of right or that sealing would serve the interests of justice. If the court finds that petitioner has satisfied his or her burden of proof, then the burden of proof shall shift to the respondent prosecuting attorney.
(e) If the court grants a petition pursuant to this section, the court shall do all of the
following:
(1) Issue a written ruling and order to the petitioner stating that the record of arrest has been sealed as to petitioner, that the arrest is deemed not to have occurred, that petitioner may answer any question relating to the sealed arrest accordingly, and that, except as provided in paragraph (2) and Section 851.92, the petitioner is released from all penalties and disabilities resulting from the arrest. The court shall give a copy of this written ruling and order to the petitioner, to the prosecuting attorney, to the law enforcement agency that made the arrest, and to the Department of Justice.
(2) The written ruling and order shall also state all of the following:
(A) The sealed arrest may be pleaded and proved
in any subsequent prosecution of the petitioner for any other offense, and shall have the same effect as if it had not been sealed.
(B) The sealing of an arrest pursuant to this section does not relieve the petitioner of the obligation to disclose the arrest, if otherwise required by law, in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(C) The sealing of an arrest pursuant to this section does not affect petitioner’s authorization to own, possess, or have in his or her custody or control any firearm, or his or her susceptibility to conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6, if the arrest would otherwise affect this authorization or susceptibility.
(D) The sealing of an arrest pursuant to this section does not affect any prohibition from holding public office that would otherwise apply under law as a result of the arrest.
(f)The Department of Justice shall furnish forms to be utilized by a person applying to have his or her arrest sealed pursuant to this section.
SEC. 5.
Section 851.92 is added to the Penal Code, to read:851.92.
(a) This section applies when an arrest record is sealed pursuant to Sections 851.87, 851.90, 851.91, 1000.4, and 1001.9.(b) After the court has issued an order to seal an arrest, the sealing shall be accomplished as follows:
(1) (A) Within 30 days of issuing the order, the court shall forward the order to the Department of Justice, to the law enforcement agency that made the arrest, to any other law enforcement agency that participated in the arrest, and to the law enforcement agency that administers the master local summary criminal history information that contains the arrest record for
the
arrest that is the subject of the petition. was sealed. The court shall give a copy of this order to the petitioner, person whose arrest was sealed, to the prosecuting attorney, and to any law enforcement agency to which the order is issued.
(B) The local summary criminal history information and the state summary criminal history information shall include, directly next to or below the entry or entries regarding the sealed arrest, a note stating “arrest sealed” and providing the date that the court issued
the order, and the section pursuant to which the arrest was sealed. This note shall be included in all master copies of the arrest record, digital or otherwise.
(2) A police investigative report related to the sealed arrest shall, only as to the person whose arrest was sealed, be stamped “ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR,” and shall note next to the stamp the date the arrest was sealed and the section pursuant to which the arrest was sealed. The responsible local law enforcement agency shall ensure that all digital or master copies of the arrest record for the arrest that was the subject of the petition copies, digital or otherwise, of the police investigative
report related to the arrest that was sealed contain this note.
(3) Court records related to the sealed arrest shall, only as to the person whose arrest was sealed, be stamped “ARREST SEALED: DO NOT RELEASE OUTSIDE OF THE CRIMINAL JUSTICE SECTOR,” and shall note next to the stamp the date of the sealing and the section pursuant to which the arrest was sealed. This stamp and note shall be included on all master court dockets dockets, digital or otherwise, relating to the arrest, digital or otherwise.
arrest.
(4) Arrest records, police investigative reports, and court records that are sealed under this section shall not be disclosed to the public, consumer reporting agencies, or any other person or entity except the person whose arrest was sealed or a criminal justice agency, or as otherwise authorized in this section. section, including subparagraph (B) of paragraph (6).
(5) A criminal justice agency receiving from the public, a consumer reporting agency, or any person or entity except the person whose arrest was sealed or a criminal justice agency, an inquiry regarding the
sealed arrest, or a request for arrest records, police investigative reports, or court records, that have been sealed pursuant to this section shall respond in both of the following ways:
(A) With a verbal statement that the arrest has been sealed and that no further information is available.
(B) By providing a written notice that the arrest has been sealed,
is deemed to have never occurred, shall not be used in any way that could result in denial of any employment, benefit, license, or certificate, and that any records of the arrest in the possession of, or obtained from, a consumer reporting agency for the purpose of providing or obtaining background checks on the person whose arrest has been sealed shall be destroyed and that the improper dissemination of records relating to a sealed arrest or failure to destroy the records may subject the consumer reporting agency to criminal and civil liability.
(6) (A) Notwithstanding
the sealing of an arrest, a criminal justice agency may continue, in the regular course of its duties, to access, furnish to other criminal justice agencies, and use, including, but not limited to, by discussing in open court and in unsealed court filings, sealed arrests, sealed arrest records, sealed police investigative reports, sealed court records, and information relating to sealed arrests, to the same extent that would have been permitted for a criminal justice agency if the arrest had not been sealed.
(B) Notwithstanding the sealing of an arrest, a court may, in the regular course of its duties, disclose to a consumer reporting agency information that an arrest has been sealed in order to allow the agency to remove the record of arrest from its files.
(7) (A) With regard to any record or information relating to an arrest that is in the possession of a consumer reporting agency, the consumer reporting agency shall, on a weekly basis, within five business days before disseminating the information in any form to any other person or entity, including another consumer reporting agency, inquire with the criminal court having jurisdiction in the county or city in which the arrest took place, whether the arrest has been sealed. When
(B) When a consumer reporting agency learns that an arrest upon which it possesses information has been sealed by inquiring with the criminal court in the applicable jurisdiction, because the petitioner sent a copy of the court order to the consumer reporting agency, or in another manner, that an arrest upon which it possesses information has been sealed, the consumer reporting agency shall delete
and destroy all records in its possession relating to the sealed arrest, shall cease to pursue, store, or disseminate any information relating to the sealed arrest, except that it shall notify any person or entity to which it previously provided information relating to the arrest that the arrest has been sealed, is deemed not to have occurred, and shall not be used in any way that could result in the denial of any employment, benefit, license, or certificate. as follows:
(i) The consumer reporting agency may retain, for internal recordkeeping purposes only, a copy of a report
it previously issued containing information about an arrest that has, since issuance of the report, been sealed, but only if the consumer reporting agency maintains, with the copy, the written notice described in subparagraph (B) of paragraph (5).
(ii) The consumer reporting agency may furnish a copy of the records described in clause (i) as required by subpoena, court order, warrant, regulatory order, or similar mandatory governmental request.
(iii) Upon request by the person whose arrest was sealed, or that person’s attorney, the consumer reporting agency shall provide to the person or attorney a copy of all records relating to the person that the consumer reporting agency retains and is authorized to disseminate, and a copy of the records described in clause (i).
(c) Unless specifically authorized by this section, a person who disseminates or fails to destroy information relating to a sealed arrest is subject to a civil penalty of not less than five hundred dollars ($500) and not more than two thousand five hundred dollars ($2,500) per violation. The civil penalty may be enforced by a city attorney, district attorney, or the Attorney General. This subdivision does not limit any existing private right of action. A civil penalty imposed under this section shall be cumulative to civil remedies or penalties imposed under any other law.
(d) As used in this section and Sections 851.87, 851.90, 851.91, 1000.4, and 1001.9, all of the following terms have the following meanings:
(1) “Arrest record” and “record pertaining to an arrest” mean information about the arrest or detention that is contained in either of the following:
(A) The master, or a copy of the master, local summary criminal history information, as defined in subdivision (a) of Section 13300.
(B) The master, or a copy of the master, state summary criminal history information as defined in subparagraph (A) of paragraph (2) of subdivision (a) of Section 11105.
(2) “Consumer reporting agency” means a person or entity that is not a criminal justice agency and that provides background
screening services or criminal history information on identified individuals to the public or to those outside the criminal justice sector upon request, charge, or pursuant to a contractual agreement or that aggregates into databases that are open to the public or to those outside the criminal justice sector upon request or charge, but which
or pursuant to a contractual agreement, that are not created or maintained by a criminal justice agency, criminal history information on identified individuals that are open to the public or to a criminal justice agency. individuals. For the purposes of this paragraph, a consumer reporting agency includes an investigative consumer reporting agency, as defined in Section 1786.2 of the Civil Code, and a consumer credit reporting agency, as defined in Section 1785.3 of the Civil Code.
Code, and a consumer reporting agency, as defined in Section 603(f) of the Fair Credit Reporting Act (15 U.S.C. 1681a(f)).
(3) “Court records” means records, files, and materials created, compiled, or maintained by or for the court in relation to court proceedings, and includes, but is not limited to, indexes, registers of actions, court minutes, court orders, court filings, court exhibits, court progress and status reports, court history summaries, copies of state summary criminal history information and local summary criminal history information, and any other criminal history information contained in any of those materials.
(4) “Criminal justice agency” means an agency at any level of government that performs, as its principal function, activities relating
to the apprehension, prosecution, defense, adjudication, incarceration, or correction of criminal suspects and criminal offenders. A criminal justice agency includes, but is not limited to, any of the following:
(A) A court of this state.
(B) A peace officer, 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.
(C) A district attorney.
(D) A prosecuting city attorney.
(E) A city attorney 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.
(F) A probation officer.
(G) A parole officer.
(H) A public defender or an attorney representing a person, or a person representing himself or herself, in a criminal proceeding, a proceeding to revoke parole, mandatory supervision, or postrelease community supervision, or in proceeding described in Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3.
(I) An expert, investigator, or other specialist contracted by a prosecuting attorney or defense attorney to accomplish the purpose of the prosecution, defense, or representation in
the criminal proceeding.
(J) A correctional officer.
(5) “Police investigative report” means intelligence, analytical, and investigative reports and files created, compiled, and maintained by a law enforcement criminal justice agency and relating to a potential crime, violation of the law, arrest, detention, prosecution, or law enforcement investigation.
SEC. 6.
Section 1000.4 of the Penal Code is amended to read:1000.4.
(a) Any record filed with the Department of Justice shall indicate the disposition in those cases deferred pursuant to this chapter. Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment for the offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a deferred entry of judgment program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.(b) The defendant shall be advised that, regardless of his or her successful completion of the deferred entry of judgment program, the arrest upon which the judgment was deferred may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The defendant shall be advised that, regardless of the defendant’s
successful completion of a deferred entry of judgment program, an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
SEC. 7.
Section 1001.9 of the Penal Code is amended to read:1001.9.
(a) Any record filed with the Department of Justice shall indicate the disposition in those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92. The divertee may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.(b) The divertee shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The divertee shall be advised that, regardless of the
defendant’s successful completion of a deferred entry of judgment program, an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.
