Bill Text: CA SB823 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Criminal procedure: human trafficking.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Passed) 2016-09-26 - Chaptered by Secretary of State. Chapter 650, Statutes of 2016. [SB823 Detail]

Download: California-2015-SB823-Amended.html
BILL NUMBER: SB 823	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 31, 2016
	AMENDED IN SENATE  MARCH 31, 2016

INTRODUCED BY   Senator Block

                        JANUARY 6, 2016

   An act to  amend Section 1203.49 of   add
Section 236.13 to  the Penal Code, relating to human
trafficking.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 823, as amended, Block. Criminal procedure: human trafficking.
   Existing law defines and proscribes the crimes of human
trafficking, solicitation, and prostitution. Existing law provides
that if a defendant has been convicted of solicitation or
prostitution and has completed any term of probation for that
conviction, the defendant may petition the court for relief if the
defendant can establish by clear and convincing evidence that the
conviction was the result of his or her status as a victim of human
 trafficking, and would authorize   trafficking.
Existing law authorizes  a court to issue an order that (1)
sets forth a finding that the defendant was a victim of human
trafficking, as specified, (2) dismisses the accusation or
information against the defendant, or orders other relief, and (3)
notifies the Department of Justice that the defendant was a victim of
human trafficking when he or she committed the crime and the relief
that has been ordered.
   Existing law authorizes a person who was adjudicated a ward of the
juvenile court for solicitation or prostitution to, upon reaching 18
years of age, petition the court to have his or her record sealed,
as specified.
   This bill would  instead create a presumption that if a
defendant or   establish a separate petition process for
a  person who has been  arrested, convicted, 
 arrested for,   convicted of,  or adjudicated a
ward of the juvenile court  for committing any nonviolent
offense   for, committing a nonviolent offense, as
defined,  while he or she was a victim of human 
trafficking shows evidence   trafficking. The bill would
provide that if the petitioner establishes  that the arrest,
conviction, or adjudication was the direct result  of
  of,  or in clear connection  with
  with,  a human trafficking scheme of which he or
she was a victim, the  defendant or person has met the
requirements for relief under these provisions.  
petitioner would be entitled to a presumption that the requirements
for relief under the petition process have been met. The bill would
authorize the court to vacate the conviction or adjudication and
issue an order that provides the relief described above and also
provides for the sealing and destruction of the petitioner's arrest
and court records, as specified.  The bill would require that
the petition be made within a reasonable time after the person has
ceased to be a victim of human trafficking, or within a reasonable
time after the person has sought services for being a victim of human
trafficking, whichever is later.  The bill would
additionally require the order of relief to include sealing related
arrest and court records.  The bill would provide that
official documentation, as defined, of a petitioner's status as a
victim of human trafficking establishes a presumption that his or her
participation in the offense was the result of the petitioner's
status as a victim of human trafficking. The bill would provide that
a petitioner or his or her attorney is not required to appear in
person at a hearing for the relief described above, and may appear
via alternate specified methods. The bill would prohibit the
disclosure of the full name of a petitioner in the record of a
proceeding related to his or her petition that is accessible by the
public. The bill would authorize a petitioner who has obtained the
relief described above to lawfully deny or refuse to acknowledge an
arrest, conviction, or adjudication that is set aside pursuant to
that relief.  By increasing the number of records local agencies
would be required to seal and destroy, 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 these
statutory provisions. 
   Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
   This bill would make legislative findings to that effect.
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program:  no
  yes  .


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
   
  SECTION 1.    Section 1203.49 of the Penal Code is
amended to read:
   1203.49.  (a) If a defendant has been arrested for or convicted of
any nonviolent offense committed while he or she was a victim of
human trafficking, including, but not limited to, solicitation or
prostitution, as described in subdivision (b) of Section 647, the
defendant may petition the court for relief under this section. If
the petitioner can establish that the arrest or conviction was the
direct result of or in clear connection with a human trafficking
scheme of which he or she was a victim, the petitioner shall be
entitled to a presumption that the requirements for relief have been
met, and the court may issue an order that does all of the following:

   (1) Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the offense.
   (2) Sets aside the verdict of guilty and dismisses the accusation
or information against the petitioner.
   (3) Seals the arrest and court records relating to the arrest and
conviction.
   (4) Notifies the Department of Justice that the petitioner was a
victim of human trafficking when he or she committed the crime and
the relief that has been ordered.
   (b) A person who was arrested or found to be a person described in
Section 602 of the Welfare and Institutions Code because he or she
committed a nonviolent offense while he or she was a victim of human
trafficking, including, but not limited to, solicitation or
prostitution, as described in subdivision (b) of Section 647, may
petition the court for relief under this section. If the petitioner
can establish that the arrest or adjudication was the direct result
of or in clear connection with a human trafficking scheme of which he
or she was a victim, the petitioner shall be entitled to a
presumption that the requirements for relief have been met, and the
court may issue an order that does all of the following:
   (1) Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the offense.
   (2) Sets aside the verdict of guilty and dismisses the accusation
or information against the petitioner.
   (3) Seals the arrest and court records relating to the arrest and
adjudication.
   (4) Notifies the Department of Justice that the petitioner was a
victim of human trafficking when he or she committed the crime and
the relief that has been ordered.
   (c) An application pursuant to this section shall be made and
heard within a reasonable time after the person has ceased to be a
victim of human trafficking, or within a reasonable time after the
person has sought services for being a victim of human trafficking,
whichever occurs later, subject to reasonable concerns for the safety
of the person, family members of the person, or other victims of
human trafficking that may be jeopardized by the bringing of the
application, or for other reasons consistent with the purpose of this
section.
   (d) For the purposes of this section, official documentation of a
petitioner's status as a victim of human trafficking shall establish
a presumption that his or her participation in the offense was the
result of his or her status as a victim of human trafficking. For the
purposes of this subdivision, "official documentation" means any
documentation issued by a federal, state, or local agency that tends
to show the petitioner's status as a victim of human trafficking.
Official documentation shall not be required for the issuance of an
order described in subdivision (a).
   (e) A petitioner, or his or her attorney, is not required to
appear in person at a hearing for relief pursuant to this section,
and may appear telephonically, via videoconference, or by other
electronic means established by the court.
   (f) Notwithstanding any other law, a petitioner who has obtained
an order pursuant to this section may lawfully deny or refuse to
acknowledge an arrest, conviction, or adjudication that is set aside
pursuant to the order.
   (g) Notwithstanding any other law, the records of the arrest,
conviction, or adjudication shall not be distributed to any state
licensing board.
   (h) The record of a proceeding related to a petition pursuant to
this section that is accessible by the public shall not disclose the
petitioner's full name.
   (i) A court that grants relief pursuant to this section may take
additional action as appropriate under the circumstances to carry out
the purposes of this section.
   (j) If the court denies the petition for relief because the
evidence is insufficient to establish that the arrest, conviction, or
adjudication was the result of the petitioner's status as a victim
of human trafficking, the denial shall be without prejudice. The
court shall state the reasons for its denial in writing and, if those
reasons are based on curable deficiencies in the petition, allow the
petitioner a reasonable time period to cure the deficiencies upon
which the court has based the denial.
   (k) For the purposes of this section, "nonviolent offense" means
any offense except those listed in subdivision (c) of Section 667.5
of the Penal Code. 
   SECTION 1.    Section 236.13 is added to the 
 Penal Code   , to read:  
   236.13.  (a) If a person was arrested for or convicted of any
nonviolent offense committed while he or she was a victim of human
trafficking, including, but not limited to, prostitution as described
in subdivision (b) of Section 647, the person may petition the court
for relief under this section. If the petitioner establishes that
the arrest or conviction was the direct result of, or in clear
connection with, a human trafficking scheme of which he or she was a
victim, the petitioner is entitled to a presumption that the
requirements for relief have been met, and the court may vacate the
conviction and issue an order that does all of the following:
   (1) Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the offense.
   (2) Sets aside the verdict of guilty and dismisses the accusation
or information against the petitioner.
   (3) Notifies the Department of Justice that the petitioner was a
victim of human trafficking when he or she committed the crime and of
the relief that has been ordered.
   (b) A person who was arrested as, or found to be, a person
described in Section 602 of the Welfare and Institutions Code because
he or she committed a nonviolent offense while he or she was a
victim of human trafficking, including, but not limited to,
prostitution, as described in subdivision (b) of Section 647, may
petition the court for relief under this section. If the petitioner
establishes that the arrest or adjudication was the direct result of,
or in clear connection with, a human trafficking scheme of which he
or she was a victim, the petitioner is entitled to a presumption that
the requirements for relief have been met, and the court may vacate
the adjudication and issue an order that does all of the following:
   (1) Sets forth a finding that the petitioner was a victim of human
trafficking when he or she committed the offense.
   (2) Sets aside the verdict of guilty and dismisses the accusation
or information against the petitioner.
   (3) Notifies the Department of Justice that the petitioner was a
victim of human trafficking when he or she committed the crime and of
the relief that has been ordered.
   (c) If the court issues an order as described in subdivision (a)
or (b), the court shall also order the law enforcement agency having
jurisdiction over the offense, the Department of Justice, and any law
enforcement agency that arrested the petitioner or participated in
the arrest of the petitioner 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, or within one year after the court order is
granted, whichever occurs later, and thereafter to destroy their
records of the arrest and the court order to seal and destroy those
records. The court shall give to the petitioner a copy of any court
order concerning the destruction of the arrest records.
   (d) A petition pursuant to this section shall be made and heard
within a reasonable time after the person has ceased to be a victim
of human trafficking, or within a reasonable time after the
petitioner has sought services for being a victim of human
trafficking, whichever occurs later, subject to reasonable concerns
for the safety of the petitioner, family members of the petitioner,
or other victims of human trafficking who may be jeopardized by the
bringing of the application or for other reasons consistent with the
purposes of this section.
   (e) For the purposes of this section, official documentation of a
petitioner's status as a victim of human trafficking shall establish
a presumption that his or her participation in the offense was the
result of his or her status as a victim of human trafficking. For the
purposes of this subdivision, "official documentation" means any
documentation issued by a federal, state, or local agency that tends
to show the petitioner's status as a victim of human trafficking.
Official documentation shall not be required for the issuance of an
order described in subdivision (a).
   (f) A petitioner, or his or her attorney, is not required to
appear in person at a hearing for relief pursuant to this section,
and may appear telephonically, via videoconference, or by other
electronic means established by the court.
   (g) Notwithstanding any other law, a petitioner who has obtained
an order pursuant to this section may lawfully deny or refuse to
acknowledge an arrest, conviction, or adjudication that is set aside
pursuant to the order.
   (h) Notwithstanding any other law, the records of the arrest,
conviction, or adjudication shall not be distributed to any state
licensing board.
   (i) The record of a proceeding related to a petition pursuant to
this section that is accessible by the public shall not disclose the
petitioner's full name.
   (j) A court that grants relief pursuant to this section may take
additional action as appropriate under the circumstances to carry out
the purposes of this section.
   (k) If the court denies the petition for relief because the
evidence is insufficient to establish that the arrest, conviction, or
adjudication was the direct result of, or in clear connection with,
a human trafficking scheme of which the petitioner was a victim, the
denial shall be without prejudice. The court shall state the reasons
for its denial in writing and, if those reasons are based on curable
deficiencies in the petition, allow the petitioner a reasonable time
period to cure the deficiencies upon which the court has based the
denial.
   (l  ) For the purposes of this section, the following terms
apply:
   (1) "Nonviolent offense" means any offense not listed in
subdivision (c) of Section 667.5.
   (2) "Vacate" means that the arrest and any adjudications or
convictions suffered by the petitioner are deemed not to have
occurred and that all records in the case are sealed and destroyed
pursuant to this section. The court shall provide the petitioner with
a copy of the orders described in subdivisions (a), (b), and (c), as
applicable, and inform the petitioner that he or she may thereafter
state that he or she was not arrested for the charge, or adjudicated
or convicted of the charge, that was vacated.
   (3) "Victim of human trafficking" means the victim of a crime
described in subdivisions (a), (b), and (c) of Section 236.1.
   SEC. 2.    If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
   SEC. 2.   SEC. 3.   The Legislature
finds and declares that Section 1 of this act, which  amends
  adds  Section  1203.49 of  
236.13 to  the Penal Code, imposes a limitation on the public's
right of access to the meetings of public bodies or the writings of
public officials and agencies within the meaning of Section 3 of
Article I of the California Constitution. Pursuant to that
constitutional provision, the Legislature makes the following
findings to demonstrate the interest protected by this limitation and
the need for protecting that interest:
   In order to protect the privacy of victims of human trafficking
and to improve their opportunities for recovery, it is necessary that
this act limit the public's right of access to the full name of a
petitioner who seeks relief from an arrest or conviction for an
offense in which the petitioner participated as a result of his or
her status as a victim of human trafficking.              
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