Existing law authorizes a person who has suffered an arrest that did not result in conviction to petition the court to have his or her arrest and related records sealed. Existing law requires the Judicial Council to furnish forms to be utilized by a person applying to have his or her arrest sealed.

This bill would require a facility at which an arrestee is detained to, at the request of the arrestee upon release, provide the forms described above to the arrestee. The bill would additionally require a facility at which an arrestee is detained to post a sign that contains a specified notice regarding the sealing of arrests. By imposing additional 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.

Existing law authorizes a person who has suffered an arrest that did not result in conviction to petition the court to have his or her arrest and related records sealed. Existing law requires the Judicial Council to furnish forms to be utilized by a person applying to have his or her arrest sealed.

This bill would require a facility at which an arrestee is detained to, at the request of the arrestee upon release, provide the forms described above to the arrestee. The bill would additionally require a facility at which an arrestee is detained to post a sign that contains a specified notice regarding the sealing of arrests. By imposing additional 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.

Existing law authorizes a person who has suffered an arrest that did not result in conviction to petition the court to have his or her arrest and related records sealed. Existing law requires the Judicial Council to furnish forms to be utilized by a person applying to have his or her arrest sealed.

This bill would require a facility at which an arrestee is detained to, at the request of the arrestee upon release, provide the forms described above to the arrestee. The bill would additionally require a facility at which an arrestee is detained to post a sign that contains a specified notice regarding the sealing of arrests. By imposing additional 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.

Existing law provides for the reduction or dismissal of charges for various reasons, including prejudicial error or evidence of actual innocence, and for the expungement of the affected criminal records.

This bill would state the intent of the Legislature to enact legislation that would ensure the process of expungement of criminal records is efficient and accessible for all residents of California in order to ensure that all of those eligible for expungement have an equal opportunity to gain employment, education, and housing.

 THIRD READING  

Bill No: AB 2599

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/26/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 76-0, 5/31/18 - See last page for vote

SUBJECT:

SOURCE: Record Clearing Education

DIGEST:

This bill requires detention facilities to provide information to arrestees and about their right to petition for arrest record sealing and expungement relief.

ANALYSIS:

Existing law:

1. Provides, in any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest is deemed a detention. (Penal Code § 849.5)
   
2. Requires detention facilities to post a sign containing information that arrestees have the right to free telephone calls to their attorney, bail bondsman, and to arrange care for the minor, as specified. (Penal Code § 851.5)
3. Allows a person who been arrested and no accusatory pleading has been filed, to petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest and, if the law enforcement agency determines that the person was factually innocent, it must seal its arrest records, and the petition for relief and destroy its arrest records and the petition. (Penal Code § 851.8 (a))
4. States that, if the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, a petition may be made to the superior court that would have had jurisdiction over the case. If the court finds the arrestee to be factually innocent, then the court must order the sealing and destruction of records of the arrest. (Penal Code § 851.8 )
   
5. Provides that, whenever a person is convicted of a charge, and the conviction is set aside based upon a determination that the person was factually innocent of the charge, the judge shall order that the records in the case be sealed, including any record of arrest or detention, upon written or oral motion of any party in the case or the court, and with notice to all parties to the case. (Penal Code § 851.86.)
6. States that, whenever a person is acquitted of a charge and it appears to the judge presiding at the trial that the defendant was factually innocent of the charge, the judge may order that the records in the case be sealed, including any record of arrest or detention, upon the written or oral motion of any party in the case or the court, and with notice to all parties to the case. (Penal Code § 851.85)
   
7. Allows, in any case where a person is arrested and successfully completes a 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. (Penal Code § 851.87.)
   
8. Allows, in any case where a person is arrested and successfully completes a deferred entry of judgment program, the judge may order the records pertaining to the arrest to be sealed, 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. (Penal Code § 851.90.)
   
9. States that a petition to seal an arrest record may be granted as a matter of right or in the interests of justice. (Penal Code § 851.91 (c).)
10. Allows a person who has suffered an arrest that did not result in a conviction to petition the court to have his or her arrest and related records sealed. (Penal Code § 851.91.)
    
11. States that “an arrest that did not result in a conviction” means:
    
12. The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney has not filed an accusatory pleading based on the arrest;
    
13. the prosecuting attorney filed an accusatory pleading based on the arrest, but, no conviction occurred, or the charge has been dismissed;
    
14. The arrestee has been acquitted of the charges, or;
    
15. A conviction occurred, but has been vacated or reversed on appeal. (Penal Code § 851.91.)
    
16. Requires Judicial Council to furnish forms for persons applying to have an arrest sealed. The form must include a statement that the petition form is available in additional languages, the Internet Web site where the form is available in alternative languages. (Penal Code § 851.91 (b)(3).)
17. Requires a court to grant expungement relief, with specified exceptions, for a misdemeanor or felony conviction for which the sentence included a period of probation if the petitioner is not serving a sentence for, on probation for, or charged with the commission of any offense. (Penal Code § 1203.4 (a).)
18. Requires a court to grant expungement relief, with specified exceptions, for a misdemeanor conviction for which the sentence did not include a period of probation, or for an infraction conviction, if the petitioner is not serving a sentence for, on probation for, or charged with the commission of any offense. (Penal Code § 1203.4(a).)
19. Allows the court to grant expungement relief for a conviction of a petitioner sentenced to county jail pursuant to criminal justice realignment, if specified conditions are satisfied. (Penal Code § 1203.41.)
    
20. Allows the court to grant expungement relief for a conviction of a petitioner sentenced to prison for a felony that, if committed after enactment of Criminal Justice Realignment legislation in 2011, would have been eligible for county-jail sentencing. (Penal Code § 1203.42.)
21. Allows the court to grant expungement relief for a conviction of solicitation or prostitution, if the petitioner can establish by clear and convincing evidence that the conviction was a result of his or her status as a victim of human trafficking. (Penal Code § 1203.49.)
    
22. Provides that defendants sentenced to probation must be informed, in the probation papers, of their right and privilege to petition for expungement relief and a certificate of rehabilitation and pardon. (Penal Code § 1203.4a (a).)
    
23. Provides that defendant’s convicted of a misdemeanor and not sentenced to probation, an infraction, or sentenced to county jail pursuant to Criminal Justice Realignment, must be informed of the provisions that set forth the requirements to obtain expungement relief, either orally or in writing, at the time of sentencing. (Penal Code § 1203.4a (c)(1).)
24. Provides that a dismissal order granting expungement shall state, and the defendant must be informed, that the order granting expungement relief does not relieve the petitioner of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. (Penal Code § 1203.41 (a)(4).)

This bill:

1. Provides that a facility at which an arrestee is detained, shall at the request of an arrestee upon release, provide the judicial council forms necessary to apply to have his or her arrest record sealed.

1. Provides that a facility at which an arrestee is detained shall post a sign containing the following information: “A person who has been arrested but not convicted may petition the court to have his or her arrest and related record sealed. The petition form is available on the Internet or upon request in this facility.”

Background

Under current law, a factually innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of factual innocence. (Penal Code § 851.8, subd. (b).) The petitioner carries the burden of proof of show “facts exist which would lead no person of ordinary care and prudence to believe and conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty.” (People v. Adair (2003) 29 Cal.4th 895, 907 [citation and quotations omitted].) For a finding of factual innocence, the record must exonerate the petitioner. (People v. Adair, supra, 29 Cal.4th at p. 907.) If a certificate of factual innocence is granted, all records related to the arrest and charges, if any, must be sealed for three years and then destroyed. (Penal Code § 851.8, subd. (b).) In contrast to the onerous process of establishing factual innocence, if a defendant has the opportunity to complete diversion or differed entry of judgment, a judge may order the sealing of the arrest and related court records. (Pen. Code §§ 851.87, 851.90 (a).)

Until last year, there was no such relief for a person who was arrested, but the charges were never filed or were dismissed. Only people who could prove their factual innocence, or participated in a diversion program, could have their arrests sealed. However, in 2017, the Legislature passed SB 393 (Lara), which created a process for persons who were arrested but never found guilty of a crime to petition the court to have their arrest record. Now, under existing law, a person may petition the court if the prosecutor has not filed charges based on the arrest, no conviction has occurred, the charges have been dismissed, or if the arrestee is acquitted of the charges.

If the court grants relief, the arrest is sealed and deemed not to have occurred and the person is released from penalties and disabilities resulting from the arrest. Unless the record is sealed and destroyed based upon a finding of factual innocence, sealed arrest records can still be used in subsequent prosecutions and have the same effects as if they had not been sealed. The arrestee is still obligated to disclose the arrest in response to any direct question contained in a questionnaire or application for a peace officer position, licensing by a state or local agency, and for contracting with the state lottery. (Penal Code § 851.91.) The sealing does not affect the person’s authorization to own a firearm or any prohibition from holding public office that would otherwise apply. (Id.)

Even though a sealed arrest still follows a person, the benefits of record sealing are numerous. For example, a sealed record may not be used in any way that could result in denial of any employment, benefit, or license. If a member of the public or a consumer agency requests information from the courts or law enforcement about an arrest, they will only be informed that the record has been sealed and will not be supplied any other information about the arrest. Private background check companies must destroy records of an arrest once they learn that the record is sealed, and are prohibited from disclosing a sealed arrest in a consumer background report.

A person seeking to seal their arrest record must navigate a complex process. A petition to seal an arrest must be verified, filed in the court with criminal jurisdiction in the place the arrest occurred, be filed at least 15 days prior to the hearing on the petition, be served on the prosecutor in the county where the arrest occurred, include the petitioners name, birthdate, date of arrest, city and county where the arrest occurred, the law enforcement agency that made the arrest. Additionally, a petitioner who just suffered an arrest, must obtain 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, such as the case number for the police investigative report documenting the arrest, and the court number under which the arrest was reviewed by prosecutor, the offense upon which the arrest was based, or, if an accusatory pleading was filed based on the arrest, the charges in the accusatory pleading. The petition must also include a statement the petitioner is entitled to have his or her arrest sealed as a matter of right or, how the interests of justice would be served by granting the petition, accompanied by declarations made directly and verified by the petitioner, and supporting declarants. (Penal Code § 851.92 (b).)

Additionally, if you are in the DNA database, you must also request the Department of Justice (DOJ) to destroy your DNA sample and expunge your DNA database profile. Any person arrested and charged with a felony must submit a DNA sample to the DOJ. (Penal Code § 296.) To remove your information from the DOJ’s database, a petitioner must submit a petition to the DOJ, provide a copy to the trial court and the prosecutor, and send the court a proof of service for each. The DOJ will only expunge the information from its database if it the petitioner provides a certified copy of the court order dismissing the conviction or case, or a letter from the district attorney certifying that no accusatory pleading has been filed or the charges have been dismissed, the defendant has been found factually innocent, not guilty, acquitted, or the conviction was reversed and the case dismissed. (Id.)

This bill requires detention facilities to provide a form from Judicial Counsel, which is available online, to arrestees upon their release from custody at their request, and to post a sign informing arrestees of their right to petition the court to seal their record. Detention facilities are already required to post a sign containing information that arrestees have the right to free telephone calls to their attorney, bail bondsman, and to arrange care for the minor. (Penal Code § 851.5.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Unknown, potentially-significant workload cost pressure to the court of over $50,000 to process and adjudicate arrest record sealing petitions filed by individuals who would not have filed a petition absent the notice and/or supplying of the form as required by this bill. Workload costs would be offset, in part, by fees charged for filing the petitions. (General Fund*)
• Unknown, workload cost pressure to the DOJ to update state summary criminal history information with regard to successful arrest record sealing petitions that would not have been pursued but for this measure. (General Fund)
• Unknown, likely-moderate one-time costs in the thousands of dollars in the aggregate to detention facility operators—primarily counties—to post the required signage. Likely minor ongoing costs to provide the specified form upon request of a released arrestee. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)

*Trial Court Trust Fund

SUPPORT: (Verified 8/16/18)

Record Clearing Education (source)

American Civil Liberties Union

California Attorneys for Criminal Justice

Californians for Safety and Justice

California Immigrant Policy Center

California Public Defenders Association

OPPOSITION: (Verified 8/16/18)

None received

ASSEMBLY FLOOR: 76-0, 5/31/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Choi, Cooper

Prepared by:

8/18/18 13:49:55

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2599 (Holden) - Criminal records

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2599 would require facilities at which an arrestee is detained to provide a record sealing petition to the arrested person, upon request. It also would require the facility to post signs containing specified information related to the ability to seal certain arrest records.

Fiscal Impact:

• Unknown, potentially-significant workload cost pressure to the court of over $50,000 to process and adjudicate arrest record sealing petitions filed by individuals who would not have filed a petition absent the notice and/or supplying of the form as required by this bill. Workload costs would be offset, in part, by fees charged for filing the petitions. (General Fund*)
• Unknown, workload cost pressure to the Department of Justice to update state summary criminal history information with regard to successful arrest record sealing petitions that would not have been pursued but for this measure. (General Fund)
• Unknown, likely-moderate one-time costs in the thousands of dollars in the aggregate to detention facility operators—primarily counties—to post the required signage. Likely minor ongoing costs to provide the specified form upon request of a released arrestee. These costs likely would be reimbursable by the state, the extent of which would be determined by the Commission on State Mandates. (General Fund, local funds)

*Trial Court Trust Fund

Background:

According to the analysis of this bill by the Assembly Committee on Public Safety:

Under current law, a factually innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of factual innocence. (Pen. Code, § 851.8, subd. (b).) The petitioner carries the burden of proof of show[sic] “facts exist which would lead no person of ordinary care and prudence to believe and conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty.” (People v. Adair (2003) 29 Cal.4th 895, 907 [citation and quotations omitted].) For a finding of factual innocence, the record must exonerate the petitioner. (People v. Adair, supra, 29 Cal.4th at p. 907.) If a certificate of factual innocence is granted, all records related to the arrest and charges, if any, must be sealed for three years and then destroyed. (Pen. Code, § 851.8, subd. (b).) In contrast to the onerous process of establishing factual innocence, if a defendant has the opportunity to complete diversion or differed[sic] entry of judgment, a judge may order the sealing of the arrest and related court records. (Pen. Code, §§ 851.87, 851.90, subd. (a).)

Until last year, there was no such relief for a person who was arrested, but the charges were never filed or were dismissed. Only people who could prove their factual innocence, or participated in a diversion program, could have their arrests sealed. However, in 2017, the Legislature passed SB 393 (Lara), which creates a process for persons who were arrested but never found guilty of a crime to petition the court to have their arrest record [sealed]. Now, under existing law, a person may petition the court if the prosecutor has not filed charges based on the arrest, no conviction has occurred, the charges have been dismissed, or if the arrestee is acquitted of the charges.

If the court grants relief, the arrest is sealed and deemed not to have occurred and the person is released from penalties and disabilities resulting from the arrest. Unless the record is sealed and destroyed based upon a finding of factual innocence, sealed arrest records can still be used in subsequent prosecutions and have the same effects as if they had not been sealed. The arrestee is still obligated to disclose the arrest in response to any direct question contained in a questionnaire or application for a peace officer position, licensing by a state or local agency, and for contracting with the state lottery. (Pen. Code, § 851.91.) The sealing does not affect the person’s authorization to own a firearm or any prohibition from holding public office that would otherwise apply. (Id.)

Proposed Law:

This bill would:

• Require a facility at which an arrestee is detained, at the request of an arrestee upon release, to provide the person with the petition to seal an arrest record.
• Require a facility at which an arrestee is detained to post a sign stating the following:

A person who has been arrested but not convicted may petition the court to have his or her arrest and related records sealed. The petition form is available on the Internet or upon request in this facility.

Related Legislation:

SB 393 (Lara, Ch. 680, Stats. 2017) allowed for the sealing of the record of an arrest that did not result in a conviction, as specified.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 2599 Hearing Date: June 26, 2018

Subject: Criminal Records

HISTORY

Source: Record Clearing Education

Prior Legislation: SB 393 (Lara), Chapter 680, Stats. 2017

SB 513 (Hancock) Chapter 798, Stats. 2013

SB 599 (Perata) Chapter 792, Stats. 2003

Support: American Civil Liberties Union; Californians for Safety and Justice; California Immigrant Policy Center; California Public Defenders Association

Opposition: None known

Assembly Floor Vote: 76 - 0

PURPOSE

The purpose of this bill is to require detention facilities to provide information to arrestees and about their right to petition for arrest record sealing and expungement relief.

Existing law provides in any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest is deemed a detention. (Penal Code § 849.5)

Existing law requires detention facilities to post a sign containing information that arrestees have the right to free telephone calls to their attorney, bail bondsman, and to arrange care for the minor, as specified. (Penal Code § 851.5)

Existing law allows a person who been arrested and no accusatory pleading has been filed, to petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest and, if the law enforcement agency determines that the person was factually innocent, it must seal its arrest records, and the petition for relief and destroy its arrest records and the petition. (Penal Code § 851.8 (a))

Existing law states that, if the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, a petition may be made to the superior court that would have had jurisdiction over the case. If the court finds the arrestee to be factually innocent, then the court must order the sealing and destruction of records of the arrest. (Penal Code § 851.8 )

Existing law provides that, whenever a person is convicted of a charge, and the conviction is set aside based upon a determination that the person was factually innocent of the charge, the judge shall order that the records in the case be sealed, including any record of arrest or detention, upon written or oral motion of any party in the case or the court, and with notice to all parties to the case. (Penal Code § 851.86.)

Existing law states that, whenever a person is acquitted of a charge and it appears to the judge presiding at the trial that the defendant was factually innocent of the charge, the judge may order that the records in the case be sealed, including any record of arrest or detention, upon the written or oral motion of any party in the case or the court, and with notice to all parties to the case. (Penal Code § 851.85)

Existing law allows, in any case where a person is arrested and successfully completes a 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. (Penal Code § 851.87.)

Existing law allows, in any case where a person is arrested and the successfully completes a deferred entry of judgment program, the judge may order the records pertaining to the arrest to be sealed, 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. (Penal Code § 851.90.)

Existing law states that a petition to seal an arrest record may be granted as a matter of right or in the interests of justice. (Penal Code § 851.91 (c).)

Existing law allows a person who has suffered an arrest that did not result in a conviction to petition the court to have his or her arrest and related records sealed. (Penal Code § 851.91.)

Existing law states that “an arrest that did not result in a conviction” means:

1. The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney has not filed an accusatory pleading based on the arrest;
   
2. the prosecuting attorney filed an accusatory pleading based on the arrest, but, no conviction occurred, or the charge has been dismissed;
   
3. The arrestee has been acquitted of the charges, or;
   
4. A conviction occurred, but has been vacated or reversed on appeal. (Penal Code § 851.91.)
   

Existing law requires Judicial Council to furnish forms for persons applying to have an arrest sealed. The form must include a statement that the petition form is available in additional languages, the Internet website where the form is available in alternative languages. (Penal Code § 851.91 (b)(3).)

Existing law requires a court to grant expungement relief, with specified exceptions, for a misdemeanor or felony conviction for which the sentence included a period of probation if the petitioner is not serving a sentence for, on probation for, or charged with the commission of any offense. (Penal Code § 1203.4 (a).)

Existing law requires a court to grant expungement relief, with specified exceptions, for a misdemeanor conviction for which the sentence did not include a period of probation, or for an infraction conviction, if the petitioner is not serving a sentence for, on probation for, or charged with the commission of any offense. (Penal Code § 1203.4(a).)

Existing law allows the court to grant expungement relief for a conviction of a petitioner sentenced to county jail pursuant to criminal justice realignment, if specified conditions are satisfied. (Penal Code § 1203.41.)

Existing law allows the court to grant expungement relief for a conviction of a petitioner sentenced to prison for a felony that, if committed after enactment of Criminal Justice Realignment legislation in 2011, would have been eligible for county-jail sentencing. (Penal Code § 1203.42.)

Existing law allows the court to grant expungement relief for a conviction of solicitation or prostitution, if the petitioner can establish by clear and convincing evidence that the conviction was a result of his or her status as a victim of human trafficking. (Penal Code § 1203.49.)

Existing law provides that defendants sentenced to probation must be informed, in the probation papers, of their right and privilege to petition for expungement relief and a certificate of rehabilitation and pardon. (Penal Code § 1203.4a (a).)

Existing law provides that defendant’s convicted of a misdemeanor and not sentenced to probation, an infraction, or sentenced to county jail pursuant to Criminal Justice Realignment, must be informed of the provisions that set forth the requirements to obtain expungement relief, either orally or in writing, at the time of sentencing. (Penal Code § 1203.4a (c)(1).)

Existing law provides that a dismissal order granting expungement shall state, and the defendant must be informed, that the order granting expungement relief does not relieve the petitioner of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. (Penal Code, § 1203.41 (a)(4).)

This bill provides that a facility at which an arrestee is detained, shall at the request of an arrestee upon release, provide the judicial council forms necessary to apply to have his or her arrest record sealed.

This bill provides that a facility at which an arrestee is detained shall post a sign containing the following information: “A person who has been arrested but not convicted may petition the court to have his or her arrest and related record sealed. The petition form is available on the Internet or upon request in this facility.”

COMMENTS

1. Need for This Bill

According to the author:

In California, the pathway to release is wider and the opportunities for rehabilitation have expanded beyond what they have historically been. These are important changes but we also must examine the impact of arrests and incarceration on reintegration into the community. Being required to disclose these events can impact a person’s ability to receive a job, secure an apartment or receive financial aid. Propositions 57, 47 and other reforms have created the opportunity for more people to receive a clean slate and have equal access to job and housing opportunities. We should take the necessary steps to ensure everyone with a record has a chance at a clean slate.

There is a lack of awareness of the requirements or need for expungements in the general public. There is a short time frame for people to file a petition for clearing their arrest record and the standard of evidence required to accomplish this is very high. Getting records expunged after a person has finished probation is also a complicated process and actions by a person during incarceration and probation can affect their ability to potentially expunge their record. This bill increases a person’s awareness of their ability to clear their record and the process to do so.

2. Arrest Record Sealing

Under current law, a factually innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of factual innocence. (Penal Code, § 851.8, subd. (b).) The petitioner carries the burden of proof of show “facts exist which would lead no person of ordinary care and prudence to believe and conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty.” (People v. Adair (2003) 29 Cal.4th 895, 907 [citation and quotations omitted].) For a finding of factual innocence, the record must exonerate the petitioner. (People v. Adair, supra, 29 Cal.4th at p. 907.) If a certificate of factual innocence is granted, all records related to the arrest and charges, if any, must be sealed for three years and then destroyed. (Penal Code, § 851.8, subd. (b).) In contrast to the onerous process of establishing factual innocence, if a defendant has the opportunity to complete diversion or differed entry of judgment, a judge may order the sealing of the arrest and related court records. (Pen. Code, §§ 851.87, 851.90 (a).)

Until last year, there was no such relief for a person who was arrested, but the charges were never filed or were dismissed. Only people who could prove their factual innocence, or participated in a diversion program, could have their arrests sealed. However, in 2017, the Legislature passed SB 393 (Lara), which created a process for persons who were arrested but never found guilty of a crime to petition the court to have their arrest record. Now, under existing law, a person may petition the court if the prosecutor has not filed charges based on the arrest, no conviction has occurred, the charges have been dismissed, or if the arrestee is acquitted of the charges.

If the court grants relief, the arrest is sealed and deemed not to have occurred and the person is released from penalties and disabilities resulting from the arrest. Unless the record is sealed and destroyed based upon a finding of factual innocence, sealed arrest records can still be used in subsequent prosecutions and have the same effects as if they had not been sealed. The arrestee is still obligated to disclose the arrest in response to any direct question contained in a questionnaire or application for a peace officer position, licensing by a state or local agency, and for contracting with the state lottery. (Penal Code § 851.91.) The sealing does not affect the person’s authorization to own a firearm or any prohibition from holding public office that would otherwise apply. (Id.)

Even though a sealed arrest still follows a person, the benefits of record sealing are numerous. For example, a sealed record may not be used in any way that could result in denial of any employment, benefit, or license. If a member of the public or a consumer agency requests information from the courts or law enforcement about an arrest, they will only be informed that the record has been sealed and will not be supplied any other information about the arrest. Private background check companies must destroy records of an arrest once they learn that the record is sealed, and are prohibited from disclosing a sealed arrest in a consumer background report.

A person seeking to seal their arrest record must navigate a complex process. A petition to seal an arrest must be verified, filed in the court with criminal jurisdiction in the place the arrest occurred, be filed at least 15 days prior to the hearing on the petition, be served on the prosecutor in the county where the arrest occurred, include the petitioners name, birthdate, date of arrest, city and county where the arrest occurred, the law enforcement agency that made the arrest. Additionally, a petitioner who just suffered an arrest, must obtain 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, such as the case number for the police investigative report documenting the arrest, and the court number under which the arrest was reviewed by prosecutor, the offense upon which the arrest was based, or, if an accusatory pleading was filed based on the arrest, the charges in the accusatory pleading. The petition must also include a statement the petitioner is entitled to have his or her arrest sealed as a matter of right or, how the interests of justice would be served by granting the petition, accompanied by declarations made directly and verified by the petitioner, and supporting declarants. (Penal Code § 851.92 (b).)

Additionally, if you are in the DNA database, you must also request the DOJ to destroy your DNA sample and expunge your DNA database profile. Any person arrested and charged with a felony must submit a DNA sample to the DOJ. (Penal Code § 296.) To remove your information from the DOJ’s database, a petitioner must submit a petition to the DOJ, provide a copy to the trial court and the prosecutor, and send the court a proof of service for each. The DOJ will only expunge the information from its database if it the petitioner provides a certified copy of the court order dismissing the conviction or case, or a letter from the district attorney certifying that no accusatory pleading has been filed or the charges have been dismissed, the defendant has been found factually innocent, not guilty, acquitted, or the conviction was reversed and the case dismissed. (Id.)

This bill would require detention facilities to provide a form from Judicial Counsel, which is available online, to arrestees upon their release from custody at their request, and to post a sign informing arrestees of their right to petition the court to seal their record. Detention facilities are already required to post a sign containing information that arrestees have the right to free telephone calls to their attorney, bail bondsman, and to arrange care for the minor. (Penal Code § 851.5.)

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:

Author:(Holden)

As Amended Ver:

Majority vote

SUMMARY: Requires detention facilities to provide information to arrestees about their right to petition for arrest record sealing. Specifically, this bill:

1. Requires detention facilities to provide forms furnished by Judicial Council to an arrestee, upon release and at the request of the arrestee.
2. Requires detention facilities to post a sign in the facility that states, “A person who has been arrested but not convicted may petition the court to have his or her arrest and related records sealed. The petition form is available on the Internet or upon request in this facility.”

EXISTING LAW:

In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest is deemed a detention.

1. Requires detention facilities to post a sign containing information that arrestees have the right to free telephone calls to their attorney, bail bondsman, and to arrange care for the minor, as specified.
2. Allows a person who been arrested and no accusatory pleading has been filed, to petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest and, if the law enforcement agency determines that the person was factually innocent, it must seal its arrest records, and the petition for relief and destroy its arrest records and the petition.
3. States that, if the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, a petition may be made to the superior court that would have had jurisdiction over the case. If the court finds the arrestee to be factually innocent, then the court mus order the sealing and destruction of records of the arrest.
   Provides that, whenever a person is convicted of a charge, and the conviction is set aside based upon a determination that the person was factually innocent of the charge, the judge shall order that the records in the case be sealed, including any record of arrest or detention, upon written or oral motion of any party in the case or the court, and with notice to all parties to the case.
4. States that, whenever a person is acquitted of a charge and it appears to the judge presiding at the trial that the defendant was factually innocent of the charge, the judge may order that the records in the case be sealed, including any record of arrest or detention, upon the written or oral motion of any party in the case or the court, and with notice to all parties to the case.
5. Allows, in any case where a person is arrested and successfully completes a 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.
6. Allows, in any case where a person is arrested and the successfully completes a deferred entry of judgment program, the judge may order the records pertaining to the arrest to be sealed, 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.
7. States that a petition to seal an arrest record may be granted as a matter of right or in the interests of justice.
8. Allows a person who has suffered an arrest that did not result in a conviction to petition the court to have his or her arrest and related records sealed.
9. States that ''an arrest that did not result in a conviction'' means:
   1. The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney has not filed an accusatory pleading based on the arrest;
   2. the prosecuting attorney filed an accusatory pleading based on the arrest, but, no conviction occurred, or the charge has been dismissed;
   3. The arrestee has been acquitted of the charges, or;
   4. A conviction occurred, but has been vacated or reversed on appeal.
10. Requires Judicial Council to furnish forms for persons applying to have an arrest sealed. The form must include a statement that the petition form is available in additional languages, the Internet website where the form is available in alternative languages.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. GF costs in the tens of thousands of dollars annually for the Department of Justice (DOJ) to handle increased workload related to offenders seeking to expunge their records.
2. Potentially significant costs to the courts, recoverable through fees, to handle an increase in the number of offenders seeking to expunge their records.
3. Potentially reimbursable onetime state-mandated local costs, likely in the thousands to tens of thousands of dollars, for county jails to establish new procedures related to providing the required forms and to post the required signs.

COMMENTS: According to the author, ''In California, the pathway to release is wider and the opportunities for rehabilitation have expanded beyond what they have historically been. These are important changes but we also must examine the impact of arrests and incarceration on reintegration into the community. Being required to disclose these events can impact a person’s ability to receive a job, secure an apartment or receive financial aid. Propositions 57, 47 and other reforms have created the opportunity for more people to receive a clean slate and have equal access to job and housing opportunities. We should take the necessary steps to ensure everyone with a record has a chance at a clean slate.''

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Liah Burnley / PUB. S. / (916) 319-3744 FN: 0003238

Date of Hearing: May 2, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2599

Author:(Holden) – As Amended Ver:March 15, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires probation officers and facilities that detain persons who have been arrested to provide information to arrestees and probationers about their right to petition for arrest record sealing and expungement relief. Specifically, this bill:

1. Requires detention facilities to provide forms furnished by Judicial Council to an arrestee, upon release and at the request of the arrestee.
2. Requires detention facilities to post a sign in the facility that states, “A person who has been arrested but not convicted may petition the court to have his or her arrest and related records sealed. The petition form is available on the Internet or upon request in this facility.”
3. Requires probation officers to include the requirements to qualify for expungement relief in their probation reports.

FISCAL EFFECT:

1. GF costs in the tens of thousands of dollars annually for the Department of Justice (DOJ) to handle increased workload related to offenders seeking to expunge their records.
2. Potentially significant costs to the courts, recoverable through fees, to handle an increase in the number of offenders seeking to expunge their records.
3. Potentially reimbursable onetime state-mandated local costs, likely in the thousands to tens of thousands of dollars, for county jails to establish new procedures related to providing the required forms and to post the required signs.
4. Potentially reimbursable ongoing state-mandated local costs, likely in the thousands to tens of thousands of dollars annually for county probation departments to include the required information in their probation reports.

COMMENTS:

1. Background and purpose. Under current law, some individuals have the right to clean their criminal record by having an arrest or conviction record sealed or expunged. However, many individuals are unaware of this right and do not know that they can petition the court to seal their arrest record or expunge their convictions. Many individuals may be unaware of this right because there is no legal requirement or statewide mechanism to inform arrestees that they can petition to seal their arrest record. According to the author:

In California, the pathway to release is wider and the opportunities for rehabilitation have expanded beyond what they have historically been. These are important changes but we also must examine the impact of arrests and incarceration on reintegration into the community. Being required to disclose these events can impact a person’s ability to receive a job, secure an apartment or receive financial aid. Propositions 57, 47 and other reforms have created the opportunity for more people to receive a clean slate and have equal access to job and housing opportunities. We should take the necessary steps to ensure everyone with a record has a chance at a clean slate.

1. Related legislation.

AB 1793 (Bonta), of the current legislative session, requires courts to automatically resentence, redesignate, or dismiss cannabis-related convictions. AB 1793 is being heard in this committee on May 2, 2018.

AB 2438 (Ting), of the current legislative session, requires automatic expungements of certain convictions, as specified. AB 2438 is on this committee’s suspense file.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Liah Burnley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 2599

Author:(Holden) – As Amended Ver:March 15, 2018

SUMMARY:

Requires dentition facilities and probation officers to provide information to arrestees and probationers about their right to petition for arrest record sealing and expungement relief. Specifically, this bill:

1. Requires detention facilities to provide forms furnished by Judicial Council to an arestee, upon release and at the request of the arrestee.
2. Requires detention facilities to post a sign in the facility that states, “A person who has been arrested but not convicted may petition the court to have his or her arrest and related records sealed. The petition form is available on the Internet or upon request in this facility.”
3. Requires probation officers to include the requirements to qualify for expungement relief in their probation reports.

EXISTING LAW:

1. In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest is deemed a detention. (Pen. Code, § 849.5.)
   
2. Requires detention facilities to post a sign containing information that arrestees have the right to free telephone calls to their attorney, bail bondsman, and to arrange care for the minor, as specified. (Pen. Code, § 851.5.)
3. Allows a person who been arrested and no accusatory pleading has been filed, to petition the law enforcement agency having jurisdiction over the offense to destroy its records of the arrest and, if the law enforcement agency determines that the person was factually innocent, it must seal its arrest records, and the petition for relief and destroy its arrest records and the petition. (Pen. Code, § 851.8 subd. (a).)
   
4. States that, if the petition of an arrestee to the law enforcement agency to have an arrest record destroyed is denied, a petition may be made to the superior court that would have had jurisdiction over the case. If the court finds the arrestee to be factually innocent, then the court must order the sealing and destruction of records of the arrest. (Pen. Code, § 851.8 subd. (b).)
   
5. Provides that, whenever a person is convicted of a charge, and the conviction is set aside based upon a determination that the person was factually innocent of the charge, the judge shall order that the records in the case be sealed, including any record of arrest or detention, upon written or oral motion of any party in the case or the court, and with notice to all parties to the case. (Pen. Code, § 851.86.)
6. States that, whenever a person is acquitted of a charge and it appears to the judge presiding at the trial that the defendant was factually innocent of the charge, the judge may order that the records in the case be sealed, including any record of arrest or detention, upon the written or oral motion of any party in the case or the court, and with notice to all parties to the case. (Pen. Code, § 851.85.)
   
7. Allows, in any case where a person is arrested and successfully completes a 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. (Pen. Code, § 851.87.)
   
8. Allows, in any case where a person is arrested and the successfully completes a deferred entry of judgment program, the judge may order the records pertaining to the arrest to be sealed, 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. (Pen. Code, § 851.90.)
   
9. States that a petition to seal an arrest record may be granted as a matter of right or in the interests of justice. (Pen. Code, § 851.91 subd. (c).)
10. Allows a person who has suffered an arrest that did not result in a conviction to petition the court to have his or her arrest and related records sealed. (Pen. Code, § 851.91.)
    
11. States that “an arrest that did not result in a conviction” means:
    
    1. The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney has not filed an accusatory pleading based on the arrest;
       
    2. the prosecuting attorney filed an accusatory pleading based on the arrest, but, no conviction occurred, or the charge has been dismissed;
       
    3. The arrestee has been acquitted of the charges, or;
       
    4. A conviction occurred, but has been vacated or reversed on appeal. (Pen. Code, § 851.91.)
       
12. Requires Judicial Council to furnish forms for persons applying to have an arrest sealed. The form must include a statement that the petition form is available in additional languages, the Internet website where the form is available in alternative languages. (Pen. Code, § 851.91 subd. (b)(3).)
13. Requires a court to grant expungement relief, with specified exceptions, for a misdemeanor or felony conviction for which the sentence included a period of probation if the petitioner is not serving a sentence for, on probation for, or charged with the commission of any offense. (Pen. Code, § 1203.4, subd. (a).)
14. Requires a court to grant expungement relief, with specified exceptions, for a misdemeanor conviction for which the sentence did not include a period of probation, or for an infraction conviction, if the petitioner is not serving a sentence for, on probation for, or charged with the commission of any offense. (Pen. Code, § 1203.4a subd. (a).)
15. Allows the court to grant expungement relief for a conviction of a petitioner sentenced to county jail pursuant to criminal justice realignment, if specified conditions are satisfied. (Pen. Code, § 1203.41.)
    
16. Allows the court to grant expungement relief for a conviction of a petitioner sentenced to prison for a felony that, if committed after enactment of Criminal Justice Realignment legislation in 2011, would have been eligible for county-jail sentencing. (Pen. Code, § 1203.42.)
17. Allows the court to grant expungement relief for a conviction of solicitation or prostitution, if the petitioner can establish by clear and convincing evidence that the conviction was a result of his or her status as a victim of human trafficking. (Pen. Code, § 1203.49.)
    
18. Provides that defendants sentenced to probation must be informed, in the probation papers, of their right and privilege to petition for expungement relief and a certificate of rehabilitation and pardon. (Pen. Code, § 1203.4, subd. (a).)
    
19. Provides that defendant’s convicted of a misdemeanor and not sentenced to probation, an infraction, or sentenced to county jail pursuant to Criminal Justice Realignment, must be informed of the provisions that set forth the requirements to obtain expungement relief, either orally or in writing, at the time of sentencing. (Pen. Code, § 1203.4a subd. (c)(1).)
20. Provides that a dismissal order granting expungement shall state, and the defendant must be informed, that the order granting expungement relief does not relieve the petitioner of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission. (Pen. Code, § 1203.41, subd. (a)(4).)
21. Requires probation officers to furnish to each person released on probation a written statement of the terms and conditions of probation. (Pen. Code, § 1203.7, subd. (d).)
22. States that the probation officer shall make a written report to the court that includes recommendations as to the granting or denying of probation and the conditions of probation, if granted. (Pen. Code, § 1203 subd. (b)(2)(A).)
    
23. Provides that the probation report must include the probation officer’s recommendations about the amount the defendant should be required to pay as a restitution fine pursuant to subdivision whether the court shall require, as a condition of probation, restitution to the victim or to the Restitution Fund. (Pen. Code, § 1203 subd. (b)(2)(D).
    
24. Requires the court to order the probation officer who makes the probation report to discuss its contents with the defendant, if the defendant is not represented by an attorney. ( Pen. Code, § 1203 subd. (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author’s Statement: According to the author, “In California, the pathway to release is wider and the opportunities for rehabilitation have expanded beyond what they have historically been. These are important changes but we also must examine the impact of arrests and incarceration on reintegration into the community. Being required to disclose these events can impact a person’s ability to receive a job, secure an apartment or receive financial aid. Propositions 57, 47 and other reforms have created the opportunity for more people to receive a clean slate and have equal access to job and housing opportunities. We should take the necessary steps to ensure everyone with a record has a chance at a clean slate.”
   
2. Need for the Bill: A Stanford University report on the cost/benefits of criminal record expungement in Santa Clara County found that the total administrative cost of expunging a record ($3,757) is far outweighed by the benefit of expungement ($9,517) per year. The benefits include an individual’s increased income, increased GDP, increase in tax revenue, and reduced reliance on government assistance. (http://lawsdocbox.com/Immigration/72905914-A-cost-benefit-analysis-of-criminal-record-expungement-in-santa-clara-county.html) The report further explains,

When considering the policy implications of our findings, it is important to recognize that many people with criminal records do not pursue expungement due to a lack of awareness about and/or resources for pursuing the expungement process. In surveys of over 700 people […], over 85% were unaware prior to the presentation that some convictions must be dismissed. One can assume that the relative unawareness of the specific expungement law provisions means that people generally lack information about their rights under the law.

(Id.) In comments to the U.S. Equal Employment Opportunity Commissions, the Brennan Center for Justice describes the economic effects of criminal records. The comments state,

[U]sing the criminal justice system to create barriers to re-entry into society and the economy forces the affected individuals to be more dependent on the government for basic needs because discriminatory employment policies prevent them from finding work and providing for themselves.

Mass incarceration and the correspondent barriers to employment also have a deleterious impact on federal, state and local tax revenues. For example, in a report prepared by the Economy League for Greater Philadelphia, it is estimated that if 100 currently unemployed formerly incarcerated individuals obtained employment, their employment would produce an additional $1,900,000 in city wage tax revenue and $770,000 in sales tax revenue over their post-release lifetimes. (https://dokumen.tips/documents/comments-to-the-us-civil-rights-commission-on-economic-impact-of-criminal-records.html)

A record of an arrest is a scarlet letter, often stigmatizing individuals who were never convicted of or found guilty of a crime. An arrest record is a barrier to success—when a school, employer, or landlord requires a background check, they may deny your application on the basis of the arrest, even if you were never charged with or convicted of the crime. Individuals who are convicted of a crime and have completed their sentence are expected to fully reintegrate into the community, but face obstacles in doing so because their criminal record may prejudice their opportunity to obtain professional careers, higher education, and stable housing, even if they have served their time and remained crime free. According to a report by the Society for Human Resource Management, 69% of organizations reported that they conduct criminal background checks on all of their job candidates. Though California law prohibits employers from asking applicants certain information about their criminal records, 74% of organizations reported that nonviolent felony convictions are very influential in the decision not to hire. Only 58% of organizations allow job candidates to explain the results of their criminal checks before the decision to hire or not to hire is made. (https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/pages/criminalbackgroundcheck.aspx.)

In California, some individuals have a right to clean their criminal record. However, many individuals are unaware of this right and do not know that they can petition the court to seal their arrest record or expunge their convictions. Concerning record sealing, as on January 1, 2018, a new class of individuals may petition to seal their arrest records. (See Pen. Code, § 851.91.) Many individuals may be unaware of this right because there is no legal requirement or statewide mechanism to inform arrestees that they can petition to seal their arrest record.

This bill would require detention facilities to provide a form from Judicial Counsel, which is available online, to arrestees upon their release from custody, and to post a sign informing arrestees of their right to petition the court to seal their record. Notably detention facilities are required to post a sign containing information that arrestees have the right to free telephone calls to their attorney, bail bondsman, and to arrange care for the minor. (Pen. Code § 851.5.)

Similarly, many people may not be aware of their right to seek expungement relief, and how to become eligible for expungement relief. Individuals who are convicted of an infraction, or misdemeanor but not sentenced to probation, are required by law to be informed about how to qualify for expungement relief, at the time of sentencing either orally or in writing. (See Pen. Code, § 1203.4a subd.(c)(1) “The defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced”.) Individuals convicted of a realignment offense, are also legally required to be informed of their right to petition the court for expungement relief, and how to qualify for expungement relief, at the time of sentencing. (See Pen. Code, § 1203.41 subd. (a)(4) “The defendant shall be informed, either orally or in writing, of the provisions of this section”.) To the contrary, the law only requires people sentenced to probation to be informed more generally of their right to petition for relief in their probation papers. (See Pen. Code, § 1203.4(a)(1) “The probationer shall be informed, in his or her probation papers, of this right and privilege”.) Though it may be common practice to inform individuals who have been sentenced to probation about how to become eligible for expungement relief, it is not mandated under the current law. (Id.) Moreover, the penal code does not define or provide any further guidance about “probation papers.”

This bill would require probation officers to include information about how to qualify for expungement relief in their probation report. (Pen. Code, § 1203.) Under Section 1203, the report includes recommendations on the amount the defendant should be required to pay to the victim and the Restitution Fund as a condition of probation, recommendations of probation conditions, and if sex offender registration should be ordered. Practically, probation officers could include standard boilerplate language regarding expungement relief in the probation report. Section 1203 also requires the court to order the probation officer to discuss the contents of the report with defendants who are not represented by an attorney. (Pen. Code, § 1203 subd. (c).) Thus, this bill would give defendants who are sentenced to probation an opportunity to be informed about their right to petition the court for expungement, and how to qualify for such relief, including that they must fulfill the conditions of probation for the entire period of probation, or be discharged prior to the termination of the period of probation, must not be serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, to be granted expungement relief. Arguably, informing individuals of these conditions could have the added public safety benefit of encouraging probationers to fulfill their conditions of probation.

This bill aims to increase awareness of an individual’s right to petition the court to seal an arrest and expunge their criminal record and how to obtain such relief. In general, it is good policy to ensure that individuals are aware of their legal rights.

1. Background on Arrest Record Sealing: Under current law, a factually innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of factual innocence. (Pen. Code, § 851.8, subd. (b).) The petitioner carries the burden of proof of show “facts exist which would lead no person of ordinary care and prudence to believe and conscientiously entertain any honest and strong suspicion that the person arrested [or acquitted] is guilty.” (People v. Adair (2003) 29 Cal.4th 895, 907 [citation and quotations omitted].) For a finding of factual innocence, the record must exonerate the petitioner. (People v. Adair, supra, 29 Cal.4th at p. 907.) If a certificate of factual innocence is granted, all records related to the arrest and charges, if any, must be sealed for three years and then destroyed. (Pen. Code, § 851.8, subd. (b).) In contrast to the onerous process of establishing factual innocence, if a defendant has the opportunity to complete diversion or differed entry of judgment, a judge may order the sealing of the arrest and related court records. (Pen. Code, §§ 851.87, 851.90, subd. (a).)

Until last year, there was no such relief for a person who was arrested, but the charges were never filed or were dismissed. Only people who could prove their factual innocence, or participated in a diversion program, could have their arrests sealed. However, in 2017, the Legislature passed SB 393 (Lara), which creates a process for persons who were arrested but never found guilty of a crime to petition the court to have their arrest record. Now, under existing law, a person may petition the court if the prosecutor has not filed charges based on the arrest, no conviction has occurred, the charges have been dismissed, or if the arrestee is acquitted of the charges.

If the court grants relief, the arrest is sealed and deemed not to have occurred and the person is released from penalties and disabilities resulting from the arrest. Unless the record is sealed and destroyed based upon a finding of factual innocence, sealed arrest records can still be used in subsequent prosecutions and have the same effects as if they had not been sealed. The arrestee is still obligated to disclose the arrest in response to any direct question contained in a questionnaire or application for a peace officer position, licensing by a state or local agency, and for contracting with the state lottery. (Pen. Code, § 851.91.) The sealing does not affect the person’s authorization to own a firearm or any prohibition from holding public office that would otherwise apply. (Id.)

Even though a sealed arrest still follows a person, the benefits of record sealing are numerous. For example, a sealed record may not be used in any way that could result in denial of any employment, benefit, or license. If a member of the public or a consumer agency requests information from the courts or law enforcement about an arrest, they will only be informed that the record has been sealed and will not be supplied any other information about the arrest. Private background check companies must destroy records of an arrest once they learn that the record is sealed, and are prohibited from disclosing a sealed arrest in a consumer background report.

A person seeking to seal their arrest record must navigate a complex process. A petition to seal an arrest must be verified, filed in the court with criminal jurisdiction in the place the arrest occurred, be filed at least 15 days prior to the hearing on the petition, be served on the prosecutor in the county where the arrest occurred, include the petitioners name, birthdate, date of arrest, city and county where the arrest occurred, the law enforcement agency that made the arrest. Additionally, a petitioner who just suffered an arrest, must obtain 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, such as the case number for the police investigative report documenting the arrest, and the court number under which the arrest was reviewed by prosecutor, the offense upon which the arrest was based, or, if an accusatory pleading was filed based on the arrest, the charges in the accusatory pleading. The petition must also include a statement the petitioner is entitled to have his or her arrest sealed as a matter of right or, how the interests of justice would be served by granting the petition, accompanied by declarations made directly and verified by the petitioner, and supporting declarants. (Pen. Code, § 851.92 subd. (b).)

Additionally, if you are in the DNA database, you must also request the DOJ to destroy your DNA sample and expunge your DNA database profile. Any person arrested and charged with a felony must submit a DNA sample to the DOJ. (Pen. Code, § 296.) To remove your information from the DOJ’s database, a petitioner must submit a petition to the DOJ, provide a copy to the trial court and the prosecutor, and send the court a proof of service for each. The DOJ will only expunge the information from its database if it the petitioner provides a certified copy of the court order dismissing the conviction or case, or a letter from the district attorney certifying that no accusatory pleading has been filed or the charges have been dismissed, the defendant has been found factually innocent, not guilty, acquitted, or the conviction was reversed and the case dismissed. (Id.)

Notably, individuals seeking to seal their arrest records are not entitled to legal counsel, despite the complexity of the process. Hiring an attorney comes at a hefty price; one law firm charges about $550 to seal an arrest record; (http://expungeyourrecordnow.com/); another a $999; (http://freshstartlawcenter.com/california-arrest-record-sealing.html). These are a great deal compared to a firm that charges $1,250 to assist with record sealing. (http://www.recordgone.com/california/record-sealing/)

1. Background on Expungement Relief: Expungement relieves a person from all penalties and disabilities resulting from the offense. However, in California, expungement does not completely wipe away a person’s record of conviction. When expungement relief is granted, the conviction is set aside and the charging document is dismissed. This neither erases nor seals the record of conviction. Despite the dismissal order, the conviction record remains a public document. (People v. Field (1995) 31 Cal.App.4th 1778, 1787.) In fact, a person who is eligible to have their record expunged still faces many of the consequences of a criminal conviction, such as the inability to have a firearm or hold public office, if the conviction is one that prevents a person from holding such a position. An expunged conviction has the same effects in subsequent criminal cases as convictions that are not expunged. Applicants applying for employment do not have to disclose the conviction on an application for employment, but must disclose the conviction on an application for licensure by any state or local agency.

Originally, expungement relief was only available to defendants placed on probation. However, expungement relief has been extended to other categories of cases, including people convicted of misdemeanors and infractions who were not granted probation. (Pen. Code, § 1203.4a.) After the enactment of Realignment, expungement was extended to persons convicted of a realigned felony and served their sentence in county jail. (Pen. Code, § 1203.41.) In 2017, expungement relief was extended to those who were convicted of the same crimes eligible for expungement post-Realignment, but who served their sentence in state prison instead of county jail because they were sentenced pre-Realignment.

As discussed above, defendants who are sentenced to probation, convicted of misdemeanors and infractions, or sentenced to county jail for a realigned felony, are informed, either orally or in writing, of their right to petition for expungement relief at the time of sentencing or in their probation papers. Defendants who served a prison sentence for a realigned offense prior to realignment have not been informed of their right to obtain expungement relief, nor is there a legal requirement to do so.

For individuals who are aware of their right to obtain expungement relief, obtaining expungement relief is not easy. To expunge a conviction, a person must first obtain their criminal record history. This can be accomplished by requesting criminal history records from the Department of Justice, paying the $25 application fee, getting LiveScan fingerprints, and paying the LiveScan fingerprint fee. (http://www.courts.ca.gov/1070.htm) Next, an individual seeking expungement relief must complete a petition for each conviction, file each petition with the clerk of the superior court in the county of conviction, serve additional copies of each petition with the district attorney’s office in the county of each conviction, include supportive materials such as letters of support, school diplomas, or transcripts, and travel to the court in the county of conviction to attend a hearing, dressed in appropriate court attire. (Id.) A person who petitions for expungement relief may be required to reimburse the court, the county, or both for the costs—even if expungement is not granted. If a petition is denied, the petitioner may contact the court clerk to determine whether there was a problem with the petition, and repeat this process. (Id.) Like with arrest sealing, many individuals cannot navigate this burdensome process without assistance from legal counsel. Petitioners are not entitled to counsel when seeking expungement relief. Legal service providers charge $350 for expungement. (http://expungeyourrecordnow.com/) One law firms charges $2,500 for misdemeanor expungement and $3,750 for felony expungement. (https://www.convictionfree.com/expungement_fees/)

1. Argument in Support: According to the California Public Defender’s Association, “The California Penal Code currently contains avenues by which an individual can remove an arrest and/or criminal conviction from her or his record. Information about these restorative processes, however, can be somewhat inaccessible. The amendments that are sought by AB 2599 shed light on the restorative processes by providing notice of, and access to, the information.

“So often, the criminal justice system is associated with the stick and not the carrot. Particularly, in the case of a criminal conviction, the availability of an expungement may encourage success on probation, rehabilitation and, in turn, restoration.”

1. Argument in Opposition: The Chief Probation Officers state, “The specific reports that are referenced in the bill are intended to serve as a pre-sentence report to the court on eligibility and suitability of probation and to provide information to the court on the circumstances surrounding the offense and prior history of the person.

“We do not believe these reports are the appropriate place or forum for information on a dismissal of conviction to be included. There are other avenues for providing the information sought in the bill relative to the type of relief for which a person is eligible.”

1. Related Legislation:
   
   1. AB 1793 (Bonta), of the 2017-2018 Legislative Session, would require the court to automatically resentence, redesignate, or dismiss cannabis-related convictions. AB 1793 is pending in Assembly Public Safety Committee.
   2. AB 2438 (Ting), of the 2017-2018 Legislative Session, would require automatic expungements of certain convictions, as specified. AB 2438 is pending in Assembly Appropriations Committee.
      
2. Prior Legislation:
   
   1. AB 1115 (Jones-Sawyer), Chapter 207, Statutes of 2017, allows a court to grant expungement relief to a defendant who was sentenced to state prison for a felony that, if committed prior to criminal justice realignment, would have been eligible for sentencing to a county jail, as specified.
   2. SB 393 (Lara), Chapter 680, Statutes of 2017, authorizes a person who has suffered an arrest that did not result in a conviction, as specified, to petition the court to the record sealed.
      
   3. AB 651 (Bradford), Chapter 787, Statutes of 2013, allows a court to grant expungement relief for to a defendant who was sentenced to county jail pursuant to criminal justice realignment, as specified.
      
   4. SB 513 (Hancock), Chapter 798, Statutes of 2013, authorizes the sealing of arrest records when a defendant completes a diversion program administered by a prosecuting attorney.
      
   5. AB 1384 (Bradford), Chapter 284, Statutes of 2011, allows a court to grant expungement relief to a defendant who was convicted of an infraction or misdemeanor but not granted probation, as specified.
   6. SB 599 (Perata) Chapter 792, Statutes of 2003, authorizes the sealing of arrest records if a defendant completes a drug diversion program administered by a superior court or a deferred entry of judgment program.
      

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union

California Immigrant Policy Center

California Public Defenders Association

Opposition

Chief Probation Officers of California

Analysis Prepared by:

Liah Burnley / PUB. S. / (916) 319-3744