Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.

This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.

Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.

This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.

This bill would also make related findings and declarations.

Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.

This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.

Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.

This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.

Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.

This bill would state that those convictions are defective due to constitutional error because they were void for vagueness and are therefore legally invalid.

Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.

This bill would state that those convictions are defective due to constitutional error because they were void on equal protection grounds and are therefore legally invalid.

Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.

This bill would state that those convictions are defective due to constitutional error because they were void for vagueness and are therefore legally invalid.

Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.

This bill would state that those convictions are defective due to constitutional error because they were void on equal protection grounds and are therefore legally invalid.

GOVERNOR'S VETO

GV Bill Id:AB 1726

Author:(Kalra)

As Enrolled Ver:September 18, 2023

2/3 vote

SUMMARY

Declares that all former convictions for loitering with the intent to commit prostitution and for prostitution with a prior conviction by a person who knew they had acquired immune deficiency syndrome (AIDS) are presumed to be legally invalid.

Senate Amendments

1. Delete the declaration that these convictions are defective and legally invalid due to constitutional error, and instead state that they are presumed legally invalid on the basis of one of the following reasons:
   1. On the basis of race, ethnicity, or national origin in violation of the Racial Justice Act;
   2. Because the defendant was acting under duress;
   3. Due to the moving party's inability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.
2. Add legislative findings and declarations.

Governor’s Veto Message

This bill would create a presumption that convictions under various Penal Code sections are legally invalid due to specified defects at the time of the convictions.

When I signed Senate Bill 357 (2022) which repealed penal code section 653.22 (loitering with the intent to commit prostitution), I committed to monitoring crime and prosecution trends for any possible unintended consequences. Given that this legislation was signed just last year, and we continue to monitor, further changes to the law are premature.

COMMENTS

As Passed by the Assembly: This bill declared all former convictions for loitering with the intent to commit prostitution and for prostitution with a prior conviction by a person who knew they had acquired immune deficiency syndrome (AIDS) legally invalid based on constitutional error

Major Provisions

1. Provided that all convictions of former Penal Code section 653.22 (loitering with the intent to commit prostitution) are defective due to constitutional error and are therefore legally invalid.
2. Provided that all convictions of former Penal Code section 647(f) (prostitution or solicitation with a prior conviction of the same offense by a person who was HIV/AIDS positive), as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid.
3. Required a court receiving a petition for recall and dismissal of these convictions to dismiss and seal them based on constitutional error and legal invalidity.
4. Impacts on Immigration Law: The author's stated need for this bill is for purposes of immigration relief.

For purposes of immigration law, the reason for vacating a conviction is critical. A criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes. In contrast, a conviction vacated on some grounds as legally invalid is eliminated as a source of adverse immigration consequences. (See Matter of Pickering (BIA 2003) 23 I&N Dec. 621, 622-623, reversed on other grounds in Pickering v. Gonzales (6th Cir. 2006) 454 F.3d 525; see also Pinho v. Gonzales (3d Cir. 2005) 432 F.3d 193, 195; Nath v. Gonzales (9th Cir. 2006) 467 F.3d 1185, 1189.)

When SB 357 (Wiener) of 2022 repealed the crime of loitering with the intent to commit prostitution, it also added a statute providing a procedure to obtain post-conviction relief. (Penal Code, Section 653.29.) That provision already specified that former convictions for loitering with intent to commit prostitution were "legally invalid." (See Penal Code Section 653.29(a)(2) and (b)(1).)

Similarly, when SB 239 (Wiener) of 2017 repealed the crime of prostitution or solicitation with a prior by a person who is HIV/AIDS positive, it too added a post-conviction relief statute declaring these convictions "invalid and vacated." (See Penal Code Section 1170.21.)

Therefore, as to both of these former crimes, arguably this bill really only specifies the reasons for the legal invalidity since they were already declared invalid when repealed.

According to the Author

"Under federal law, deportation proceedings can still be based on a vacated conviction unless the vacatur is due to a legal defect in the underlying arrest or conviction. In cases where state law does not explicitly specify as such, non-citizens are inadvertently subjected to a two-tiered system where they unfairly face additional consequences for convictions based on outdated laws and are denied the relief they are entitled to. AB 1726 corrects this oversight and ensures equal access to vacatur under Penal Code Sections 653.29, 1170.21, and 1170.22 by clarifying that all convictions of former Penal Code Section 653.22 and 647f are defective due to vagueness and on equal protection grounds, respectively."

Arguments in Support

According to the California Public Defenders Association, "AB 1726 is a technical fix to last year's SB 357 and 2017's SB 239 to ensure that the record clearing provisions enacted by SB 357 and SB 239 also work for purposes of immigration relief. AB 1726 ensures that vulnerable immigrant populations can benefit from the reforms that resulted from repealing Penal Code sections 647f and 653.22. Many sex workers, particularly in California, are subject to brutal immigration enforcement and deportation for even minor criminal infractions. CPDA members have seen the unjust and disproportionate consequences suffered by our clients.

"Through the representation of our clients, CPDA members have seen how the subjective nature of California Penal Code Section 653.22 enabled law enforcement to engage in discriminatory policing that targeted Black and Brown women and members of the transgender community. Penal Code Section 647f was based on fear and limited medical science at the time and penalized sex workers who were living with HIV. SB 357 and SB 239 were attempts to solve these problems and created a process to clear the records for persons convicted of violating these penal code sections. However, the prior bills did not include the specific language needed to help persons who need to have a prior conviction cleared for immigration purposes despite the intention of both bills to provide relief for immigrants. For immigration purposes, a conviction must have been legally or procedurally defective at the time it was entered. AB 1726 simply adds language that would clarify that convictions for violating Penal Code sections 653.22 and 647f were invalid from the beginning, thereby ensuring SB 357 and SB 239 protect all Californians they were meant to protect."

Arguments in Opposition

According to the California District Attorneys Association, "At this juncture, our opposition is solely based on the fact that there is case law expressly coming to the opposite conclusion regarding Penal Code section 653.22 (see People v. Pulliam (1998) 62 Cal.App.4th 1430; see also People v. Superior Court (Caswell) (1988) 46 Cal.3d 381), and an apparent lack of any case law (either in California or other jurisdiction) that supports the idea that former section 647f was violative of equal protection.

"Moreover, the proposed amendment appears entirely unnecessary to accomplishing the goals of the statutes being amended. Courts can dismiss or grant relief to persons who have suffered convictions for these offenses just as well under the current language of the statute as under the proposed amended language. In such circumstances, it would set a bad precedent for the Legislature to bake into statute legal conclusions that are not supported by case law. Such language might be later misused by courts to support unwarranted challenges to other statutes designed to help deter crimes before they occur (and protect the public) by prohibiting loitering with a specific intent. (See e.g., Penal Code, Section 653(b) [loitering arounds schools without a lawful intent and increasing punishment if done by sex offender]; Penal Code Section 647 (h) [loitering upon the private property of another, at any time, without visible or lawful business with the owner or occupant"]; Health & Safety Code, Section 11532 [loitering with the intent to engage in drug-related activity].)

"Should this bill be amended to simply invalidate the prior convictions, CDAA would withdraw its opposition."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bonta, Jackson, Ortega, Santiago, Zbur

NO: Alanis, Lackey

ASSEMBLY FLOOR: 45-17-18

YES: Addis, Aguiar-Curry, Arambula, Bauer-Kahan, Bennett, Berman, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Ortega, Papan, Pellerin, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Santiago, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO: Alanis, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Alvarez, Bains, Boerner, Chen, Gabriel, Grayson, Irwin, Muratsuchi, Stephanie Nguyen, Pacheco, Petrie-Norris, Ramos, Rodriguez, Blanca Rubio, Schiavo, Soria, Valencia, Villapudua

SENATE FLOOR: 29-7-4

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Dahle, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Alvarado-Gil, Caballero, Grove, Hurtado

ASSEMBLY FLOOR: 50-17-13

YES: Addis, Aguiar-Curry, Alvarez, Arambula, Bains, Bennett, Berman, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Ortega, Pacheco, Papan, Pellerin, Quirk-Silva, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Alanis, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Bauer-Kahan, Boerner, Calderon, Chen, Irwin, Muratsuchi, Stephanie Nguyen, Petrie-Norris, Ramos, Schiavo, Soria, Valencia, Villapudua

UPDATED

VERSION: September 18, 2023

CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0002565

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1726

Author:(Kalra)

As Amended Ver:July 3, 2023

Majority vote

SUMMARY

Declares that all former convictions for loitering with the intent to commit prostitution and for prostitution with a prior conviction by a person who knew they had acquired immune deficiency syndrome (AIDS) are presumed to be legally invalid.

Senate Amendments

1. Delete the declaration that these convictions are defective and legally invalid due to constitutional error, and instead state that they are presumed legally invalid on the basis of one of the following reasons:
   1. On the basis of race, ethnicity, or national origin in violation of the Racial Justice Act;
   2. Because the defendant was acting under duress;
   3. Due to the moving party's inability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.
2. Add legislative findings and declarations.

COMMENTS

As Passed by the Assembly: This bill declared all former convictions for loitering with the intent to commit prostitution and for prostitution with a prior conviction by a person who knew they had acquired immune deficiency syndrome (AIDS) legally invalid based on constitutional error

Major Provisions

1. Provided that all convictions of former Penal Code section 653.22 (loitering with the intent to commit prostitution) are defective due to constitutional error and are therefore legally invalid.
2. Provided that all convictions of former Penal Code section 647(f) (prostitution or solicitation with a prior conviction of the same offense by a person who was HIV/AIDS positive), as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid.
3. Required a court receiving a petition for recall and dismissal of these convictions to dismiss and seal them based on constitutional error and legal invalidity.
4. Impacts on Immigration Law: The author's stated need for this bill is for purposes of immigration relief.

For purposes of immigration law, the reason for vacating a conviction is critical. A criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes. In contrast, a conviction vacated on some grounds as legally invalid is eliminated as a source of adverse immigration consequences. (See Matter of Pickering (BIA 2003) 23 I&N Dec. 621, 622-623, reversed on other grounds in Pickering v. Gonzales (6th Cir. 2006) 454 F.3d 525; see also Pinho v. Gonzales (3d Cir. 2005) 432 F.3d 193, 195; Nath v. Gonzales (9th Cir. 2006) 467 F.3d 1185, 1189.)

When SB 357 (Wiener) of 2022 repealed the crime of loitering with the intent to commit prostitution, it also added a statute providing a procedure to obtain post-conviction relief. (Penal Code, Section 653.29.) That provision already specified that former convictions for loitering with intent to commit prostitution were "legally invalid." (See Penal Code, Section 653.29(a)(2) and (b)(1).)

Similarly, when SB 239 (Wiener) of 2017 repealed the crime of prostitution or solicitation with a prior by a person who is HIV/AIDS positive, it too added a post-conviction relief statute declaring these convictions "invalid and vacated." (See Penal Code, Section 1170.21.)

Therefore, as to both of these former crimes, arguably this bill really only specifies the reasons for the legal invalidity since they were already declared invalid when repealed.

According to the Author

"Under federal law, deportation proceedings can still be based on a vacated conviction unless the vacatur is due to a legal defect in the underlying arrest or conviction. In cases where state law does not explicitly specify as such, non-citizens are inadvertently subjected to a two-tiered system where they unfairly face additional consequences for convictions based on outdated laws and are denied the relief they are entitled to. AB 1726 corrects this oversight and ensures equal access to vacatur under Penal Code Sections 653.29, 1170.21, and 1170.22 by clarifying that all convictions of former Penal Code Section 653.22 and 647f are defective due to vagueness and on equal protection grounds, respectively."

Arguments in Support

According to the California Public Defenders Association, "AB 1726 is a technical fix to last year's SB 357 and 2017's SB 239 to ensure that the record clearing provisions enacted by SB 357 and SB 239 also work for purposes of immigration relief. AB 1726 ensures that vulnerable immigrant populations can benefit from the reforms that resulted from repealing Penal Code sections 647f and 653.22. Many sex workers, particularly in California, are subject to brutal immigration enforcement and deportation for even minor criminal infractions. CPDA members have seen the unjust and disproportionate consequences suffered by our clients.

"Through the representation of our clients, CPDA members have seen how the subjective nature of California Penal Code Section 653.22 enabled law enforcement to engage in discriminatory policing that targeted Black and Brown women and members of the transgender community. Penal Code Section 647f was based on fear and limited medical science at the time and penalized sex workers who were living with HIV. SB 357 and SB 239 were attempts to solve these problems and created a process to clear the records for persons convicted of violating these penal code sections. However, the prior bills did not include the specific language needed to help persons who need to have a prior conviction cleared for immigration purposes despite the intention of both bills to provide relief for immigrants. For immigration purposes, a conviction must have been legally or procedurally defective at the time it was entered. AB 1726 simply adds language that would clarify that convictions for violating Penal Code sections 653.22 and 647f were invalid from the beginning, thereby ensuring SB 357 and SB 239 protect all Californians they were meant to protect."

Arguments in Opposition

According to the California District Attorneys Association, "At this juncture, our opposition is solely based on the fact that there is case law expressly coming to the opposite conclusion regarding Penal Code section 653.22 (see People v. Pulliam (1998) 62 Cal.App.4th 1430; see also People v. Superior Court (Caswell) (1988) 46 Cal.3d 381), and an apparent lack of any case law (either in California or other jurisdiction) that supports the idea that former section 647f was violative of equal protection.

"Moreover, the proposed amendment appears entirely unnecessary to accomplishing the goals of the statutes being amended. Courts can dismiss or grant relief to persons who have suffered convictions for these offenses just as well under the current language of the statute as under the proposed amended language. In such circumstances, it would set a bad precedent for the Legislature to bake into statute legal conclusions that are not supported by case law. Such language might be later misused by courts to support unwarranted challenges to other statutes designed to help deter crimes before they occur (and protect the public) by prohibiting loitering with a specific intent. (See e.g., Penal Code, Section 653(b) [loitering arounds schools without a lawful intent and increasing punishment if done by sex offender]; Penal Code Section 647 (h) [loitering upon the private property of another, at any time, without visible or lawful business with the owner or occupant"]; Health & Safety Code, Section 11532 [loitering with the intent to engage in drug-related activity].)

"Should this bill be amended to simply invalidate the prior convictions, CDAA would withdraw its opposition."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES:

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bonta, Jackson, Ortega, Santiago, Zbur

NO: Alanis, Lackey

ASSEMBLY FLOOR: 45-17-18

YES: Addis, Aguiar-Curry, Arambula, Bauer-Kahan, Bennett, Berman, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Ortega, Papan, Pellerin, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Santiago, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO: Alanis, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

ABS, ABST OR NV: Alvarez, Bains, Boerner, Chen, Gabriel, Grayson, Irwin, Muratsuchi, Stephanie Nguyen, Pacheco, Petrie-Norris, Ramos, Rodriguez, Blanca Rubio, Schiavo, Soria, Valencia, Villapudua

UPDATED

VERSION: July 3, 2023

CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0002389

 THIRD READING  

Bill No: AB 1726

Author: Kalra (D)

Amended: 7/3/23 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 3-1, 7/11/23

AYES: Bradford, Skinner, Wiener

NOES: Ochoa Bogh

NO VOTE RECORDED: Wahab

ASSEMBLY FLOOR: 45-17, 6/1/23 - See last page for vote

SUBJECT: Crimes: sentences

SOURCE: Decrim Sex Work Coalition

DIGEST:

This bill states that prior convictions for specified prostitution related-offenses that have since been repealed are presumed legally invalid because the conviction was sought, obtained, or imposed for specified unlawful reasons.

ANALYSIS:

Existing law:

1. Establishes the California Racial Justice Act which prohibits the state from seeking or obtaining a criminal conviction or seeking, obtaining or imposing a sentence on the basis of race, ethnicity, or national origin. (Pen. Code, § 745.)
2. Authorizes a person to file a motion to vacate a conviction or sentence because the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. (Pen. Code, § 1437.7.)
3. Provides that a person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. (Pen. Code, § 653.29, subd. (a)(1).)
4. States that upon receiving a petition for recall and resentencing, the court shall presume the petitioner satisfies the criteria unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not. If the petitioner satisfies the criteria, the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid and shall seal the conviction as legally invalid. (Pen. Code, § 653.29, subd. (a)(2).)
5. States that a person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is now legally invalid. (Pen. Code, § 653.29, subd. (b)(1).)
6. Provides that a conviction for a violation of Penal Code section 647f as it read on December 31, 2017, is invalid and vacated. (Pen. Code, § 1170.21.)
7. States that all charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individual’s arrest, charge, or conviction for violation of Section 647f shall not, without the individual’s consent, be used in any way adverse to their  interests, including, but not limited to, denial of any employment, benefit, license, or certificate. (Pen. Code, § 1170.21.)
8. Authorizes a person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. (Pen. Code, § 1170.22, subd. (a).)
9. Provides that if the court’s records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and resentence the person for any remaining counts. (Pen. Code, § 1170.22, subd. (b).)

This bill:

1. Provides that all convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:
   1. On the basis of race, ethnicity, or national origin in violation of the Racial Justice Act;
   2. Because it was imposed on a defendant who was acting under duress; or,
   3. Due to prejudicial error moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
2. Provides that all convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:
   1. On the basis of race, ethnicity, or national origin in violation of the Racial Justice Act;
   2. Because it was imposed on a defendant who was acting under duress; or,
   3. Due to prejudicial error moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.
3. Contains the following legislative declarations and findings:
   1. Former Penal Code section 653.22 was enforced in an arbitrary and discriminatory manner;
   2. For example, in the city of Los Angeles, Black adults comprised 56.1% of the charges, despite making up only 8.9% of the city’s population. Women accounted for 67.1% of all 653.22 charges;
   3. Likewise, vagueness of former Penal Code section 653.22 also led to a dismissal rate in Los Angeles County almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three section 653.22 cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence;
   4. Former Penal Code section 647f, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner;
   5. For example, women made up 45% of those who came into contact with the criminal justice system under former section 647f, but women are only 12% of the HIV-positive population in California;
   6. Likewise, Black and Latino people comprised two-thirds (68%) of the people who came into contact with the criminal justice system under former section 647f, although just over half (56%) of people living with HIV in California are Black and Latino;
   7. White men were also significantly more likely to be released and not charged under former section 647f. White men who were arrested for violating former section 647f were not charged in 70% of cases, while all other racial/ethnic groups were not charged in 39% to 47% of solicitation incidents; and,
   8. Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) to require that “[t]he state . . .not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (Pen. Code,1 § 745, subd. (a).)

Comments

According to the author of this bill:

Under federal law, deportation proceedings can still be based on a vacated conviction unless the vacatur is due to a legal defect in the underlying arrest or conviction. In cases where state law does not explicitly specify as such, non-citizens are inadvertently subjected to a two-tiered system where they unfairly face additional consequences for convictions based on outdated laws and are denied the relief they are entitled to. AB 1726 corrects this statutory oversight and ensures equal access to vacatur under Penal Code Sections 653.29, 1170.21, and 1170.22 by explicitly stating that convictions for former Penal Code sections 653.22 and 647f were legally invalid due to specified defects that existed at the time of the convictions.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 7/12/23)

Decrim Sex Work Coalition (source)

ACLU California Action

California Attorneys for Criminal Justice

California Public Defenders Association

Center for HIV Law and Policy

Drug Policy Alliance

Ella Baker Center for Human Rights

Equality California

Free Speech Coalition

GLIDE

Initiate Justice

Los Angeles LGBT Center

National Association of Social Workers, California Chapter

Sex Worker Outreach Project Behind Bars

The Gubbio Project

Together in Service

Woodhull Freedom Foundation

OPPOSITION: (Verified 7/12/23)

None received

ARGUMENTS IN SUPPORT: According to Ella Baker Center for Human Rights:

AB 1726 is a technical fix to last year’s SB 357 and 2017’s SB 239 to ensure that the record clearing provisions enacted by SB 357 and SB 239 also work for purposes of immigration relief. AB 1726 ensures that vulnerable immigrant populations can benefit from the reforms that resulted from repealing Penal Code sections 647f and 653.22. Many sex workers, particularly in California, are subject to brutal immigration enforcement and deportation for even minor criminal infractions.

The broad subjective nature of section California Penal Code § 653.22 created opportunities for law enforcement to engage in discriminatory policing that targeted Black and Brown women and members of the transgender community. Penal Code Section 647f was based on fear and limited medical science at the time and penalized sex workers who were living with HIV. SB 357 and SB 239 were attempts to solve these problems and created a process to clear the records for persons convicted of violating these penal code sections. However, the prior bills did not include the specific language needed to help persons who need to have a prior conviction cleared for immigration purposes despite the intention of both bills to provide relief for immigrants. For immigration purposes, a conviction must have been legally or procedurally defective at the time it was entered. AB 1726 simply adds language that would clarify that convictions for Penal Code sections 653.22 and 647f and were invalid from the beginning, thereby ensuring SB 357 and SB 239 protect all the Californians they were meant to protect.

ASSEMBLY FLOOR: 45-17, 6/1/23

AYES: Addis, Aguiar-Curry, Arambula, Bauer-Kahan, Bennett, Berman, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Garcia, Gipson, Haney, Hart, Holden, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Ortega, Papan, Pellerin, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Santiago, Ting, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Alanis, Megan Dahle, Davies, Dixon, Essayli, Flora, Vince Fong, Gallagher, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron, Wallis

NO VOTE RECORDED: Alvarez, Bains, Boerner, Chen, Gabriel, Grayson, Irwin, Muratsuchi, Stephanie Nguyen, Pacheco, Petrie-Norris, Ramos, Rodriguez, Blanca Rubio, Schiavo, Soria, Valencia, Villapudua

Prepared by: Stella Choe / PUB. S. /

8/7/23 13:32:20

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Aisha Wahab, Chair

2023 - 2024 Regular

Bill No: AB 1726 Hearing Date: July 11, 2023

Subject: Crimes: sentences

HISTORY

Source: Decrim Sex Work Coalition

Prior Legislation: SB 357 (Wiener), Chapter 86, Statutes of 2022

SB 239 (Wiener), Chapter 537, Statutes of 2017

Support: ACLU California Action; California Attorneys for Criminal Justice; California Public Defenders Association; Center for HIV Law and Policy; Drug Policy Alliance; Ella Baker Center for Human Rights; Equality California; Free Speech Coalition; GLIDE; Initiate Justice; Los Angeles LGBT Center; National Association of Social Workers, California Chapter; Sex Worker Outreach Project Behind Bars; The Gubbio Project; Together in Service; Woodhull Freedom Foundation

Opposition: None known

Assembly Floor Vote: 45 - 17

PURPOSE

The purpose of this bill is to declare that prior convictions for specified prostitution related-offenses that have since been repealed are presumed legally invalid because the conviction was sought, obtained, or imposed for specified unlawful reasons.

Existing law establishes the California Racial Justice Act which prohibits the state from seeking or obtaining a criminal conviction or seeking, obtaining or imposing a sentence on the basis of race, ethnicity, or national origin. (Pen. Code, § 745.)

Existing law authorizes a person to file a motion to vacate a conviction or sentence because the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. (Pen. Code, § 1437.7.)

Existing law provides that a person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. (Pen. Code, § 653.29, subd. (a)(1).)

Existing law states that upon receiving a petition for recall and resentencing, the court shall presume the petitioner satisfies the criteria unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not. If the petitioner satisfies the criteria, the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid and shall seal the conviction as legally invalid. (Pen. Code, § 653.29, subd. (a)(2).)

Existing law states that a person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is now legally invalid. (Pen. Code, § 653.29, subd. (b)(1).)

This bill additionally provides that all convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:

• On the basis of race, ethnicity, or national origin in violation of the Racial Justice Act;
• Because it was imposed on a defendant who was acting under duress;
• Due to prejudicial error moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.

Existing law provides that a conviction for a violation of Penal Code section 647f as it read on December 31, 2017, is invalid and vacated. (Pen. Code, § 1170.21.)

Existing law states that all charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not  arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individual’s arrest, charge, or conviction for violation of Section 647f shall not, without the individual’s consent, be used in any way adverse to their  interests, including, but not limited to, denial of any employment, benefit, license, or certificate. (Pen. Code, § 1170.21.)

Existing law authorizes a person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. (Pen. Code, § 1170.22, subd. (a).)

Existing law provides that if the court’s records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and resentence the person for any remaining counts. (Pen. Code, § 1170.22, subd. (b).)

This bill additionally provides that all convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:

• On the basis of race, ethnicity, or national origin in violation of the Racial Justice Act;
• Because it was imposed on a defendant who was acting under duress;
• Due to prejudicial error moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.

This bill contains the following legislative declarations and findings:

• Former Penal Code section 653.22 was enforced in an arbitrary and discriminatory manner.
• For example, in the city of Los Angeles, Black adults comprised 56.1% of the charges, despite making up only 8.9% of the city’s population. Women accounted for 67.1% of all 653.22 charges.
• Likewise, vagueness of former Penal Code section 653.22 also led to a dismissal rate in Los Angeles County almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three section 653.22 cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence.
• Former Penal Code section 647f, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner.
• For example, women made up 45% of those who came into contact with the criminal justice system under former section 647f, but women are only 12% of the HIV-positive population in California.
• Likewise, Black and Latino people comprised two-thirds (68%) of the people who came into contact with the criminal justice system under former section 647f, although just over half (56%) of people living with HIV in California are Black and Latino.
• White men were also significantly more likely to be released and not charged under former section 647f. White men who were arrested for violating former section 647f were not charged in 70% of cases, while all other racial/ethnic groups were not charged in 39% to 47% of solicitation incidents.
• Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 1) to require that “[t]he state . . .not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (Pen. Code,1 § 745, subd. (a).)

COMMENTS

1. Need for This Bill

According to the author of this bill:

Under federal law, deportation proceedings can still be based on a vacated conviction unless the vacatur is due to a legal defect in the underlying arrest or conviction. In cases where state law does not explicitly specify as such, non-citizens are inadvertently subjected to a two-tiered system where they unfairly face additional consequences for convictions based on outdated laws and are denied the relief they are entitled to. AB 1726 corrects this statutory oversight and ensures equal access to vacatur under Penal Code Sections 653.29, 1170.21, and 1170.22 by explicitly stating that convictions for former Penal Code sections 653.22 and 647f were legally invalid due to specified defects that existed at the time of the convictions.

1. Former Penal Code Section 653.22

The crime of loitering with the intent to commit prostitution was enacted in 1995 by AB 1035 (Katz). At the time, soliciting or agreeing to engage in prostitution was already a crime, however according to the Senate Committee’s analysis of the bill, the author and proponents of the bill expressed that the bill was needed because existing laws were ineffective at resulting in arrests of persons who were believed to be sex workers and the presence of such individuals add to crime and blight of their neighborhoods. According to the author’s statement provided in the analysis:

Prostitutes and drug dealers blatantly work on the streets in defiance of law enforcement. Prostitution and drug dealing adversely affect the safety, welfare, and health of our neighborhoods while hurting small businesses and decreasing property values. While it is usually quite obvious that prostitutes and drug dealers are conducting business, existing law has been ineffective in securing their arrest.

In order to be arrested, prostitutes must either solicit, accept, or engage in a sexual act for money. Drug dealers must be caught exchanging controlled substances for money. These criminals have become skilled in their operations -- they are familiar with undercover officers and know exactly what they can and cannot say to avoid arrest. They blatantly work the streets in defiance of law enforcement -- and add to the rampant crime and blight in some of our neighborhoods.

(Sen. Comm. on Crim. Procedure, Analysis of Assem. Bill No. 1035 (1995-1996 Reg. Sess.) as amended Apr. 6, 1995, p. d.) The committee analysis cites concerns by opponents of the bill that enacting the proposed crime of loitering with the intent to commit prostitution may allow police officers to make arrests with substantially less than probable cause that a crime has been or will be committed by providing broad discretion on what circumstances may satisfy the intent to commit prostitution which may lead to subjective and arbitrary arrests. (Id. at pp. i-j.)

SB 357 (Wiener), Chapter 86, Statutes of 2022 repealed Penal Code section 653.22 and related provisions of law and declared them to be invalid. According to this committee’s analysis of SB 357:

A study conducted in 2019 through the Los Angeles County Public Defender’s office compiled data from all of the charges of violations of Penal Code section 653.22 reported from the Compton Branch of the Public Defender’s office. During a one-week period of time, a total of 48 cases were reported. (Demeri, Policing of People in the Sex Trades in Compton: Analysis of Section 653.22 Clients, Law Offices of the Los Angeles County Public Defender (2019).)

The study found that the majority of arrests were made up of young Black women. 42.6 percent of arrests were for people aged 21-24 with the next highest rate being 23.4 percent for people aged 18-20. (Id. at p. 2.) As for race, 72.3 percent were Black with the next highest rate being 17 percent for Hispanic. (Id. at p. 4.)

The study shows that probable cause was most commonly established by the arrestee’s presence in an area known for sex work, their clothing, and motioning in a flirtatious manner to vehicles. (Id. at p. 14.) Other stated reasons for establishing probable cause for the arrest include possession of a cellphone, possession of cash, reacting to presence of police, giving conflicting information about activities, among many other stated reasons. (Ibid.)

(Sen. Comm. on Pub. Safety, Analysis of Sen. Bill No. 357 (2021-2022 Reg. Sess.) as amended Apr. 13, 2021, p. 5.)

This bill specifies that a prior conviction for former Penal Code section 653.22 is presumed legally invalid because the conviction was sought, obtained, or imposed for specified unlawful reasons.

1. Former Penal Code Section 647f

In the 1980’s several laws were passed in California that criminalized behaviors of people living with HIV or added penalties to existing crimes for those with HIV. These laws were based on fear and the limited medical science of the time. In 1988, when most of these laws were passed, there were no effective treatments for HIV and discrimination towards people living with HIV was extremely high. One of these laws, former Penal Code section 647f, punished the crime of prostitution or solicitation as a felony if the person was previously convicted of the same offense and was tested for HIV/AIDS with a positive result and the person knew of the result.

SB 239 (Wiener), Chapter 537, Statutes of 2017, reformed four HIV-specific criminal offenses including the repeal Penal Code section 647f, which was the most commonly enforced of the HIV-related laws. According to this Committee’s analysis of SB 239:

A 2015 report conducted by the Williams Institute of the University of California, Los Angeles, reviewed data on all law enforcement contacts for these HIV-related offenses and the general statute that criminalizes willful exposure to any communicable disease if it could be determined that the arrest was HIV related, from 1988 to 2014 in California. Of these crimes, the prostitution or solicitation offense was by far the most common reason for law enforcement contact making up about 94% of all of the contacts, or 1,113 people. The next most common offense was committing specified sex crimes which made up about 2% of all of the contacts, or 35 people. (Hasenbush, et al, HIV Criminalization in California, Williams Institute, UCLA School of Law (Dec. 2015) at 15.)

The report also looked at the demographics of the individuals who came in contact with the criminal justice system and found patterns that indicate that certain groups have been disproportionately affected by these laws. Black women, while only making up 4% of the population of people diagnosed with HIV in California, made up 21% of the population of people who had contact with the criminal justice system related to their HIV status. White women, while only making up 3% of the population of people diagnosed with HIV in California, made up 15% of the population of people who had contact with the criminal justice system related to their HIV status. By comparison, white men make up 40% of the population of people in California diagnosed with HIV, but only 16% of those who had contact with the criminal justice system related to their HIV status. (Id. at 17.)

(Sen. Comm. on Pub. Safety, Analysis of Sen. Bill No. 239 (2017-2018 Reg. Sess.) as amended Mar. 27, 2017, p. 6.)

This bill specifies that a prior conviction for former Penal Code section 647f is presumed legally invalid because the conviction was sought, obtained, or imposed for specified unlawful reasons.

1. Impact on Immigration

A criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes. In contrast, a conviction vacated on some grounds as legally invalid is eliminated as a source of adverse immigration consequences. (See Matter of Pickering (BIA 2003) 23 I&N Dec. 621, 622-623, reversed on other grounds in Pickering v. Gonzales (6th Cir. 2006) 454 F.3d 525; see also Pinho v. Gonzales (3d Cir. 2005) 432 F.3d 193, 195; Nath v. Gonzales (9th Cir. 2006) 467 F.3d 1185, 1189.)

When SB 357 (Wiener) of 2022 repealed the crime of loitering with the intent to commit prostitution, it also added a statute providing a procedure to obtain post-conviction relief. (Pen. Code, § 653.29.) That provision already specified that former convictions for loitering with intent to commit prostitution were “legally invalid.” (See Pen. Code, § 653.29, subds. (a)(2) & (b)(1).)

Similarly, when SB 239 (Wiener) of 2017 repealed the crime of prostitution or solicitation with a prior by a person who is HIV/AIDS positive, it added a post-conviction relief statute declaring these convictions “invalid and vacated.” (See Pen. Code, § 1170.21.)

This bill amends the existing sections of law that allow post-conviction relief for persons whose sentence included a conviction for one of the repealed laws by declaring that the prior convictions are presumed legally invalid because the conviction was sought, obtained, or imposed in violation of the Racial Justice Act; on a defendant who was acting under duress; or prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. The proponents of the bill state that this change is necessary because SB 239 and SB 357 did not include specific language needed to help persons whose prior convictions can be used against them for immigration purposes.

For immigration purposes, a vacated conviction must have been legally or procedurally defective at the time it was entered in order to no longer be used as a “conviction” against an individual. If the court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings, the criminal conviction remains for immigration purposes.

This bill specifies some of the reasons these prior convictions may be found legally invalid including statistics on arbitrary and discriminatory enforcement of these crimes as well as referencing the recent enactment of reforms to remove racial bias in the criminal justice system. The purpose of this language is to provide immigration practitioners with statutory authority, albeit not binding on federal immigration courts, that could be used to support an argument that there was a defect in the criminal proceedings that resulted in the underlying conviction for these crimes.

1. Argument in Support

According to Ella Baker Center for Human Rights:

AB 1726 is a technical fix to last year’s SB 357 and 2017’s SB 239 to ensure that the record clearing provisions enacted by SB 357 and SB 239 also work for purposes of immigration relief. AB 1726 ensures that vulnerable immigrant populations can benefit from the reforms that resulted from repealing Penal Code sections 647f and 653.22. Many sex workers, particularly in California, are subject to brutal immigration enforcement and deportation for even minor criminal infractions.

The broad subjective nature of section California Penal Code § 653.22 created opportunities for law enforcement to engage in discriminatory policing that targeted Black and Brown women and members of the transgender community. Penal Code Section 647f was based on fear and limited medical science at the time and penalized sex workers who were living with HIV. SB 357 and SB 239 were attempts to solve these problems and created a process to clear the records for persons convicted of violating these penal code sections. However, the prior bills did not include the specific language needed to help persons who need to have a prior conviction cleared for immigration purposes despite the intention of both bills to provide relief for immigrants. For immigration purposes, a conviction must have been legally or procedurally defective at the time it was entered. AB 1726 simply adds language that would clarify that convictions for Penal Code sections 653.22 and 647f and were invalid from the beginning, thereby ensuring SB 357 and SB 239 protect all the Californians they were meant to protect.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1726

Author:(Kalra)

As Amended Ver:April 13, 2023

Majority vote

SUMMARY

Declares all former convictions for loitering with the intent to commit prostitution and for prostitution with a prior conviction by a person who knew they had acquired immune deficiency syndrome (AIDS) legally invalid based on constitutional error.

Major Provisions

1. Provides that all convictions of former Penal Code Section 653.22 (loitering with the intent to commit prostitution) are defective due to constitutional error and are therefore legally invalid.
2. Provides that all convictions of former Penal Code Section 647(f) (prostitution or solicitation with a prior conviction of the same offense by a person who was HIV (human immunodeficiency virus)/AIDS (acquired immunodeficiency syndrome) positive), as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid.
3. Requires a court receiving a petition for recall and dismissal of these convictions to dismiss and seal them based on constitutional error and legal invalidity.

COMMENTS

Impacts on Immigration Law: The author's stated need for this bill is for purposes of immigration relief.

For purposes of immigration law, the reason for vacating a conviction is critical. A criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes. In contrast, a conviction vacated on some grounds as legally invalid is eliminated as a source of adverse immigration consequences. (See Matter of Pickering (BIA 2003) 23 I&N Dec. 621, 622-623, reversed on other grounds in Pickering v. Gonzales (6th Cir. 2006) 454 F.3d 525; see also Pinho v. Gonzales (3d Cir. 2005) 432 F.3d 193, 195; Nath v. Gonzales (9th Cir. 2006) 467 F.3d 1185, 1189.)

When SB 357 (Wiener) Chapter 86, Statutes of 2022 repealed the crime of loitering with the intent to commit prostitution, it also added a statute providing a procedure to obtain post-conviction relief. (Pen. Code, Section 653.29.) That provision already specified that former convictions for loitering with intent to commit prostitution were "legally invalid." (See Penal Code Sections 653.29(a)(2) and (b)(1).)

Similarly, when SB 239 (Wiener) Chapter 537, Statutes of 2017, repealed the crime of prostitution or solicitation with a prior by a person who is HIV/AIDS positive, it too added a post-conviction relief statute declaring these convictions "invalid and vacated." (See Penal Code Section 1170.21.)

Therefore, as to both of these former crimes, arguably this bill really only specifies the reasons for the legal invalidity since they were already declared invalid when repealed.

According to the Author

"Under federal law, deportation proceedings can still be based on a vacated conviction unless the vacatur is due to a legal defect in the underlying arrest or conviction. In cases where state law does not explicitly specify as such, non-citizens are inadvertently subjected to a two-tiered system where they unfairly face additional consequences for convictions based on outdated laws and are denied the relief they are entitled to. AB 1726 corrects this oversight and ensures equal access to vacatur under Penal Code Sections 653.29, 1170.21, and 1170.22 by clarifying that all convictions of former Penal Code Section 653.22 and 647f are defective due to vagueness and on equal protection grounds, respectively."

Arguments in Support

According to the California Public Defenders Association, "AB 1726 is a technical fix to last year's SB 357 and 2017's SB 239 to ensure that the record clearing provisions enacted by SB 357 and SB 239 also work for purposes of immigration relief. AB 1726 ensures that vulnerable immigrant populations can benefit from the reforms that resulted from repealing Penal Code sections 647f and 653.22. Many sex workers, particularly in California, are subject to brutal immigration enforcement and deportation for even minor criminal infractions. CPDA members have seen the unjust and disproportionate consequences suffered by our clients.

"Through the representation of our clients, CPDA members have seen how the subjective nature of California Penal Code Section 653.22 enabled law enforcement to engage in discriminatory policing that targeted Black and Brown women and members of the transgender community. Penal Code Section 647f was based on fear and limited medical science at the time and penalized sex workers who were living with HIV. SB 357 and SB 239 were attempts to solve these problems and created a process to clear the records for persons convicted of violating these penal code sections. However, the prior bills did not include the specific language needed to help persons who need to have a prior conviction cleared for immigration purposes despite the intention of both bills to provide relief for immigrants. For immigration purposes, a conviction must have been legally or procedurally defective at the time it was entered. AB 1726 simply adds language that would clarify that convictions for violating Penal Code sections 653.22 and 647f were invalid from the beginning, thereby ensuring SB 357 and SB 239 protect all Californians they were meant to protect."

Arguments in Opposition

According to the California District Attorneys Association (CDAA), "At this juncture, our opposition is solely based on the fact that there is case law expressly coming to the opposite conclusion regarding Penal Code Section 653.22 (see People v. Pulliam (1998) 62 Cal.App.4th 1430; see also People v. Superior Court (Caswell) (1988) 46 Cal.3d 381), and an apparent lack of any case law (either in California or other jurisdiction) that supports the idea that former section 647f was violative of equal protection.

"Moreover, the proposed amendment appears entirely unnecessary to accomplishing the goals of the statutes being amended. Courts can dismiss or grant relief to persons who have suffered convictions for these offenses just as well under the current language of the statute as under the proposed amended language. In such circumstances, it would set a bad precedent for the Legislature to bake into statute legal conclusions that are not supported by case law. Such language might be later misused by courts to support unwarranted challenges to other statutes designed to help deter crimes before they occur (and protect the public) by prohibiting loitering with a specific intent. (See e.g., Penal Code Section 653(b) [loitering arounds schools without a lawful intent and increasing punishment if done by sex offender]; Penal Code Section 647(h) [loitering upon the private property of another, at any time, without visible or lawful business with the owner or occupant"]; Health and Safety Code Section 11532 [loitering with the intent to engage in drug-related activity].)

"Should this bill be amended to simply invalidate the prior convictions, CDAA would withdraw its opposition."

FISCAL COMMENTS

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

VOTES

ASM PUBLIC SAFETY: 6-2-0

YES: Jones-Sawyer, Bonta, Jackson, Ortega, Santiago, Zbur

NO: Alanis, Lackey

UPDATED

VERSION: April 13, 2023

CONSULTANT: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0000205

Date of Hearing:

Chief Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1726

Author:(Kalra) – As Introduced Ver:February 17, 2023

As Proposed to be Amended in Committee

SUMMARY:

Declares all former convictions for loitering with the intent to commit prostitution and for prostitution with a prior conviction by a person who knew they had acquired immune deficiency syndrome (AIDS) legally invalid. Specifically, this bill:

1. Provides that all convictions of former Penal Code section 653.22 (loitering with the intent to commit prostitution) are defective due to constitutional error because they were void for vagueness at the time of arrest and conviction and are therefore legally invalid.
   
2. Provides that all convictions of former Penal Code section 647f (prostitution or solicitation with a prior conviction of the same offense by a person who was HIV/AIDS positive), as it read on December 31, 2017, are defective due to constitutional error because they were void on equal protection grounds at the time of arrest and conviction and are therefore legally invalid.
   
3. Requires a court receiving a petition for recall and dismissal of these convictions to dismiss and seal them based on constitutional error and legal invalidity.

EXISTING LAW:

1. Provides that a person who is currently serving a sentence for loitering with intent to commit prostitution may petition the court for a recall or dismissal of sentence. (Pen. Code, § 653.29, subd. (a).)
   
2. Provides that person who has completed their sentence for a conviction of loitering with intent to commit prostitution may file an application with the court to have the conviction dismissed and sealed. (Pen. Code, § 653.29, subd. (b).)
   
3. Provides that a conviction for a violation of Penal Code section 647f as it read on December 31, 2017, is invalid and vacated. (Pen. Code, § 1170.21.)
   
4. Allows an individual who was arrested, charged, or convicted for a violation of Section 647f (exposing another to HIV) to indicate in response to any question concerning the prior arrest, charge, or conviction that they were not arrested, charged, or convicted for that charge. (Pen. Code, § 1170.21.)
   
5. Provides post-conviction relief for persons convicted of exposing another to HIV. (Pen. Code, § 1170.22.)
   
6. Makes it a misdemeanor to solicit, agree to engage in, or engage in any act of prostitution with the intent to receive compensation, money, or anything of value from another person. (Pen. Code, § 647 subd. (b)(1).)
7. Makes it a misdemeanor to solicit, agree to engage in, or engage in, any act of prostitution with another person who is 18 years of age or older in exchange for the individual providing compensation, money, or anything of value to the other person. (Pen. Code, § 647, subd. (b)(2).)
   

FORMER LAW:

1. Made it a misdemeanor to loiter in a public place with the intent to commit prostitution. (Pen. Code §§ 653.22 and 653.26.)
   
2. Stated that among the circumstances that may be considered in determining whether a person loiters with intent to commit prostitution are that the person:
   
   1. Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution;
      
   2. Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution;
      
   3. Has been convicted of violating this section, or other offenses related or involving prostitution, within five years of the arrest under this section;
      
   4. Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution;
      
   5. Has engaged, within six months prior to the arrest under this section, in any behavior described in this subdivision or any other behavior indicative of prostitution activity. (Pen. Code, § 653.22, subd. (b).)
      
3. Stated that the circumstances set forth above were not exclusive, and that the circumstances should be considered particularly salient if they occurred in an area that is known for prostitution activity. (Pen. Code, § 653.22, subd. (c).)
4. Made a second conviction for prostitution or solicitation a felony, if the person was tested for HIV/AIDS with a positive result and the person knew of the result. (Pen. Code, § 647f.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Under federal law, deportation proceedings can still be based on a vacated conviction unless the vacatur is due to a legal defect in the underlying arrest or conviction. In cases where state law does not explicitly specify as such, non-citizens are inadvertently subjected to a two-tiered system where they unfairly face additional consequences for convictions based on outdated laws and are denied the relief they are entitled to. AB 1726 corrects this oversight and ensures equal access to vacatur under Penal Code Sections 653.29, 1170.21, and 1170.22 by clarifying that all convictions of former Penal Code Section 653.22 and 647f are defective due to vagueness and on equal protection grounds, respectively.”
   
2. Legislative History of Penal Code Section 653.22: The crime of loitering with the intent to commit prostitution (former Pen. Code, § 653.22) was enacted in 1995 by AB 1035 (Katz) Chapter 981, Statutes of 1995. At the time, soliciting or agreeing to engage in prostitution was already a crime. According to the Senate Committee’s analysis of AB 1035, the author and proponents of the bill expressed that the bill was needed because existing laws were ineffective at producing arrests of persons who were believed to be sex workers, and the presence of such individuals added to crime and blight to neighborhoods. According to the author’s statement provided in the analysis:

Prostitutes and drug dealers blatantly work on the streets in defiance of law enforcement. Prostitution and drug dealing adversely affect the safety, welfare, and health of our neighborhoods while hurting small businesses and decreasing property values. While it is usually quite obvious that prostitutes and drug dealers are conducting business, existing law has been ineffective in securing their arrest.

In order to be arrested, prostitutes must either solicit, accept, or engage in a sexual act for money. Drug dealers must be caught exchanging controlled substances for money. These criminals have become skilled in their operations -- they are familiar with undercover officers and know exactly what they can and cannot say to avoid arrest. They blatantly work the streets in defiance of law enforcement -- and add to the rampant crime and blight in some of our neighborhoods.

(Sen. Comm. on Crim. Procedure, Analysis of Assem. Bill No. 1035 (1995-1996 Reg. Sess.) as amended Apr. 6, 1995, p. d.) The committee analysis cited concerns by opponents of the bill that enacting the proposed crime of loitering with the intent to commit prostitution may allow police officers to make arrests with substantially less than probable cause that a crime has been or will be committed. AB 1035 provided broad discretion on what circumstances could satisfy the intent to commit prostitution, potentially leading to subjective and arbitrary arrests. (Id. at pp. i-j.)

A study conducted in 2019 through the Los Angeles County Public Defender’s office compiled data from all of the charges of violations of Penal Code section 653.22, loitering for purposes of prostitution, reported from the Compton Branch of the Public Defender’s office. During a one-week period of time, a total of 48 cases were reported. (D. Demeri, Policing of People in the Sex Trades in Compton: Analysis of Section 653.22 Clients, Law Offices of the Los Angeles County Public Defender (2019) https://www.zefflawfirm.com/wp-content/uploads/2021/11/Sex-Work-in-Compton-Report-Derek-Demeri.pdf [as of April 5, 2023].) The study found that the majority of arrests were made up of young Black women. 42.6 percent of arrests were for people aged 21-24 with the next highest rate being 23.4 percent for people aged 18-20. (Id. at p. 2.) As for race, 72.3 percent were Black with the next highest rate being 17 percent for Hispanic. (Id. at p. 4.)

SB 357 (Wiener), Chapter 86, Statutes of 2022, repealed those provisions of law and permitted persons who had been convicted of that offense to petition for a dismissal of the conviction and sealing of the record because the prior conviction was now invalid.

As introduced, this bill would declare that the reason those convictions were legally invalid is based on constitutional error, specifically on grounds of void for vagueness. As proposed to be amended in committee, this bill would not specify the specific constitutional error. Nevertheless, while the Legislature can repeal laws, traditionally it is the judicial branch that determines the constitutionality of laws. Does a general declaration by the Legislature that a law is unconstitutional raise a separation of powers issue?

1. Legislative History of Penal Code Section 647f: In the 1980’s several laws were passed in California that criminalized behaviors of people living with HIV or added penalties to existing crimes for those with HIV. These laws were based on fear and the limited medical science of the time. In 1988, when most of these laws were passed, there were no effective treatments for HIV and discrimination towards people living with HIV was extremely high. One of these laws, former Penal Code section 647f, punished the crime of prostitution or solicitation as a felony if the person was previously convicted of the same offense and was tested for HIV/AIDS with a positive result and the person knew of the result.
   
   A report conducted by the Williams Institute of the University of California, Los Angeles, reviewed data on all law enforcement contacts for HIV-related offenses in California spaning from 1988 to 2014. Of these crimes, the felony solicitation offense was by far the most common reason for law enforcement contact, making up about 94% of all of the contacts, or 1,113 people. (Hasenbush, et al., HIV Criminalization in California, Williams Institute, UCLA School of Law (June 2015) at pp. 14-15
   < https://williamsinstitute.law.ucla.edu/wp-content/uploads/HIV-Criminalization-California-Updated-June-2016.pdf> [as of April 5, 2023].) The report also looked at the demographics of the individuals who came in contact with the criminal justice system and found patterns that indicate that certain groups had been disproportionately affected by these laws. Black women, while only making up 4% of the population of people diagnosed with HIV in California, made up 21% of the population of people who had contact with the criminal justice system related to their HIV status. White women, while only making up 3% of the population of people diagnosed with HIV in California, made up 15% of the population of people who had contact with the criminal justice system related to their HIV status. By comparison, white men make up 40% of the population of people in California diagnosed with HIV, but only 16% of those who had contact with the criminal justice system related to their HIV status. (Id. at p. 17.)
   
   SB 239 (Wiener), Chapter 537, Statutes of 2017, repealed this provision of law, and other HIV criminalization laws, and declared them invalid.
   
   As introduced, this bill would state that the reason former Penal Code section 647f was invalid was that it was unconstitutional, specifically in violation of equal protection. As proposed to be amended this bill will just state that the former law is unconstitutional, but not state the specific grounds for the constitutional error. This declaration raises the same separation of powers question noted above.
   
2. Impacts on Immigration Law: As noted above, the author’s stated need for this bill is for purposes of immigration relief.
   
   For purposes of immigration law, the reason for vacating a conviction is critical. A criminal conviction vacated for stated rehabilitative purposes or the stated purpose to avoid immigration consequences remains a conviction for immigration purposes. In contrast, a conviction vacated on some grounds as legally invalid is eliminated as a source of adverse immigration consequences. (See Matter of Pickering (BIA 2003) 23 I&N Dec. 621, 622-623, reversed on other grounds in Pickering v. Gonzales (6th Cir. 2006) 454 F.3d 525; see also Pinho v. Gonzales (3d Cir. 2005) 432 F.3d 193, 195; Nath v. Gonzales (9th Cir. 2006) 467 F.3d 1185, 1189.)
   
   When SB 357 (Wiener) of 2022 repealed the crime of loitering with the intent to commit prostitution, it also added a statute providing a procedure to obtain post-conviction relief. (Pen. Code, § 653.29.) That provision already specified that former convictions for loitering with intent to commit prostitution were “legally invalid.” (See Pen. Code, § 653.29, subds. (a)(2) & (b)(1).)
   
   Similarly, when SB 239 (Wiener) of 2017 repealed the crime of prostitution or solicitation with a prior by a person who is HIV/AIDS positive, it too added a post-conviction relief statute declaring these convictions “invalid and vacated.” (See Pen. Code, § 1170.21.)
   
   Therefore, as to both of these former crimes, arguably this bill really only specifies the reasons for the legal invalidity since they were already declared invalid when repealed.
   
3. Argument in Support: According to the California Public Defenders Association, “AB 1726 is a technical fix to last year’s SB 357 and 2017’s SB 239 to ensure that the record clearing provisions enacted by SB 357 and SB 239 also work for purposes of immigration relief. AB 1726 ensures that vulnerable immigrant populations can benefit from the reforms that resulted from repealing Penal Code sections 647f and 653.22. Many sex workers, particularly in California, are subject to brutal immigration enforcement and deportation for even minor criminal infractions. CPDA members have seen the unjust and disproportionate consequences suffered by our clients.
   
   “Through the representation of our clients, CPDA members have seen how the subjective nature of California Penal Code § 653.22 enabled law enforcement to engage in discriminatory policing that targeted Black and Brown women and members of the transgender community. Penal Code Section 647f was based on fear and limited medical science at the time and penalized sex workers who were living with HIV. SB 357 and SB 239 were attempts to solve these problems and created a process to clear the records for persons convicted of violating these penal code sections. However, the prior bills did not include the specific language needed to help persons who need to have a prior conviction cleared for immigration purposes despite the intention of both bills to provide relief for immigrants. For immigration purposes, a conviction must have been legally or procedurally defective at the time it was entered. AB 1726 simply adds language that would clarify that convictions for violating Penal Code sections 653.22 and 647f were invalid from the beginning, thereby ensuring SB 357 and SB 239 protect all Californians they were meant to protect.”
   
4. Argument in Opposition: According to the California District Attorneys Association, “At this juncture, our opposition is solely based on the fact that there is case law expressly coming to the opposite conclusion regarding Penal Code section 653.22 (see People v. Pulliam (1998) 62 Cal.App.4th 1430; see also People v. Superior Court (Caswell) (1988) 46 Cal.3d 381), and an apparent lack of any case law (either in California or other jurisdiction) that supports the idea that former section 647f was violative of equal protection.
   
   “Moreover, the proposed amendment appears entirely unnecessary to accomplishing the goals of the statutes being amended. Courts can dismiss or grant relief to persons who have suffered convictions for these offenses just as well under the current language of the statute as under the proposed amended language. In such circumstances, it would set a bad precedent for the Legislature to bake into statute legal conclusions that are not supported by case law. Such language might be later misused by courts to support unwarranted challenges to other statutes designed to help deter crimes before they occur (and protect the public) by prohibiting loitering with a specific intent. (See e.g., Pen. Code, § 653(b) [loitering arounds schools without a lawful intent and increasing punishment if done by sex offender]; Penal Code § 647 (h) [loitering upon the private property of another, at any time, without visible or lawful business with the owner or occupant”]; Health & Saf. Code, § 11532 [loitering with the intent to engage in drug-related activity].)
   
   “Should this bill be amended to simply invalidate the prior convictions, CDAA would withdraw its opposition.”
   
5. Related Legislation: AB 1602 (Alvarez), would expand the crime of disorderly conduct to include attempts to engage in soliciting prostitution, attempts to agree to engage in prostitution, or attempts to engage in prostitution. AB 1602 is pending hearing in this committee.
   
6. Prior Legislation:
   
   1. SB 357 (Wiener), Chapter 86, Statutes of 2022, decriminalized the act of loitering with the intent to commit prostitution.
      
   2. SB 483 (Allen), Chapter 728, Statutes of 2021, declared sentence enhancements for prior prison or county jail felony terms and for prior convictions of specified crimes related to controlled substances legally invalid.
      
   3. SB 233 (Wiener), Chapter 141, Statutes of 2019, made condoms inadmissible as evidence in specified crimes relating to prostitution and prohibited the arrest of a person for misdemeanor drug possession or prostitution-related offenses when the person is reporting certain, more serious crimes
   4. AB 2243 (Friedman), Chapter 27, Statutes of 2018, prohibited the use of evidence that victims of, or witnesses to a violent felony as specified, extortion, or stalking, were engaged in an act of prostitution at or around the time they were the witness or victim to the crime.
   5. SB 239 (Wiener), Chapter 537, Statutes of 2017, repealed provisions of law that punished more harshly intentional transmission of a communicable disease when those acts were committed by a person who has been diagnosed with AIDS or HIV, and created a new misdemeanor for the intentional transmission of any infectious or communicable disease.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Best Practices Policy Project

California Attorneys for Criminal Justice

California Public Defenders Association

Ella Baker Center for Human Rights

Equality California

Erotic Service Providers Legal, Education, and Research Project

Initiate Justice

Oasis Legal Services

Sex Workers Outreach Project Sacramento

St. James Infirmary

The Gubbio Project

Opposition

California District Attorneys Association

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744