Existing law allows a person who was arrested or convicted of a nonviolent offense while they were a victim of intimate partner violence, or sexual violence, to petition the court, under penalty of perjury, for vacatur relief. Existing law requires, in order to receive that relief, that the petitioner establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of intimate partner violence or sexual violence that demonstrates the petitioner lacked the requisite intent. Existing law authorizes the court to vacate the conviction if it makes specified findings.

This bill would require the court, before it may vacate the conviction, to make findings regarding the impact on the public health, safety, and welfare, if the petitioner holds a license, as defined, and the offense is substantially related to the qualifications, functions, or duties of a licensee. The bill would require a petitioner who holds a license to serve the petition and supporting documentation on the applicable licensing entity and would give the licensing entity 45 days to respond to the petition for relief.

Date of Hearing:

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Nick Schultz, Chair

ABPCA Bill Id:AB 479

Author:(Tangipa) – As Introduced Ver:February 10, 2025

SUMMARY:

Requires a court considering a vacatur petition based on a defendant’s status as a victim of intimate partner or sexual violence to also consider whether the petitioner holds a professional license, as specified, when deciding whether vacatur is in the best interest of justice. Specifically, this bill:

1. Requires the court, before it may vacate the conviction, to make findings regarding the impact on the public health, safety, and welfare, if the petitioner holds a license, as defined, and the offense is substantially related to the qualifications, functions, or duties of a licensee.
   
2. Mandates if a petitioner holds a professional license, the petition and supporting documentation shall also be served on the applicable licensing entity and the licensing agency has 45 days to respond.

EXISTING LAW:

1. Allows a person arrested for or convicted of any nonviolent offense committed while they were a victim of human trafficking, including, but not limited to, prostitution, the person may petition the court for vacatur relief of their convictions, arrests, and adjudications under this section. (Pen. Code § 236.14, subd. (a).)
   
2. Authorizes a person who was arrested for or convicted of any nonviolent offense, as specified, committed while they were a victim of intimate partner violence or sexual violence, to petition the court for vacatur relief of their convictions and arrests. (Pen. Code, § 236.15, subd. (a).)
   
3. Mandates that, upon showing an arrest or conviction was the direct result of being a victim of intimate partner violence or sexual violence, the court shall find that the person lacked the requisite intent to commit the offense and therefore vacate the conviction as invalid due to legal defect at the time of the arrest or conviction. (Pen. Code, § 236.15, subd. (a).)
   
4. Provides that, after considering the totality of the evidence presented, the court may vacate the conviction and the arrest and issue an order if it finds all of the following:
   
   1. That the petitioner was a victim of intimate partner violence or sexual violence at the time of the alleged commission of qualifying crime;
      
   2. The arrest or conviction of the crime was a direct result of being a victim of intimate partner violence or sexual violence; and,
      
   3. It is in the best interest of justice. (Pen. Code, § 236.15, subd. (g).)
      
5. Requires the court, in issuing an order of vacatur, to do the following:
   
   1. Set forth a finding that the petitioner was a victim of intimate partner violence or sexual violence at the time of the alleged commission of the qualifying crime and therefore lacked the requisite intent to commit the offense.
      
   2. Set aside the arrest, finding of guilt, or the adjudication and dismiss the accusation or information against the petitioner as invalid due to a legal defect at the time of the arrest or conviction.
      
   3. Notify the Department of Justice that the petitioner was a victim of intimate partner violence or sexual violence when they committed the crime and of the relief that has been ordered. (Pen. Code, § 236.15, subd. (h)
      
6. Provides that, a petitioner who has obtained vacatur relief may lawfully deny or refuse to acknowledge the arrest, conviction, or adjudication that is set aside pursuant to the order. (Pen. Code, §§ 236.14, subd. (o); 236.15, subd. (o).)
   
7. Defines “vacate” to mean that the arrest and any adjudications or convictions suffered by the petitioner which are deemed not to have occurred and that all records in the case are sealed and destroyed. (Pen. Code, §§ 236.14, subd. (t)(2), 236.15, subd. (t)(2).)
   
8. Defines “nonviolent” to mean any offense not listed on the violent felonies list. (Pen. Code, §§ 236.14, subd. (t)(3); 236.15, subd. (t)(1).)
   
9. States that in any criminal proceeding against a person who has been issued a license to engage in a business or profession by a state agency, as specified, the state agency which issued the license may voluntarily appear to furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote the interests of justice and protect the interests of the public, or may be ordered by the court to do so, if the crime charged is substantially related to the qualifications, functions, or duties of a licensee. (Pen. Code, § 23, subd. (a).)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 479 enhances public safety by ensuring licensing boards are notified when individuals with serious convictions petition to clear their records. In a recent case, the Board of Registered Nursing was unable to voice concerns when a licensee with child pornography-related convictions had their charges vacated, potentially allowing them to work with vulnerable populations. This bill allows the courts to make fully informed decisions without substantially amending the process for victims. By providing judges with critical information, AB 479 helps prevent risks to public safety while maintaining a fair process.”
   
2. Vacatur for Intimate Partner and Sexual Violence Generally: Penal Code section 236.14 provides post-conviction relief to human trafficking victims by vacating nonviolent arrests, charges and convictions that were a direct result of human trafficking. Penal Code section 236.15 extends the same form of post-conviction relief to intimate partner violence and/or sexual violence victims by vacating nonviolent arrests, charges, and convictions that were a direct result of the intimate partner or sexual violence. Unlike an expungement, getting a conviction vacated effectively means that the conviction never occurred. “Vacate” means that the arrest and any adjudications or convictions suffered by the petitioner are deemed not to have occurred and that all records in the case are sealed and destroyed. (Pen. Code, §§ 236.14, subd. (t)(2), 236.15, subd. (t)(2).)

The purpose of these laws is to provide relief for individuals who have criminal records as a result of their exploitation, by vacating nonviolent criminal offenses that were committed by human trafficking victims at the behest of their traffickers. Vacatur under sections 236.14 and 236.15 requires showing by clear and convincing evidence, that the arrest or conviction was the direct result of human trafficking, intimate partner violence, and/or sexual violence and that the defendant lacked criminal intent to commit the underlying crime.

1. Penal Code section 23: Penal Code section 23 allows a licensing agency, as specified, to voluntarily appear at a court proceeding in order to furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote the interests of justice and protect the interests of the public, or may be ordered by the court to do so, if the crime charged is substantially related to the qualifications, functions, or duties of a licensee. This appears to be largely limited to probation conditions. (See generally, Gray v. Superior Court (2005) 125 Cal.App.4th 629, 643 [holding that Medical Board was not entitled to provide conditions of bail despite it being related to public safety.].)

This bill states that the court should consider the licensing entity’s position on vacatur if the conviction is substantially related to the license. According to the Board of Registered Nursing, the sponsor of the bill, a licensee was granted vacatur for possession of child pornography upending the Department of Consumer Affairs, Board of Registered Nursing’s (BRN) plans to de-certify the person so they could no longer work as a nurse.^[1] However, licensing is not relevant to determining whether a person should be granted vacatur. As noted above, vacatur is appropriate when a person does not have the requisite criminal intent to commit the crime because of the violence they suffered. It is akin to duress. The defense of duress negates an element of the crime charged. (People v. Heath (1989) 207 Cal. App. 3d 892, 900 [“To establish the defense, the defendant must show [they] acted under such immediate threat or menace that [they] reasonably believed [their] life would be endangered if [they] refused.”].)

Furthermore, vacatur requires, by a showing of clear and convincing evidence that a defendant did not have the requisite intent to commit the offense because of their status as a victim of sexual violence and/or intimate partner violence. A “clear and convincing” standard is not an easy standard to demonstrate. It requires evidence sufficient to show something is “highly and substantially more likely to be true than untrue. In other words, the fact finder must be convinced that the contention is highly probable.” (Colorado v. New Mexico (1984) 467 U.S. 310.) It seems really unlikely that the court would grant vacatur for possession of child pornography if there was not substantial reason to believe the defendant did have the intent to commit the crime. Therefore, allowing the licensing agency to argue to the court vacatur should be denied for reasons specific to their license undercuts the vacatur statute.

1. Seth Adam Hall litigation: As noted above, and according to moving papers filed by the Department of Justice and provided by the author, this bill is based on a grant of vacatur for a person convicted of possession of child pornography in violation of Penal Code section 311.11. Based on the conviction, on or about July 31, 2023, the BRN moved forward with license revocation of the defendant’s nursing license. However, on or about February 12, 2024, the trial court in defendant’s case granted vacatur on the ground the defendant was the victim of intimate or sexual violence and that he had made considerable efforts to distance himself from the actions for which the police found child pornography.

However, the full record was sealed possibly due to the explicit nature of the abuse suffered by defendant. As a result of vacatur, the BRN withdrew its attempt to revoke the defendant’s license. The court ordered the defendant’s counsel to notify the Department of Justice of its decision to vacate the defendant’s license. On or about November 5, 2024, the District Attorney and the BRN appealed to the Fourth District Court of Appeals. The appeal is still pending and presently in briefing status and on assignment.^[2] BRN alleges, inter alia, that it was entitled to notice and an opportunity to be heard pursuant to Penal Code section 23 before the court granted vacatur.

Also, as noted above, vacatur is based on a substantive defect in the conviction itself. It effectively stands for the proposition that the defendant was not capable of criminal intent as a direct result of significant violence. Based on the court records provided by the author, the notice of vacatur states,

“The petitioner…was a victim of intimate partner violence or sexual violence at the time the non-violence offense was committed. The commission of the crime was a direct result of being a victim of intimate partner violence or sexual violence. The victim was engaged in a good faith effort to distance himself from the perpetrator of the harm. It is in the best interest of the petitioner and in the interest of justice.”^[3]

Given this case is pending appellate review and the facts of vacatur are under seal, it makes more sense to wait for the court to makes its ruling before changing the law in this case. Additionally, licensing agencies have some burden to follow criminal cases that may impact licensure and provide input. BRN appears to have been aware of the arrest and conviction since it began disciplinary proceedings before vacatur. As noted by BRN, it may provide information to the court pursuant to Penal Code section 23.

Finally, the court appears to have had ample grounds to grant vacatur in this case given the serious nature of the underlying charge. This is exactly the type of relief the vacatur statute was designed to provide – victims who could not form the requisite intent to commit the underlying crime should not suffer a punitive impact as a direct result of the violence they suffered.

1. Other Grounds for Discipline: As a general matter, a person may face revocation of their professional license even where there is no conviction. The BRN Unprofessional Conduct, Substantial Relationship Criteria, Disciplinary Guidelines and Criteria for Rehabilitation states licensure may be suspended or revoked for “a crime, professional misconduct, or act shall be considered to be substantially related to the qualifications, functions, or duties of a [registered nurse], if to a substantial degree it evidences the present or potential unfitness of a person holding a license or certificate to perform the functions authorized and/or mandated by the license or certificate, or in a matter consistent with the public harm.” If there are facts sufficient to support license revocation, it may be characterized as “professional misconduct…” and discipline sought even without a conviction. (See Cal. Code Regs., tit. 16, § 1443.) Additionally, the professional rules make clear that a conviction, itself, is not the only factor the Board considers. In some cases, a person with a prior conviction may still be licensed or retain their license. (See Cal. Code Regs., tit. 16, § 1445.)

If the BRN is able to file an accusation and seek discipline without reference to a conviction, it is unclear whether they should be allowed to participate in a court proceeding where licensure is not relevant to whether the defendant had the requisite intent to commit the underlying crime.

1. Argument in Support: According to the Board of Registered Nursing: “As the sponsor of AB 479, the Board’s main goal is to ensure that when a trial court is considering a petition for vacatur under Penal Code Section 236.15, it has all the input necessary to make a fully informed decision. The bill would not impede or override the trial courts authority to grant a petition. It would simply require that a petitioner give notice to their licensing board, if they file a petition under Penal Code Section 236.15. This would allow the board an opportunity to appear and be heard on the petition before the trial court issues its decision, if the board believes there is a public protection concern.

“Unfortunately, last year a Board licensee was convicted of possessing a substantial amount of child pornography. As a result, the Board began pursuing disciplinary action against the individual’s license through the administrative court. Separately, the licensee petitioned the trial court to vacate their conviction under the provisions of Penal Code Section 236.15. However, the Board was not aware of the licensee’s petition and was not able to provide the trial court with any input prior to its ruling.

“The trial court ultimately granted the petition to vacate the conviction, which prohibited the Board from using the conviction or any related records as a basis for discipline in the administrative court. Consequently, the licensee can continue practicing unrestricted as a nurse, including with minor patients.

“The Board is not suggesting that an individual who possesses a professional license could never obtain a vacatur order under Penal Code Section 236.15. In many cases, the trial court may conclude that the best interest of justice would be served by vacatur, notwithstanding the licensing-related implications. The bill would simply ensure that the trial court consider whether vacatur would be inconsistent with public protection from a licensing context before making their ruling.”

1. Argument in Opposition: According to California Public Defenders Association: “AB 479 would amend Penal Code Section 236.15 (PC 236.15) to make it more difficult for victims of intimate partner violence or sexual violence to obtain vacatur relief for convictions that were the direct result of being a victim. AB 479 would add the additional requirement that vacatur relief would be “in the best interest of justice as described in subdivision (g).”

“AB 479 would potentially reduce expungement relief for victims of human trafficking of their past non-violent criminal records. This relief was enacted to enhance the futures of these Californians through increased access to employment, housing, and other future opportunities. By making this relief more difficult to attain, AB 479 would eliminate that hope without providing any correlative benefit.

“PC 236.15 relief applies only to nonviolent prior convictions, which already rules out a vast number of convictions. Adding another roadblock to relief simply doesn’t make sense.

CPDA members can attest to the misery that past records of conviction inflict upon our clients, and the difficulty in expunging the records of worthy reformed individuals. The existing requirement to obtain relief under PC 236.15 is:

“The petitioner shall establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of intimate partner violence or sexual violence that demonstrates that the person lacked the requisite intent to commit the offense.”

“This existing requirement of a showing by clear and convincing evidence is already a sufficiently high standard and in no way should be further complicated by the “best interest of justice” requirement proposed by AB 479. Victims of intimate partner violence and sexual violence have so many obstacles to overcome in their journey to become whole they do not need, yet another one placed in their way; which is all that AB 479 would do.”

1. Related Legislation:
   1. AB 633 (Krell), would expand vacatur relief to persons who were convicted of or arrested for any offense committed when they were under the age of 18 and while they were a victim of human trafficking. AB 633 is scheduled to be heard in this committee today.
      
   2. AB 938 (Bonta), would authorize vacatur relief for a person arrested or convicted of any offense and authorize relief for a person whose offense was related, rather than directly related, to being a victim of human trafficking, intimate partner violence, or sexual violence. AB 938 is scheduled to be heard in this committee today.

1. Prior Legislation:
   
   1. AB 124 (Kamlager), Chapter 124, Statutes of 2021 requires courts to consider whether specified trauma to the defendant or other circumstances contributed to the commission of the offense when making sentencing and resentencing determinations and to expand access to vacatur relief and the affirmative defense of coercion currently available to victims of human trafficking to victims of intimate partner violence and sexual violence.
      
   2. AB 2169 (Gipson), Chapter 776, Statutes of 2022 clarifies that vacatur relief for offenses committed while the petitioner was a victim of human trafficking, intimate partner violence, or sexual violence demonstrates that the petitioner lacked the requisite intent to commit the offense, and that the conviction is invalid due to legal defect.
      

REGISTERED SUPPORT / OPPOSITION:

Support

Board of Registered Nursing
California District Attorneys Association

Oppose

All of Us or None Los Angeles
Californians for Safety and Justice
Californians United for A Responsible Budget
East Bay Community Law Center
Ella Baker Center for Human Rights
Initiate Justice
Initiate Justice Action
Justice2jobs Coalition
LA Defensa
Legal Services for Prisoners With Children
Local 148 LA County Public Defenders Union
San Francisco Public Defender
Sister Warriors Freedom Coalition
Smart Justice California, a Project of Tides Advocacy
Universidad Popular
Vera Institute of Justice

Analysis Prepared by:

Kimberly Horiuchi / PUB. S. / (916) 319-3744

1. See People v. Seth Adam Hall, No. E083533, Appeal from an Order of the Superior Court of California, County of Riverside, March 20, 2024, pending before the Fourth District Court of Appeals, located at https://unicourt.com/case/ca-sca1-casebs6bfe570d112b-224166?init_S=c_relc#case-details ↑

2. https://unicourt.com/case/ca-sca1-casebs6bfe570d112b-224166?init_S=c_relc#dockets ↑

3. In the matter of Seth Adam Hall, Notice of Ruling in the Matter of the People of the State of California v. Seth Adam Hall (Riverside County Super Court Case No. INF 2202269 ↑