Existing law allows a person who was arrested or convicted of a nonviolent offense while they were a victim of human trafficking to petition the court, under penalty of perjury, for vacatur relief. To receive that relief, existing law requires that the person establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking, intimate partner violence, or sexual violence, which demonstrates that the person lacked the requisite intent to commit the offense. Existing law requires the court, under those circumstances, to find that the person lacked the requisite intent to commit the offense and to vacate the conviction as invalid due to legal defect at the time of the arrest or conviction. Existing law requires a court that issues an order for relief pursuant to these provisions to also order any law enforcement agency having jurisdiction over the offense to seal and destroy their records of the offense.

This bill would expand that relief to also be available for 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. Because this bill would authorize more petitions to be filed under penalty of perjury, by expanding the scope of the crime of perjury, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing:

Deputy Chief Counsel: Stella Choe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Nick Schultz, Chair

ABPCA Bill Id:AB 633

Author:(Krell) – As Introduced Ver:February 13, 2025

SUMMARY:

This bill would expand vacatur relief to apply to any offense for victims of human trafficking who were minors at the time of their offense.

EXISTING LAW:

1. Authorizes a person who was arrested for or convicted of any nonviolent offense, as defined, committed while they were a victim of human trafficking to petition the court for vacatur relief of their convictions, arrests, and adjudications. (Pen. Code, § 236.14, subd. (a).)
2. Requires a petitioner to establish by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking that demonstrates that the person lacked the requisite intent to commit the offense and upon such a showing, requires the court to find that the person lacked the requisite intent to commit the offense and vacate the conviction as invalid due to legal defect. (Pen. Code, § 236.14, subd. (a).)
3. Provides that the petition for relief shall be submitted under penalty of perjury and shall describe all of the available grounds and evidence that the petitioner was a victim of human trafficking and the arrest or conviction of a nonviolent offense was the direct result of being a victim of human trafficking. (Pen. Code, § 236.14, subd. (b).)
4. Authorizes a court, after considering the totality of the evidence presented, to vacate the conviction and arrests if it finds all of the following:
   1. The petitioner was a victim of human trafficking at the time of the alleged commission of the offense;
      
   2. The arrest for or conviction of the crime was a direct result of being a victim of human trafficking; and,
      
   3. It is in the best interests of justice. (Pen. Code, § 236.14, subd. (g).)
5. Authorizes the court, with the agreement of the petitioner and all of the involved state or local prosecutorial agencies, to consolidate into one hearing a petition with multiple convictions from different jurisdictions. (Pen. Code, § 236.14, subd. (e).)
6. States that an order of vacatur shall do all of the following:
   1. Set forth a finding that the petitioner was a victim of human trafficking 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 arrest or conviction; and,
   3. Notify the Department of Justice that the petitioner was a victim of human trafficking when they committed the crime and of the relief that has been ordered. (Pen. Code, § 236.14, subd. (h).)
7. States that a petitioner who was adjudicated as a minor for committing a qualifying nonviolent offense while they were a victim of human trafficking who establishes that the arrest or adjudication was the direct result of being a victim of human trafficking, is entitled to a rebuttable presumption that the requirements for relief have been met. (Pen. Code, § 236.14, subd. (i).)
8. Provides that if the court issues an order vacating the conviction or arrest, the court shall also order all of the following agencies to seal and destroy their records:
   1. Any law enforcement agency having jurisdiction over the offense;
      
   2. The Department of Justice;
      
   3. Any law enforcement agency that arrested the petitioner;
      
   4. Any law enforcement agency that participated in the arrest of the petitioner; and,
      
   5. Any law enforcement agency that has taken action or maintains records because of the offense, including, but not limited to, departments of probation, rehabilitation, corrections, and parole. (Pen. Code, § 236.14, subd. (k).)
9. States that a petition for vacatur shall be made and heard at any time after the person has ceased to be a victim of human trafficking or at any time the petitioner has sought services for being a victim of human trafficking, whichever occurs later, and provides that the right to petition for relief does not expire with the passage of time. (Pen. Code, § 236.14, subd. (l).)
10. Contains the following definitions:
    1. “Nonviolent offense” means any offense not listed in subdivision (c) of Section 667.5.
       
    2. “Vacate” means that the arrest and any adjudications or convictions suffered by the petitioner are deemed not to have occurred and that all records in the case are sealed and destroyed. (Pen. Code, § 236.14, subd. (t).)
11. Includes the following offenses within the definition of “violent felony”:
    1. Murder or voluntary manslaughter;
       
    2. Mayhem;
       
    3. Rape or spousal rape accomplished by means of force or threats of retaliation;
    4. Sodomy by force or fear of immediate bodily injury on the victim or another person;
       
    5. Oral copulation by force or fear of immediate bodily injury on the victim or another person;
       
    6. Lewd acts on a child under the age of 14 years, as defined;
       
    7. Any felony punishable by death or imprisonment in the state prison for life;
       
    8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified;
    9. Any robbery;
       
    10. Arson of a structure, forest land, or property that causes great bodily injury;
        
    11. Arson that causes an inhabited structure or property to burn;
        
    12. Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person;
        
    13. Attempted murder;
        
    14. Explosion or attempted explosion of a destructive device with the intent to commit murder;
        
    15. Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person;
        
    16. Explosion of a destructive device which causes death or great bodily injury;
    17. Kidnapping;
        
    18. Assault with intent to commit mayhem, rape, sodomy or oral copulation;
        
    19. Continuous sexual abuse of a child;
        
    20. Carjacking, as defined;
        
    21. Forcible rape or penetration of genital or anal openings by a foreign object;
        
    22. Felony extortion;
        
    23. Threats to victims or witnesses, as specified;
        
    24. First degree burglary, as defined, where it is proved that another person other than an accomplice, was present in the residence during the burglary;
        
    25. Use of a firearm during the commission of specified crimes;
        
    26. Possession, development, production, and transfers of weapons of mass destruction; and,
        
    27. Rape of an intoxicated person wherein it is pleaded and proved that the defendant caused the intoxication by administering a controlled substance to the victim with the intent to sexually assault them. (Pen. Code, § 667.5, subd. (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Thanks to decades of work by survivor leaders and advocates, California law recognizes the harsh realities of human trafficking and the need for a survivor centered approach by the legal system when addressing this crime. But before many of the reforms that are in place today went into effect, child victims were sometimes treated as criminals, prosecuted in the adult court system, and shuttled away to serve long sentences in state prison. My former client Keiana Aldrich is an example—she was pushed into sex trafficking as a child and then participated in a robbery to avoid being raped by a commercial sex buyer. At 17 years old, she was prosecuted as an adult and given a lengthy prison sentence. Although she was eventually resentenced and freed, she still carries the burden of a “strike” conviction, a barrier to housing and career options and a vestige of the trauma she experienced as a child. Trying to survive the most brutal of circumstances, child victims like Keiana have been forced to commit serious crimes and suffer lifelong consequences as a result.

“Justice would be best served by creating a pathway for these people to have a fresh start by clearing arrests and convictions for crimes they were forced to commit as children.”

1. Expansion of Vacatur Relief: Existing law authorizes vacatur relief for victims of human trafficking who have been arrested or convicted of nonviolent crimes. (Pen. Code, § 236.14.) A nonviolent crime is any offense that is not listed as a violent felony. (Pen. Code, § 236.14, subd. (t)(1).)

The law allows a person to file a petition with the court, under penalty of perjury, that establishes by clear and convincing evidence that the arrest or conviction was the direct result of being a victim of human trafficking. (Pen. Code, § 236.14, subd. (a).) The state or local prosecutorial agency shall have 45 days from the date of receipt of service to respond to the petition for relief. If the petition is opposed, then the court shall hold a hearing. (Pen. Code, § 236.14, subds. (c). If opposition is not filed by the applicable state or local prosecutorial agency, the court shall deem the petition unopposed and may grant the petition. (Pen. Code, § 236.14, subd. (d).) If opposition is filed, or if the court otherwise deems it necessary, the court shall schedule a hearing on the petition. (Pen. Code, § 236.14, subd. (f).)

If, after considering the totality of evidence presented, the court finds that the petitioner was a victim of human trafficking at the time, the arrest or conviction was a direct result of being a victim of human trafficking, and that it is in the best interest of justice, the court may vacate the conviction and arrests and issue an order reflecting the court’s determination. (Pen. Code, § 236.14, subds. (g)-(h).) The petitioner shall not be relieved of any financial restitution order that directly benefits the victim of the crime, unless it is already paid. (Pen. Code, § 236.14, subd. (i).) The term “vacate” for purposes of vacatur relief means “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. The court shall provide the petitioner with a copy of the orders and inform the petitioner that they may thereafter state that they were not arrested for, or adjudicated or convicted of, the charge that was vacated. (Pen. Code, § 236.14, subd. (t)(2).)

Petitioners, who were minors at the time of the offense who establish that the arrest or adjudication was the direct result of being a victim of human trafficking, are entitled to a rebuttable presumption that the requirements for relief have been met. (Pen. Code, § 236.14, subd. (i).)

This bill would allow a person to seek vacatur relief of a conviction and arrest for a violent felony if the petitioner was a minor at the time of the offense. Violent felonies generally involve some level of force or threats of violence and can range from robbery to murder. (Pen. Code, § 667.5.)

1. Duress and Coercion: A person who is forced to commit an illegal act may be excused of guilt for the crime. Under existing law, the affirmative defense of duress is available to defendants who commit a crime “under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.” (Pen. Code, § 26, subd. (6).) A threat of future harm is not sufficient; the danger to life must have been immediate. (CALCRIM No. 3402.) Duress is not a defense to murder, unless the charge is felony-murder in which duress can be used to negate the underlying felony. (Pen. Code, § 26; People v. Anderson (2002) 28 Cal.4th 767, 784.) The rationale behind allowing duress as a defense for any crime except murder is explained as follows:

The basic rationale behind allowing the defense of duress for other crimes "is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil (violate the criminal law) in order to avoid the greater evil threatened by the other person." (Fn. omitted.) This rationale, however, "is strained when a defendant is confronted with taking the life of an innocent third person in the face of a threat on his own life. . . . When the defendant commits murder under duress, the resulting harm--i.e. the death of an innocent person--is at least as great as the threatened harm--i.e. the death of the defendant." (People v. Anderson, supra, 28 Cal.4th at p. 772, citing U.S. v. LaFleur (1992) 971 F.2d 200, 205.)

The court must instruct the jury on the defense of duress when it is requested by the defendant and there is substantial evidence supporting the defense. (CALCRIM No. 3402.) Substantial evidence means evidence of a defense, which, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983.) If the prosecutor cannot prove beyond a reasonable doubt that the defendant did not act under duress, the jury must find the defendant not guilty of the underlying crime. (CALCRIM No. 3402.)

Existing law provides a separate affirmative defense to a crime if the defendant establishes by a preponderance of the evidence that they were “coerced to commit the offense as a direct result of being a human trafficking victim at the time of the offense and had a reasonable fear of harm.” (Pen. Code, § 263.23, subd. (a)-(b).) Similar to vacatur relief for victims of human trafficking, this defense does not apply violent felonies. (Pen. Code, § 263.23, subd. (a).) This defense may be asserted at any time prior to the entry of a guilty plea and before the conclusion of any trial for the offense. (Pen. Code, § 236.23, subd. (d).)

There is no requirement in the affirmative defense statute that “the accused act at the behest of the trafficker or that the trafficker be aware that the victim was planning or had committed a crime. Rather, the coercion suffered by the accused must result directly from his status as a victim. That coercion may, but need not, be provided directly by the trafficker.” (In re D.C. (2021) 60 Cal.App.5th 915, 920.) The statutes do “not require the trafficker to have direct involvement in, or even knowledge of, the minor's crime for the defense to apply.” (Id. at p. 921.) If the defendant prevails on the defense, the defendant is entitled to have the records related to the case sealed and to be generally released from all penalties and disabilities resulting from the charge. (Pen. Code, § 263.23, subd. (e).)

The specific affirmative defense for human trafficking victims was enacted in 2016. (AB 1761 (Weber) Ch. 636, Stats. 2016.) This was the same year that the Legislature enacted vacatur relief for victims of human trafficking. (SB 823 (Block), Chapter 650, Statutes of 2016.) A victim of human trafficking may have been able to raise the issue of duress at trial prior to the enactment of the specific coercion affirmative defense but the likelihood of success may have been less likely without Legislative intent to provide this specific avenue for victims. (See People v. Cross (2019) Cal.App.Unpub. LEXIS 1966 [three out of four convictions overturned for co-defendant who unsuccessfully raised duress as an affirmative defense because she was a victim of human trafficking].) For those who were not able to raise this defense or were unsuccessful in raising this defense, the vacatur avenue provides a way for that information to be considered post-conviction.

The rationale for leniency under the law provided by the affirmative defense and vacatur relief provisions for victims of human trafficking is the same – the person was coerced to commit a crime and thus should not be guilty of the crime. This concept is very similar to the defense of duress, however, as noted above, there is a long-standing legal principle making the defense of duress unavailable when a defendant is charged with murder.

This bill removes the exclusion of violent felonies, including murder, for vacatur relief for a human trafficking victim if they were a minor at the time of the offense and the offense was a direct result of their victimization. Allowing the use of vacatur relief based on the victim’s coercion to apply to any crime without limitation conflicts with the rationale behind the defense of duress. Specifically, that a person’s criminal liability for committing a crime should not be negated when the crime committed may be more serious than the harm that the person could face if they were to resist the coercion.

1. Retroactivity: Retroactivity^[1] means whether a change in sentencing or constitutional interpretation should be applied to cases where the penalty may already be imposed and appeals exhausted. As a general matter, Penal Code section 3 states “No part of it (meaning the codes) is retroactive, unless expressly so declared.” If retroactivity is not specified, the law is not applied retroactively. However, beginning in 1965, if a defendant’s case is still pending at the time of the change and the law seeks to lessen a criminal penalty, they may be eligible for application of the new law. (In re Estrada (1965) 63 Cal.2d 740, 746 (hereinafter “Estrada”).) This is known as the “final judgement rule.”

Estrada and other cases since 1965 have held “new laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final.” (People v. Conley (2016) 63 Cal.4th 646, 656, citing Estrada, 63 Cal.2d at 746).).

The Estrada presumption [of retroactivity] stems from our understanding that when the Legislature determines a lesser punishment is appropriate for a particular offense or class of people, it generally does not wish the previous, greater punishment—which it now deems too severe—to apply going forward. We presume the Legislature intends the reduced penalty to be used instead in all cases in which there is no judgment or a nonfinal one, and in which it is constitutionally permissible for the new law to control. (People v. Padilla (2022) 13 Cal.5th 152, 162, emphasis added.)

Finality is broadly construed by the courts, but generally means where a criminal proceeding has not yet reached final disposition in the highest court authorized to review it. (People v. Esquivel (2021) 11 Cal.5th 671, 677.)

Recently, we held that ‘a convicted defendant who [was] placed on probation after imposition of sentence [was] suspended, and who [did] not timely appeal from the order granting probation, [could] take advantage of ameliorative statutory amendments that [took] effect during a later appeal from a judgment revoking probation and imposing sentence.’ We reasoned that the defendant's “prosecution had not been ‘reduced to final judgment at the time the ameliorative legislation was enacted as the criminal proceeding … [meaning it] ha[d] not yet reached final disposition in the highest court authorized to review it (Internal citations omitted).” (People v. Esquivel, supra, 11 Cal.5th at 677, citing People v. McKenzie (2020) 9 Cal.5th 40, 43-45.)^[2]

Estrada’s inference of retroactivity has been applied when the Legislature creates “a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or to avoid punishment altogether.” (Burgos, supra in footnote, 16 Cal.5th at p. 13 citing People v. Frahs (2020) 9 Cal.5th 618, 624; see also People v. Wright (2006) 40 Cal.4th 81 [newly enacted affirmative defense applies retroactively].) This bill would mitigate the punishment for an offense that was committed by a victim of human trafficking who was a minor at the time of the offense, thus Estrada would apply the benefit of the change to the law retroactively to nonfinal cases without specific direction from the Legislature. Additionally, the existing vacatur statute already states that a petition for vacatur does not expire with the passage of time, thus it appears the Legislature has provided specific direction that the statute to apply retroactively.

1. Argument in Support: According to California Catholic Conference, “In California, a horrifying reality of our current legal system is that over 90% of human trafficking victims are criminalized while being trafficked. Survivors are often arrested and punished for crimes they were forced to commit by their traffickers. The criminalization of victims by California’s legal system leaves survivors without access to healing or crucial resources like housing, employment, and education. Instead, they are subjected to continued cycles of violence, homelessness, and poverty.

“Vacatur relief eliminates these barriers and spares survivors from having to explain their traumatic past when applying for a job, signing a lease, or volunteering at their kid’s Little League. AB 633 expands the protections under AB 124 so that all minors who have survived human trafficking have the chance to rebuild their lives and access the resources they need to heal from their trauma.”

1. Argument in Opposition: According to California District Attorneys Association: “Vacatur relief results in the sealing and destroying of records of the offense. We fear this proposal disregards the seriousness of serious and violent juvenile offenses and may undermine the ability of the justice system to hold repeat offenders accountable. Juvenile adjudications for serious and violent felonies are rightfully considered prior strikes if the offender was at least 16 years old and met specific criteria. These safeguards ensure that individuals who commit egregious crimes—such as murder, robbery, or other violent felonies are held accountable in subsequent convictions.

“Further, sealing of those records and preventing potential employers or state licensing boards access to the serious or violent felony convictions could place the community at risk of further violence.

“This bill ignores the reality that some juveniles commit extremely violent and premeditated crimes, even if the juvenile was a victim of human trafficking, that have lasting consequences for victims and communities.”

1. Related Legislation: AB 938 (Bonta) would, among other things, expand vacatur relief for victims of human trafficking, intimate partner violence and sexual violence to apply to any offense and authorize the affirmative defense of coercion for victims of human trafficking, intimate partner violence and sexual violence to apply to any crime. AB 938 is pending hearing by this committee.
2. Prior Legislation:
   1. AB 2534 (Bonta), of the 2023-2024 Legislative Session, would have, among other things, expanded vacatur relief for victims of human trafficking, intimate partner violence and sexual violence to apply to any offense. AB 2534 was held on the Assembly Committee on Appropriations’ Suspense File.
   2. AB 1497 (Haney), of the 2023-2024 Legislative Session, would have, among other things, expanded vacatur relief to violent felony offenses for victims of human trafficking, intimate partner violence, and sexual violence. AB 1497 was held on the Assembly Committee on Appropriations’ Suspense File.
   3. AB 2169 (Gipson), Chapter 776, Statutes of 2022, clarified 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.
      
   4. AB 124 (Kamlager), Chapter 695, Statutes of 2021, required courts to consider if specified trauma to a defendant and other factors contributed to the commission of an offense when making sentencing and resentencing determinations and expanded the affirmative defense of coercion for human trafficking victims and extended it and vacatur relief to victims of intimate partner violence and sexual violence.
      
   5. AB 262 (Patterson), Chapter 193, Statutes of 2021, provided that a person, when petitioning to vacate a non-violent conviction because the petitioner was a victim of human trafficking, to appear at the court hearings by counsel and removed time limitations to bring the petitions.
      
   6. AB 2868 (Patterson), of the 2019-2020 Legislative Session, would have provided additional legal rights in the judicial process when a victim of human trafficking petitions the court to vacate a conviction for a non-violent crime that was committed while the petitioner was a victim of human trafficking. AB 2868 was not heard in this committee.
      
   7. AB 2869 (Patterson), of the 2019-2020 Legislative Session, would have allowed a petitioner, on a petition to vacate a non-violent conviction because the petitioner was victim of human trafficking and the conviction that was a direct result of being a victim of human trafficking, to appear at the court hearings by counsel. AB 2869 was not heard in this committee.

• 1. SB 823 (Block), Chapter 650, Statutes of 2016, allowed a person arrested for or convicted of a non-violent crime while they were a human trafficking victim to apply to the court to vacate the conviction and seal and destroy records of arrest.
  2. AB 1761 (Weber), Chapter 636, Statutes of 2016, created an affirmative defense against a charge of a crime, other than a serious or violent crime or human trafficking, if the person was coerced to commit the offense as a direct result of being a human trafficking victim at the time of the offense and had reasonable fear of harm.
  3. AB 1762 (Campos) of the 2015-2016 Legislative Session, would have allowed a person convicted of a nonviolent crime while he or she was human trafficking victim to apply to the court to vacate the conviction upon a showing of clear and convincing evidence. AB 1762 was vetoed.
  4. AB 1585 (Alejo), Chapter 708, Statutes of 2014, provided that a defendant who has been convicted of solicitation or prostitution may petition the court to set aside the conviction if the defendant can establish by clear and convincing evidence that the conviction was the result of his or her status as a victim of human trafficking.
     

REGISTERED SUPPORT / OPPOSITION:

Support

California Alliance of Child and Family Services
California Catholic Conference

Oppose

Arcadia Police Officers' Association
Brea Police Association
Burbank Police Officers' Association
California Association of School Police Chiefs
California Coalition of School Safety Professionals
California District Attorneys Association
California Narcotic Officers' Association
California Reserve Peace Officers Association
Claremont Police Officers Association
Corona Police Officers Association
Culver City Police Officers' Association
Fullerton Police Officers' Association
Los Angeles School Police Management Association
Los Angeles School Police Officers Association
Murrieta Police Officers' Association
Newport Beach Police Association
Palos Verdes Police Officers Association
Placer County Deputy Sheriffs' Association
Pomona Police Officers' Association
Riverside Police Officers Association
Riverside Sheriffs' Association
Santa Ana Police Officers Association

Analysis Prepared by:

Stella Choe / PUB. S. / (916) 319-3744

1. The California Supreme Court in People v. Burgos (2024) 16 Cal.5th 1 ruled that a defendant was not eligible for a bifurcated trial on a gang enhancement pursuant to Penal Code section 1109, as enacted in 2021 (Stats. 2021, ch. 699, § 5.) The Court correctly rejected Estrada as applied to the defendant’s case because Penal Code section 1109 was not a criminal penalty reduction, but rather a “prophylactic rule of criminal procedure….” Accordingly, the general rule rejecting retroactivity unless otherwise specified by the statute controlled. In his concurrence, Justice Gorban asked the Legislature to consider the retroactive application of new laws, particularly where the statute is not a clear reduction of a criminal penalty, and to express their intent regarding whether any changes in that kind of legislation should be applied retroactively.

   ↑

2. See also Padilla, supra, 13 Cal.5th at 161 (holding that “non-final” includes any case remanded following a habeas petition.) ↑