Bill Text

Bill Information

PDF |Add To My Favorites |Track Bill | print page

SB-393 Arrests: sealing.(2017-2018)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 03/21/2017 04:00 AM
SB393:v98#DOCUMENT

Amended  IN  Senate  March 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 393


Introduced by Senators Lara and Mitchell

February 15, 2017


An act to add Section 851.867 to amend Section 1786.18 of the Civil Code, and to amend Sections 851.87, 851.90, 1000.4, and 1001.9 of, and to add Sections 851.91 and 851.92 to, the Penal Code, relating to arrests.


LEGISLATIVE COUNSEL'S DIGEST


SB 393, as amended, Lara. Arrests: expungement. sealing.

Existing law permits a defendant to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty if he or she has fulfilled the conditions of probation for the entire period of probation, has been discharged prior to the termination of the period of probation, has been convicted of a misdemeanor and not granted probation and has fully complied with and performed the sentence of the court, or has been sentenced to a county jail for a felony, or if a court, in its discretion and the interests of justice, determines that a defendant should be granted this or other specified relief. In either case, existing law releases the defendant from all penalties and disabilities resulting from the offense of which he or she has been convicted.

Existing law authorizes a person who was arrested and has successfully completed a prefiling diversion program, a person who has successfully completed a specified drug diversion program, and a person who has successfully completed a specified deferred entry of judgment program to petition the court to seal his or her arrest records. Existing law also specifies that, with regards to arrests that resulted in the defendant participating in certain other deferred entry of judgment programs, the arrest upon which the judgment was deferred shall be deemed not to have occurred.
This bill would also authorize a person who has suffered an arrest that did not result in a conviction to petition the court to have his or her arrest expunged. sealed. Under the bill, a person would be ineligible for this relief if he or she may still be charged with any offense upon which the arrest was based or if any of the arrest charges or charges in the accusatory pleading based on the arrest, if filed, is a charge of murder or any other offense for which there is no statute of limitations, except when the person has been acquitted or found factually innocent of the charge.
The bill would provide that a person who is eligible for expungement of to have his or her arrest sealed is entitled, as a matter of right, to that expungement sealing unless the person has been charged with certain crimes, including, among others, an offense or charge based on physical violence by the petitioner against another person, in which case the person may obtain expungement sealing of his or her arrest only upon a showing that the expungement sealing would serve the interests of justice. The bill would specify that the petitioner has the initial burden of proof that he or she is either entitled to expungement of have his or her arrest sealed as a matter of right or that expungement sealing would serve the interests of justice and, if the court finds that petitioner has satisfied his or her burden of proof, then the burden of proof shall shift to respondent prosecuting attorney.
The bill would require, if the petition is granted, the court to issue a written ruling and order that, among other things, states that the arrest is deemed not to have occurred and that, except as otherwise provided, the petitioner is released from all penalties and disabilities resulting from the arrest. The bill would prohibit prohibit, if an arrest is sealed pursuant to the above provisions or pursuant to the specified provisions of existing law that authorize the sealing of arrest records after successfully completing a prefiling diversion program, a specified drug diversion program, or a specified deferred entry of judgment program, or if an arrest is deemed to have never occurred after a defendant participates in certain other deferred entry of judgment programs, the disclosure of the expunged arrest, or information about the expunged arrest that is contained in other records, from being disclosed to the public, consumer reporting agencies, or any other person or entity, except as specified.
The bill would make it a misdemeanor to disclose information relating to an expunged arrest, as specified. The bill would subject a person who is not authorized to have access to information relating to an expunged arrest and who disseminates that information to civil liability for invading the privacy of the petitioner. subject a person to a civil penalty if he or she disseminates information relating to a sealed arrest unless he or she is specifically authorized to disseminate that information. Because this bill would create a new crime and impose new duties on local agencies, this bill would impose a state-mandated local program.

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

This bill would provide that, with regard to certain mandates, no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1786.18 of the Civil Code is amended to read:

1786.18.
 (a) Except as authorized under subdivision (b), an investigative consumer reporting agency may not make or furnish any investigative consumer report containing any of the following items of information:
(1) Bankruptcies that, from the date of the order for relief, antedate the report by more than 10 years.
(2) Suits that, from the date of filing, and satisfied judgments that, from the date of entry, antedate the report by more than seven years.
(3) Unsatisfied judgments that, from the date of entry, antedate the report by more than seven years.
(4) Unlawful detainer actions where the defendant was the prevailing party or where the action is resolved by settlement agreement.
(5) Paid tax liens that, from the date of payment, antedate the report by more than seven years.
(6) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years.
(7) Records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years. These items of information shall no longer be reported if at any time it is learned that, in the case of a conviction, a full pardon has been granted or, in the case of an arrest, indictment, information, or misdemeanor complaint, a conviction did not result; except that records of arrest, indictment, information, or misdemeanor complaints may be reported pending pronouncement of judgment on the particular subject matter of those records.
(8) Any other adverse information that antedates the report by more than seven years.
(b) The provisions of subdivision (a) are not applicable in either of the following circumstances:
(1) If the investigative consumer report is to be used in the underwriting of life insurance involving, or that may reasonably be expected to involve, an amount of two hundred fifty thousand dollars ($250,000) or more.
(2) If the investigative consumer report is to be used by an employer who is explicitly required by a governmental regulatory agency to check for records that are prohibited by subdivision (a) when the employer is reviewing a consumer’s qualification for employment.
(c) Except as otherwise provided in Section 1786.28, an investigative consumer reporting agency shall not furnish an investigative consumer report that includes information that is a matter of public record and that relates to an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment, unless the agency has verified the accuracy and completeness of the information during the 30-day period ending on the date on which the report is furnished. In the case of information relating to an arrest, the duty to verify the accuracy and completeness of the information includes the duty to inquire with either the trial court in each county or the Department of Justice on a weekly basis to determine which, if any, arrests have been sealed, as described in paragraph (4) of subdivision (b) of Section 851.92 of the Penal Code.
(d) An investigative consumer reporting agency shall not prepare or furnish an investigative consumer report on a consumer that contains information that is adverse to the interest of the consumer and that is obtained through a personal interview with a neighbor, friend, or associate of the consumer or with another person with whom the consumer is acquainted or who has knowledge of the item of information, unless either (1) the investigative consumer reporting agency has followed reasonable procedures to obtain confirmation of the information, from an additional source that has independent and direct knowledge of the information, or (2) the person interviewed is the best possible source of the information.

SEC. 2.

 Section 851.87 of the Penal Code is amended to read:

851.87.
 (a) (1) In any case where a person is arrested and successfully completes a prefiling diversion program administered by a prosecuting attorney in lieu of filing an accusatory pleading, the person may, two years after successful completion of the program as determined by the prosecuting attorney, may petition the superior court that would have had jurisdiction over the matter to issue an order to seal the records of the arresting agency and related court files and records, records pertaining to an arrest and the court may order those records sealed as described in Section 851.92 if the court finds that doing so will be in furtherance of justice. A copy of the petition shall be served on the law enforcement agency and the prosecuting attorney of the county or city having jurisdiction over the offense, who may request a hearing within 60 days of receipt of the petition. The court may hear the matter no less than 60 days from the date the law enforcement agency and the prosecuting attorney receive a copy of the petition. The prosecuting attorney and the law enforcement agency, through the prosecuting attorney, may present evidence to the court at the hearing.

(2)If the order is made, the clerk of the court shall thereafter not allow access to any records concerning the case, including the court file, index, register of actions, or other similar records.

(3)

(2) If the order is made, the court shall give a copy of the order to the person and inform the person that he or she may thereafter state that he or she was not arrested for the charge.

(4)

(3) The person may, except as specified in subdivisions (b), (c), and (d), (b) and (c), indicate in response to any question concerning the person’s prior criminal record that the person was not arrested.

(5)

(4) Subject to subdivisions (b), (c), and (d), (b) and (c), a record pertaining to the arrest shall not, without the person’s permission, be used in any way that could result in the denial of any employment, benefit, or certificate.

(6)A sealing order made pursuant to this subdivision shall not be forwarded to the Department of Justice to be included or notated in the department’s manual or electronic fingerprint image or criminal history record systems. Any sealing order made pursuant to this subdivision and received by the Department of Justice need not be processed by the department.

(b) The person shall be advised that, regardless of the person’s successful completion of the program, the arrest shall be disclosed by the Department of Justice in response to any peace officer application request, and that, notwithstanding subdivision (a), this section does not relieve the person of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.

(c)The person shall be advised that, regardless of the person’s successful completion of the program, the arrest shall be disclosed by the Department of Justice or the court in which the matter was heard in response to any subsequent inquiry by the district attorney, court, probation department, or counsel for the person concerning the person’s eligibility for any diversion program administered by a prosecuting attorney in the future.

(d)A sealing order made pursuant to this section shall not apply to any record or document received or maintained by the Department of Justice. Upon issuing the sealing order, the court shall advise the person that, notwithstanding the issuance of a sealing order pursuant to this section, the Department of Justice shall continue to be able to maintain and disseminate any records or documents received or maintained by the department, as authorized by law.

(c) The person shall be advised that an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

(e)

(d) As used in this section, “prefiling diversion” is a diversion from prosecution that is offered to a person by the prosecuting attorney in lieu of, or prior to, the filing of an accusatory pleading in court as set forth in Section 950.

SEC. 3.

 Section 851.90 of the Penal Code is amended to read:

851.90.
 (a) (1) Whenever a person is diverted pursuant to a drug diversion program administered by a superior court pursuant to Section 1000.5 or is admitted to a deferred entry of judgment program pursuant to Section 1000 or 1000.8, the person successfully completes the program, and it appears to the judge presiding at the hearing where the diverted charges are dismissed that the interests of justice would be served by sealing the records of the arresting agency and related court files and records with respect to the diverted person, pertaining to an arrest, the judge may order those records and files to be sealed, including any record of arrest or detention, sealed as described in Section 851.92, upon the written or oral motion of any party in the case, or upon the court’s own motion, and with notice to all parties in the case.

(2)If the order is made, the clerk of the court shall thereafter not allow access to any records concerning the case, including the court file, index, register of actions, or other similar records.

(3)

(2) If the order is made, the court shall give a copy of the order to the defendant and inform the defendant that he or she may thereafter state that he or she was not arrested for the charge.

(4)

(3) The defendant may, except as specified in subdivisions (b), (c), and (d), (b) and (c), indicate in response to any question concerning the defendant’s prior criminal record that the defendant was not arrested or granted statutorily authorized drug diversion or deferred entry of judgment for the offense.

(5)

(4) Subject to subdivisions (b), (c), and (d), (b) and (c), a record pertaining to an arrest resulting in the successful completion of a statutorily authorized drug diversion or deferred entry of judgment program shall not, without the defendant’s permission, be used in any way that could result in the denial of any employment, benefit, or certificate.

(6)Sealing orders made pursuant to this subdivision shall not be forwarded to the Department of Justice to be included or notated in the department’s manual or electronic fingerprint image or criminal history record systems. Any sealing order made pursuant to this subdivision and received by the Department of Justice need not be processed by the department.

(b) The defendant shall be advised that, regardless of the defendant’s successful completion of a statutorily authorized drug diversion or deferred entry of judgment program, the arrest upon which the case was based shall be disclosed by the Department of Justice in response to any peace officer application request, and that, notwithstanding subdivision (a), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The defendant shall be advised that, regardless of the defendant’s successful completion of a statutorily authorized drug diversion or deferred entry of judgment program, the arrest upon which the case was based shall be disclosed by the Department of Justice or the court in which the matter was heard in response to any subsequent inquiry by the district attorney, court, probation department, or counsel for the defendant concerning the defendant’s eligibility for any statutorily authorized drug diversion or deferred entry of judgment program in the future. an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

(d)A sealing order made pursuant to this section shall not apply to any record or document received or maintained by the Department of Justice; the court shall advise a defendant that, notwithstanding the issuance of a sealing order pursuant to this section, the Department of Justice shall continue to be able to maintain and disseminate any records or documents received or maintained by the department, as authorized by law.

SECTION 1.SEC. 4.

 Section 851.867 851.91 is added to the Penal Code, immediately following Section 851.90, to read:

851.867.851.91.
 (a) (1) (A) A person who has suffered an arrest that did not result in a conviction may petition the court to have his or her arrest expunged. and related records sealed, as described in Section 851.92.
(B) For purposes of this section, an arrest did not result in a conviction if any of the following are true:
(i) The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.
(ii) The prosecuting attorney filed an accusatory pleading based on the arrest, but no conviction occurred, all of the charges have been dismissed, and none of the charges may be refiled.
(iii) The prosecuting attorney filed an accusatory pleading based on the arrest, but no conviction occurred and the arrestee has been acquitted of all of the charges.
(iv) The prosecuting attorney filed an accusatory pleading based on the arrest, a conviction or convictions occurred, but all of the convictions have been vacated or reversed on appeal and none of the charges may be refiled.

(v)The prosecuting attorney filed an accusatory pleading based on the arrest, a conviction or convictions occurred, but the arrestee has been found factually innocent of all of the convictions.

(2) A person is not eligible for relief under this section in either of the following circumstances:
(A) He or she may still be charged with any of the offenses upon which the arrest was based.
(B) Any of the arrest charges, as specified by the law enforcement agency that conducted the arrest, or any of the charges in the accusatory pleading based on the arrest, if filed, is a charge of murder or any other offense for which there is no statute of limitations, except when the person has been acquitted or found factually innocent of the charge.
(b) (1) A petition for expungement of to seal an arrest shall:
(A) Be verified.
(B) Be filed in the court in which the accusatory pleading based on the arrest was filed or, if no accusatory pleading was filed, in a court with criminal jurisdiction in the city or county in which the arrest occurred.
(C) Be filed at least 15 days prior to the hearing on the petition.
(D) Be served, by copy, upon the prosecuting attorney of the city or county in which the arrest occurred and upon the law enforcement agency that made the arrest at least 15 days prior to the hearing on the petition.
(E) Include all of the following information:
(i) The petitioner’s name and date of birth.
(ii) The date of the arrest for which expungement sealing is sought.
(iii) The city and county where the arrest took place.
(iv) The law enforcement agency that made the arrest.
(v) Any other information identifying the arrest that is available from the law enforcement agency that conducted the arrest or from the court in which the accusatory pleading based on the arrest was filed, including, but not limited to, the case number for the police investigative report documenting the arrest, the name of the arresting officer, and the court number under which the arrest was reviewed by the prosecuting attorney or under which the prosecuting attorney filed an accusatory pleading and court proceedings were initiated.
(vi) The offenses upon which the arrest was based or, if an accusatory pleading was filed based on the arrest, the charges in the accusatory pleading.
(vii) Upon which basis identified in subparagraph (B) of paragraph (1) of subdivision (a) the petitioner is eligible for relief.
(viii) A statement that the petitioner is entitled to an expungement have his or her arrest sealed as a matter of right or, if the petitioner is requesting expungement to have his or her arrest sealed in the interests of justice, how the interests of justice would be served by granting the petition, accompanied by declarations made directly and verified by petitioner and the petitioner, his or her supporting declarants. declarants, or both.
(2) The court may deny a petition for failing to meet any of the requirements described in paragraph (1).
(c) (1) At a hearing on a petition under this section, the petitioner, the prosecuting attorney, and, through the prosecuting attorney, the law enforcement agency that made the arrest, may present evidence to the court. Notwithstanding Section 1538.5 or 1539, the hearing may be heard and determined upon declarations, affidavits, police investigative reports, copies of state summary criminal history information and local summary criminal history information, or any other evidence submitted by the parties that is material, relevant, and reliable.
(2) The petitioner has the initial burden of proof that he or she is entitled to expungement of have his or her arrest sealed as a matter of right or that expungement sealing would serve the interests of justice. If the court finds that petitioner has satisfied his or her burden of proof, then the burden of proof shall shift to respondent prosecuting attorney.
(3) The court shall not grant the petition unless the court finds that petitioner is entitled to relief as a matter of right or has proven that the interests of justice would be served by granting the petition.
(d) (1) A petitioner who is eligible for relief under subdivision (a) is entitled to expungement of have his or her arrest sealed as a matter of right unless he or she is subject to paragraph (2) or (3).
(2) (A) The petitioner may obtain expungement of have his or her arrest sealed only upon a showing that the expungement sealing would serve the interests of justice if any of the offenses upon which the arrest was based, as specified by the law enforcement agency that made the arrest, or, if an accusatory pleading was filed, any of the charges in the accusatory pleading, was one of the following:
(i) Domestic violence, if the petitioner’s record demonstrates a pattern of domestic violence arrests, convictions, or both.
(ii) Child abuse, if the petitioner’s record demonstrates a pattern of child abuse arrests, convictions, or both.
(iii) Elder abuse, if the petitioner’s record demonstrates a pattern of elder abuse arrests, convictions, or both.
(iv) An offense or charge based on physical violence by petitioner against another person.
(v) An offense or charge described in subparagraph (C) of paragraph (2) of subdivision (e) of Section 667, if the petitioner has been convicted, at any time before or after the arrest that is the subject of the petition, of a serious felony in this state or of any offense committed in another jurisdiction which would have been a serious felony if committed in this state.
(B) (i) The petitioner may show that the interests of justice would be served by granting his or her petition through the presentation of evidence.
(ii) If any of the offenses upon which the arrest was based, as specified by the law enforcement agency that made the arrest, or, if an accusatory pleading was filed, any of the charges in the accusatory pleading, was one of violence by petitioner against another person, the court shall provide meaningful opportunity for the prosecuting attorney to contact the victim and for the victim to respond to the petition. The court shall consider the victim’s response or, the circumstances surrounding the lack thereof, in determining whether the interests of justice would be served by granting the petition.
(3) If the court finds at the hearing that either of the following circumstances is true, the court shall deny the petition:
(A) That the arrest did not result in a conviction because the petitioner absconded from the jurisdiction in which the arrest took place.
(B) That the arrest did not result in a conviction because the petitioner engaged in identity fraud.
(e) If the court grants a petition pursuant to this section, the court shall do all of the following:
(1) Issue a written ruling to the petitioner stating that the record of arrest is expunged has been sealed as to petitioner, that the arrest is deemed not to have occurred, that petitioner may answer any question relating to the arrest accordingly, and that, except as provided in paragraph (3), the petitioner is released from all penalties and disabilities resulting from the arrest. The court shall give a copy of this written ruling to the petitioner, to the prosecuting attorney, to the law enforcement agency that made the arrest, and to the Department of Justice.
(2) Issue an order of expungement of arrest to seal the arrest as described in Section 851.92 to the Department of Justice, to the law enforcement agency that made the arrest, to any other law enforcement agency that participated in the arrest, and to the law enforcement agency that administers the master local summary criminal history information that contains the arrest record for the arrest that is the subject of the petition. The court shall give a copy of this order to the petitioner, to the prosecuting attorney, and to any law enforcement agency to which the order is issued.
(3) The ruling and order shall state all of the following:
(A) The expunged sealed arrest may be pleaded and proved in any subsequent prosecution of the petitioner for any other offense, and shall have the same effect as if it had not been expunged. sealed.
(B) The expungement sealing of an arrest pursuant to this section does not relieve the petitioner of the obligation to disclose the arrest, if otherwise required by law, in response to any direct question contained in a questionnaire or application for public office, for employment as a peace officer, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.
(C) The expungement sealing of an arrest pursuant to this section does not affect petitioner’s authorization to own, possess, or have in his or her custody or control any firearm, or his or her susceptibility to conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6, if the arrest would otherwise affect this authorization or susceptibility.
(D) The expungement sealing of an arrest pursuant to this section does not affect any prohibition from holding public office that would otherwise apply under law as a result of the arrest.

(f)(1)(A)After the court has issued the order described in subdivision (e), the local summary criminal history information and the state summary criminal history information shall include a note in the arrest record for the arrest that was the subject of the petition that the arrest was expunged, the date that the court issued the order, and that the arrest was expunged pursuant to the provisions of this section. The responsible local law enforcement agency and the Department of Justice shall ensure that all master copies of the arrest record contain this note.

(B)The expunged arrest, or information about an expunged arrest that is contained in other records, shall not be disclosed to the public, consumer reporting agencies, or any other person or entity except the petitioner or a criminal justice agency requiring the information or records in the course of its duties.

(C)An agency receiving an inquiry regarding the arrest from the public, a consumer reporting agency, or any person or entity except the petitioner or a criminal justice agency requiring the records in the course of its duties shall respond in one of the following ways:

(i)With a verbal statement that the arrest has been expunged and that no further information is available.

(ii)By providing a written notice that the arrest has been expunged pursuant to this section and that any records of the arrest in the possession of, or obtained from, a consumer reporting agency for the purpose of providing or obtaining background checks on the petitioner shall be destroyed and that the failure to destroy the records may subject the consumer reporting agency to criminal and civil liability.

(D)A criminal justice agency may continue to access and use information relating to an expunged arrest.

(2)(A)A law enforcement investigative report related to the arrest that was the subject of the petition shall, as to the petitioner only, be stamped “ARREST EXPUNGED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR,” and noting next to the stamp the date of the expungement and that the arrest was expunged pursuant to the provisions of this section. The responsible local law enforcement agency shall ensure that all digital or master copies of the arrest record for the arrest that was the subject of the petition contain this note.

(B)A criminal justice agency may continue to access and use information in a law enforcement investigative report related to an expunged arrest.

(3)(A)A consumer reporting agency shall inquire with either the trial court in each county or the Department of Justice on a weekly basis to determine which, if any, arrests have been expunged. When a consumer reporting agency learns that a consumer for which it has a record has had an arrest expunged, the consumer reporting agency shall delete all records in its possession relating to the arrest, shall cease to pursue, store, or disseminate any information relating to the arrest, except that it shall notify any person to which it previously provided information relating to the arrest that the arrest has been expunged, is deemed not to have occurred, and that the arrestee has been released from all penalties or disabilities arising therefrom, except as otherwise specified in paragraph (3) of subdivision (e).

(B)Notwithstanding subparagraphs (B) and (C) of paragraph (1), the trial court and the Department of Justice shall provide information relating to an expunged arrest to consumer reporting agencies for the purpose of complying with this paragraph.

(4)For the purposes of this subdivision, a “consumer reporting agency” includes an investigative consumer reporting agency, as defined in Section 1786.2 of the Civil Code, and a consumer credit reporting agency, as defined in Section 1785.3 of the Civil Code.

(g)(1)Every person who is authorized to have access to information relating to an expunged arrest who disseminates information relating to an expunged arrest to a person who is not authorized to receive that information is guilty of a misdemeanor.

(2)(A)Every person who is not authorized to have access to information relating to an expunged arrest who disseminates that information is guilty of a misdemeanor.

(B)Every person who is not authorized to have access to information relating to an expunged arrest who disseminates that information is subject to civil liability for invading the privacy of the petitioner. In a successful action brought under this subparagraph, the petitioner, in addition to any special or general damages awarded, shall be awarded a minimum of two thousand five hundred dollars ($2,500) in exemplary damages, attorney’s fees, and any other litigation costs reasonably incurred in the suit. The right, remedy, and cause of action set forth in this section shall be nonexclusive and is in addition to all other rights, remedies, and causes of action for invasion of privacy.

(h)The Department of Justice shall furnish forms to be utilized by a person applying for expungement of an arrest pursuant to this section.

SEC. 2.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

SEC. 5.

 Section 851.92 is added to the Penal Code, to read:

851.92.
 (a) This section applies when an arrest record is sealed pursuant to Sections 851.87, 851.90, 851.91, 1000.4, and 1001.9.
(b) After the court has issued an order to seal an arrest, the sealing shall be accomplished as follows:
(1) (A) The local summary criminal history information and the state summary criminal history information shall include a note in the arrest record for the arrest that was the subject of the petition to seal the arrest, the date that the court issued the order, and the section pursuant to which the arrest was sealed. The responsible local law enforcement agency and the Department of Justice shall ensure that all master copies of the arrest record contain this note.
(B) The sealed arrest, or information about a sealed arrest that is contained in other records, shall not be disclosed to the public, consumer reporting agencies, or any other person or entity except the petitioner or a criminal justice agency.
(C) A criminal justice agency receiving an inquiry regarding the arrest from the public, a consumer reporting agency, or any person or entity except the petitioner or a criminal justice agency shall respond in the following ways:
(i) With a verbal statement that the arrest has been sealed and that no further information is available.
(ii) By providing a written notice that the arrest has been sealed, the section pursuant to which the arrest was sealed, and that any records of the arrest in the possession of, or obtained from, a consumer reporting agency for the purpose of providing or obtaining background checks on the petitioner shall be destroyed and that the failure to destroy the records may subject the consumer reporting agency to criminal and civil liability.
(D) A criminal justice agency may continue to access and use a sealed arrest record and information relating to a sealed arrest, as permitted by law.
(2) (A) A police investigative report related to the sealed arrest shall, as to the petitioner only, be stamped “ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR,” and shall note next to the stamp the date the arrest was sealed and the section pursuant to which the arrest was sealed. The responsible local law enforcement agency shall ensure that all digital or master copies of the arrest record for the arrest that was the subject of the petition contain this note.
(B) A criminal justice agency may continue to access and use information in a sealed police investigative report.
(3) (A) Court records related to the sealed arrest shall, as to the petitioner only, be stamped “RECORD SEALED: DO NOT RELEASE OUTSIDE OF THE CRIMINAL JUSTICE SECTOR,” and shall note next to the stamp the date of the sealing and the section pursuant to which the arrest was sealed.
(B) The sealed arrest, or information about a sealed arrest that is contained in other court records, shall not be disclosed to the public, consumer reporting agencies, or any other person or entity except the petitioner or a criminal justice agency.
(C) A court receiving an inquiry regarding the sealed arrest from the public, a consumer reporting agency, or any person or entity except the petitioner or a criminal justice agency shall respond in the following ways:
(i) With a verbal statement that the arrest has been sealed and that no further information is available.
(ii) By providing a written notice that the arrest has been sealed, the section pursuant to which the arrest was sealed, and that any records of the arrest in the possession of, or obtained from, a consumer reporting agency for the purpose of providing or obtaining background checks on the petitioner shall be destroyed and that the failure to destroy the records may subject the consumer reporting agency to criminal and civil liability.
(D) A criminal justice agency may continue to access and use court records sealed pursuant to this paragraph, and information in court records related to a sealed arrest as permitted by law.
(4) (A) A consumer reporting agency shall inquire with either the trial court in each county or the Department of Justice on a weekly basis to determine which, if any, arrests have been sealed. When a consumer reporting agency learns that a consumer for which it has a record has had an arrest sealed, either by inquiring with a trial court or Department of Justice or because the petitioner sent a copy of the court order to the consumer reporting agency, the consumer reporting agency shall delete all records in its possession relating to the arrest, shall cease to pursue, store, or disseminate any information relating to the arrest, except that it shall notify any person or entity to which it previously provided information relating to the arrest that the arrest has been sealed and is deemed not to have occurred.
(B) Notwithstanding paragraphs (1) and (3), the trial court and the Department of Justice shall provide information relating to a sealed arrest to consumer reporting agencies for the purpose of complying with this paragraph.
(c) Unless specifically authorized by this section, a person who disseminates information relating to a sealed arrest is subject to a civil penalty of not less than five hundred dollars ($500) and not more than two thousand five hundred dollars ($2,500) per violation. The civil penalty may be enforced by a city attorney, district attorney, or the Attorney General. This subdivision does not limit any existing private right of action.
(d) The Department of Justice shall furnish forms to be utilized by a person applying to have his or her arrest sealed pursuant to this section.
(e) As used in this section and Sections 851.87, 851.90, 851.91, 1000.4, and 1001.9, all of the following terms have the following meanings:
(1) “Arrest record” and “record pertaining to an arrest” mean information about the arrest or detention that is contained in either of the following:
(A) The master, or a copy of the master, local summary criminal history information, as defined in subdivision (a) of Section 13300.
(B) The master, or a copy of the master, state summary criminal history information as defined in subparagraph (A) of paragraph (2) of subdivision (a) of Section 11105.
(2) “Consumer reporting agency” means a person or entity that is not a criminal justice agency that provides background screening services or criminal history information on identified individuals to the public or a criminal justice agency or that aggregates into databases, which are not created or maintained by a criminal justice agency, criminal history information on identified individuals that are open to the public or to a criminal justice agency. For the purposes of this paragraph, a consumer reporting agency includes an investigative consumer reporting agency, as defined in Section 1786.2 of the Civil Code, and a consumer credit reporting agency, as defined in Section 1785.3 of the Civil Code.
(3) “Court records” means records, files, and materials created, compiled, or maintained by or for the court in relation to court proceedings, and includes, but is not limited to, indexes, registers of actions, court minutes, court orders, court filings, court exhibits, court progress and status reports, court history summaries, copies of state summary criminal history information and local summary criminal history information, and any other criminal history information contained in any of those materials.
(4) “Criminal justice agency” means an agency at any level of government that performs, as its principal function, activities relating to the apprehension, prosecution, defense, adjudication, incarceration, or correction of criminal suspects and criminal offenders. A criminal justice agency includes, but is not limited to, any of the following:
(A) A court of this state.
(B) A peace officer, as defined in Section 830.1, subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section 830.3, subdivision (a) of Section 830.31, and subdivisions (a) and (b) of Section 830.5.
(C) A district attorney.
(D) A prosecuting city attorney.
(E) A city attorney pursuing civil gang injunctions pursuant to Section 186.22a or drug abatement actions pursuant to Section 3479 or 3480 of the Civil Code or Section 11571 of the Health and Safety Code.
(F) A probation officer.
(G) A parole officer.
(H) A public defender or an attorney representing a person in proceeding described in Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3.
(I) A public defender or an attorney representing a person in a criminal proceeding or a proceeding to revoke parole, mandatory supervision, or postrelease community supervision.
(J) A correctional officer.
(5) “Police investigative report” means intelligence, analytical, and investigative reports and files created, compiled, and maintained by a law enforcement criminal justice agency and relating to a potential crime, violation of the law, arrest, detention, prosecution, or law enforcement investigation.

SEC. 6.

 Section 1000.4 of the Penal Code is amended to read:

1000.4.
 (a) Any record filed with the Department of Justice shall indicate the disposition in those cases deferred pursuant to this chapter. Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred. occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment for the offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a deferred entry of judgment program shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(b) The defendant shall be advised that, regardless of his or her successful completion of the deferred entry of judgment program, the arrest upon which the judgment was deferred may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The defendant shall be advised that, regardless of the defendant’s successful completion of a deferred entry of judgment program, an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

SEC. 7.

 Section 1001.9 of the Penal Code is amended to read:

1001.9.
 (a) Any record filed with the Department of Justice shall indicate the disposition in those cases diverted pursuant to this chapter. Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed to have never occurred. occurred and the court may issue an order to seal the records pertaining to the arrest as described in Section 851.92. The divertee may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.
(b) The divertee shall be advised that, regardless of his or her successful completion of diversion, the arrest upon which the diversion was based may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
(c) The divertee shall be advised that, regardless of the defendant’s successful completion of a deferred entry of judgment program, an order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

SEC. 8.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.