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AB-2845 Criminal procedure: pardons.(2017-2018)

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Date Published: 04/12/2018 09:00 PM
AB2845:v97#DOCUMENT

Amended  IN  Assembly  April 12, 2018
Amended  IN  Assembly  April 03, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2845


Introduced by Assembly Member Bonta

February 16, 2018


An act to amend Section 12952 of the Government Code, and to amend Sections 4802, 4803, 4810, 4812, 4813, 4850, 4851, 4852.06, 4852.14, and 4852.18 of, and to add Section 4802.5 to, the Penal Code, relating to pardons.


LEGISLATIVE COUNSEL'S DIGEST


AB 2845, as amended, Bonta. Criminal procedure: pardons.
The general authority to grant reprieves, pardons, and commutations of sentence is conferred upon the Governor by Section 8 of Article V of the Constitution of the State of California. Existing law establishes the procedure for application for a pardon. Existing law authorizes the Board of Parole Hearings to recommend to the Governor persons imprisoned in the state prison system who, in their judgment, ought to be pardoned.
Existing law also authorizes a person formerly convicted of a crime to file a petition with the Supreme Court superior court for a certificate of rehabilitation. Existing law authorizes the court to review that application and issue a certificate of rehabilitation, as specified. Existing law requires any certificate of rehabilitation issued by the court to be forwarded to the Governor for consideration of a full pardon.
Existing law also authorizes a person twice convicted of a felony to apply directly to the governor for a pardon. Existing law defines the effect of a full pardon.
Existing law requires the Board of Parole Hearings to review applications for pardons and commutations forwarded to the board by the Governor, and to make a recommendation to the Governor.
This bill would create the Pardon and Commutation Panel. This bill would authorize the Governor to appoint members to the panel and would prescribe the qualifications and terms of panel members. The bill would reassign all powers and duties of the Board of Parole Hearings that are related to pardons and commutations to the panel, except for the ability of the Board of Parole Hearings to recommend candidates for pardon or commutation to the Governor.
This bill would require the panel to meet monthly to review applications and make recommendations. The bill would require the panel to provide an expedited review and application process for an individual with a pending deportation hearing. hearing or deportation order.
The bill would make a certificate of rehabilitation available to a person who has had a conviction dismissed pursuant to withdrawal of plea, as specified.
This bill would also require the governor to make the application for pardon available on the Governor’s Internet Web site and would require the courts of each county to make the application for a certificate of rehabilitation available on the court’s Internet Web site and at each courthouse.
The bill would make other conforming changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 This act shall be known, and may be cited, as the Pardon and Commutation Reform Act of 2018.

SEC. 2.

 Section 12952 of the Government Code is amended to read:

12952.
 (a) Except as provided in subdivision (d), it is an unlawful employment practice for an employer with five or more employees to do any of the following:
(1) To include on any application for employment, before the employer makes a conditional offer of employment to the applicant, any question that seeks the disclosure of an applicant’s conviction history.
(2) To inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.
(3) To consider, distribute, or disseminate information about any of the following while conducting a conviction history background check in connection with any application for employment:
(A) Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code.
(B) Referral to or participation in a pretrial or posttrial diversion program.
(C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law, or any conviction for which the convicted person has received a full pardon or has been issued a certificate of rehabilitation.
(4) To interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(b) This section shall not be construed to prevent an employer from conducting a conviction history background check not in conflict with the provisions of subdivision (a).
(c) (1) (A) An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history shall make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment described in this paragraph, the employer shall consider all of the following:
(i) The nature and gravity of the offense or conduct.
(ii) The time that has passed since the offense or conduct and completion of the sentence.
(iii) The nature of the job held or sought.
(B) An employer may, but is not required to, commit the results of this individualized assessment to writing.
(2) If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all of the following:
(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.
(B) A copy of the conviction history report, if any.
(C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
(3) The applicant shall have at least five business days to respond to the notice provided to the applicant under paragraph (2) before the employer may make a final decision. If, within the five business days, the applicant notifies the employer in writing that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.
(4) The employer shall consider information submitted by the applicant pursuant to paragraph (3) before making a final decision.
(5) If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following:
(A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.
(B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.
(C) The right to file a complaint with the department.
(d) This section does not apply in any of the following circumstances:
(1) To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check.
(2) To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code.
(3) To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.
(4) To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).
(e) The remedies under this section shall be in addition to and not in derogation of all other rights and remedies that an applicant may have under any other law, including any local ordinance.
(f) For purposes of this section:
(1) “Conviction” has the same meaning as defined in paragraphs (1) and (3) of subdivision (a) of Section 432.7 of the Labor Code.
(2) Notwithstanding paragraph (1), the term “conviction history” includes:
(A) An arrest not resulting in conviction only in the specific, limited circumstances described in subdivision (f) of Section 432.7 of the Labor Code, when an employer at a health facility, as defined in Section 1250 of the Health and Safety Code, may ask an applicant for certain positions about specified types of arrests.
(B) An arrest for which an individual is out on bail or his or her own recognizance pending trial.

SEC. 3.

 Section 4802 of the Penal Code is amended to read:

4802.
 In the case of a person twice convicted of felony, the application for pardon or commutation of sentence shall be made directly to the Governor, who shall transmit all papers and documents relied upon in support of and in opposition to the application to the Pardon and Commutation Panel.

SEC. 4.

 Section 4802.5 is added to the Penal Code, to read:

4802.5.
 The Governor shall make the application for a pardon available for submission on the Governor’s Office Internet Web site and all applications for a direct pardon received by the Governor shall be promptly forwarded to the Pardon and Commutation Panel for an investigation and recommendation to the Governor. Applications supported by a certificate of rehabilitation may be granted by the Governor without investigation and recommendation by the Pardon and Commutation Panel in accordance with Section 4852.16.

SEC. 5.

 Section 4803 of the Penal Code is amended to read:

4803.
 When an application is made to the Governor for pardon or commutation of sentence, or when an application has been referred to the Pardon and Commutation Panel, the Governor or the panel may require the judge of the court before which the conviction was had, or the district attorney by whom the action was prosecuted, to furnish the Governor or the panel, without delay, with a summarized statement of the facts proved on the trial, and of any other facts having reference to the propriety of granting or refusing said application, together with his or her recommendation for or against the granting of the same and his or her reason for such recommendation.

SEC. 6.

 Section 4810 of the Penal Code is amended to read:

4810.
 (a) Except as provided in Section 4801, the Pardon and Commutation Panel shall succeed to and shall exercise and perform all powers and duties granted to and imposed upon the Board of Parole Hearings with respect to pardons and commutations.
(b) The Pardon and Commutation Panel is hereby established to review, investigate, and make recommendations regarding pardon and commutation applications to the Governor.
(c) The Pardon and Commutation Panel shall be comprised of five commissioners, appointed by the Governor, each serving a maximum of two four-year terms.
(d) The Pardon and Commutation Panel shall consist of commissioners with expertise and experience in community-based reentry, reentry services, community-based risk assessment issues, and immigration law.
(e) The Pardon and Commutation Panel shall meet at least once a month to review applications and issue recommendations in writing to the Governor on pardons and commutations. The recommendation of a majority of the full panel shall be the panel’s recommendation to the Governor. Recommendations to the Governor shall include explanations for the reasons for their recommendation.
(f) The Pardon and Commutation Panel shall review and issue recommendations on applications for pardons and commutations within one year of submission of the application, or within three months of submission of the application if the petitioner indicates in the application an urgent need for the pardon, pardon or commutation, including, but not limited to, a pending deportation order or deportation proceeding. If a petitioner has a pending deportation hearing, hearing or deportation order, the panel shall review the application and issue a recommendation prior to the hearing, as soon as reasonably possible. The panel shall provide electronic written notification to applicants after the panel receives the application, when the panel begins investigation on the application, and when the panel has issued a recommendation on the application.

SEC. 7.

 Section 4812 of the Penal Code is amended to read:

4812.
 Upon request of the Governor, the Pardon and Commutation Panel shall investigate and report on all applications for reprieves, pardons, and commutation of sentence and shall make such recommendations to the Governor with reference thereto as to it may seem advisable. To that end the panel shall examine and consider all applications so referred and all transcripts of judicial proceedings and all affidavits or other documents submitted in connection therewith, and shall have power to employ assistants and take testimony and to examine witnesses under oath and to do any and all things necessary to make a full and complete investigation of and concerning all applications referred to it. Members of the panel and its administrative officer are, and each of them is, hereby authorized to administer oaths.

SEC. 8.

 Section 4813 of the Penal Code is amended to read:

4813.
 In the case of applications of persons twice convicted of a felony, the Pardon and Commutation Panel after investigation, shall transmit its written recommendation upon such application to the Governor, together with all papers filed in connection with the application.

SEC. 9.

 Section 4850 of the Penal Code is amended to read:

4850.
 An application that has not received a recommendation from the Pardon and Commutation Panel favorable to the applicant shall not be forwarded to the Clerk/Executive Officer of the Supreme Court, unless the Governor, notwithstanding the fact that the panel has failed to make a recommendation favorable to the applicant, especially refers an application to the justices for their recommendation.

SEC. 10.

 Section 4851 of the Penal Code is amended to read:

4851.
 In all cases where the Pardon and Commutation Panel has made a recommendation favorable to the applicant and in those cases referred by the Governor, notwithstanding an adverse recommendation, the application, together with all papers and documents relied upon in support of and in opposition to the application, including prison records and recommendation of the Pardon and Commutation Panel, shall be forwarded to the Clerk/Executive Officer of the Supreme Court for consideration of the justices.

SEC. 11.

 Section 4852.06 of the Penal Code is amended to read:

4852.06.
 After the expiration of the minimum period of rehabilitation a person who has complied with the requirements of Section 4852.05 may file in the superior court of the county in which he or she then resides or in which he or she was convicted of a felony or of a crime the accusatory pleading of which was dismissed pursuant to Section 1203.4, a petition for ascertainment and declaration of the fact of his or her rehabilitation and of matters incident thereto, and for a certificate of rehabilitation under this chapter. A petition shall not be filed until and unless the petitioner has continuously resided in this state, after leaving prison or jail, for a period of not less than five years immediately preceding the date of filing the petition.

SEC. 12.

 Section 4852.14 of the Penal Code is amended to read:

4852.14.
 The clerk of the court shall immediately transmit certified copies of the certificate of rehabilitation to the Governor, to the Pardon and Commutation Panel, and the Department of Justice, and, in the case of persons twice convicted of a felony, to the Supreme Court.

SEC. 13.

 Section 4852.18 of the Penal Code is amended to read:

4852.18.
 The Pardon and Commutation Panel shall furnish to the clerk of the superior court of each county a set of sample forms for a petition for certificate of rehabilitation and pardon, a notice of filing of petition for certificate of rehabilitation and pardon, and a certificate of rehabilitation. The clerk of the court shall have a sufficient number of these forms printed to meet the needs of the people of the county, shall post these forms on the court’s Internet Web site, and shall make these forms available at no charge to persons requesting them.