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AB-1076 Criminal records: automatic relief.(2019-2020)

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Date Published: 03/27/2019 09:00 PM
AB1076:v98#DOCUMENT

Amended  IN  Assembly  March 27, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill No. 1076


Introduced by Assembly Member Ting

February 21, 2019


An act to add Sections 851.93 and 1203.425 to the Penal Code, relating to criminal records.


LEGISLATIVE COUNSEL'S DIGEST


AB 1076, as amended, Ting. Criminal records: automatic relief.
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, a person who has successfully completed a specified deferred entry of judgment program, and a person who has suffered an arrest that did not result in a conviction, under certain conditions, to petition the court to seal the person’s arrest record. Under existing law, if a defendant successfully completes certain diversion programs, the arrest for the crime for which the defendant was diverted is deemed to have never occurred.
Existing law authorizes a defendant to petition to withdraw the defendant’s plea of guilty or nolo contendere and enter a plea of not guilty, if the defendant has fulfilled the conditions of probation, or if other specified circumstances are met, and the defendant is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense. If relief is granted, existing law requires the court to dismiss the accusation or information against the defendant and release the defendant from all penalties and disabilities resulting from the offense, with exceptions. Existing law also authorizes a defendant to file a similar petition if the defendant was convicted of a misdemeanor and not granted probation, was convicted of an infraction, or completed a sentence for certain felonies, and the defendant met specified conditions.
This bill would, commencing January 1, 2021, require the Department of Justice, on a weekly basis, to review the records in the state summary criminal history information database statewide criminal justice databases and to identify persons who are eligible for relief by having their arrest records, or their criminal conviction records, withheld from disclosure. The bill would require the department to grant relief to an eligible person, without requiring a petition or motion. The bill would not limit petitions, motions, or orders for relief, as required or authorized by any other law.
The bill would require an update to the state summary criminal history information to document the relief granted. The bill would require the department, on a weekly basis, to electronically submit a notice to the superior court having jurisdiction over the criminal case, informing the court of all cases for which relief was granted. The bill would prohibit the court from disclosing information concerning an arrest or conviction granted relief, with exceptions.
The bill would authorize the prosecuting attorney to file a motion to prohibit the department from granting automatic relief for criminal conviction records as described above. If the court grants that motion, the bill would prohibit the department from granting relief, but the person would continue to be eligible for relief through other existing procedures, including petitions to the court.
The bill would require the Department of Justice to annually publish statistics regarding relief granted pursuant to the provisions of this bill, as specified.
The bill would require a court, at the time of sentencing, to advise each defendant of their right to conviction relief pursuant to the provisions of this bill, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 851.93 is added to the Penal Code, to read:

851.93.
 (a) (1) On a weekly basis, the Department of Justice shall review the records in the state summary criminal history information database and shall identify persons who are eligible for relief in their arrest records pursuant to Section 851.87, 851.90, 851.91, 1000.4, or 1001.9, and whose arrests meet the conditions described in paragraph (2). statewide criminal justice databases, and based on information in the Automated Criminal History System, shall identify persons with records of arrest that meet the criteria set forth in paragraph (2) and are eligible for arrest record relief.
(2) A person is eligible for relief pursuant to this section, if the underlying arrest shall meet all meets any of the following conditions:

(A)Either of the following criteria is met:

(A)  The arrest was for a misdemeanor offense and the charge was dismissed.

(i)

(B) The arrest is was for a misdemeanor offense, and at least one calendar year has elapsed since the date of the arrest. arrest, and no conviction occurred, or the arrestee was acquitted of any charges that arose, from that arrest.

(ii)

(C) The arrest is was for a felony offense an offense that is punishable by imprisonment pursuant to paragraph (1) or (2) of subdivision (h) of Section 1170, and at least three calendar years have elapsed since the date of the arrest. arrest, and no conviction occurred, or the arrestee was acquitted of any charges arising from, that arrest.

(B)A criminal conviction did not result based on the arrest.

(C)Nothing in the arrest record indicates that proceedings seeking conviction remain pending.

(D) The person successfully completed any of the following, relating to that arrest:
(i) A prefiling diversion program, as defined in Section 851.87, administered by a prosecuting attorney in lieu of filing an accusatory pleading.
(ii) A drug diversion program administered by a superior court pursuant to Section 1000.5, or a deferred entry of judgment program pursuant to Section 1000 or 1000.8.
(iii) A pretrial diversion program, pursuant to Section 1000.4.
(iv) A diversion program, pursuant to Section 1001.9.
(v) Any diversion program described in Chapters 2.8 (commencing with Section 1001.20), 2.8A (commencing with Section 1001.35), 2.9 (commencing with Section 1001.50), 2.9A (commencing with Section 1001.60), 2.9B (commencing with Section 1001.70), 2.9C (commencing with Section 1001.80), or 2.9D (commencing with Section 1001.81), of Title 6.
(b) (1) The department shall grant relief to a person identified pursuant to subdivision (a), without requiring a petition or motion by a party for that relief.

(2)Section 851.92 does not apply to relief granted pursuant to this section.

(3)

(2) The state summary criminal history information shall include, directly next to or below the entry or entries regarding the person’s arrest record, a note stating “arrest relief granted,” listing the date that the department granted relief, and this section, and the section pursuant to which the relief was granted. section. This note shall be included in all statewide criminal databases with a record of the arrest.
(3) Except as otherwise provided in subdivision (d), an arrest for which arrest relief has been granted is deemed not to have occurred, and a person who has been granted arrest relief is released from any penalties and disabilities resulting from the arrest, and may answer any question relating to that arrest accordingly.
(c) (1) On a weekly basis, the department shall electronically submit a notice to the superior court having jurisdiction over the criminal case, informing the court of all cases for which relief was granted pursuant to this section. The court shall not disclose information concerning an arrest that is granted relief pursuant to this section to any person or entity, except to the person whose arrest was granted relief or a criminal justice agency, as defined in Section 851.92.
(2) The department shall not disclose information concerning an arrest that is granted relief pursuant to this section to a board, as defined in Section 22 of the Business and Professions Code.
(d) (1)Relief granted pursuant to this section is subject to the following conditions: does
(1) Arrest relief does not relieve a person of the obligation to disclose an arrest in response to a direct question contained in a questionnaire or application for employment as a peace officer, as defined in Section 830.
(2) Relief granted pursuant to this section has no effect on the ability of a criminal justice agency, as defined in Section 851.92, to access and use records that are granted relief. relief to the same extent that would have been permitted for a criminal justice agency had relief not been granted.
(3) Relief granted pursuant to this section does not affect a person’s authorization to own, possess, or have in the person’s custody or control any firearm, or the person’s 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.
(4) Relief granted 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.
(5) Relief granted pursuant to this section is subject to the provisions of Section 11105.
(e) This section shall not limit petitions, motions, or orders for arrest record relief, as required or authorized by any other law, including, but not limited to, Sections 851.87, 851.90, 851.91, 1000.4, and 1001.9.
(f) The department shall annually publish statistics regarding the total number of arrests granted relief pursuant to this section, by county, on the OpenJustice Web portal, as defined in Section 13010.

(f)

(g) This section shall be operative commencing January 1, 2021.

SEC. 2.

 Section 1203.425 is added to the Penal Code, immediately following Section 1203.42, to read:

1203.425.
 (a) (1) On a weekly basis, the Department of Justice shall review the records in the state summary criminal history information database and shall identify persons who are eligible for relief in their criminal conviction records pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42. the statewide criminal justice databases, and based on information in the Automated Criminal History System and the Supervised Release File, shall identify persons with convictions that meet the criteria set forth in paragraph (2) and are eligible for automatic conviction record relief.
(2) A person is eligible for automatic conviction relief pursuant to this section if they meet all of the following conditions:
(A) The person is not required to register pursuant to Section 290.
(B) The person is not under active local, state, or federal supervision, according to the Supervised Release File.
(C) The person is not currently serving a sentence for any offense and does not have any pending criminal charges.
(D) The conviction meets one of the following criteria:
(i) The defendant was sentenced to probation and has completed their term of probation without revocation.
(ii) The defendant was convicted of an infraction or misdemeanor and was not granted probation, has completed their sentence or paid their fine, and at least one calendar year has elapsed since the date of judgment.
(iii) The defendant was sentenced pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, and one year has elapsed following the completion of sentence, or, the defendant was sentenced pursuant to subparagraph (A) of paragraph (5) of subdivision (h) of Section 1170, and two years has elapsed following the completion of sentence.
(iv) The defendant was sentenced before January 1, 2012 for a crime which, on or after January 1, 2012, would have been eligible for sentencing pursuant to subdivision (h) of Section 1170, and two years have elapsed following the defendant’s completion of the sentence.
(b) (1) Except as specified in subdivision (g), the department shall grant relief, including dismissal of a conviction, to a person identified pursuant to subdivision (a), without requiring a petition or motion by a party for that relief.
(2) The state summary criminal history information shall include, directly next to or below the entry or entries regarding the person’s criminal record, a note stating “relief granted,” listing the date that the department granted relief, relief and this section, and the section pursuant to which the relief was granted. section. This note shall be included in all statewide criminal databases with a record of the conviction.
(3) Except as otherwise provided in subdivision (d) and in Section 13555 of the Vehicle Code, a person granted conviction relief pursuant to this section shall be released from all penalties and disabilities resulting from the offense of which he or she has been convicted.
(c) (1) On a weekly basis, the department shall electronically submit a notice to the superior court having jurisdiction over the criminal case, informing the court of all cases for which relief was granted pursuant to this section. The court shall not disclose information concerning a conviction granted relief pursuant to this section to any person or entity, except to the person whose conviction was granted relief or a criminal justice agency, as defined in Section 851.92.
(2) The department shall not disclose information concerning a criminal conviction record that is granted relief pursuant to this section to a board, as defined in Section 22 of the Business and Professions Code.
(d) (1)Relief granted pursuant to this section is subject to the following conditions: does
(1)  Relief granted pursuant to this section does not relieve a person of the obligation to disclose a criminal conviction in response to a direct question contained in a questionnaire or application for employment as a peace officer, as defined in Section 830.
(2) Relief granted pursuant to this section does not relieve a person of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

(2)

(3) Relief granted pursuant to this section has no effect on the ability of a criminal justice agency, as defined in Section 851.92, to access and use records that are granted relief. relief to the same extent that would have been permitted for a criminal justice agency had relief not been granted.

(3)

(4) Relief granted pursuant to this section does not affect a person’s authorization to own, possess, or have in the person’s custody or control any firearm, or the person’s susceptibility to conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6, if the criminal conviction would otherwise affect this authorization or susceptibility.

(4)

(5) Relief granted pursuant to this section does not affect any prohibition from holding public office that would otherwise apply under law as a result of the criminal conviction.
(6) In any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if the relief had not been granted.
(e)  This section shall not limit petitions, motions, or orders for relief in a criminal case, as required or authorized by any other law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.41, and 1203.42.
(f) The department shall annually publish statistics regarding the total number of convictions granted relief pursuant to this section, and the total number of convictions prohibited from automatic relief pursuant to subdivision (h), by county, on the OpenJustice Web portal, as defined in Section 13010.

(f)

(g) Subdivisions (a) to (e), (g) inclusive, shall be operative commencing January 1, 2021.

(g)

(h) No later than 90 calendar days before the date of a person’s eligibility for relief pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42, this section, the prosecuting attorney or probation department may file a motion to prohibit the department from granting automatic relief pursuant to this section. If the court grants that motion, the department shall not grant relief pursuant to this section, but the person may continue to be eligible for relief pursuant to Section 1203.4, 1203.4a, 1203.41, or 1203.42.
(i) At the time of sentencing, the court shall advise a defendant, either orally or in writing, of the provisions of this section and of the defendant’s right, if any, to petition for a certificate of rehabilitation and pardon.