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SB-826 Crimes: criminal history information: subsequent arrest notification.(2023-2024)

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Date Published: 03/21/2023 09:00 PM
SB826:v98#DOCUMENT

Amended  IN  Senate  March 21, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 826

Introduced by Senator Rubio

February 17, 2023

An act to amend Section 851.86 Sections 11105.2 and 11105.3 of the Penal Code, relating to crimes.


LEGISLATIVE COUNSEL'S DIGEST


SB 826, as amended, Rubio. Factual innocence. Crimes: criminal history information: subsequent arrest notification.
Existing law requires the Department of Justice to provide subsequent state or federal arrest or disposition notification to the State Department of Social Services, the Medical Board of California, the Osteopathic Medical Board of California, and other authorized entities to assist in, among other things, fulfilling employment, licensing, or certification duties. Existing law requires an entity, other than a law enforcement agency, as defined, to enter into a contract with the Department of Justice in order to receive notification of subsequent state or federal arrests or dispositions for licensing, employment, or certification purposes.
This bill would authorize the department to submit fingerprints to the Federal Bureau of Investigation (FBI), where they will be retained for the purpose of being searched against future submissions to the FBI, as specified. The bill would authorize the department to search latent fingerprint images against all retained fingerprint submissions. The bill would also authorize the department to collect fees for federal subsequent notification services and remit the fees to the FBI.
Existing law authorizes a human resource agency or an employer to request from the Department of Justice records of all convictions or any arrest pending adjudication involving specified offenses of a person who applies for a license, employment, or volunteer position in which they would have supervisory or disciplinary power over a minor or any person under their care. Existing law requires a request for records to include the applicant’s fingerprints and any other data specified by the department. Existing law requires the department to furnish the information to the requesting employer and to send a copy of the information to the applicant.
This bill would establish procedures for the department, human resource agency, and employer to follow when a request is made to the department for the conviction and arrest records described above, including that the department, upon receipt of a background check report lacking disposition data, would be required to conduct research, as specified, to obtain complete data, that the human resource agency or employer would be required to retain a waiver signed by the applicant, employee, or volunteer allowing the release of state and federal level criminal history information, and that a human resource agency or employer would be required to notify the person in writing of their right to obtain a copy of any background screening report, as specified, to challenge the accuracy and completeness of any information contained in the report, and to obtain a determination as to the validity of that challenge before a final determination regarding the person is made by the human resource agency or employer reviewing the criminal history information. The bill would exempt the state, as specified, from liability for damages for providing the information requested pursuant to the act or resulting from the fitness determination made by the human resource agency or employer.

Existing law requires the court to order records sealed if a person is found to be factually innocent, including records of arrest and detention, upon written or oral motion of any party.

This bill would make technical, nonsubstantive changes to this provision.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

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


SECTION 1.

 Section 11105.2 of the Penal Code is amended to read:

11105.2.
 (a) (1) The Department of Justice shall provide to the State Department of Social Services, the Medical Board of California, and the Osteopathic Medical Board of California, pursuant to state or federal law authorizing those departments to receive state or federal summary criminal history information, and may provide to any other entity authorized by state or federal law to receive state or federal summary criminal history information, subsequent state or federal arrest or disposition notification to assist in fulfilling employment, licensing, or certification duties, or the duties of approving relative caregivers, nonrelative extended family members, and resource families upon the arrest or disposition of any person whose fingerprints are maintained on file at the Department of Justice or the Federal Bureau of Investigation (FBI) as the result of an application for licensing, employment, certification, or approval. The Department of Justice is authorized to submit fingerprints to the FBI, where they will be retained for the purpose of being searched by future submissions to the FBI, including latent fingerprint searches. The Department of Justice is authorized to search latent print images against all retained fingerprint submissions. This section does not authorize the notification of a subsequent disposition pertaining to a disposition that does not result in a conviction, unless the department has previously received notification of the arrest and has previously lawfully notified a receiving entity of the pending status of that arrest. If the department supplies subsequent arrest or disposition notification to a receiving entity, the entity shall, at the same time, expeditiously furnish a copy of the information to the person to whom it relates if the information is a basis for an adverse employment, licensing, or certification decision. If the copy is not furnished in person, the copy shall be delivered to the last contact information provided by the applicant.
(2) The Department of Justice may collect all fees related to federal subsequent notification services from eligible agencies wishing to participate and remit such fees to the FBI.

(2)

(3) An entity that submits the fingerprints of applicants for licensing, employment, or certification, or approval to the Department of Justice for the purpose of establishing a record of the applicant to receive notification of subsequent state or federal arrests or dispositions pursuant to paragraph (1) shall comply with subdivision (d).
(b) For purposes of this section, “approval” means those duties described in subdivision (d) of Section 309 of the Welfare and Institutions Code for approving the home of a relative caregiver or of a nonrelative extended family member for placement of a child supervised by the juvenile court, and those duties in Section 16519.5 of the Welfare and Institutions Code for resource families.
(c) An entity, other than a law enforcement agency employing peace officers as defined in Section 830.1, subdivisions (a) and (e) of Section 830.2, subdivision (a) of Section 830.3, subdivisions (a) and (b) of Section 830.5, and subdivision (a) of Section 830.31, shall enter into a contract with the Department of Justice in order to receive notification of subsequent state or federal arrests or dispositions for licensing, employment, or certification purposes.
(d) An entity that submits the fingerprints of applicants for licensing, employment, certification, or approval to the Department of Justice for the purpose of establishing a record of the applicant to receive notification of subsequent state or federal arrests or dispositions shall immediately notify the department when the employment of the applicant is terminated, when the applicant’s license or certificate is revoked, when the applicant may no longer renew or reinstate the license or certificate, or when a relative caregiver’s or nonrelative extended family member’s approval is terminated. The Department of Justice shall terminate state or federal subsequent notification on any applicant upon the request of the licensing, employment, certifying, or approving authority.
(e) An entity that receives a notification of a state or federal subsequent arrest or disposition for a person unknown to the entity, or for a person no longer employed by the entity, or no longer eligible to renew the certificate or license for which subsequent notification service was established shall immediately return the subsequent notification to the Department of Justice, informing the department that the entity is no longer interested in the applicant. The entity shall not record or otherwise retain any information received as a result of the subsequent notice.
(f) An entity that submits the fingerprints of an applicant for employment, licensing, certification, or approval to the Department of Justice for the purpose of establishing a record at the department or the Federal Bureau of Investigation to receive notification of subsequent arrest or disposition shall immediately notify the department if the applicant is not subsequently employed, or if the applicant is denied licensing certification, or approval.
(g) An entity that fails to provide the Department of Justice with notification as set forth in subdivisions (c), (d), and (e) may be denied further subsequent notification service.
(h) Notwithstanding subdivisions (c), (d), and (f), subsequent notification by the Department of Justice and retention by the employing agency shall continue as to retired peace officers listed in subdivision (c) of Section 830.5.

SEC. 2.

 Section 11105.3 of the Penal Code is amended to read:

11105.3.
 (a) Notwithstanding any other law, a human resource agency or an employer may request from the Department of Justice records of all convictions or any arrest pending adjudication involving the offenses specified in subdivision (a) of Section 15660 of the Welfare and Institutions Code of a person who applies for a license, employment, or volunteer position, in which they would have supervisory or disciplinary power over a minor or any person under their care. The department shall furnish the information to the requesting employer and shall also send a copy of the information to the applicant.
(b) (1) A request for records under subdivision (a) shall include the applicant’s fingerprints, which may be taken by the requester, and any other data specified by the department. The department shall not require the applicant’s residence address for any request for records pursuant to subdivision (a). The request shall be on a form approved by the department, and the department may charge a fee to be paid by the employer, human resource agency, or applicant for the actual cost of processing the request. However, a fee shall not be charged to a nonprofit organization. Requests received by the department for federal level criminal offender record information shall be forwarded to the Federal Bureau of Investigation by the department to be searched for any record of arrests or convictions.
(2) The following procedures are established under this section:
(A) The department, upon receipt of a background check report lacking disposition data, shall conduct research in whatever recordkeeping systems are available in order to obtain complete data.
(B) A human resource agency or employer shall register with the department before submitting a request for screening under this section. Each such request shall be voluntary. As a part of the registration, the human resource agency or employer shall agree to comply with state and federal law and shall so indicate by signing an agreement approved by the department. The department may periodically audit human resource agencies and employers to ensure compliance with federal law and this section.
(C) The human resource agency or employer shall maintain a waiver signed by the applicant, employee, or volunteer allowing the release of the state and federal level criminal history information to the human resource agency or employer.
(D) The federal level criminal history information is available to human resource agencies and employers to use only for the purpose of screening employees and volunteers or persons applying to be an employee or volunteer with a human resource agency or employer. The department shall provide this federal criminal history record information directly to the human resource agency or employer as authorized by the written waiver required pursuant to subparagraph (C) for submission of a request to the department.
(E) The determination of whether the criminal history record shows that the applicant, employee, or volunteer has been convicted of, or is under pending indictment for, any crime that bears upon the fitness of the applicant, employee, or volunteer to have responsibility for the safety and well-being of children, the elderly, the handicapped, or the mentally impaired shall solely be made by the human resource agency or employer. This section does not require the department to make such a determination on behalf of any human resource agency or employer.
(F) The human resource agency or employer shall notify the person in writing of their right to obtain a copy of any background screening report, including the criminal history records, if any, contained in the report, to challenge the accuracy and completeness of any information contained in any such report, and to obtain a determination as to the validity of such challenge before a final determination regarding the person is made by the human resource agency or employer reviewing the criminal history information.
(c) (1) When a request pursuant to this section reveals that a prospective employee or volunteer has been convicted of a violation or attempted violation of Section 220, 261.5, 273a, 273d, or 273.5, former Section 262, or any sex offense listed in Section 290, except for the offense specified in subdivision (d) of Section 243.4, and where the agency or employer hires the prospective employee or volunteer, the agency or employer shall notify the parents or guardians of any minor who will be supervised or disciplined by the employee or volunteer. A conviction for a violation or attempted violation of an offense committed outside the State of California shall be included in this notice if the offense would have been a crime specified in this subdivision if committed in California. The notice shall be given to the parents or guardians with whom the child resides, and shall be given at least 10 days prior to the day that the employee or volunteer begins their duties or tasks. Notwithstanding any other law, a person who conveys or receives information in good faith and in conformity with this section is exempt from prosecution under Section 11142 or 11143 for conveying or receiving that information. Notwithstanding subdivision (d), the notification requirements of this subdivision shall apply as an additional requirement of any other law requiring criminal record access or dissemination of criminal history information.
(2) The notification requirement pursuant to paragraph (1) shall not apply to a misdemeanor conviction. This paragraph does not preclude an employer from requesting records of misdemeanor convictions from the Department of Justice pursuant to this section.
(d) This section does not supersede any law requiring criminal record access or dissemination of criminal history information. In any conflict with another statute, dissemination of criminal history information shall be pursuant to the mandatory statute. This subdivision applies to, but is not limited to, requirements pursuant to Article 1 (commencing with Section 1500) of Chapter 3 of, and Chapter 3.2 (commencing with Section 1569) and Chapter 3.4 (commencing with Section 1596.70) of, Division 2 of, and Section 1522 of, the Health and Safety Code, and Sections 8712, 8811, and 8908 of the Family Code, and Section 16519.5 of the Welfare and Institutions Code.
(e) The department may adopt regulations to implement the provisions of this section as necessary.
(f) As used in this section, the following terms have the following meanings:
(1) “Community youth athletic program” means an employer having as its primary purpose the promotion or provision of athletic activities for youth under 18 years of age.

(f)As used in this section, “employer”

(2) “Employer” means any nonprofit corporation or other organization specified by the Attorney General that employs or uses the services of volunteers in positions in which the volunteer or employee has supervisory or disciplinary power over a child or children.

(g)As used in this section, “human

(3) “Human resource agency” means a public or private entity, excluding any agency responsible for licensing of facilities pursuant to the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500)), the California Residential Care Facilities for the Elderly Act (Chapter 3.2 (commencing with Section 1569)), Chapter 3.01 (commencing with Section 1568.01), and the California Child Day Care Facilities Act (Chapter 3.4 (commencing with Section 1596.70)) of Division 2 of the Health and Safety Code, responsible for determining the character and fitness of a person who is:

(1)

(A) Applying for a license, employment, or as a volunteer within the human services field that involves the care and security of children, the elderly, the handicapped, or the mentally impaired.

(2)

(B) Applying to be a volunteer who transports individuals impaired by drugs or alcohol.

(3)

(C) Applying to adopt a child or to be a foster parent.

(h)

(g) Except as provided in subdivision (c), criminal history information obtained pursuant to this section is confidential and a recipient shall not disclose its contents other than for the purpose for which it was acquired.

(i)As used in this subdivision, “community youth athletic program” means an employer having as its primary purpose the promotion or provision of athletic activities for youth under 18 years of age.

(i)

(h) (1) A community youth athletic program may request state and federal level criminal history information pursuant to subdivision (a) for a volunteer coach or hired coach candidate. The director of the community youth athletic program shall be the custodian of records.
(2) The community youth athletic program may request from the Department of Justice subsequent arrest notification service, as provided in Section 11105.2, for a volunteer coach or a hired coach candidate.

(3)As used in this subdivision, “community youth athletic program” means an employer having as its primary purpose the promotion or provision of athletic activities for youth under 18 years of age.

(i) The state, any political subdivision of the state, or any agency, officer, or employee of the state or a political subdivision shall not be liable for damages for providing the information requested under this section or resulting from the fitness determination made by the human resource agency or employer.
(j) Compliance with this section does not remove or limit the liability of a mandated reporter pursuant to Section 11166.

SECTION 1.Section 851.86 of the Penal Code is amended to read:
851.86.

Whenever a person is convicted of a charge, and the conviction is set aside based upon a determination that the person was factually innocent of the charge, the judge shall order that the records in the case be sealed, including any record of arrest or detention, upon written or oral motion of any party in the case or the court, and with notice to all parties to the case. If such an order is made, the court shall give the defendant a copy of that order and inform the defendant that they may thereafter state they were not arrested for that charge and that they were not convicted of that charge, and that they were found innocent of that charge by the court. The court shall also inform the defendant of the availability of indemnity for persons erroneously convicted pursuant to Chapter 5 (commencing with Section 4900) of Title 6 of Part 3, and the time limitations for presenting those claims.