AB938 - Criminal procedure: sentencing.

Amended IN Senate July 09, 2025 Amended IN Senate June 25, 2025 Amended IN Assembly March 28, 2025 CALIFORNIA LEGISLATURE— 2025–2026 REGULAR SESSION Assembly Bill No. 938 Introduced by Assembly Member Bonta (Coauthors: Assembly Members Haney and Pellerin) February 19, 2025 An act to amend Sections 236.14, 236.15, 236.23, and 236.24 of the Penal Code, relating to criminal procedure. LEGISLATIVE COUNSEL'S DIGEST AB 938, as amended, Bonta. Criminal procedure: sentencing. Existing law allows a person who was arrested or convicted of a nonviolent offense while they were a victim of human trafficking, intimate partner violence, or sexual violence, to petition the court, under penalty of perjury, for vacatur relief. Existing law requires, to receive that relief, that the crime for which the person was arrested or convicted was a nonviolent offense and that the person establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking, intimate partner violence, or sexual violence. Existing law authorizes the court to vacate the conviction if it concludes that the petitioner was a victim of one of those crimes at the time of the alleged commission of the offense, the arrest was a direct result of being a victim of that offense, and the vacatur is in the best interest of justice. This bill would allow that relief for a person arrested or convicted of any offense. offense, except murder, as specified. Because this bill would authorize more petitions to be filed under penalty of perjury, by expanding the scope of the crime of perjury, this bill would impose a state-mandated local program. If a court issues an order for a person who was arrested or convicted of an offense while they were a victim of intimate partner violence or sexual violence, existing law requires the court to order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner to seal their records of the arrest and the court order to seal and destroy the records within 3 years from the date of the arrest, or within one year after the court order is granted, whichever occurs later, and thereafter to destroy their records of the arrest and the court order to seal and destroy those records. This bill would require the court to also order any law enforcement agency that has taken action or maintains records related to or because of the offense, including, but not limited to, departments of probation, rehabilitation, corrections, and parole, to seal and destroy their records. The bill would require those agencies to seal their records of arrest and the court order to seal and destroy the records within one year from the date of arrest, or within 90 days after the court order is granted, whichever occurs later. The bill would require the agencies to destroy these records within one year of the date of the court order. By increasing duties on local law enforcement, this bill would impose a state-mandated local program. The bill would also require the Department of Justice to notify the petitioner and the petitioner’s counsel that the department has complied with the order to seal the arrest records by the applicable deadline. Existing law creates an affirmative defense against a charge of a crime that the person was coerced to commit the offense as a direct result of being a victim of human trafficking, intimate partner violence, or sexual violence at the time of the offense and when the person had reasonable fear of harm. Existing law prohibits this defense from being used with respect to a violent felony, as defined. This bill would allow that defense to be used with respect to a violent felony, except for murder, as specified. 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. Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YES Bill Text The people of the State of California do enact as follows: SECTION 1. Section 236.14 of the Penal Code is amended to read: 236.14. (a) (1) If a person was arrested for or convicted of an offense committed while they were a victim of human trafficking, including, but not limited to, prostitution as described in subdivision (b) of Section 647, the person may petition the court for vacatur relief of their convictions, arrests, and adjudications under this section. (2) The petitioner shall establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking that establishes that the person lacked the requisite intent to commit the offense. Upon this showing, the court shall find that the person lacked the requisite intent to commit the offense and shall therefore vacate the conviction as invalid due to legal defect at the time of the arrest or conviction. (b) (1) The petition for relief shall be submitted under penalty of perjury and shall describe all of the available grounds and evidence that the petitioner was a victim of human trafficking and the arrest or conviction of an offense was the direct result of being a victim of human trafficking. This petition for relief does not apply to a conviction for the offense of murder, except in cases of felony murder pursuant to subdivision (e) of Section 189. (2) A judge of the court, in addition to any other certifying entity, shall review and may sign any certification request submitted by or on behalf of the petitioner pursuant to Sections 679.10, 679.11, and 679.13, regardless of the outcome of a petition raised under this section. (c) The petition for relief and supporting documentation shall be served on the state or local prosecutorial agency that obtained the conviction for which vacatur is sought or with jurisdiction over charging decisions with regard to the arrest. The state or local prosecutorial agency shall have 45 days from the date of receipt of service to respond to the petition for relief. (d) If opposition to the petition is not filed by the applicable state or local prosecutorial agency, the court shall deem the petition unopposed and may grant the petition. (e) The court may, with the agreement of the petitioner and all of the involved state or local prosecutorial agencies, consolidate into one hearing a petition with multiple convictions from different jurisdictions. (f) If the petition is opposed or if the court otherwise deems it necessary, the court shall schedule a hearing on the petition. The hearing may consist of the following: (1) Testimony by the petitioner, which may be required in support of the petition. (2) Evidence and supporting documentation in support of the petition. (3) Opposition evidence presented by any of the involved state or local prosecutorial agencies that obtained the conviction. (g) After considering the totality of the evidence presented, the court may vacate the conviction and the arrests and issue an order if it finds all of the following: (1) That the petitioner was a victim of human trafficking at the time of the alleged commission of the qualifying offense. (2) The arrest for or conviction of the offense was a direct result of being a victim of human trafficking. (3) It is in the best interest of justice. (h) An order of vacatur shall do all of the following: (1) Set forth a finding that the petitioner was a victim of human trafficking at the time of the alleged commission of the offense and therefore lacked the requisite intent to commit the offense. (2) Set aside the arrest, finding of guilt, or the adjudication and dismiss the accusation or information against the petitioner as invalid due to a legal defect at the time of arrest or conviction. (3) Notify the Department of Justice that the petitioner was a victim of human trafficking at the time of the alleged commission of the offense and of the relief that has been ordered. (i) (1) The collection of restitution, fines, and fees imposed as a result of an offense that is the subject of the petition shall be stayed while the petition is pending. (2) If the petition is granted, unpaid restitution, fines, and fees shall be vacated. Any unpaid restitution, fines, or fees vacated pursuant to this paragraph shall not affect any victim’s eligibility when applying for compensation from the California Victim Compensation Board. (j) A person who was arrested as, or found to be, a person described in Section 602 of the Welfare and Institutions Code because they are alleged to have committed an offense while they were a victim of human trafficking, including, but not limited to, prostitution, as described in subdivision (b) of Section 647, may petition the court for relief under this section. If the petitioner establishes that the arrest or adjudication was the direct result of being a victim of human trafficking, the petitioner is entitled to a rebuttable presumption that the requirements for relief have been met. (k) (1) If the court issues an order pursuant to this section, the court shall also order all of the following agencies to seal and destroy their records: (A) Any law enforcement agency having jurisdiction over the offense. (B) The Department of Justice. (C) Any law enforcement agency that arrested the petitioner. (D) Any law enforcement agency that participated in the arrest of the petitioner. (E) Any law enforcement agency that has taken action or maintains records related to or because of the offense, including, but not limited to, a department of probation, rehabilitation, corrections, or parole. (2) Any government agency described in paragraph (1) shall seal its records of arrest and the court order to seal and destroy the records within one year from the date of arrest or within 90 days after the court order is granted, whichever occurs later. The agency shall thereafter destroy their records of the arrest and court order to seal and destroy those records within one year of the date of the court order. (3) If requested by the petitioner, the court shall file as confidential the final court order granting the petition. (4) The court shall provide the petitioner a certified copy of any court order concerning the sealing and destruction of the arrest records. The court shall provide the petitioner and petitioner’s counsel a copy of any form that the court submits to any agency, including the Department of Justice, related to the sealing and destruction of the arrest records. (5) The Department of Justice shall notify the petitioner and the petitioner’s counsel that the department has complied with the order to seal the arrest records by the applicable deadline. (l) A petition pursuant to this section shall be made and heard at any time. The right to petition for relief pursuant to this section does not expire with the passage of time. A court shall not refuse to hear a petition that was properly made pursuant to this section on the basis of the petitioner’s outstanding fines, fees, or restitution, or the petitioner’s failure to meet the conditions of probation. (m) (1) For the purposes of this section, official documentation of a petitioner’s status as a victim of human trafficking may be introduced as evidence that their alleged participation in the offense was the result of their status as a victim of human trafficking. (2) For the purposes of this subdivision, “official documentation” means any documentation issued by a federal, state, or local agency that tends to show the petitioner’s status as a victim of human trafficking. Official documentation shall not be required for the issuance of an order issued pursuant to this section. (n) If the petition is unopposed, the petitioner may appear at all hearings on the petition, if any, by counsel. If the petition is opposed and the court orders a hearing for relief on the petition, the petitioner shall appear in person unless the court finds a compelling reason why the petitioner cannot attend the hearing, in which case the petitioner may appear by telephone, videoconference, or by other electronic means established by the court. (o) Notwithstanding any other law, a petitioner who has obtained an order pursuant to this section may lawfully deny or refuse to acknowledge an arrest, conviction, or adjudication that is set aside pursuant to the order and may lawfully state that they were not arrested, adjudicated, or convicted of any charge vacated pursuant to the order. (p) Notwithstanding any other law, the records of the arrest, conviction, or adjudication shall not be distributed to any state licensing board. (q) The record of a proceeding related to a petition pursuant to this section that is accessible by the public shall not disclose the petitioner’s full name. (r) A court that grants relief pursuant to this section, a state or local prosecutorial agency, any law enforcement agency that arrested or participated in the arrest of the petitioner, or any law enforcement agency that has taken action or maintains records related to or because of the offense being vacated pursuant to this section, including, but not limited to, a department of probation, rehabilitation, corrections, or parole, shall take additional action as appropriate under the circumstances to carry out the purposes of this section. (s) If the court denies the application because the evidence is insufficient to establish grounds for vacatur, the denial may be without prejudice. The court may state the reasons for its denial in writing or on the record that is memorialized by transcription, audiotape, or videotape, and, if those reasons are based on curable deficiencies in the application, allow the applicant a reasonable time period to cure the deficiencies upon which the court based the denial. (t) The court shall provide the petitioner with a copy of an order issued pursuant to this section, as applicable, and inform the petitioner that they may thereafter state that they were not arrested for the charge, or adjudicated or convicted of the charge, that was vacated. (u) Proceedings under this section constitute a postconviction proceeding under Section 1171. (v) For the purposes of this section, the following terms apply: (1) “Vacate” means that the arrest and any adjudications or convictions suffered by the petitioner are deemed not to have occurred and that all records in the case are sealed and destroyed pursuant to this [Text truncated for display. 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