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California

CA: Many Californians can clear criminal records, but don’t. This bill would make it automatic

[sfchronicle.com – 3/7/19]

People arrested or convicted of crimes in California could have their criminal records automatically cleared under a proposed law announced Thursday by San Francisco District Attorney George Gascón and Assemblyman Phil Ting.

AB1076 would wipe out eligible convictions for people who have completed local sentences and eliminate many arrest records that have not resulted in convictions. Offenders already are eligible to petition the courts for the relief, but less then 20 percent take advantage of the program, said Ting, D-San Francisco.

Under the law, people convicted of offenses ranging from petty theft to more serious felonies that resulted in jail sentences — such as robbery or assault — could begin putting their criminal pasts behind them.

The groundbreaking clean-slate initiative would keep background-check agencies from accessing and disseminating cleared criminal records to employers and licensing boards. However, it would not remove the records from law enforcement databases.

Read more

 

Join the discussion

  1. Curiouser

    Impressive. It took the writer until the ninth paragraph to drop in the usual bomb….Persons required to register as sex offenders not eligible.

    • Joe

      I do not see anything in the bill about 290 registrants.

      http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1076

      I also do not see anything about 290 registrants in the referenced Section 1170(h)1 and 2.

      Clearly I am missing something, looking at this on my phone.

      Anyone care to help me out? Thanks in advance.

      • NPS

        I didn’t read any exclusion in the bill either. It should be applicable to RCs considering that some do have eligibility. In fact, I got my expungement from SF. Perhaps the writer of this article doesn’t know that some sex offenses are eligible. People who served prison time were never eligible.

        I will send an email out to both the writer and Rep. Ting.

        • Stephanie

          Please do! We absolutely need more people to put pressure on members of the legislature to hold them accountable.

      • AO

        I’ve seen a few articles mention RC are not eligible. My guess is the below section and a verbal “promise” of denying RC’s and having them go the now current route of petitioning via 1203.4. Whatever government official these reporters spoke to for clarification probably stated they’ll be denying RC via below. So there’s nothing legally bounding what would prevent some RC’s from being positively affected by this, but they did built in a loophole to allow some districts to pretend they’re though and are looking out for the children. If there’s another reason, I didn’t see in the bill.

        (g) 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, the prosecuting attorney 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.

  2. R M

    I kept reading looking for the positive only to see “Registered sex offenders and sentences served in state prison would not be eligible for automatic clearance.” I knew it would be there.

    • JACK

      @RM I’ve read through the bill twice now and I’m not seeing the passage you’re talking about.

      • BSL

        Guys, the folks talking about this sentence that is from the article above, not the bill itself. If you press “read more” and go to the article you will see it.

        “Registered sex offenders and sentences served in state prison would not be eligible for automatic clearance.”

        If it’s not in the law, it can be a good thing if the writer is just puffing up the article. If the above sentence is true or becomes part of the bill, any of the people that drop off after 2021 tier laws, will not be registered, they should qualify. There is at least that…….

  3. David

    So each time the legislature proposes a statute that would benefit others, they seem to propose at least one new law (if not a dozen) intended to persecute us.
    Yes, soon we will be the only ones for whom any new laws are written …. all other crimes receiving almost no punishment, an absurdly minimal sentence and a nominal fine (for reference, see white-collar, rich white guy Manafort’s sentence of 47 months.)

    • No relief

      I see the day when businesses are allowed to deny service to us because of the registry. It is simply not if but when.
      So you can steal, assault, and destroy, and they see you as a good person, but Have a small file on a computer , and you are ameeba shit for life! With no chance of ever changing your disgusting , depraved ways. I might as well start destroying everything and person I come in contact with, since I am already considered the worst of the worst. And when the police finely catch up with me and gun me down, they can say,” he was a sex offender” , and everyone will feel safer that I am dead, and the world will be a better place.

      • AC

        Heh. Ain’t life screwy?

        NOT sarcasm. Really: isn’t life messed up like that? Witch-hunt mentality makes a suspicious group the “most depraved of the depraved”, “sub-humans of the Earth” and the group which “there’s nothing worse”. That’s why idiots are able to say that pedos/Chomos/”Chesters”/nonses/pervs are worse than murders; if such idiots weren’t consciously deliberate trolls to begin with.

        Moral hysteria against those who wrote with the left hand, those who had an attraction to the same sex, those African Americans who “had the audacity” to marry white folks, etc., has historically reduced otherwise potentially intelligent observing human beings to being outright air-headed, daft imprudent imbeciles; by inappropriately enabling their neurological “act now think later” defense instinct center and suppressing their logical rational-thinking one.

        Better sharpen your spears, ‘moral’ citizens. We Chome-chomezz going to infect the entire worldzz if you don’tzzzzzzz!!! >=D

  4. steve

    So I have a 288 (a) and did no prison time. Jail (work release) and probation. Could anyone in the same boat with a 288 (a) have an equal protection claim?

  5. USA

    RM is correct. As I noted, we have the most liberal Governor that has and will ever exist! If we want to push for anything, this is our chance. Get your charge reduced to a misdemeanor pursuant to 17b and expunged now!

    • American Detained in America

      Unfortunately for most of us, our convictions weren’t wobblers in the first place.

  6. New Person

    California Constitution, Article 1, Section 7(b): “A citizen or class of citizens may not be granted privileges
    or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.”

    Clearly, if one set of convicts is being denied the same privileges or immunities, then the State of California is violating the civil rights of equal immunity as clearly protected in the California Constitution. The immuniies or privileges can be changes, but they cannot pick and chose who does or doesn’t get them as they’re all supposed to be granted upon the same terms to all citizens, or in our case, convicts.

    • Will Allen

      When these criminal regimes put content on Facebook, they are picking only a subset of people that can access and interact with it. Should be illegal.

      It is completely clear to me that it is immoral. People who think it’s okay don’t care. They also don’t care if it does anything useful or not. Which makes them scum.

  7. New Person

    From the article: “The groundbreaking clean-slate initiative would keep background-check agencies from accessing and disseminating cleared criminal records to employers and licensing boards. However, it would not remove the records from law enforcement databases.”

    Isn’t this what the original registry was supposed to be like? With registrants being excluded, it reveals an embedded stigma that induced retributive actions such as this omission from such a way back into society. Everyone else who was convicted of a low level crime can clear their record except for sex offenders who also might be low level in crime.

    Anyone who earns a 1203.4 is a low level crime. Yet, how are those convicted of sex crimes not referred to as probationers first? This is a huge pot hole that has been left unchecked and was already identified in 1958 under the Kelly v Municipal decision. PC 290 cannot supersede 1203.4 b/c both have exclusions as to who can or cannot qualify for 1203.4.

    The legal system is retributive to those convicted of sex crimes as they’re ostracized from receiving any benefits of immunity or a pathway to become a part of society again. There is systemic proof as many other bills sought to help reduce sentences or the ilk have often excluded those with sex crimes. I thought justice was blind?

  8. NPS

    So I contacted Rep. Ting and I received a response from his office:

    “I checked with our Capitol staff on your inquiry. According to them:

    If a person is eligible for an expungement under 1203.4 then she/he would be eligible under the bill. The media reporting is in relation to SERIOUS sex offenses like rape and child sex abuse. Basically if you’re ineligible for probation, that means that your offense is serious enough not to be eligible for an expungement. If you’re eligible for probation and you’ve completed it, then you are eligible for the bill.”

    He left the email open for me to reply back. So if there’s anything further I should ask, let me know. The messaging site only allows messages from residents in his district. Though I live in Contra Costa County, I used my old SF address to be able to send a message.

    • bluewall

      to clarify .. if one has already completed parole or probation, then one is eligible?

      • AO @ bluewall

        To qualify for this bill you need to also already qualify for 1203.4 or similar (the bill lists a few of these). To qualify for 1203.4 means you couldn’t have served time in prison (and certain codes never qualified, regardless if you had probation or not). Unless I’m mistaken, parole = prison, so this bill wouldn’t apply. If you do qualify, there’s a wait time under this bill before you’re automatically removed. I believe you’ll automatically be removed 3 years AFTER you’ve completed probation. However, you can just skip the wait and file for 1203.4 the day after you’ve completed probation. This bill will mostly help clean up things for roughly the 75% of people who do qualify for 1203.4, but for whatever reason never applied for it.

    • steve

      “if you’re ineligible for probation, that means that your offense is serious enough not to be eligible for an expungement.”

      This is not true. I think many 288 (a) were given jail and probation, no prison. Then in 1997 they made 288 (a) ineligible for 1203.4. So there are many who were eligible for probation but won’t be eligible to take advantage of this law.

    • steve

      “if you’re ineligible for probation, that means that your offense is serious enough not to be eligible for an expungement.”

      This is not true. I think many 288 (a) were given jail and probation, no prison. Then in 1997 they made 288 (a) ineligible for 1203.4. So there are many who were eligible for probation but won’t be eligible to take advantage of this law.

    • AO @ NPS

      Thank you for getting a clarification, NPS. I had a feeling it was something like this in addition to what I posted at the top of the thread. I see this all the time in almost every article mentioning us. They give this absolute statement which isn’t even remotely true. And then the general public has this great misunderstanding of how things work.

      • NPS

        I had specifically mentioned this in my original email to Rep. Ting pointing to the SF Chronicle for perpetuating the myth that registrants are predatory. I let him know that RCs have the lowest rate of reoffense.

    • Stephanie

      I think you should follow up for further, specific clarification (and perhaps limited, appropriate but firm advocacy along the way) about eligibility and the absolute need for this to not exclude people kept “down” by the extraordinary nature of these convictions.

      We know that a conviction for anything deemed a “sex offense” is effectively a crippling life sentence and is often left out of consideration for justice. Yet we also know that the majority of these convictions are non-violent and many have no direct victim or none at all. We know the registries are fallacious and don’t provide a benefit while putting huge costs on individuals and the public. We know a lot, and we know that there is a lot of misinformation spread the makes the situation worse. That’s why this is so important.

      Make sure he KNOWS this. If legislators are afraid of appearing “soft on predators”, then that needs to be countered. As noble as NARSOL etc. are, there is very little of this kind of advocacy. We NEED people to be heard.

    • 311mom

      I think 1203.4 has an exclusion for 311.11 (an attorney told us a few months ago 311.11 is NOT eligible for expungement-not sure if this is correct). Does anyone know about this exclusion? 311.11 us eligible for COR, so hmmm???

      https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1203.4.&lawCode=PEN

      1203.4.
      (a) (1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.

      The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon.

      (4) This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.
      (b) Subdivision (a) of this section does not apply to any misdemeanor that is within the provisions of Section 42002.1 of the Vehicle Code, to any violation of subdivision (c) of Section 286, Section 288, subdivision (c) of Section 287 or of former Section 288a, Section 288.5, subdivision (j) of Section 289, Section 311.1, 311.2, 311.3, or 311.11, or any felony conviction pursuant to subdivision (d) of Section 261.5, or to any infraction.

      • AO @ 311Mom

        311Mom, you’re attorney is somewhat correct. The 311.11 was moved to the No Expungment list in 2014. However, if you’re conviction date was prior to that, you’re grandfathered in to still be eligible for expungement via 1203.4. I’d maybe even check if they might go by arrest date instead of conviction since convictions can sometimes occur years after the initial arrest/indictment.

  9. someone who cares

    I am a little confused, as I believe many of us are when it comes to these laws. It is my understanding that if you served time in jail and not prison, your expungement is guaranteed if you have completed and not violated probation. So, this bill would clear your record automatically if you happen to not apply for the 1203.4. But, the 1203.4 does not relieve you of the duty to register, so I am assuming this new bill will have the same effect? The only difference is that your record is cleared automatically rather than applying for the 1203.4. Bottom line, the duty to register will still stand? All that is, IF sex offenses qualify, which they should since you can expunge some of them with the current law.

  10. Nondescript

    As others have noted here, there is no verbiage in AB 1076 relating to sex offenders being excluded from this bill. There are no specified offenses ( sex or non-sex offenses) listed that would benefit from this bill. Having read through it 3 times, it looks like anyone who has a misdemeanor sex offense conviction AND is/was eligible for a Certificate of Rehabilitation will automatically have their conviction dismissed unless the DA objects to it.
    It is interesting to note that if this bill passes, it will be law on Jan 1st, 2021, which is the same time that the new tiered registry law is suppose to start. Maybe they don’t want to have to deal with all these people with misdemeanor sex convictions suddenly applying for relief. It is my understanding that a 1203.42 automatically relieves a registrant of their registration duty.

    I may have missed something, trying to be optimistic, but this is what I glean.

    • NPS

      The tiered registry doesn’t begin until July 1, 2021.

    • AO @ Nonedescript

      What makes you believe that code would lift your duty to register? I looked at it and didn’t see anything. What 1203.42 does do is grant expungement to some people who received a prison sentence as long as their codes would have qualified in the 2011 change where some prison sentences were allowed to be served in county. Otherwise, all the 1203.4X codes do the same thing in terms of granting expungement and the limits that expungement has, like NOT ending duty to register.

  11. USA

    Interesting article. I do recall (I don’t remember the year) the laws changed and prohibited certain registrants from filing either a 17B and pc1203.4! So, this must mean something. The argument for years has been, if your charge or plea has been expunged, why should you have to register? I would also argue (this would/I don’t even know why I’m mentioning this) if your charge is reduced to a misdemeanor pursuant to 17B, that’s it! It’s a misdemeanor.

  12. USA

    I just received a response via sex offender management board regarding 17B. There response:

    I received your question regarding SB384. Unfortunately we are unable to provide you with the information you are requesting. You may want to consult with an attorney about your questions. I am also including a link to an FAQ on the Attorney General’s website that may provide you with additional information.

    I also post legal questions via a website called: Avvo
    Every attorney responded in our favor regarding 17B

    • AO @ USA

      That’s a positive response. Can you post a link to the FAQ they provided you with? Thanks!

      • Joe

        If he means this, it has been online for over a year.

        https://oag.ca.gov/sites/all/files/agweb/pdfs/csor/registrant-faqs.pdf

        I fail to see @USA’s continued confusion on this issue. PC 290, as of 1/1/2021 clearly states

        “A person is a tier one offender if the person is required to register for conviction of a misdemeanor described in subdivision (c), or for conviction of a felony described in subdivision (c) that was not a serious or violent felony as described in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.”

        A reduction of a wobbler offense from felony to misdemeanor pursuant to 17b would fall into that, as would a straight felony that would not listed in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. or listed subsequently.

        Maybe it is time for @USA to retain the services of a qualified legal professional (not AVVO or this forum) to sort this out for him, as his personal circumstance is not of interest to everyone.

  13. Harry

    Because of work and other obligations I will not be there for the hearing, however, I fax my letter to the chairman, called all the member’s offices and prayed.

  14. USA

    AVVO.com

    Avvo

    You asked:
    I plead to a wobble sexual battery pc 243.4 a 21 years ago. It’s a registerable offense!

    Attorney answer:
    It would be Tier 1, eligible after ten years… but you are eligible to terminate registration NOW through a Certificate of Rehabilitation. You have to file a petition with the court.

    • someone who cares

      USA ~ You say that your offense was a wobbler, so were you charged with a misdemeanor or a felony? Also, did you serve time in prison or jail? My understanding is that if you served time in jail and received probation, you can ask to get the offense reduced to a misdemeanor (if you were charged with a felony), and then get it expunged. The expungement would be automatic per law as long as you fulfilled all requirements of probation, paid all fees, etc. The reduction is at the judge’s discretion. In any case, once your case is expunged, you can apply for a COR after ten years since conviction, which you are already at 21 years. The COR is not automatic and again at the judge’s discretion. Once the Tiered Registry goes into effect, there is no more COR, just the waiting period, which is ten years for your offense if it was a misdemeanor (that’s why you need to reduce it to MD if you had a felony). I am not sure where an expunged felony would fall into as far as tiers. All this is based on what I researched, but of course, I am not a lawyer.

  15. USA

    Cares, my plea: pc 243.4 A felony, 1 Year LA county/summary probation. Reduced per pc 17B and later expunged. It will be 23 years once SB 384 comes into play. I imagine this will overload the courts. The charged was reduced while still on probation, reinstated probation and I mailed the pc 1203.4 in. Granted.

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