California Assembly Bill AB2068 Amended / Bill

 BILL NUMBER: AB 2068AMENDED BILL TEXT AMENDED IN SENATE AUGUST 9, 2010 AMENDED IN ASSEMBLY APRIL 29, 2010 AMENDED IN ASSEMBLY APRIL 15, 2010 INTRODUCED BY Assembly Member Hill FEBRUARY 18, 2010 An act to amend Section 1203.4a of the Penal Code, relating to expungement standards. LEGISLATIVE COUNSEL'S DIGEST AB 2068, as amended, Hill. Expungement standards. Existing law, subject to exceptions, provides that every defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or 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 accusatory pleading against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, as specified. The bill would make this relief unavailable for convictions of specified sex offenses that apply if the victim is a child 14 or 15 years of age or a dependent person. This bill would authorize the court  , in its discretion and in the interests of justice,  to afford a defendant that relief as to other charges to which these provisions apply if, after a lapse of one year from the date of pronouncement of judgment,  the court, in its discretion and in the interests of justice, determines that the defendant who is otherwise eligible for the relief should be granted the relief   the defendant has fully complied w   ith his or her sentence, is not currently serving a sentence for any   offense, and is not under charge of commission of any crime  .  This bill would change an obsolete cross-reference that determines which misdemeanors are exempt from dismissal and relief pursuant to these provisions.   This bill would incorporate additional changes in Section 1203.4a of the Penal Code made by AB 2582 that would become operative if both bills are enacted and this bill is chaptered last.  Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1203.4a of the Penal Code is amended to read: 1203.4a. (a) Every defendant convicted of a misdemeanor and not granted probation shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or 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 accusatory pleading against the defendant, who 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 12021.1 of this code or Section 13555 of the Vehicle Code.  After   (b)     After  a lapse of one year from the date of pronouncement of judgment, a court, in its discretion and in the interests of justice, may  determine that a defendant who is otherwise eligible for the relief available under this section, should be granted relief under this section. The defendant shall be informed of the provisions of this   grant the relief available pursuant to this section to   a defendant convicted of a misdemeanor and not granted probation if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any o   ffense, and is not under charge of commission of any crime.   (c)     The defendant shall be informed of the provisions of this  section, either orally or in writing, at the time he or she is sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that 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 relief had not been granted pursuant to this section. This subdivision applies to convictions which occurred before as well as those occurring after, the effective date of this section.  (b)   (d)  Subdivision (a) does not apply to a misdemeanor violation of subdivision (c) of Section 288, or to any misdemeanor falling within the provisions of  subdivision (b) of Section 42001   Section 42002.1  of the Vehicle Code, or to any infraction.  (c)   (e)  A person who petitions for a dismissal of a charge under this section may be required to reimburse the county and the court for the cost of services rendered at a rate to be determined by the county board of supervisors for the county and by the court for the court, not to exceed sixty dollars ($60), and to reimburse any city for the cost of services rendered at a rate to be determined by the city council not to exceed sixty dollars ($60). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person's eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the cost for services established pursuant to this subdivision.  (d)   (f)  Any determination of amount made by a court under this section shall be valid only if either (1) made under procedures adopted by the Judicial Council or (2) approved by the Judicial Council.  SEC. 2.   Section 1203.4a of the   Penal Code   is amended to read:  1203.4a. (a) Every defendant convicted of a misdemeanor and not granted probation  and every defendant convicted of an infraction,  shall, at any time after the lapse of one year from the date of pronouncement of judgment, if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense and is not under charge of commission of any crime and has, since the pronouncement of judgment, lived an honest and upright life and has conformed to and obeyed the laws of the land, be permitted by the court to withdraw his or her plea of guilty or 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 accusatory pleading against the defendant, who 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 12021.1 of this code or Section 13555 of the Vehicle Code.  The   (b)     After a lapse of one year f   rom the date of pronouncement of judgment, a court, in its discretion and in the interests of justice, may grant the relief available pursuant to this section to a defendant convicted of a misdemeanor and not granted probation if he or she has fully complied with and performed the sentence of the court, is not then serving a sentence for any offense, and is not under charge of commission of any crime.   (c)     The  defendant shall be informed of the provisions of this section, either orally or in writing, at the time he or she is sentenced. The defendant may make an application and change of plea in person or by attorney, or by the probation officer authorized in writing; provided, that 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 relief had not been granted pursuant to this section. This subdivision applies to convictions which occurred before  ,  as well as those occurring after, the effective date of this section.  (b)   (d)    Subdivision (a) does not apply to  a misdemeanor violation of subdivision (c) of Section 288, or to  any misdemeanor falling within the provisions of  subdivision (b) of Section 42001   Section 42002.1  of the Vehicle Code, or to any infraction  falling within the provisions of Section 42001 of the Vehicle Code  .  (c)   (e)    A person who petitions for a dismissal of a charge under this section may be required to reimburse the county and the court for the cost of services rendered at a rate to be determined by the county board of supervisors for the county and by the court for the court, not to exceed sixty dollars ($60), and to reimburse any city for the cost of services rendered at a rate to be determined by the city council not to exceed sixty dollars ($60). Ability to make this reimbursement shall be determined by the court using the standards set forth in paragraph (2) of subdivision (g) of Section 987.8 and shall not be a prerequisite to a person's eligibility under this section. The court may order reimbursement in any case in which the petitioner appears to have the ability to pay, without undue hardship, all or any portion of the cost for services established pursuant to this subdivision.  (f) A petition for dismissal of an infraction pursuant to this section shall be by written declaration, except upon a showing of compelling need. Dismissal of an infraction shall not be granted under this section unless the prosecuting attorney has been given at least 15 days' notice of the petition for dismissal. It shall be presumed that the prosecuting attorney has received notice if proof of service is filed with the court.   (d)   (g)    Any determination of amount made by a court under this section shall be valid only if either (1) made under procedures adopted by the Judicial Council or (2) approved by the Judicial Council.  SEC. 3.   Section 2 of this bill incorporates amendments to Section 1203.4a of the Penal Code proposed by both this bill and AB 2582. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2010, (2) each bill amends Section 1203.4a of the Penal Code, and (3) this bill is enacted after AB 2582, in which case Section 1 of this bill shall not become operative.