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| 1 | + | Amended IN Senate July 03, 2023 Amended IN Assembly April 13, 2023 CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION Assembly Bill No. 1726Introduced by Assembly Member KalraFebruary 17, 2023An act to amend Sections 653.29, 1170.21, and 1170.22 of the Penal Code, relating to crimes. LEGISLATIVE COUNSEL'S DIGESTAB 1726, as amended, Kalra. Crimes: sentences.Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.This bill would also make related findings and declarations.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Former Section 653.22 of the Penal Code was enforced in an arbitrary and discriminatory manner.(b) For example, in the City of Los Angeles, Black adults comprised 56.1 percent of the charges, despite making up only 8.9 percent of the citys population. Women accounted for 67.1 percent of all former Section 653.22 of the Penal Code charges.(c) Likewise, vagueness of former Section 653.22 of the Penal Code also led to a dismissal rate in the County of Los Angeles almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three former Section 653.22 of the Penal Code cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence.(d) Former Section 647f of the Penal Code, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner.(e) For example, women made up 45 percent of those who came into contact with the criminal justice system under former Section 647f of the Penal Code, but women are only 12 percent of the HIV-positive population in California.(f) Likewise, Black and Latino people comprised over two-thirds (68 percent) of the people who came into contact with the criminal justice system under former Section 647f of the Penal Code, although just over one-half (56 percent) of people living with HIV in California are Black and Latino.(g) White men were also significantly more likely to be released and not charged under former Section 647f of the Penal Code. White men who were arrested for violating former Section 647f of the Penal code were not charged in 70 percent of cases, while all other racial/ethnic groups were not charged in 39 to 47 percent of solicitation incidents.(h) Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Ch. 317, Stats. 2020) to require that [t]he state . . . not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. (subd. (a), Sec. 745, Pen. Code).SECTION 1.SEC. 2. Section 653.29 of the Penal Code is amended to read:653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. All(2) All convictions of former Section 653.22 are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid due to constitutional error in the underlying conviction and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is legally invalid due to constitutional error in the underlying conviction. sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid due to constitutional error in the underlying conviction. invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.SEC. 2.SEC. 3. Section 1170.21 of the Penal Code is amended to read:1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is defective due to constitutional error and is therefore legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate.SEC. 3.SEC. 4. Section 1170.22 of the Penal Code is amended to read:1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. All(2) All convictions of Section 647f as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction due to constitutional error and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
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| 3 | - | ||
| 3 | + | Amended IN Senate July 03, 2023 Amended IN Assembly April 13, 2023 CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION Assembly Bill No. 1726Introduced by Assembly Member KalraFebruary 17, 2023An act to amend Sections 653.29, 1170.21, and 1170.22 of the Penal Code, relating to crimes. LEGISLATIVE COUNSEL'S DIGESTAB 1726, as amended, Kalra. Crimes: sentences.Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.This bill would also make related findings and declarations.Digest Key Vote: MAJORITY Appropriation: NO Fiscal Committee: NO Local Program: NO | |
| 4 | 4 | ||
| 5 | - | ||
| 5 | + | Amended IN Senate July 03, 2023 Amended IN Assembly April 13, 2023 | |
| 6 | 6 | ||
| 7 | - | Enrolled September 18, 2023 | |
| 8 | - | Passed IN Senate September 12, 2023 | |
| 9 | - | Passed IN Assembly September 13, 2023 | |
| 10 | 7 | Amended IN Senate July 03, 2023 | |
| 11 | 8 | Amended IN Assembly April 13, 2023 | |
| 12 | 9 | ||
| 13 | 10 | CALIFORNIA LEGISLATURE 20232024 REGULAR SESSION | |
| 14 | 11 | ||
| 15 | 12 | Assembly Bill | |
| 16 | 13 | ||
| 17 | 14 | No. 1726 | |
| 18 | 15 | ||
| 19 | 16 | Introduced by Assembly Member KalraFebruary 17, 2023 | |
| 20 | 17 | ||
| 21 | 18 | Introduced by Assembly Member Kalra | |
| 22 | 19 | February 17, 2023 | |
| 23 | 20 | ||
| 24 | 21 | An act to amend Sections 653.29, 1170.21, and 1170.22 of the Penal Code, relating to crimes. | |
| 25 | 22 | ||
| 26 | 23 | LEGISLATIVE COUNSEL'S DIGEST | |
| 27 | 24 | ||
| 28 | 25 | ## LEGISLATIVE COUNSEL'S DIGEST | |
| 29 | 26 | ||
| 30 | - | AB 1726, Kalra. Crimes: sentences. | |
| 27 | + | AB 1726, as amended, Kalra. Crimes: sentences. | |
| 31 | 28 | ||
| 32 | - | Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.This bill would also make related findings and declarations. | |
| 29 | + | Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified.This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified.This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin.This bill would also make related findings and declarations. | |
| 33 | 30 | ||
| 34 | 31 | Existing law, until January 1, 2023, made it a crime to loiter with the intent to commit prostitution. Existing law authorizes a person who has been convicted of loitering with intent to commit prostitution to petition the court for a recall or dismissal of sentence, as specified. | |
| 35 | 32 | ||
| 36 | - | This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin. | |
| 33 | + | This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin. | |
| 37 | 34 | ||
| 38 | 35 | Existing law, until January 1, 2018, made a defendant guilty of a felony if they are convicted of prostitution and had been previously convicted of prostitution or of another specified sexual offense, and in connection with the conviction a blood test was administered, as specified, with positive test results for AIDS, of which the defendant was informed. Existing law authorizes a person convicted under those provisions to petition the court for recall and dismissal of sentence, as specified. | |
| 39 | 36 | ||
| 40 | - | This bill would state that those convictions are presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin. | |
| 37 | + | This bill would state that those convictions are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for, among other reasons, race, ethnicity, or national origin. | |
| 41 | 38 | ||
| 42 | 39 | This bill would also make related findings and declarations. | |
| 43 | 40 | ||
| 44 | 41 | ## Digest Key | |
| 45 | 42 | ||
| 46 | 43 | ## Bill Text | |
| 47 | 44 | ||
| 48 | - | The people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Former Section 653.22 of the Penal Code was enforced in an arbitrary and discriminatory manner.(b) For example, in the City of Los Angeles, Black adults comprised 56.1 percent of the charges, despite making up only 8.9 percent of the citys population. Women accounted for 67.1 percent of all former Section 653.22 of the Penal Code charges.(c) Likewise, vagueness of former Section 653.22 of the Penal Code also led to a dismissal rate in the County of Los Angeles almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three former Section 653.22 of the Penal Code cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence.(d) Former Section 647f of the Penal Code, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner.(e) For example, women made up 45 percent of those who came into contact with the criminal justice system under former Section 647f of the Penal Code, but women are only 12 percent of the HIV-positive population in California.(f) Likewise, Black and Latino people comprised over two-thirds (68 percent) of the people who came into contact with the criminal justice system under former Section 647f of the Penal Code, although just over one-half (56 percent) of people living with HIV in California are Black and Latino.(g) White men were also significantly more likely to be released and not charged under former Section 647f of the Penal Code. White men who were arrested for violating former Section 647f of the Penal code were not charged in 70 percent of cases, while all other racial/ethnic groups were not charged in 39 to 47 percent of solicitation incidents.(h) Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Ch. 317, Stats. 2020) to require that [t]he state . . . not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. (subd. (a), Sec. 745, Pen. Code).SEC. 2. Section 653.29 of the Penal Code is amended to read:653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.SEC. 3. Section 1170.21 of the Penal Code is amended to read:1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate.SEC. 4. Section 1170.22 of the Penal Code is amended to read:1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case.(2) All convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 45 | + | The people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Former Section 653.22 of the Penal Code was enforced in an arbitrary and discriminatory manner.(b) For example, in the City of Los Angeles, Black adults comprised 56.1 percent of the charges, despite making up only 8.9 percent of the citys population. Women accounted for 67.1 percent of all former Section 653.22 of the Penal Code charges.(c) Likewise, vagueness of former Section 653.22 of the Penal Code also led to a dismissal rate in the County of Los Angeles almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three former Section 653.22 of the Penal Code cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence.(d) Former Section 647f of the Penal Code, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner.(e) For example, women made up 45 percent of those who came into contact with the criminal justice system under former Section 647f of the Penal Code, but women are only 12 percent of the HIV-positive population in California.(f) Likewise, Black and Latino people comprised over two-thirds (68 percent) of the people who came into contact with the criminal justice system under former Section 647f of the Penal Code, although just over one-half (56 percent) of people living with HIV in California are Black and Latino.(g) White men were also significantly more likely to be released and not charged under former Section 647f of the Penal Code. White men who were arrested for violating former Section 647f of the Penal code were not charged in 70 percent of cases, while all other racial/ethnic groups were not charged in 39 to 47 percent of solicitation incidents.(h) Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Ch. 317, Stats. 2020) to require that [t]he state . . . not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. (subd. (a), Sec. 745, Pen. Code).SECTION 1.SEC. 2. Section 653.29 of the Penal Code is amended to read:653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. All(2) All convictions of former Section 653.22 are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid due to constitutional error in the underlying conviction and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is legally invalid due to constitutional error in the underlying conviction. sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid due to constitutional error in the underlying conviction. invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.SEC. 2.SEC. 3. Section 1170.21 of the Penal Code is amended to read:1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is defective due to constitutional error and is therefore legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate.SEC. 3.SEC. 4. Section 1170.22 of the Penal Code is amended to read:1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. All(2) All convictions of Section 647f as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction due to constitutional error and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 49 | 46 | ||
| 50 | 47 | The people of the State of California do enact as follows: | |
| 51 | 48 | ||
| 52 | 49 | ## The people of the State of California do enact as follows: | |
| 53 | 50 | ||
| 54 | 51 | SECTION 1. The Legislature finds and declares all of the following:(a) Former Section 653.22 of the Penal Code was enforced in an arbitrary and discriminatory manner.(b) For example, in the City of Los Angeles, Black adults comprised 56.1 percent of the charges, despite making up only 8.9 percent of the citys population. Women accounted for 67.1 percent of all former Section 653.22 of the Penal Code charges.(c) Likewise, vagueness of former Section 653.22 of the Penal Code also led to a dismissal rate in the County of Los Angeles almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three former Section 653.22 of the Penal Code cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence.(d) Former Section 647f of the Penal Code, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner.(e) For example, women made up 45 percent of those who came into contact with the criminal justice system under former Section 647f of the Penal Code, but women are only 12 percent of the HIV-positive population in California.(f) Likewise, Black and Latino people comprised over two-thirds (68 percent) of the people who came into contact with the criminal justice system under former Section 647f of the Penal Code, although just over one-half (56 percent) of people living with HIV in California are Black and Latino.(g) White men were also significantly more likely to be released and not charged under former Section 647f of the Penal Code. White men who were arrested for violating former Section 647f of the Penal code were not charged in 70 percent of cases, while all other racial/ethnic groups were not charged in 39 to 47 percent of solicitation incidents.(h) Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Ch. 317, Stats. 2020) to require that [t]he state . . . not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. (subd. (a), Sec. 745, Pen. Code). | |
| 55 | 52 | ||
| 56 | 53 | SECTION 1. The Legislature finds and declares all of the following:(a) Former Section 653.22 of the Penal Code was enforced in an arbitrary and discriminatory manner.(b) For example, in the City of Los Angeles, Black adults comprised 56.1 percent of the charges, despite making up only 8.9 percent of the citys population. Women accounted for 67.1 percent of all former Section 653.22 of the Penal Code charges.(c) Likewise, vagueness of former Section 653.22 of the Penal Code also led to a dismissal rate in the County of Los Angeles almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three former Section 653.22 of the Penal Code cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence.(d) Former Section 647f of the Penal Code, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner.(e) For example, women made up 45 percent of those who came into contact with the criminal justice system under former Section 647f of the Penal Code, but women are only 12 percent of the HIV-positive population in California.(f) Likewise, Black and Latino people comprised over two-thirds (68 percent) of the people who came into contact with the criminal justice system under former Section 647f of the Penal Code, although just over one-half (56 percent) of people living with HIV in California are Black and Latino.(g) White men were also significantly more likely to be released and not charged under former Section 647f of the Penal Code. White men who were arrested for violating former Section 647f of the Penal code were not charged in 70 percent of cases, while all other racial/ethnic groups were not charged in 39 to 47 percent of solicitation incidents.(h) Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Ch. 317, Stats. 2020) to require that [t]he state . . . not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. (subd. (a), Sec. 745, Pen. Code). | |
| 57 | 54 | ||
| 58 | 55 | SECTION 1. The Legislature finds and declares all of the following: | |
| 59 | 56 | ||
| 60 | 57 | ### SECTION 1. | |
| 61 | 58 | ||
| 62 | 59 | (a) Former Section 653.22 of the Penal Code was enforced in an arbitrary and discriminatory manner. | |
| 63 | 60 | ||
| 64 | 61 | (b) For example, in the City of Los Angeles, Black adults comprised 56.1 percent of the charges, despite making up only 8.9 percent of the citys population. Women accounted for 67.1 percent of all former Section 653.22 of the Penal Code charges. | |
| 65 | 62 | ||
| 66 | 63 | (c) Likewise, vagueness of former Section 653.22 of the Penal Code also led to a dismissal rate in the County of Los Angeles almost three times higher than other Penal Code sections that criminalize sex work. Nearly one in three former Section 653.22 of the Penal Code cases referred to prosecutors by police were rejected for filing for lack of sufficient evidence. | |
| 67 | 64 | ||
| 68 | 65 | (d) Former Section 647f of the Penal Code, which created a felony crime that only applied to HIV-positive individuals, was also enforced in an arbitrary and discriminatory manner. | |
| 69 | 66 | ||
| 70 | 67 | (e) For example, women made up 45 percent of those who came into contact with the criminal justice system under former Section 647f of the Penal Code, but women are only 12 percent of the HIV-positive population in California. | |
| 71 | 68 | ||
| 72 | 69 | (f) Likewise, Black and Latino people comprised over two-thirds (68 percent) of the people who came into contact with the criminal justice system under former Section 647f of the Penal Code, although just over one-half (56 percent) of people living with HIV in California are Black and Latino. | |
| 73 | 70 | ||
| 74 | 71 | (g) White men were also significantly more likely to be released and not charged under former Section 647f of the Penal Code. White men who were arrested for violating former Section 647f of the Penal code were not charged in 70 percent of cases, while all other racial/ethnic groups were not charged in 39 to 47 percent of solicitation incidents. | |
| 75 | 72 | ||
| 76 | 73 | (h) Dedicated to the integrity of convictions free from racial bias, the Legislature passed the California Racial Justice Act of 2020 (Ch. 317, Stats. 2020) to require that [t]he state . . . not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. (subd. (a), Sec. 745, Pen. Code). | |
| 77 | 74 | ||
| 78 | - | SEC. 2. Section 653.29 of the Penal Code is amended to read:653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 75 | + | SECTION 1.SEC. 2. Section 653.29 of the Penal Code is amended to read:653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. All(2) All convictions of former Section 653.22 are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid due to constitutional error in the underlying conviction and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is legally invalid due to constitutional error in the underlying conviction. sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid due to constitutional error in the underlying conviction. invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 79 | 76 | ||
| 80 | - | SEC. 2. Section 653.29 of the Penal Code is amended to read: | |
| 77 | + | SECTION 1.SEC. 2. Section 653.29 of the Penal Code is amended to read: | |
| 81 | 78 | ||
| 82 | - | ### SEC. 2. | |
| 79 | + | ### SECTION 1.SEC. 2. | |
| 83 | 80 | ||
| 84 | - | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 81 | + | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. All(2) All convictions of former Section 653.22 are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid due to constitutional error in the underlying conviction and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is legally invalid due to constitutional error in the underlying conviction. sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid due to constitutional error in the underlying conviction. invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 85 | 82 | ||
| 86 | - | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 83 | + | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. All(2) All convictions of former Section 653.22 are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid due to constitutional error in the underlying conviction and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is legally invalid due to constitutional error in the underlying conviction. sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid due to constitutional error in the underlying conviction. invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 87 | 84 | ||
| 88 | - | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 85 | + | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. All(2) All convictions of former Section 653.22 are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid due to constitutional error in the underlying conviction and shall seal the conviction as legally invalid.(b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is legally invalid due to constitutional error in the underlying conviction. sealed.(2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(2)(3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid due to constitutional error in the underlying conviction. invalid.(c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).(d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.(e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.(f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 89 | 86 | ||
| 90 | 87 | ||
| 91 | 88 | ||
| 92 | - | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. | |
| 89 | + | 653.29. (a) (1) A person currently serving a sentence for a conviction of violating former Section 653.22, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal, and sealing, as applicable. All | |
| 93 | 90 | ||
| 94 | - | (2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons: | |
| 91 | + | (2) All convictions of former Section 653.22 are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons: | |
| 95 | 92 | ||
| 96 | 93 | (A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745. | |
| 97 | 94 | ||
| 98 | 95 | (B) Because it was imposed against a defendant who was acting under duress. | |
| 99 | 96 | ||
| 100 | 97 | (C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure. | |
| 101 | 98 | ||
| 102 | - | ( | |
| 99 | + | (2) | |
| 103 | 100 | ||
| 104 | - | (b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed. | |
| 101 | + | ||
| 102 | + | ||
| 103 | + | (3) Upon receiving a petition under paragraph (1), the court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the criteria. If the petitioner satisfies the criteria in paragraph (1), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid due to constitutional error in the underlying conviction and shall seal the conviction as legally invalid. | |
| 104 | + | ||
| 105 | + | (b) (1) A person who has completed their sentence for a conviction of violating Section 653.22, whether by trial or open or negotiated plea, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is legally invalid due to constitutional error in the underlying conviction. sealed. | |
| 105 | 106 | ||
| 106 | 107 | (2) All convictions of former Section 653.22 are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons: | |
| 107 | 108 | ||
| 108 | 109 | (A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745. | |
| 109 | 110 | ||
| 110 | 111 | (B) Because it was imposed against a defendant who was acting under duress. | |
| 111 | 112 | ||
| 112 | 113 | (C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (b) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure. | |
| 113 | 114 | ||
| 114 | - | (3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid. | |
| 115 | + | (2) | |
| 116 | + | ||
| 117 | + | ||
| 118 | + | ||
| 119 | + | (3) The court shall presume the petitioner satisfies the criteria in paragraph (1) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in paragraph (1). Once the applicant satisfies the criteria in paragraph (1), the court shall dismiss and seal the conviction as legally invalid due to constitutional error in the underlying conviction. invalid. | |
| 115 | 120 | ||
| 116 | 121 | (c) Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b). | |
| 117 | 122 | ||
| 118 | 123 | (d) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application. | |
| 119 | 124 | ||
| 120 | 125 | (e) Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant. | |
| 121 | 126 | ||
| 122 | 127 | (f) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section. | |
| 123 | 128 | ||
| 124 | - | SEC. 3. Section 1170.21 of the Penal Code is amended to read:1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 129 | + | SEC. 2.SEC. 3. Section 1170.21 of the Penal Code is amended to read:1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is defective due to constitutional error and is therefore legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 125 | 130 | ||
| 126 | - | SEC. 3. Section 1170.21 of the Penal Code is amended to read: | |
| 131 | + | SEC. 2.SEC. 3. Section 1170.21 of the Penal Code is amended to read: | |
| 127 | 132 | ||
| 128 | - | ### SEC. 3. | |
| 133 | + | ### SEC. 2.SEC. 3. | |
| 129 | 134 | ||
| 130 | - | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 135 | + | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is defective due to constitutional error and is therefore legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 131 | 136 | ||
| 132 | - | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 137 | + | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is defective due to constitutional error and is therefore legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 133 | 138 | ||
| 134 | - | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 139 | + | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is defective due to constitutional error and is therefore legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 135 | 140 | ||
| 136 | 141 | ||
| 137 | 142 | ||
| 138 | - | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 143 | + | 1170.21. A conviction for a violation of Section 647f as it read on December 31, 2017, is defective due to constitutional error and is therefore legally invalid and vacated. All charges alleging violation of Section 647f are dismissed and all arrests for violation of Section 647f are deemed to have never occurred. An individual who was arrested, charged, or convicted for a violation of Section 647f may indicate in response to any question concerning their prior arrest, charge, or conviction under Section 647f that they were not arrested, charged, or convicted for a violation of Section 647f. Notwithstanding any other law, information pertaining to an individuals arrest, charge, or conviction for violation of Section 647f shall not, without the individuals consent, be used in any way adverse to their interests, including, but not limited to, denial of any employment, benefit, license, or certificate. | |
| 139 | 144 | ||
| 140 | - | SEC. 4. Section 1170.22 of the Penal Code is amended to read:1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case.(2) All convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 145 | + | SEC. 3.SEC. 4. Section 1170.22 of the Penal Code is amended to read:1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. All(2) All convictions of Section 647f as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction due to constitutional error and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 141 | 146 | ||
| 142 | - | SEC. 4. Section 1170.22 of the Penal Code is amended to read: | |
| 147 | + | SEC. 3.SEC. 4. Section 1170.22 of the Penal Code is amended to read: | |
| 143 | 148 | ||
| 144 | - | ### SEC. 4. | |
| 149 | + | ### SEC. 3.SEC. 4. | |
| 145 | 150 | ||
| 146 | - | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case.(2) All convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 151 | + | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. All(2) All convictions of Section 647f as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction due to constitutional error and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 147 | 152 | ||
| 148 | - | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case.(2) All convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 153 | + | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. All(2) All convictions of Section 647f as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction due to constitutional error and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 149 | 154 | ||
| 150 | - | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case.(2) All convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 155 | + | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. All(2) All convictions of Section 647f as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons:(A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745.(B) Because it was imposed against a defendant who was acting under duress.(C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure.(b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction due to constitutional error and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts.(c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision.(d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.(e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply.(f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section.(g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution.(h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section.(i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. | |
| 151 | 156 | ||
| 152 | 157 | ||
| 153 | 158 | ||
| 154 | - | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. | |
| 159 | + | 1170.22. (a) (1) A person who is serving a sentence as a result of a violation of Section 647f as it read on December 31, 2017, whether by trial or by open or negotiated plea, may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in their case. All | |
| 155 | 160 | ||
| 156 | - | (2) All convictions of Section 647f as it read on December 31, 2017, are presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons: | |
| 161 | + | (2) All convictions of Section 647f as it read on December 31, 2017, are defective due to constitutional error and are therefore legally invalid. presumed legally invalid because the conviction was sought, obtained, or imposed for any of the following reasons: | |
| 157 | 162 | ||
| 158 | 163 | (A) On the basis of race, ethnicity, or national origin in violation of subdivision (a) of Section 745. | |
| 159 | 164 | ||
| 160 | 165 | (B) Because it was imposed against a defendant who was acting under duress. | |
| 161 | 166 | ||
| 162 | 167 | (C) Due to prejudicial error damaging the moving partys ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. A court may only issue a specific finding of ineffective assistance of counsel as a result of a motion brought under paragraph (1) of subdivision (a) if the attorney found to be ineffective was given timely advance notice of the motion hearing by the moving party or the prosecutor, pursuant to Section 416.90 of the Code of Civil Procedure. | |
| 163 | 168 | ||
| 164 | - | (b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts. | |
| 169 | + | (b) If the courts records show that the petitioner was convicted for a violation of Section 647f as it read on December 31, 2017, the court shall vacate the conviction due to constitutional error and the conviction is therefore legally invalid. The court shall resentence the person for any remaining counts. | |
| 165 | 170 | ||
| 166 | 171 | (c) A person who is serving a sentence and resentenced pursuant to subdivision (b) shall be given credit for any time already served and shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision. | |
| 167 | 172 | ||
| 168 | 173 | (d) Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement. | |
| 169 | 174 | ||
| 170 | 175 | (e) Upon completion of sentence for a conviction under Section 647f as it read on December 31, 2017, the provisions of Section 1170.21 shall apply. | |
| 171 | 176 | ||
| 172 | 177 | (f) Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of this section. | |
| 173 | 178 | ||
| 174 | 179 | (g) A resentencing hearing ordered under this section shall constitute a post-conviction release proceeding under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution. | |
| 175 | 180 | ||
| 176 | 181 | (h) The provisions of this section apply to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense or would not have been guilty of an offense governed by this section. | |
| 177 | 182 | ||
| 178 | 183 | (i) The Judicial Council shall promulgate and make available all necessary forms to enable the filing of petitions and applications provided in this section. |