On September 22, 2021, Governor Newsom signed into law AB 262, which amended PC 236.14, California’s Vacatur law. PC 236.14, which went into effect January 1, 2017, allows any person who “was arrested for or convicted of any nonviolent offense committed while he or she was a victim of human trafficking” to petition to have records of those arrests sealed and records of those convictions vacated. This law has been crucial in addressing the criminalization and stigma that follow survivors even after they escape their trafficking situation and in helping improve access to housing, employment, financial support and other resources that are essential for survivors as they work to move forward with their lives. However, PC 236.14 as originally written created some unnecessary challenges for survivors seeking relief; AB 262 sought to remove some of those barriers.
The following highlights the key amendments to the law:
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Summary of Amendments |
Language of PC 236.14 |
Language of PC 236.14, as amended |
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The law clarifies that a court can’t refuse to hear a petition for vacatur just because a petitioner has outstanding fines and fees or they can’t meet the conditions of probation. |
(i): Notwithstanding this section, a petitioner shall not be relieved of any financial restitution order that directly benefits the victim of a nonviolent crime, unless it has already been paid. |
(i): Notwithstanding this section, a petitioner shall not be relieved of any financial restitution order that directly benefits the victim of a nonviolent crime, unless it has already been paid. With the exception of restitution, the collection of fines imposed as a result of a nonviolent offense that is the subject of the petition shall be stayed while the petition is pending. |
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The law designates additional agencies that are required to seal and destroy arrest records, and it shortens the time they have to do so. Additionally, the DOJ has to notify the petitioner/counsel that they have complied with the order to seal the arrest records by the deadline. |
(k): If the court issues an order as described in subdivision (a) or (j), the court shall also order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner to seal their records of the arrest and the court order to seal and destroy the records for three years from the date of the arrest, or within one year after the court order is granted, whichever occurs later, and thereafter to destroy their records of the arrest and the court order to seal and destroy those records. The court shall provide the petitioner a copy of any court order concerning the destruction of the arrest records. |
(k): (1) If the court issues an order as described in subdivision (a) or (j), the court shall also order all of the following agencies to seal and destroy their records: (A) Any law enforcement agency having jurisdiction over the offense. (B) The Department of Justice. (C) Any law enforcement agency that arrested the petitioner. (D) Any law enforcement agency that participated in the arrest of the petitioner. (E) Any law enforcement agency that has taken action or maintains records because of the offense including, but not limited to, departments of probation, rehabilitation, corrections, and parole. (2) Any government agency described in paragraph (1) shall seal their records of arrest and the court order to seal and destroy the records within one year from the date of arrest, or within 90 days after the court order is granted, whichever occurs later. The agency shall thereafter destroy their records of the arrest and court order to seal and destroy those records within one year of the date of the court order. (3) The court shall provide the petitioner a certified copy of any court order concerning the sealing and destruction of the arrest records. The court shall provide the petitioner and petitioner’s counsel a copy of any form that the court submits to any agency, including the Department of Justice, related to the sealing and destruction of the arrest records. (4) The Department of Justice shall notify the petitioner and the petitioner’s counsel that the department has complied with the order to seal the arrest records by the applicable deadline. |
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The law does away with the “reasonable time” requirement for filing a petition. |
(l): A petition pursuant to this section shall be made and heard within a reasonable time after the person has ceased to be a victim of human trafficking, or within a reasonable time after the petitioner has sought services for being a victim of human trafficking, whichever occurs later, subject to reasonable concerns for the safety of the petitioner, family members of the petitioner, or other victims of human trafficking who may be jeopardized by the bringing of the application or for other reasons consistent with the purposes of this section. |
(l): A petition pursuant to this section shall be made and heard at any time after the person has ceased to be a victim of human trafficking, or at any time after the petitioner has sought services for being a victim of human trafficking, whichever occurs later, subject to reasonable concerns for the safety of the petitioner, family members of the petitioner, or other victims of human trafficking who may be jeopardized by the bringing of the application or for other reasons consistent with the purposes of this section. The right to petition for relief pursuant to this section does not expire with the passage of time and may be made at any time after the time specified in this subdivision. A court shall not refuse to hear a petition that was properly made pursuant to this section on the basis of the petitioner’s outstanding fines and fees or the petitioner’s failure to meet the conditions of probation. |
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The law no longer requires petitioner to be present for hearings if the petition is unopposed (counsel may appear on their behalf). |
(n) A petitioner, or his or her attorney, may be excused from appearing in person at a hearing for relief pursuant to this section only if the court finds a compelling reason why the petitioner cannot attend the hearing, in which case the petitioner may appear telephonically, via videoconference, or by other electronic means established by the court. |
(n) If the petition is unopposed, the petitioner may appear at all hearings on the petition, if any, by counsel. If the petition is opposed and the court orders a hearing for relief on the petition, the petitioner shall appear in person unless the court finds a compelling reason why the petitioner cannot attend the hearing, in which case the petitioner may appear by telephone, videoconference, or by other electronic means established by the court. |
The full language of AB 262 can be found at: Bill Text - AB-262 Human trafficking: vacatur relief for victims.
Just over two weeks later, on October 8, 2021, Governor Newsom signed into law AB 124, also known as the Justice for Survivors Act, which, among other things, expanded the vacatur law to include victims of other crimes and amended sections of the penal code pertaining to affirmative defenses for trafficking survivors. Below are some of the key additions to/changes in law that resulted from AB 124:
- Section 236.15 was added to the Penal Code. The language of this section mirrors that of 236.14 pre-amendment as it makes vacatur relief available to victims of intimate partner violence or sexual violence whose criminal record is a direct result of being a victim of intimate partner violence or sexual violence. It is unclear why the language was not updated to reflect that of the amended 236.14, but as it was not, the “reasonable time requirement”, the requirement to appear in person at any hearing (unless the court finds a compelling reason why they cannot), and the original requirements for who has to correct their records and in a longer period of time still stand.
- Section 236.23 of the Penal Code was amended as follows: “(a) In addition to any other affirmative defense, it is a defense to a charge of a crime that the person was coerced to commit the offense as a direct result of being a human trafficking victim at the time of the offense and had a reasonable fear of harm. This defense does not apply to a serious felony, as defined in subdivision (c) of Section 1192.7 , or a violent felony, as defined in subdivision (c) of Section 667.5 , or a violation of Section 236.1 .
- Section 236.24 was added to the Penal Code to make the aforementioned affirmative defense available to victims of intimate partner violence or sexual violence.
The full language of AB 124 can be found at: Bill Text - AB-124 Criminal procedure. (ca.gov)