AB 124: Intimidate Partner Violence or Sexual Violence
We view this new law and the amendments thereto long overdue and needed to recognize the sad truth that there is a great deal of sexual violence, particularly within certain ethnic and cultural groups, as well as the pervasive problem of human trafficking, which is not limited to just those coming to California from outside the United States.
In a Nutshell: Assembly Bill (AB) 124 permits a person convicted of certain non-violent offenses to petition to have the conviction vacated based on clear and convincing evidence that the crime resulted from defendant being a victim of intimate partner violence, sexual trauma or human trafficking.
As most people can understand, the Legislature drafted such provisions most likely with convictions for solicitation of prostitution (Penal Code § 647(b)), loitering for purposes of prostitution (Penal Code § 653.22), trespassing (Penal Code § 602) and petty theft (Penal Code § 484) or disturbing the peace (Penal Code § 415) in mind.
Such convictions are for nonviolent offenses. We ask the reader to note that vacating an arrest or conviction under AB 124 only applies to convictions or arrests for nonviolent offenses. Violent offenses are listed out at Penal Code § 667.5(c) and are identified as twenty-three different types of offenses, from murder, mayhem, rape, sodomy and oral copulation to robbery, arson, attempted murder, to kidnapping and carjacking, plus other crimes.
If the person wishes to vacate such a plea under AB 124, that petitioner cannot just claim that he or she was a victim of intimate partner violence or human trafficking and have the judge order that the conviction be vacated. Instead, the person must present clear and convincing evidence that the arrest of conviction was a direct result of sexual violence, intimate partner violence or human trafficking. In other contexts where this standard exists, judges can be tough on such proof, but we believe empathy or even sympathy will soften the judge’s rigorous enforcement of such a high standard.
The new law also changes prior law to now permit a coercion defense to be used in the case of a serious felony or charge of human trafficking, where coercion was a direct result of the defendant being a human trafficking victim at the time of the offense and the defendant had a reasonable fear of harm (Pen. Code, § 236.23, subd. (a), as amended). A serious felony is one of forty-two crimes listed at Penal Code § 1192.7(c), including murder, attempted murder, mayhem, rape, sodomy, oral copulation, arson, exploding an explosive device with intent to injure another person, robbery, burglary, kidnapping, carjacking and many others.
Coercion is also made a permissible defense for victims of intimate partner violence or sexual violence (Penal Code § 236.24)
The petition process is available to juveniles found to be wards of the court under Welfare and Institutions Code § 602 (Penal Code § 236.15, subd. (j)). Petitions for relief under section 236.15 shall not disclose the petitioner’s full name (Id. at subd. (q)).
In addition, the new bill requires a prosecutor engaged in plea negotiations to consider as a mitigating circumstance the defendant’s trauma, youth, or victimization of intimate partner violence or human trafficking (Penal Code § 1016.7).