Human Trafficking Victim Conviction Relief FAQ
If you were a victim of human trafficking, either as a juvenile or as an adult, and you committed crimes while you were a victim of human trafficking, you may be able to get arrest and/or conviction records vacated and sealed. Effective January 1, 2017, Penal Code § 236.14 allows any victim of human trafficking who has been arrested for, or convicted of, any nonviolent crime which occurred “as a direct result of being a victim of human trafficking” to petition to have the records relating to the arrest or conviction sealed and to have the conviction vacated. The petition is called a Human Trafficking Vacatur Relief petition.
YOU MAY BE ELIGIBLE IF:
· You were a victim of human trafficking; AND
· You were arrested for or convicted of any non-violent crime committed while you were a victim of human trafficking. (NOTE: “Non-violent” crime has a very specific meaning. It means any crime NOT listed in Penal Code § 667.5(c)); AND
· You committed the crime as the direct result of being a victim of human trafficking; AND
· You are engaged in a good faith effort to distance yourself from the human trafficking scheme.
YOU ARE NOT ELIGIBLE IF:
· The arrest or conviction is for a violent crime that is listed in Penal Code § 667.5(c) (NOTE: if you have other arrests and convictions that are non-violent you can still petition to have those cases sealed and vacated); or
· The crime occurred while you were not a victim of human trafficking; or
· The crime was not the direct result of being a victim of human trafficking.
· If another person deprived you of or violated your personal liberty with the intent to obtain forced labor or services, you may be a victim of human trafficking.
· If another person deprived you of or violated your personal liberty with the intent to have you participate in commercial sex acts, prostitution, or child pornography, you may be a victim of human trafficking.
· If another person caused, induced, or persuaded, or attempted to cause, induce, or persuade, you when you were a minor to engage in a commercial sex act, prostitution, or pornography, you may be a victim of human trafficking.
Under this law, a non-violent crime is any crime not listed in Penal Code §667.5(c). All misdemeanors under this law are non-violent crimes. Most felonies under this law are non-violent crimes. Only the most serious crimes are considered “violent” crimes and they spelled out in Penal Code §667.5(c).
The crimes covered by this new law are not limited to arrests or convictions for prostitution. It is much broader than that. It may include, for example, crimes such as drug use and possession if the reason you were using was to cope with being a victim of human trafficking.
· The Court will deem the arrest and any adjudications or convictions not to have occurred (in other words it is as if it never happened);
· All the records (for example, police reports, court files, booking information, rap sheet information) will be sealed and ultimately destroyed;
· On any future applications, including jobs, housing etc., you can legally deny ever having been arrested for or convicted of the offense for which relief was granted.
· If you owe restitution (money paid to the victim of your offense for damages you caused as ordered by the court) you will still have to pay the restitution. The Vacatur Relief petition does not get rid of your obligation to pay restitution.
· It will not change arrests or convictions in other states or in federal court.
The law says you must “establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking.”
You have to convince a judge that:
(1) You were a victim of human trafficking at the time the nonviolent crime was committed;
(2) The commission of the crime was a direct result of being a victim of human trafficking;
(3) You are engaged in a good faith effort to distance yourself from the human trafficking scheme;
(4) It is in your best interest and in the interests of justice to vacate, seal and destroy the records.
To convince the judge you must submit a petition under penalty of perjury that:
· Describes all of the available evidence that you were a victim of human trafficking; and
· Explains how the arrest or conviction of a nonviolent offense was the direct result of being a victim of human trafficking; and
· Describes your good faith effort to distance yourself from the human trafficking scheme; and
· Includes any documents, letters, reports or other evidence which support your claims.
A copy of this petition for relief and supporting documents must be served on the prosecutorial agency (District Attorney or City Attorney).
The prosecutorial agency has 45 days from the date of receipt to respond to the petition for relief.
The law allows, if you want and all the different prosecutorial agencies agree, to have one petition and one hearing cover all your cases even if they occurred in different counties.
Maybe. A hearing is not required if the prosecution does not oppose your petition, or if the prosecution does not respond to your petition within 45 days. The court will deem the petition unopposed and may grant the petition without a hearing.
The court will hold a hearing if the prosecution opposes your petition.
At the hearing, the judge may consider:
· Your testimony. You need to be at the hearing unless the judge agrees to have you participate over the telephone or videoconference.
· Any evidence and supporting documentation in support of the petition. This can include:
o Official documentation of your status as a victim of human trafficking
o Court records
o Police reports
o Character letters, certificates, proof of participation in any programs, etc.
· Any opposition evidence presented by any of the involved state or local prosecutorial agencies that obtained the conviction.
The law says “[a] petition . . . 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.”
A judge has discretion to hear petitions that go beyond these limits with a showing of good cause. The court will look at reasonable concerns for your, your family’s, or other victims’ of human trafficking safety who may be jeopardized by filing the petition.
There is no cost to file a Petition for Human Trafficking Vacatur Relief.
No, a lawyer is not necessary to file the petition, BUT this is a brand new law and we highly recommend you consult with a lawyer familiar with the law and the process in San Diego County.
We strongly encourage you to work with a lawyer. You may hire a lawyer or our office is able to help you at no cost. Our experienced attorneys will review your entire record and determine what relief you are eligible for. Some petitions are more complicated and the judge needs to see additional information to help make a decision. Our office can assist you by researching your record, gathering records and supporting documents, writing petitions, motions and declarations, filing petitions, motions and declarations in court, serving the petition on the prosecutorial agency, and appearing in court, if necessary, to argue for the petition to be granted.
If you would like our office to assist you, fill out and submit the Fresh Start Program Request for Assistance form.
You may e-mail, fax, mail, or drop off your request form.
Office of the Public Defender Email: Fresh.Start@sdcounty.ca.gov
Fresh Start Program Fax: (619) 338-4811 (Attn: Fresh Start Program)
450 B Street, Suite 900
San Diego, CA 92101
If the court grants your Petition, any arrest or conviction covered in the judge’s order is deemed never to have happened. You can legally say it does not exist.
Probably. The law does not let people serve on juries if they have felony convictions, or if they have committed malfeasance in a public office. If the court vacates your convictions, they no longer exist and you should be able to serve on a jury.
Maybe. See DNA Database Expungement FAQ.
For information about services, you can call the Access and Crisis line at 888-724-7240. This line is available 24 hours a day, 7 days a week.
Please call the Office of the Primary Public Defender at (619) 338-4700 and ask to speak to someone from the Fresh Start Program. The Office of the Primary Public Defender will assist you even if you had an attorney from the Office of the Alternate Public Defender, a court appointed panel attorney, or you retained an attorney and now cannot afford to pay the attorney for assistance. You may also email a question to Fresh.Start@sdcounty.ca.gov.