This article contains information on 1) new California law, found at Penal Code Section 653.29, which repeals former criminal code section PC 653.22(a), Loiter with Intent to Engage in Prostitution, and 2) Application to Seal & Destroy a former conviction of PC 653.22(a).
SB 357 & PC 653.29 Overview
In 2021, the California legislature introduced Senate Bill 357 (SB 357). SB 357 proposed a change to current California criminal law as it relates to PC 653.22(a), Loiter with Intent to Engage in Prostitution. In 2022, the Governor of California signed into law the provisions of SB 357. Currently, SB 357 is soon to be codified at the new California Penal Code 653.29, which takes effect on January 1, of 2023.
The new law, found at California Penal Code Section 653.29(a)-(f), allows for any person, who is presently defending against a PC 653.22(a) criminal charge, to have their PC 652.22(a) criminal charges dismissed, and to thereafter allow the defendant to petition the court to seal and destroy the arrest record related to that PC 653.22(a) charge.
PC 653.29(a)-(f) also allows any person, who was previously convicted of PC 653.22(a), to petition the court to have that PC 653.22(a) conviction overturned, sealed, and destroyed.
New Penal Code 653.29 Law
PC 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.
PC 653.29(a)(2): 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.
PC 653.29(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 now legally invalid.
PC 653.29(b)(2): 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 seal the conviction as legally invalid.
PC 653.29(c): Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (b).
PC 653.29(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.
PC 653.29(e): Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
PC 653.29(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.
Judicial Counsel Forms for PC 653.29
The Judicial Counsel of California has proposed several PC 653.29-related legal forms for public commentary. The public commentary closed on October 11, 2022. It is anticipated that Judicial Counsel Forms CR-425 and CR426 will be available before January 1, 2023.
Both CR-425 and CR-426 are the proposed forms that are projected to be used to facilitate a petitioner’s request to seal and destroy an arrest record related to a PC 653.22(a) conviction.
For defendants currently facing a PC 653.22(a) criminal charge, a demurrer should be filed on behalf of the defendant if the defendant has either not yet been arraigned on the PC 653.22(a) charges (or citation), or the defendant is currently being prosecuted for a violation of PC 653.22(a).
In most cases, the district attorney will request that the judge dismiss a current PC 653.22 case in the interest of justice as most district attorneys should be aware of newly enacted PC 653.29. For more information, see PC 1385, Dismissal in the Interest of Justice.
Note: Generally, a demurrer is not allowed once a prosecution has begun; however, a motion for demurrer after prosecution has begun should be allowed in a case where the criminal allegations no longer amount to a crime per repeal of that crime.
PC 851: Motion to Seal & Destroy
Penal Code Section 851 et seq. generally involves the law and legal process related to sealing and destroying a criminal arrest record. As of this writing, it is unclear whether the California Legislature will incorporate a new section to PC 851 or create an entirely new section to the California Penal Code to facilitate PC 653.29 petitions. In any event, the proposed CR-425 and CR-426 forms will likely cover the laws, and further information, as those laws and information relates to PC 653.29 Petitions.
Diversion & PC 653.22(a): A criminal charge of loiter with intent to engage in prostitution, which was diverted pursuant to PC 1000 or PC 1001, should not require a PC 653.29 petition to seal and destroy the records related to that diverted criminal charge. This is because PC 851.91 and PC 851.92 already allow for the arrest record related to a diverted criminal charge, which was diverted pursuant to PC 1000 and PC 1001, to be seal and destroyed upon successful petition. For more information, see PC 851 Seal & Destroy a Criminal Arrest.
For more information on California Senate Bill 357, Penal Code 653.29, Petition to Seal & Destroy a Conviction for PC 653.22(a), or information related to PC 851, contact our criminal defense lawyers for a free, in-office, first visit consultation. Our criminal defense lawyers presently represent defendant charged with any misdemeanor or felony crime in San Bernardino or Riverside County, including Redlands, Fontana, Ontario, Victorville, Yucaipa, San Bernardino, Rancho Cucamonga, and more. Call today!