BILL NUMBER: AB 22 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 29, 2005
AMENDED IN SENATE JUNE 16, 2005
AMENDED IN ASSEMBLY MAY 4, 2005
AMENDED IN ASSEMBLY APRIL 21, 2005
INTRODUCED BY Assembly Members Lieber and Liu and Senator Kuehl
( Principal coauthor: Senator
Alquist )
(Coauthors: Assembly Members Bermudez, Chavez,
Chan, Chavez, Cohn, DeVore, Goldberg, Hancock,
Shirley Horton, Koretz, Leno, Leslie, Levine, Matthews,
Pavley, Sharon Runner, and Ruskin)
( Coauthor: Senator
Escutia Coauthors: Senators
Escutia and Romero )
DECEMBER 6, 2004
An act to add Section 52.5 to the Civil Code, to add Article 8.8
(commencing with Section 1038) to Chapter 4 of Division 8 of the
Evidence Code, to amend Sections 13955 and 13956 of the Government
Code, and to amend Sections 181, 186.2, 273.7, and
14023 of, to add Sections 181.1 and 181.2 to, to add a
Chapter heading in Title 7 (commencing with Section 181) of Part 1 of
236.1 and 236.2 to , and to add and repeal
Section 13823.18 of the Penal Code, relating to human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 22, as amended, Lieber. Trafficking in persons.
Existing law establishes the offenses of slavery and involuntary
servitude. Existing law also makes it an offense to entice an
unmarried female minor for purposes of prostitution, as specified, or
to aid or assist with the same, or to procure by fraudulent means,
any female to have illicit carnal connection with any man. Existing
law also makes it a crime to take away any minor as specified, for
purposes of prostitution.
This bill would include the existing crimes of slavery
and involuntary servitude within new provisions pertaining to human
trafficking. The bill would establish the crime of
trafficking of a person for forced labor or services or for
effecting or maintaining other specified felonies, and the
crime of trafficking of a minor for those purposes ,
both punishable as felonies punishable by
terms of imprisonment in the state prison of 3, 4, or 5 years, or 4,
6, or 8 years, respectively . The bill would provide for
restitution , and punitive damages, and
would establish a victim-caseworker privilege.
By creating new crimes, this bill would impose a state-mandated
local program.
The bill would require state and local law enforcement agencies to
issue a Law Enforcement Authority Agency
Endorsement for all trafficking victims with 15 business days
of initial contact with the victim.
By imposing new duties on local law enforcement agencies, this
bill would impose a state-mandated local program.
Existing law establishes various advisory bodies in connection
with domestic violence.
The bill would establish a task force to study various issues in
connection with human trafficking and to advise the Legislature, as
specified.
Existing law requires the Attorney General to give priority to
matters involving organized crime, gang activities, drug trafficking,
and cases involving a high degree of risk to the witness.
This bill would include human trafficking in that list of
priorities.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
This act shall be known and may be cited as, the California
Trafficking Victims Protection Act.
SEC. 2. Section 52.5 is added to the Civil Code, to read:
52.5.
(a) A victim of human trafficking, as defined in
subdivision (b) of Section 181 Section 236.1 of
the Penal Code, may bring a civil action for actual damages,
compensatory damages, punitive damages, injunctive relief, any
combination of those, or any other appropriate relief. A prevailing
plaintiff may also be awarded attorney's fees and costs.
(b) Treble damages may be awarded on proof of actual damage.
(c) An action brought pursuant to this section shall be commenced
within 10 years of the date on which the trafficking victim was freed
from the trafficking situation, or if the victim was a minor when
the act occurred, within 15 years after the date the plaintiff
attains the age of majority.
(d) If a person entitled to sue is under a disability at the time
the cause of action accrues, so that it is impossible or
impracticable for him or her to bring an action, then the time of the
disability is not part of the time limited for the commencement of
the action. Disability will toll the running of the statute of
limitation for this action.
(1) Disability includes being a minor, insanity, imprisonment, or
other incapacity or incompetence.
(2) The statute of limitations shall not run against an
incompetent or minor plaintiff simply because a guardian ad litem has
been appointed. A guardian ad litem's failure to bring a plaintiff's
action within the applicable limitation period will not prejudice
the plaintiff's right to do so after his or her disability ceases.
(3) If a person entitled to sue lacks knowledge of his or her
rights under this law at the time the cause of action accrues and
could not have reasonably consulted legal counsel to become aware of
his or her rights, the running of the statute of limitations shall be
suspended until such knowledge of his or her rights can be
reasonably obtained.
(4) A defendant is estopped to assert a defense of the statute of
limitations when the expiration of the statute is due to conduct by
the defendant inducing the plaintiff to delay the filing of the
action, or due to threats made by the defendant causing duress upon
the plaintiff.
(5) The suspension of the statute of limitations due to
disability, lack of knowledge, or estoppel applies to all other
related claims arising out of the trafficking situation.
(6) The running of the statute of limitations is postponed during
the pendency of any criminal proceedings against the victim.
(e) A prevailing plaintiff may also be awarded attorney's fees and
litigation costs including, but not limited to, expert witness fees
and expenses as part of the costs.
SEC. 3. Article 8.8 (commencing with Section 1038) is added to
Chapter 4 of Division 8 of the Evidence Code, to read:
Article 8.8. Human Trafficking Victim-Caseworker Privilege
1038.
(a) A trafficking victim, whether or not a party to the action,
has a privilege to refuse to disclose, and to prevent another from
disclosing, a confidential communication between the victim and a
human trafficking caseworker if the privilege is claimed by any of
the following persons:
(1) The holder of the privilege.
(2) A person who is authorized to claim the privilege by the
holder of the privilege.
(3) The person who was the human trafficking caseworker at the
time of the confidential communication. However, that person may not
claim the privilege if there is no holder of the privilege in
existence or if he or she is otherwise instructed by a person
authorized to permit disclosure. The human trafficking caseworker who
received or made a communication subject to the privilege granted by
this article shall claim the privilege whenever he or she is present
when the communication is sought to be disclosed and he or she is
authorized to claim the privilege under this section.
(b) A human trafficking caseworker shall inform a trafficking
victim of any applicable limitations on confidentiality of
communications between the victim and the caseworker. This
information may be given orally.
1038.1.
(a) The court may compel disclosure of information received by a
human trafficking caseworker that constitutes relevant evidence of
the facts and circumstances involving a crime allegedly perpetrated
against the victim and that is the subject of a criminal proceeding,
if the court determines that the probative value of the information
outweighs the effect of disclosure of the information on the victim,
the counseling relationship, and the counseling services. The court
may compel disclosure if the victim is either dead or not the
complaining witness in a criminal action against the perpetrator.
(b) When a court rules on a claim of privilege under this article,
it may require the person from whom disclosure is sought or the
person authorized to claim the privilege, or both, to disclose the
information in chambers out of the presence and hearing of all
persons except the person authorized to claim the privilege and those
other persons that the person authorized to claim the privilege
consents to have present.
(c) If the judge determines that the information is privileged and
shall not be disclosed, neither he nor she nor any other person may
disclose, without the consent of a person authorized to permit
disclosure, any information disclosed in the course of the
proceedings in chambers. If the court determines that information
shall be disclosed, the court shall so order and inform the defendant
in the criminal action. If the court finds there is a reasonable
likelihood that any information is subject to disclosure pursuant to
the balancing test provided in this section, the procedure specified
in paragraphs (1), (2), and (3) of Section 1035.4 shall be followed.
1038.2.
(a) As used in this article, "victim" means any person who is a
"trafficking victim" as defined in Section 181.2
236.1 .
(b) As used in this article, "human trafficking caseworker" means
any of the following:
(1) A person who is employed by any organization providing the
programs specified in Section 18294 of the Welfare and Institutions
Code, whether financially compensated or not, for the purpose of
rendering advice or assistance to victims of human trafficking, who
has received specialized training in the counseling of human
trafficking victims, and who meets one of the following requirements:
(A) Has a master's degree in counseling or a related field; or has
one year of counseling experience, at least six months of which is
in the counseling of human trafficking victims.
(B) Has at least 40 hours of training as specified in this
paragraph and is supervised by an individual who qualifies as a
counselor under subparagraph (A), or is a psychotherapist, as defined
in Section 1010. The training, supervised by a person qualified
under subparagraph (A), shall include, but need not be limited to,
the following areas: history of human trafficking, civil and criminal
law as it relates to human trafficking, societal attitudes towards
human trafficking, peer counseling techniques, housing, public
assistance and other financial resources available to meet the
financial needs of human trafficking victims, and referral services
available to human trafficking victims. A portion of this training
must include an explanation of privileged communication.
(2) A person who is employed by any organization providing the
programs specified in Section 13835.2 of the Penal Code, whether
financially compensated or not, for the purpose of counseling and
assisting human trafficking victims, and who meets one of the
following requirements:
(A) Is a psychotherapist as defined in Section 1010, has a master'
s degree in counseling or a related field, or has one year of
counseling experience, at least six months of which is in rape
assault counseling.
(B) Has the minimum training for human trafficking counseling
required by guidelines established by the employing agency pursuant
to subdivision (c) of Section 13835.10 of the Penal Code, and is
supervised by an individual who qualifies as a counselor under
subparagraph (A). The training, supervised by a person qualified
under subparagraph (A), shall include, but not be limited to, law,
victimology, counseling techniques, client and system advocacy, and
referral services. A portion of this training must include an
explanation of privileged communication.
(c) As used in this article, "confidential communication" means
information transmitted between the victim and the caseworker in the
course of their relationship and in confidence by a means which, so
far as the victim is aware, discloses the information to no third
persons other than those who are present to further the interests of
the victim in the consultation or those to whom disclosures are
reasonably necessary for the transmission of the information or an
accomplishment of the purposes for which the human trafficking
counselor is consulted. It includes all information regarding the
facts and circumstances involving all incidences of human
trafficking.
(d) As used in this article, "holder of the privilege" means the
victim when he or she has no guardian or conservator, or a guardian
or conservator of the victim when the victim has a guardian or
conservator.
SEC. 4. Section 13955 of the Government Code is amended to read:
13955.
Except as provided in Section 13956, a person shall be eligible
for compensation when all of the following requirements are met:
(a) The person for whom compensation is being sought is any of the
following:
(1) A victim.
(2) A derivative victim.
(3) A person who is entitled to reimbursement for funeral, burial,
or crime scene cleanup expenses pursuant to subdivision (i) of
Section 13957.
(b) Either of the following conditions is met:
(1) The crime occurred within the State of California, whether or
not the victim is a resident of the State of California. This
paragraph shall apply only during those time periods during which the
board determines that federal funds are available to the State of
California for the compensation of victims of crime.
(2) Whether or not the crime occurred within the State of
California, the victim was any of the following:
(A) A resident of the State of California.
(B) A member of the military stationed in California.
(C) A family member living with a member of the military stationed
in California.
(c) If compensation is being sought for a derivative victim, the
derivative victim is a resident of California, or resident of another
state, who is any of the following:
(1) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(2) At the time of the crime was living in the household of the
victim.
(3) At the time of the crime was a person who had previously lived
in the household of the victim for a period of not less than two
years in a relationship substantially similar to a relationship
listed in paragraph (1).
(4) Is another family member of the victim, including, but not
limited to, the victim's fiance or fiancee, and who witnessed the
crime.
(5) Is the primary caretaker of a minor victim, but was not the
primary caretaker at the time of the crime.
(d) The application is timely pursuant to Section 13953.
(e) (1) Except as provided in paragraph (2), the injury or death
was a direct result of a crime.
(2) Notwithstanding paragraph (1), no act involving the operation
of a motor vehicle, aircraft, or water vehicle that results in injury
or death constitutes a crime for the purposes of this chapter,
except when the injury or death from such an act was any of the
following:
(A) Intentionally inflicted through the use of a motor vehicle,
aircraft, or water vehicle.
(B) Caused by a driver who fails to stop at the scene of an
accident in violation of Section 20001 of the Vehicle Code.
(C) Caused by a person who is under the influence of any alcoholic
beverage or drug.
(D) Caused by a driver of a motor vehicle in the immediate act of
fleeing the scene of a crime in which he or she knowingly and
willingly participated.
(E) Caused by a person who commits vehicular manslaughter in
violation of subdivision (c) of Section 192 or Section 192.5 of the
Penal Code.
(f) As a direct result of the crime, the victim or derivative
victim sustained one or more of the following:
(1) Physical injury. The board may presume a child who has been
the witness of a crime of domestic violence has sustained physical
injury. A child who resides in a home where a crime or crimes of
domestic violence have occurred may be presumed by the board to have
sustained physical injury, regardless of whether the child has
witnessed the crime.
(2) Emotional injury and a threat of physical injury.
(3) Emotional injury, where the crime was a violation of any of
the following provisions:
(A) Section 261, 262, 271, 273a, 273d, 285, 286, 288, 288a, 288.5,
or 289, or subdivision (b) or (c) of Section 311.4, of the Penal
Code.
(B) Section 270 of the Penal Code, where the emotional injury was
a result of conduct other than a failure to pay child support, and
criminal charges were filed.
(C) Section 261.5 of the Penal Code, and criminal charges were
filed.
(D) Section 278 or 278.5 of the Penal Code, where the deprivation
of custody as described in those sections has endured for 30 calendar
days or more. For purposes of this paragraph, the child, and not the
nonoffending parent or other caretaker, shall be deemed the victim.
(E) Section 181 236.1 of the Penal
Code, where the emotional injury was a result of human trafficking
and one of the following occurred:
(i) Criminal charges were filed.
(ii) The victim received a Law Enforcement Agency Endorsement
pursuant to Section 181.3 236.2 of the
Penal Code.
(iii) A human trafficking caseworker, as identified in Section
1038.2 of the Evidence Code, has attested by affidavit that the
individual was a victim of human trafficking.
(g) The injury or death has resulted or may result in pecuniary
loss within the scope of compensation pursuant to Sections 13957 to
13957.9, inclusive.
SEC. 4.5
SEC. 5. Section 13956 of the Government Code is amended to
read:
13956.
Notwithstanding Section 13955, a person shall not be eligible for
compensation under the following conditions:
(a) An application shall be denied if the board finds that the
victim or, where compensation is sought by or on behalf of a
derivative victim, either the victim or derivative victim, knowingly
and willingly participated in the commission of the crime that
resulted in the pecuniary loss for which compensation is being sought
pursuant to this chapter. However, this subdivision shall not apply
if the injury or death occurred as a direct result of a crime
committed in violation of Section 261, 262, or 273.5 of, or a crime
of unlawful sexual intercourse with a minor committed in violation of
subdivision (d) of Section 261.5 of, the Penal Code.
(b) (1) An application shall be denied if the board finds that the
victim or, where compensation is sought by, or on behalf of, a
derivative victim, either the victim or derivative victim failed to
cooperate reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing the crime.
However, in determining whether cooperation has been reasonable, the
board shall consider the victim's or derivative victim's age,
physical condition, and psychological state, cultural or linguistic
barriers, any compelling health and safety concerns, including, but
not limited to, a reasonable fear of retaliation or harm that would
jeopardize the well-being of the victim or the victim's family or the
derivative victim or the derivative victim's family, and giving due
consideration to the degree of cooperation of which the victim or
derivative victim is capable in light of the presence of any of these
factors.
(2) An application for a claim based on domestic violence may not
be denied solely because no police report was made by the victim. The
board shall adopt guidelines that allow the board to consider and
approve applications for assistance based on domestic violence
relying upon evidence other than a police report to establish that a
domestic violence crime has occurred. Factors evidencing that a
domestic violence crime has occurred may include, but are not limited
to, medical records documenting injuries consistent with allegations
of domestic violence, mental health records, or the fact that the
victim has obtained a temporary or permanent restraining order, or
all of these.
(3) An application for a claim based on human trafficking as
defined in Section 181 236.1 of the
Penal Code may not be denied solely because no police report was made
by the victim. The board shall adopt guidelines that allow the board
to consider and approve applications for assistance based on human
trafficking relying upon evidence other than a police report to
establish that a human trafficking crime as defined in Section
181 236.1 has occurred. That evidence
may include any reliable corroborating information approved by the
board, including, but not limited to, the following:
(A) A Law Enforcement Agency Endorsement issued pursuant to
Section 181.3 236.2 of the Penal Code.
(B) A human trafficking caseworker as identified in Section 1038.2
of the Evidence Code, has attested by affidavit that the individual
was a victim of human trafficking.
(c) An application for compensation may be denied, in whole or in
part, if the board finds that denial is appropriate because of the
nature of the victim's or other applicant's involvement in the events
leading to the crime or the involvement of the persons whose injury
or death gives rise to the application. In the case of a minor, the
board shall consider the minor's age, physical condition, and
psychological state, as well as any compelling health and safety
concerns, in determining whether the minor's application should be
denied pursuant to this section. The application of a derivative
victim of domestic violence under the age of 18 years of age or a
derivative victim of trafficking under 18 years of age may not be
denied on the basis of the denial of the victim's application under
this subdivision.
(d) (1) Notwithstanding Section 13955, no person who is convicted
of a felony may be granted compensation until that person has been
discharged from probation or has been released from a correctional
institution and has been discharged from parole, if any. In no case
shall compensation be granted to an applicant pursuant to this
chapter during any period of time the applicant is held in a
correctional institution.
(2) A person who has been convicted of a felony may apply for
compensation pursuant to this chapter at any time, but the award of
that compensation may not be considered until the applicant meets the
requirements for compensation set forth in paragraph (1).
(3) Applications of victims who are not felons shall receive
priority in the award of compensation over an application submitted
by a felon who has met the requirements for compensation set forth in
paragraph (1).
SEC. 5. The heading of Chapter 7.5 (commencing with Section 181)
is added to Title 7 of Part 1 of the Penal Code, immediately
preceding Section 181, to read:
CHAPTER 7.5. Human Trafficking
SEC. 6. Section 181 of the Penal Code is amended to read:
181.
(a) Every person who holds, or attempts to hold, any person in
involuntary servitude, or assumes, or attempts to assume, rights of
ownership over any person, or who sells, or attempts to sell, any
person to another, or receives money or anything of value, in
consideration of placing any person in the custody, or under the
power or control of another, or who buys, or attempts to buy, any
person, or pays money, or delivers anything of value, to another, in
consideration of having any person placed in his or her custody or
under his or her power or control, or who knowingly aids or assists
in any manner any one thus offending, is punishable by imprisonment
in the state prison for two, three, or four years.
(b) Every person who knowingly subjects, or attempts to subject,
another person to forced labor or services, or who knowingly
participates in, recruits, entices, harbors, transports, provides, or
obtains by any means, or attempts to recruit, entice, harbor,
transport, provide, or obtain by any means, another person, intending
or knowing that the person will be subjected to forced labor or
services, or who benefits financially or by receiving anything of
value, from participation in a venture which has engaged in an act
described in this subdivision, is guilty of human trafficking,
punishable by three, four, or six years in the state prison.
(c) If the person trafficked is under 18 years of age, the offense
is punishable by three, six, or eight years in the state prison.
(d) Upon conviction of any person for a violation of this section,
the court shall, in addition to any other penalty or restitution,
order the defendant to pay restitution to the victim based upon the
greater of the gross value of the victim's labor or services based
upon the comparable value of similar services in the labor market in
which the crime occurred, or the value of the victim's labor as
guaranteed under California law, or the actual income derived by the
defendant from the victim's labor or services. This restitution order
shall be enforceable as if the order were a civil judgment.
SEC. 7. Section 181.1 is added to the Penal Code, to read:
181.1.
For purposes of this chapter, the following definitions apply:
(a) "Extortion" as defined in Section 518.
(b) "Financial harm" includes credit extortion and criminal
violation of usury provisions.
(c) "Forced labor or services" means labor or services that are
performed or provided by another person and are obtained or
maintained through any of the following:
(1) Causing or threatening to cause serious harm to any person.
(2) Physically restraining or threatening to physically restrain
another person.
(3) Abusing or threatening to abuse the law or legal process.
(4) Knowingly destroying, concealing removing, confiscating, or
possessing any actual or purported passport or other immigration
document, or any other actual or purported government identification
document, of another person in the course of a violation of Section
181 or with the intent to violate Section 181.
(5) Extortion.
(6) Causing or threatening to cause financial harm to any person.
(d) "Labor" means work of economic or financial value.
(e) "Maintain" means in relation to labor services, to secure
continued performance thereof, regardless of any initial agreement on
the part of the victim to perform that type of service.
(f) "Obtain" means, in relation to labor or services, to secure
performance thereof.
(g) "Services" means an ongoing relationship between a person and
the actor in which the person performs activities under the
supervision of or for the benefit of the actor. Commercial sexual
activity and sexually explicit performances are forms of "services"
pursuant to this section. Nothing in this section shall be construed
to legitimize or legalize prostitution.
(h) "Trafficking victim" means a person subjected to the practices
set forth in Sections 181, 181.1, or 181.2.
SEC. 8. Section 181.2 is added to the Penal Code, to read:
181.2.
(a) The Legislature finds that victims meeting the definition of
trafficking victim as defined in Section 181 meet the federal
definition of a victim of a severe form of trafficking found at
Section 7102(8) of Title 22 of the United States Code.
(b) Within 15 business days of the first encounter of a
trafficking victim as defined in Section 181, law enforcement
agencies shall provide brief letters that satisfy the following Law
Enforcement Agency Endorsement (LEA) regulations as found in Section
214.11 (f)(1) of Chapter 8 of the Code of Federal Regulations.
(c) The LEA must be submitted on Supplement B, Declaration of Law
Enforcement Officer for Victim of Trafficking in Persons, of Form
I-914. The LEA endorsement must be filled out completely in
accordance with the instructions contained on the form and must
attach the results of any name or database inquiry performed. In
order to provide persuasive evidence, the LEA endorsement must
contain a description of the victimization upon which the application
is based, including the dates the trafficking in persons and
victimization occurred, and be signed by a supervising official
responsible for the investigation or prosecution of trafficking in
persons. The LEA endorsement must address whether the victim had been
recruited, harbored, transported, provided, or obtained specifically
for either labor or services, or for the purposes of a commercial
sex act.
(d) Where state law enforcement agencies find the grant of a LEA
endorsement to be inappropriate for a victim of trafficking in
persons, the agency shall within 15 days provide the victim with a
letter explaining the grounds of the denial of the LEA. The victim
may submit additional evidence to the law enforcement agency, which
must reconsider the denial of the LEA within one week of the receipt
of additional evidence.
SEC. 9.
SEC. 6. Section 186.2 of the Penal Code is amended to read:
186.2.
For purposes of this chapter, the following definitions apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) False or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350.
(24) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft against the state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500 of the Public
Resources Code.
(28) Human trafficking, as defined in Section 181
236.1 .
(b) "Pattern of criminal profiteering activity" means engaging in
at least two incidents of criminal profiteering, as defined by this
act, that meet the following requirements:
(1) Have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(2) Are not isolated events.
(3) Were committed as a criminal activity of organized crime.
Acts that would constitute a "pattern of criminal profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be used
by a prosecuting agency to seek remedies provided by this chapter if
a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution,
loan-sharking, gambling, and pornography, or that, through planning
and coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the assets
of a business for the purpose of defrauding creditors. "Organized
crime" also means crime committed by a criminal street gang, as
defined in subdivision (f) of Section 186.22. "Organized crime" also
means false or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
SEC. 7. Section 236.1 is added to the
Penal Code , to read:
236.1.
(a) Any person who deprives or violates the personal liberty of
another with the intent to effect or maintain a felony violation of
Section 266, 266h, 266i, 267, 311.4, or Section 518, or to obtain
forced labor or services, is guilty of human trafficking.
(b) Except as provided in subdivision (c), a violation of this
section is punishable by imprisonment in the state prison for three,
four, or five years.
(c) A violation of this section where the victim of the
trafficking was under 18 years of age at commission of the offense is
punishable by imprisonment in the state prison for four, six, or
eight years.
(d) Upon conviction for a violation of this section, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim based upon the greater of
the following:
(1) The gross value of the victim's labor or services based upon
the comparable value of similar services in the labor market in which
the offense occurred.
(2) The value of the victim's labor as guaranteed under
California law.
(3) The actual income derived by the defendant from the victim's
labor or services.
(e) Any restitution order issued pursuant to subdivision (d) shall
be enforceable as if the order were a civil judgment.
(f) (1) For purposes of this section, unlawful deprivation or
violation of the personal liberty of another includes substantial and
sustained restriction of another's liberty accomplished through
fraud, deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person, under
circumstances where the person receiving or apprehending the threat
reasonably believes that it is likely that the person making the
threat would carry it out.
(2) Duress includes knowingly destroying, concealing, removing,
confiscating or possessing any actual or purported passport or
immigration document of the victim.
(g) For purposes of this section, "forced labor or services" means
labor or services that are performed or provided by a person and are
obtained or maintained through force, fraud, or coercion, or
equivalent conduct that would reasonably overbear the will of the
person.
(h) The Legislature finds that the definition of human trafficking
in this section is equivalent to the definition of a pursuant to
Section 236.1 meet the federal definition of a severe form of
trafficking found in Section 7102(8) of Title 22 of the United States
Code.
SEC. 8. Section 236.2 is added to the
Penal Code , to read:
236.2.
(a) Within 15 business days of the first encounter of a victim of
human trafficking, victim pursuant to Section 236.1, law enforcement
agencies shall provide brief letters that satisfy the following Law
Enforcement Agency Endorsement (LEA) regulations as found in Section
214.11 (f)(1) of Chapter 8 of the Code of Federal Regulations.
(b) The LEA must be submitted on Supplement B, Declaration of Law
Enforcement Officer for Victim of Trafficking in Persons, of Form
I-914. The LEA endorsement must be filled out completely in
accordance with the instructions contained on the form and must
attach the results of any name or database inquiry performed. In
order to provide persuasive evidence, the LEA endorsement must
contain a description of the victimization upon which the application
is based, including the dates the trafficking in persons and
victimization occurred, and be signed by a supervising official
responsible for the investigation or prosecution of trafficking in
persons. The LEA endorsement must address whether the victim had been
recruited, harbored, transported, provided, or obtained specifically
for either labor or services, or for the purposes of a commercial
sex act.
(c) Where state law enforcement agencies find the grant of an a
LEA endorsement to be inappropriate for a victim of trafficking in
persons, the agency shall within 15 days provide the victim with a
letter explaining the grounds of the denial of the LEA. The victim
may submit additional evidence to the law enforcement agency, which
must reconsider the denial of the LEA within one week of the receipt
of additional evidence.
SEC. 10.
SEC. 9. Section 273.7 of the Penal Code is amended to read:
273.7.
(a) Any person who maliciously publishes, disseminates, or
otherwise discloses the location of any trafficking shelter or
domestic violence shelter or any place designated as a trafficking
shelter or domestic violence shelter, without the authorization of
that trafficking shelter or domestic violence shelter, is guilty of a
misdemeanor.
(b) (1) For purposes of this section, "domestic violence shelter"
means a confidential location which provides emergency housing on a
24-hour basis for victims of sexual assault, spousal abuse, or both,
and their families.
(2) Sexual assault, spousal abuse, or both, includes but is not
limited to, those crimes described in Sections 240, 242, 243.4, 261,
261.5, 262, 264.1, 266, 266a, 266b, 266c, 266f, 273.5, 273.6, 285,
288, and 289.
(c) Nothing in this section shall apply to confidential
communications between an attorney and his or her client.
SEC. 11.
SEC. 10. Section 13823.18 is added to the Penal Code, to
read:
13823.18.
There is hereby created an antitrafficking advisory task force
that shall assist the Legislature with guiding and coordinating
antitrafficking efforts.
(a) The task force shall be chaired and convened by a designee of
the Attorney General.
(b) The members of the task force shall serve at the pleasure of
their respective appointing authority, without compensation, except
for reimbursement of necessary expenses.
(c) The task force shall be composed of the following
representatives:
(1) One representative of the State Department of Social Services.
(2) One representative of the State Department of Health Services.
(3) Two representatives of local law enforcement, one selected by
the California State Sheriffs' Association and one selected by the
California Police Chiefs' Association.
(4) One representative of the Judicial Council.
(5) Two representatives of the State Bar of California, one of
whom practices criminal defense and one of whom represents person in
immigration proceedings.
(5) One representative of the State Bar of California who
represents persons in immigration proceedings.
(6) One representative of the California District
Attorney's Attorneys' Association ;
, and one representative of a city attorney
, appointed by California League of Cities.
(7) Two representatives of a recognized organization involved in
immigrant worker's workers' rights,
civil liberties advocacy, or legal aid, one of whom is appointed by
the Speaker of the Assembly and one of whom is appointed by the
Senate Committee on Rules.
(8) Three representatives of organizations with experience and
expertise in serving survivors of human trafficking, at least one of
whom shall be located in northern California, and one of whom shall
be located in southern California, selected by the California
Anti-Trafficking Initiative.
(9) Two members of the public appointed by the Governor, at least
one of whom shall be a survivor of human trafficking.
(10) One representative of the medical profession with expertise
in mental health services and experience working with immigrant and
refugee populations, selected by a majority of the task force.
(11) One representative of higher education with research
experience on forced labor and human trafficking, selected by a
majority of the task force.
(12) One criminal defense practitioner, designated by the
California Public Defenders Association.
(d) The task force shall, at a minimum, do all of the following:
(1) Make recommendations for improving the public's awareness and
understanding of trafficking victims.
(2) Implement an independent, comprehensive study on the
prevalence of trafficking in the state.
(3) Conduct public hearings on the issue of trafficking.
(4) Evaluate proposed antitrafficking legislation.
(5) Create working protocols for collaborative work between
government and nongovernment organizations.
(6) Review statewide implementation of state and federal
antitrafficking laws and make recommendations to the Legislature for
improving laws, regulations, and social services for trafficking
victims.
(7) Create a subcommittee on shelters to conduct an assessment of
existing shelters that meet the unique needs of trafficking
survivors, and make recommendations on ways to increase the capacity
of trafficking shelters and shelter programs specifically designed
for trafficking survivors.
(d)
(e) The Department of Justice shall provide staff and
support for the task force.
(e)
(f) The task force shall meet at least once every three
months. Subcommittees may be formed and meet as necessary. All
meetings shall be open to the public.
(f)
(g) On or before July 1, 2007, the task force shall
report its findings and recommendations to the Governor, the Attorney
General, the Speaker of the Assembly, and the Senate Committee on
Rules. At the request of any member, the report may include minority
findings and recommendations.
(g)
(h) This section shall become inoperative on July 1,
2007, and is repealed as of January 1, 2007
2008 , unless a later enacted statute, that becomes operative
before January 1, 2007 2008 , deletes
or extends that date.
SEC. 12.
SEC. 11. Section 14023 of the Penal Code is amended to read:
14023.
The Attorney General shall give priority to matters involving
organized crime, gang activities, drug trafficking, human
trafficking, and cases involving a high degree of risk to the
witness. Special regard shall also be given to the elderly, the
young, battered, victims of domestic violence, the infirm, the
handicapped, and victims of hate incidents.
SEC. 12.5. SEC. 12.
Nothing in this act shall be construed as prohibiting or
precluding prosecution under any other provision of law or to prevent
punishment pursuant to any other provision of law that imposes a
greater or more severe punishment that than
provided for in this act.
SEC. 13.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution for certain costs that
may be incurred by a local agency or school district because, in that
regard, this act creates a new crime or infraction, eliminates a
crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
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