BILL NUMBER: AB 22 CHAPTERED
BILL TEXT
CHAPTER 240
FILED WITH SECRETARY OF STATE SEPTEMBER 21, 2005
APPROVED BY GOVERNOR SEPTEMBER 21, 2005
PASSED THE SENATE SEPTEMBER 8, 2005
PASSED THE ASSEMBLY SEPTEMBER 8, 2005
AMENDED IN SENATE SEPTEMBER 8, 2005
AMENDED IN SENATE SEPTEMBER 2, 2005
AMENDED IN SENATE AUGUST 30, 2005
AMENDED IN SENATE AUGUST 16, 2005
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, Chan, Chavez, Cohn, DeVore,
Goldberg, Hancock, Shirley Horton, Koretz, Leno, Leslie, Levine,
Matthews, Pavley, Sharon Runner, and Ruskin)
(Coauthors: Senators Cedillo, 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 Section 13956 of the Government Code, and to
amend Sections 186.2, 273.7, 1202.4, and 14023 of, to add Sections
236.1 and 236.2 to, and to add and repeal Title 6.7 (commencing with
Section 13990) to Part 4 of, the Penal Code, relating to human
trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 22, 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 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, punishable by terms of imprisonment in the state prison
for 3, 4, or 5 years, or 4, 6, or 8 years, respectively. The bill
would permit a victim of trafficking to bring a civil action for
actual damages, 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 Agency Endorsement for all trafficking
victims within 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. The provisions relating to the task force would be
repealed January 1, 2008.
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.
This bill would incorporate additional changes in Section 186.2 of
the Penal Code proposed by AB 988 to become operative only if this
bill and AB 988 are enacted and become effective on or before January
1, 2006, and this bill is enacted last.
This bill would incorporate additional changes in Section 1202.4
of the Penal Code proposed by SB 972 to become operative only if this
bill and SB 972 are enacted and become effective on or before
January 1, 2006, and this bill is enacted last.
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.
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 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) In addition to the remedies specified herein, in any action
under subdivision (a), the plaintiff may be awarded up to three times
his or her actual damages or ten thousand dollars ($10,000),
whichever is greater. In addition, punitive damages may also be
awarded upon proof of the defendant's malice, oppression, fraud, or
duress in committing the act of human trafficking.
(c) An action brought pursuant to this section shall be commenced
within five 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 of human trafficking against the victim occurred, within
eight 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) 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.
(4) 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.
(5) The running of the statute of limitations is postponed during
the pendency of any criminal proceedings against the victim.
(e) The running of the statute of limitations may be suspended
where a person entitled to sue could not have reasonably discovered
the cause of action due to circumstances resulting from the
trafficking situation, such as psychological trauma, cultural and
linguistic isolation, and the inability to access services.
(f) A prevailing plaintiff may also be awarded reasonable attorney'
s fees and litigation costs including, but not limited to, expert
witness fees and expenses as part of the costs.
(g) Any restitution paid by the defendant to the victim shall be
credited against any judgment, award, or settlement obtained pursuant
to this section. Any judgment, award, or settlement obtained
pursuant to an action under this section shall be subject to the
provisions of Section 13963 of the Government Code.
(h) Any civil action filed under this section shall be stayed
during the pendency of any criminal action arising out of the same
occurrence in which the claimant is the victim. As used in this
section, a "criminal action" includes investigation and prosecution,
and is pending until a final adjudication in the trial court, or
dismissal.
SEC. 4. 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 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. 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 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 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 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. 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 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. 6.5. 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 236.1.
(29) Theft of personal identifying information, as defined in
Section 530.5.
(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, and
the theft of person identifying information, as defined in Section
530.5.
(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 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 the time of the commission
of the offense is punishable by imprisonment in the state prison for
four, six, or eight years.
(d) (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.
(e) 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.
(f) The Legislature finds that the definition of human trafficking
in this section is equivalent to 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 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. 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) For purposes of this section, "trafficking shelter" means a
confidential location which provides emergency housing on a 24-hour
basis for victims of human trafficking, including any person who is a
victim under Section 236.1.
(3) 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. 10. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the two
hundred-dollar ($200) or one hundred-dollar ($100) minimum.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two hundred-dollar ($200) or one hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or his
or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on
the amount of the fine shall not be required. A separate hearing for
the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) Except as provided in subdivision (q), in every case in which
a victim has suffered economic loss as a result of the defendant's
conduct, the court shall require that the defendant make restitution
to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or any
other showing to the court. If the amount of loss cannot be
ascertained at the time of sentencing, the restitution order shall
include a provision that the amount shall be determined at the
direction of the court. The court shall order full restitution unless
it finds compelling and extraordinary reasons for not doing so, and
states them on the record.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) of
Part 4 of Division 3 of Title 2 of the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include any commission income as well as any
base wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include any
commission income as well as any base wages. Commission income shall
be established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5,
including, but not limited to, a home security device or system, or
replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure shall be signed and prepared by the defendant on
the same form as described in paragraph (5). Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty. The
financial disclosure required by this paragraph shall be filed with
the clerk of the court no later than 90 days prior to the defendant's
scheduled release from probation or completion of the defendant's
conditional sentence.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution order, nor shall inability to pay be a consideration in
determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include all of
the following:
(1) The immediate surviving family of the actual victim.
(2) Any corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.
(3) Any person who has sustained economic loss as the result of a
crime and who satisfies any of the following conditions:
(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(B) At the time of the crime was living in the household of the
victim.
(C) 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 subparagraph (A).
(D) Is another family member of the victim, including, but not
limited to, the victim's fiance or fiancee, and who witnessed the
crime.
(E) Is the primary caretaker of a minor victim.
(4) Any person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon revocation
of probation, the court shall impose restitution pursuant to this
section.
(o) The provisions of Section 13963 of the Government Code shall
apply to restitution imposed pursuant to this section.
(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of an order
of restitution being imposed if the defendant is ordered to pay
restitution to the board due to the victim receiving compensation
from the Restitution Fund. Notification shall be accomplished by
mailing a copy of the court order to the board, which may be done
periodically by bulk mail or electronic mail.
(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in any case in which a
victim has suffered economic loss as a result of the defendant's
conduct. The court shall require that the defendant make restitution
to the victim or victims in a amount established by court order,
based on the amount of loss claimed by the victim or victims or any
other showing to the court. In determining restitution pursuant to
this section, the court shall base its order upon the greater of the
following 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, 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 or any other
appropriate means to provide reparations to the victim.
SEC. 10.5. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the two
hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court
may specify that funds confiscated at the time of the defendant's
arrest, except for funds confiscated pursuant to Section 11469 of the
Health and Safety Code, be applied to the restitution fine if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two hundred-dollar ($200) or one hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited
to, the defendant's inability to pay, the seriousness and gravity of
the offense and the circumstances of its commission, any economic
gain derived by the defendant as a result of the crime, the extent to
which any other person suffered any losses as a result of the crime,
and the number of victims involved in the crime. Those losses may
include pecuniary losses to the victim or his or her dependents as
well as intangible losses, such as psychological harm caused by the
crime. Consideration of a defendant's inability to pay may include
his or her future earning capacity. A defendant shall bear the burden
of demonstrating his or her inability to pay. Express findings by
the court as to the factors bearing on the amount of the fine shall
not be required. A separate hearing for the fine shall not be
required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) Except as provided in subdivision (q), in every case in which
a victim has suffered economic loss as a result of the defendant's
conduct, the court shall require that the defendant make restitution
to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or any
other showing to the court. If the amount of loss cannot be
ascertained at the time of sentencing, the restitution order shall
include a provision that the amount shall be determined at the
direction of the court. The court shall order full restitution unless
it finds compelling and extraordinary reasons for not doing so, and
states them on the record. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) of
Part 4 of Division 3 of Title 2 of the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include any commission income as well as any
base wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include any
commission income as well as any base wages. Commission income shall
be established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5,
including, but not limited to, a home security device or system, or
replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure shall be signed and prepared by the defendant on
the same form as described in paragraph (5). Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty. The
financial disclosure required by this paragraph shall be filed with
the clerk of the court no later than 90 days prior to the defendant's
scheduled release from probation or completion of the defendant's
conditional sentence.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution order, nor shall inability to pay be a consideration in
determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include all of
the following:
(1) The immediate surviving family of the actual victim.
(2) Any corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.
(3) Any person who has sustained economic loss as the result of a
crime and who satisfies any of the following conditions:
(A) At the time of the crime was the parent, grandparent, sibling,
spouse, child, or grandchild of the victim.
(B) At the time of the crime was living in the household of the
victim.
(C) 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 subparagraph (A).
(D) Is another family member of the victim, including, but not
limited to, the victim's fiance or fiancee, and who witnessed the
crime.
(E) Is the primary caretaker of a minor victim.
(4) Any person who is eligible to receive assistance from the
Restitution Fund pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon revocation
of probation, the court shall impose restitution pursuant to this
section.
(o) The provisions of Section 13963 of the Government Code shall
apply to restitution imposed pursuant to this section.
(p) The court clerk shall notify the California Victim
Compensation and Government Claims Board within 90 days of an order
of restitution being imposed if the defendant is ordered to pay
restitution to the board due to the victim receiving compensation
from the Restitution Fund. Notification shall be accomplished by
mailing a copy of the court order to the board, which may be done
periodically by bulk mail or electronic mail.
(q) Upon conviction for a violation of Section 236.1, the court
shall, in addition to any other penalty or restitution, order the
defendant to pay restitution to the victim in any case in which a
victim has suffered economic loss as a result of the defendant's
conduct. The court shall require that the defendant make restitution
to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or any
other showing to the court. In determining restitution pursuant to
this section, the court shall base its order upon the greater of the
following: 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, 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 or any other
appropriate means to provide reparations to the victim.
SEC. 11. Title 6.7 (commencing with Section 13990) is added to
Part 4 of the Penal Code, to read:
TITLE 6.7. CALIFORNIA ALLIANCE TO COMBAT TRAFFICKING AND
SLAVERY (CALIFORNIA ACTS) TASK FORCE
13990. (a) There is hereby established the California Alliance to
Combat Trafficking and Slavery (California ACTS) Task Force to do
the following to the extent feasible:
(1) Collect and organize data on the nature and extent of
trafficking in persons in California.
(2) Examine collaborative models between government and
nongovernmental organizations for protecting victims of trafficking.
(3) Measure and evaluate the progress of the state in preventing
trafficking, protecting and providing assistance to victims of
trafficking, and prosecuting persons engaged in trafficking.
(4) Identify available federal, state, and local programs that
provide services to victims of trafficking that include, but are not
limited to, health care, human services, housing, education, legal
assistance, job training or preparation, interpreting services,
English-as-a-second-language classes, voluntary repatriation and
victim's compensation. Assess the need for additional services,
including but not limited to, shelter services for trafficking
victims.
(5) Evaluate approaches to increase public awareness of
trafficking.
(6) Analyze existing state criminal statutes for their adequacy in
addressing trafficking and, if the analysis determines that those
statutes are inadequate, recommend revisions to those statutes or the
enactment of new statutes that specifically define and address
trafficking.
(7) Consult with governmental and nongovernmental organizations in
developing recommendations to strengthen state and local efforts to
prevent trafficking, protect and assist victims of trafficking, and
prosecute traffickers.
(b) The task force shall be chaired by a designee of the Attorney
General. The Department of Justice shall provide staff and support
for the task force to the extent resources are available.
(c) The members of the task force shall serve at the pleasure of
the respective appointing authority. Reimbursement of necessary
expenses may be provided at the discretion of the respective
appointing authority or agency participating in the task force. The
task force shall be comprised of the following representatives or
their designees:
(1) The Attorney General.
(2) The Secretary of the Labor and Workforce Development Agency.
(3) The Director of the State Department of Social Services.
(4) The Director of the State Department of Health Services.
(5) Chairperson of the Judicial Council of California.
(6) Chairperson of the State Commission on the Status of Women.
(7) One representative from the California District Attorneys
Association.
(8) One representative from the California Public Defenders
Association.
(9) Two representatives of local law enforcement, one selected by
the California State Sheriffs' Association and one selected by the
California Police Chiefs' Association.
(10) One representative from the California Coalition Against
Sexual Assault, appointed by the Governor.
(11) One representative from the California Partnership to End
Domestic Violence, appointed by the Governor.
(12) The Governor shall appoint one university researcher and one
mental health professional.
(13) The Speaker of the Assembly shall appoint one representative
from an organization that advocates for immigrant workers' rights and
one representative from an organization that serves victims of human
trafficking in southern California.
(14) The Senate Rules Committee shall appoint one representative
from an organization that provides legal immigration services to
low-income individuals, and one representative from an organization
that serves victims of trafficking in northern California.
(15) The Governor shall appoint one survivor of human trafficking.
(d) Whenever possible, members of the task force shall have
experience providing services to trafficked persons or have knowledge
of human trafficking issues.
(e) The task force shall meet at least once every two months.
Subcommittees may be formed and meet as necessary. All meetings
shall be open to the public. The first meeting of the task force
shall be held no later than March 1, 2006.
(f) On or before July 1, 2007, the task force shall report its
findings and recommendations to the Governor, the Attorney General,
and the Legislature. At the request of any member, the report may
include minority findings and recommendations.
(g) For the purposes of this section, "trafficking" means all acts
involved in the recruitment, abduction, transport, harboring,
transfer, sale or receipt of persons, within national or across
international borders, through force, coercion, fraud or deception,
to place persons in situations of slavery or slavery like conditions,
forced labor or services, such as forced prostitution or sexual
services, domestic servitude, bonded sweatshop labor, or other debt
bondage.
(h) This section is repealed as of January 1, 2008, unless a later
enacted statute, that becomes operative before January 1, 2008,
deletes or extends that date.
SEC. 12. 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. 13. 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 than provided for in this act.
SEC. 14. Section 6.5 of this bill incorporates amendments to
Section 186.2 of the Penal Code proposed by both this bill and AB
988. It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2006, (2) each bill amends
Section 186.2 of the Penal Code, and (3) this bill is enacted after
AB 988, in which case Section 6 of this bill shall not become
operative.
SEC. 15. Section 10.5 of this bill incorporates amendments to
Section 1202.4 of the Penal Code proposed by both this bill and SB
972. It shall only become operative if (1) both bills are enacted and
become effective on or before January 1, 2006, (2) each bill amends
Section 1202.4 of the Penal Code, and (3) this bill is enacted after
SB 972, in which case Section 10 of this bill shall not become
operative.
SEC. 16. 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.