BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 16
                                                                  Page 1

          Date of Hearing:   March 31, 2009
          Counsel:                Kimberly A. Horiuchi


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                  AB 16 (Swanson) - As Introduced:  December 1, 2008
                       As Proposed to be Amended in Committee
           
           
           SUMMARY  :   Adds human trafficking to the list of "serious" and  
          "violent" felonies for purposes of sentencing pursuant to the  
          "Three Strikes" Law. 

           EXISTING LAW  :

          1)Defines a "violent felony" as any of the following [Penal Code  
            Section 667.5(c)]:

             a)   Murder or voluntary manslaughter;

             b)   Mayhem;

             c)   Rape or spousal rape accomplished by means of force or  
               threats of retaliation;

             d)   Sodomy by force or fear of immediate bodily injury on  
               the victim or another person;

             e)   Oral copulation by force or fear of immediate bodily  
               injury on the victim or another person;

             f)   Lewd acts on a child under the age of 14 years, as  
               defined;

             g)   Any felony punishable by death or imprisonment in the  
               state prison for life;

             h)   Any felony in which the defendant inflicts great bodily  
               injury on any person other than an accomplice, or any  
               felony in which the defendant has used a firearm, as  
               specified;

             i)   Any robbery;








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             j)   Arson of a structure, forest land, or property that  
               causes great bodily injury;

             aa)  Arson that causes an inhabited structure or property to  
               burn;

             bb)  Sexual penetration accomplished against the victim's  
               will by means of force, menace or fear of immediate bodily  
               injury on the victim or another person;

             cc)  Attempted murder;

             dd)  Explosion or attempted explosion of a destructive device  
               with the intent to commit murder;

             ee)  Explosion or ignition of any destructive device or any  
               explosive which causes bodily injury to any person;

             ff)  Explosion of a destructive device which causes death or  
               great bodily injury;

             gg)  Kidnapping;

             hh)  Assault with intent to commit mayhem, rape, sodomy or  
               oral copulation;

             ii)  Continuous sexual abuse of a child;

             jj)  Carjacking, as defined;

             aaa) Rape or penetration of genital or anal openings by a  
               foreign object;

             bbb) Felony extortion;

             ccc) Threats to victims or witnesses, as specified;

             ddd) First degree burglary, as defined, where it is proved  
               that another person other than an accomplice, was present  
               in the residence during the burglary;

             eee) Use of a firearm during the commission of specified  
               crimes; and,









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             fff) Possession, development, production, and transfers of  
               weapons of mass destruction.

          1)Defines a "serious felony" as any of the following:  murder or  
            manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts  
            on a child under the age of 14; any felony punishable by death  
            or imprisonment for life; any felony in which the defendant  
            inflicts great bodily injury; attempted murder; assault with  
            the intent to commit rape or robbery; assault with a deadly  
            weapon or instrument on a peace officer; assault by a life  
            prisoner on a non-inmate; assault with a deadly weapon by an  
            inmate; arson; exploding a destructive devise with the  
            intention to commit murder or great bodily injury;  
            first-degree burglary; armed robbery or bank robbery;  
            kidnapping; holding of a hostage by a person confined to a  
            state prison; attempting to commit a felony punishable by  
            death or life in prison; any felony where the defendant  
            personally used a dangerous or deadly weapon; selling or  
            otherwise providing heroin, PCP or any type of  
            methamphetamine-related drug; forcible sexual penetration;  
            grand theft involving a firearm; carjacking; assault with the  
            intent to commit mayhem, rape, sodomy or forcible oral  
            copulation; throwing acid or other flammable substance;  
            assault with a deadly weapon on a peace officer; assault with  
            a deadly weapon on a member of the transit authority;  
            discharge of a firearm in an inhabited dwelling or car; rape  
            or sexual penetration done in concert; continuous sexual abuse  
            of a child; shooting from a vehicle; intimidating a victim or  
            witness; any attempt to commit the above-listed crimes except  
            assault or burglary; and using a firearm in the commission of  
            a crime and possession of weapons of mass destruction.  [Penal  
            Code Section 1192.7(c).]

          2)States that every person who, with intent that the crime be  
            committed, solicits another person to commit or join in the  
            commission of murder shall be punished by imprisonment in the  
            state prison for three, six, or nine years.  [Penal Code  
            Section 653f(b).]

          3)Provides that if a defendant is convicted of a felony offense  
            and it is pled and proved that the defendant has previously  
            been convicted of two or more serious or violent offenses as  
            specified, the term for the current conviction is an  
            indeterminate term of life in prison with the minimum term  
            calculated as the greater of 25 years, three times the term  








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            provided for each current felony conviction, or the  
            determinate term which would otherwise be imposed including  
            enhancements.  (Penal Code Sections 667 and 1170.12.)

          4)Provides that if a defendant is convicted of a felony offense  
            and it is pled and proved that the defendant has been  
            convicted of one prior serious or violent offense as defined,  
            the term of imprisonment is twice the term otherwise imposed  
            for the current offense.  (Penal Code Sections 667 and  
            1170.12.)

          5)Provides that a defendant, who is convicted of any current  
            felony, with prior convictions of two or more "violent or  
            serious" felonies, must receive a life sentence with a minimum  
            term of 25 years.  The minimum term for any defendant with two  
            prior serious or violent offenses must be at least 25 years.   
            In many cases, multiple terms of 25-years-to-life must be 
          imposed - one for each count (separately charged offense) which  
            does not arise from the same operative facts in the current  
            case.  Where multiple convictions do arise from separate  
            operative facts, the court has discretion to impose  
            consecutive or concurrent terms.  [Penal Code Section  
            667(c)(6).]  According to a complex formula, in a rare case, a  
            different minimum term may be imposed if it would result in a  
            longer sentence than 25 years.  [Penal Code Sections  
            667(d)(2)(A)(i) to (iii), 667(a) and (d)(2)(i), and  
            1170.12(c)(2)(A).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :    

           1)Author's Statement  :  According to the author, "The crimes of  
            sexual exploitation of minors by organized criminals is a  
            growing concern in Oakland and has led to the Assemblymember  
            and local law enforcement to focus on this growing problem.   
            These minors as young as 12 years old are being held captive  
            against their will and forced into prostitution and other  
            illicit sexual activities."

           2)Background on Three Strikes  :  The Three Strikes law was  
            enacted by AB 971 (Jones/Costa), Chapter 12, Statutes of 1994,  
            and by Proposition 184 passed by the voters on November 8,  
            1994.  Under the Three Strikes Law, a juvenile adjudication  
            may constitute an adult strike prior, although a minor is not  








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            entitled to a jury trial; a person sentenced under the Three  
            Strikes law may not be committed to any facility other than  
            prison; the Three Strikes Law prohibits plea-bargaining; Three  
            Strikes eliminates any "wash-out" period, requiring that any  
            prior or serious or violent felony conviction be used  
            regardless of when it occurred; requires the prosecuting  
            attorney to plead and prove each prior felony conviction; and,  
            Three Strikes may only be amended by a two-thirds vote of the  
            Legislature or a ballot measure approved by the electorate. 

           3)Costs of Adding Crimes to the List of "Serious" and "Violent"  
            Felonies  :  Adding an offense to the list of crimes already  
            specified as "serious" or "violent" will create longer prison  
            sentences for some offenders as a result of sentencing under  
            Three Strikes.  Proposition 21, enacted by initiative in 2000,  
            significantly increased the number of offenses included on the  
            serious or violent felony list.  The Secretary of State in its  
            March 2000 Voter Pamphlet stated that the fiscal cost of  
            adding several offenses to the list of serious or violent  
            felonies was an annual cost of $300 million.  According to the  
            Legislative Analyst's Office, the state spends an average of  
            $49,000 annually to incarcerate an inmate.  [Legislative  
            Analyst's Office, "Corrections Spending and Impact of Possible  
            Inmate Population Reduction", Assembly Budget Subcommittee No.  
            4 on State Administration.]

           4)Related Legislation  :  

             a)   AB 17 (Swanson) requires courts impose a fine, in  
               addition to the proposed fine and prescribed punishment,  
               upon any person who solicit another person who is under 18  
               years of age to engage in an act of prostitution in return  
               for money or other consideration or to agree to give  
               another person who is under 18 years of age money or other  
               consideration in return for the other person committing an  
               act of prostitution in an amount of $250 to $2,500 per  
               conviction, as determined by the court.  AB 17 is scheduled  
               to be heard by this Committee today.

             b)   AB 559 (Swanson) includes in the definition of human  
               trafficking, as specified, the conduct of any person who  
               causes a minor at the time of the commission of the act to  
               engage in pimping, pandering, enticement, as specified,  
               using a minor in pornography, extortion, solicitation of  
               prostitution and loitering with the intent to commit  








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               prostitution or a person who obtains or attempts to obtain  
               forced labor or services from a minor, as specified.  AB  
               559 is scheduled to be heard by this Committee today. 

           5)Prior Legislation  :

             a)   AB 426 (Galgiani), of the 2007-08 Legislative Session,  
               would have added human trafficking to the list of serious  
               felonies and solicitation of murder to the list both  
               serious and violent felonies for purposes of sentencing  
               pursuant to the "Three Strikes" Law.  AB 426 was held on  
               the Assembly Committee on Appropriations' Suspense File.

             b)   AB 1278 (Ma), of the 2007-08 Legislative Session, was  
               identical with respect to the language in this bill.  Those  
               provisions were deleted in the Assembly Committee on  
               Appropriations. 

             c)   AB 677 (Parra), of the 2005-06 Legislative Session,  
               would have added solicitation of murder to the definition  
               of a "serious" felony.  AB 677 was held on the Assembly  
               Committee on Appropriations' Suspense File. 

             d)   AB 1838 (Hertzberg), Chapter 606, Statutes of 2002,  
               added offenses perpetrated by means of a weapon of mass  
               destruction to the list of crimes that constitute a violent  
               felony.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Federation of State, County
            and Municipal Employees
          California Peace Officers' Association
          California Police Chiefs Association
          California State Sheriffs' Association
          Capitol Resource Family Impact
          Concerned Women for America
          Crime Victims United 

           Opposition 
           
          American Civil Liberties Union
          California Attorneys for Criminal Justice








                                                                  AB 16
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          Friends Committee on Legislation
          Taxpayers for Improving Public Safety

           
          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916)  
          319-3744