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; AB 16 Page 2 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, AB 16 Page 3 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 AB 16 Page 4 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 AB 16 Page 5 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 AB 16 Page 6 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 Page 7 Friends Committee on Legislation Taxpayers for Improving Public Safety Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916) 319-3744