BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                S
                             2009-2010 Regular Session               B

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          SB 557 (Yee)                                                
          As Amended April 22, 2009 
          Hearing date:  April 28, 2009
          Penal Code
          SM:mc

                                   HUMAN TRAFFICKING  

                                       HISTORY

          Source:  Author

          Prior Legislation: AB 2810 (Brownley) - Chapter 358, Stats. of  
          2008
                       AB 1278 (Lieber) - Chapter 258, Stats. of 2008
                       AB 22 (Lieber) - Chapter 240, Stats. of 2005
                       SB 180 (Kuehl) - Chapter 239, Stats. of 2005 
                       SB 751 (Morrow) - 2005, failed in Senate Public  
          Safety
                                 SB 1255 (Hughes) - Chapter 1022, Stats.  
                    of 1994
                       AB 114 (Burton) - Chapter 314, Stats. of 1994

          Support: Los Angeles District Attorney's Office

          Opposition:None known


          (NOTE: THIS ANALYSIS REFLECTS AUTHOR'S AMENDMENTS THAT WILL BE  
          OFFERED IN COMMITTEE.)


                                         KEY ISSUE




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          UPON A PERSON BEING CONVICTED OF HUMAN TRAFFICKING, SHOULD REAL  
          PROPERTY USED TO FACILITATE THE CRIME BE SUBJECT TO SEIZURE  
          PURSUANT TO THE NUISANCE ABATEMENT STATUTES AND THE TRAFFICKER  
          SUBJECT TO A CIVIL FINE OF UP TO $25,000?


                                       PURPOSE

          The purpose of this bill is to provide that, upon a person being  
          convicted of human trafficking, if real property was used to  
          facilitate the offense, that property could be found to be a  
          public nuisance and the remedies applicable under the nuisance  
          or "Red Light Abatement" statutes, as specified, shall apply.   
          Those remedies include closing the property for one year and a  
          civil fine of up to $25,000.
          
           Existing law  provides that any person who deprives or violates  
          the personal liberty of another with the intent to effect or  
          maintain a felony violation of specified sex crimes, extortion,  
          or to obtain forced labor or services is guilty of human  
          trafficking.  If committed against an adult, this offense is  
          punishable by three, four or five years in state prison.  If  
          committed against a minor, this offense is punishable by four,  
          six or eight years in state prison.  (Penal Code  236.1.)

           Existing law  provides that 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,  
          punishable by up to six months in county jail, a fine of up to  
          $1,000, or both.  (Penal Code  273.7.)

           Existing law  provides that a victim of human trafficking may  
          bring a civil lawsuit for actual damages, compensatory damages,  
          punitive damages, injunctive relief, any combination of those,  
          or any other appropriate relief.  In such a lawsuit the  
          plaintiff may be awarded up to three times his or her actual  




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          damages or $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.  (Civil Code  52.5.)

           Existing law  provides that a trafficking victim has a privilege  
          to refuse to disclose, and to prevent another from disclosing, a  
          confidential communication between the victim and a human  
          trafficking caseworker, as specified.  (Evidence Code  1038 -  
          1038.2.)

           Existing law  provides that any provision of a contract that  
          purports to allow a deduction from a person's wages for the cost  
          of emigrating and transporting that person to the United States  
          is void as against public policy.  (Civil Code  1670.7.)

           Existing law  provides that when charges alleging multiple  
          violations of human trafficking that involve the same victim or  
          victims in multiple territorial jurisdictions are filed in one  
          county, the court shall hold a hearing to consider whether the  
          matter should proceed in the county of filing, or whether one or  
          more counts should be severed.  The district attorney filing the  
          complaint shall present evidence to the court that the district  
          attorney in each county where any of the charges could have been  
          filed has agreed that the matter should proceed in the county of  
          filing.  In determining whether all counts in the complaint  
          should be joined in one county for prosecution, the court shall  
          consider the location and complexity of the likely evidence,  
          where the majority of the offenses occurred, the rights of the  
          defendant and the people, and the convenience of, or hardship  
          to, the victim or victims and witnesses.  (Penal Code  784.8.)

           Existing law  provides that a victim of human trafficking can  
          prevent his or her name from becoming a matter of public record.  
           (Government Code  6254.)

           Existing law  provides that law enforcement agencies shall use  
          due diligence to identify all victims of human trafficking,  
          regardless of the citizenship of the person. When a peace  
          officer comes into contact with a person who has been deprived  




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          of his or her personal liberty, a person suspected of violating  
          subdivision (a) or (b) of Section 647, or a victim of a crime of  
          domestic violence or rape, the peace officer shall consider  
          whether the following indicators of human trafficking are  
          present:

                 Signs of trauma, fatigue, injury, or other evidence of  
               poor care.
                 The person is withdrawn, afraid to talk, or his or her  
               communication is censored by another person.
                 The person does not have freedom of movement.
                 The person lives and works in one place.
                 The person owes a debt to his or her employer.
                 Security measures are used to control who has contact  
               with the person.
                 The person does not have control over his or her own  
               government-issued identification or over his or her worker  
               immigration documents.  (Penal Code  236.2.)
           
          Existing law  states that buildings used for specified illegal  
          activities are a nuisance which shall be enjoined, abated, and  
          prevented, and for which damages may be recovered, whether it is  
          a public or private nuisance.  (Penal Code  11225.)

           Existing law  provides that if the existence of a nuisance is  
          established, as specified, an order of abatement shall be  
          entered as a part of the judgment in the case:

                 Directing the removal from the building or place of all  
               fixtures, musical instruments and movable property used in  
               conducting, maintaining, aiding, or abetting the nuisance,  
               and directing the sale thereof in the manner provided for  
               the sale of chattels under execution, and the effectual  
               closing of the building or place against its use for any  
               purpose, and that it be kept closed for a period of one  
               year, unless sooner released.  If the court finds that any  
               vacancy resulting from closure of the building or place may  
               create a nuisance or that closure is otherwise harmful to  
               the community, in lieu of ordering the building or place  
               closed, the court may order the person who is responsible  




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               for the existence of the nuisance to pay damages in an  
               amount equal to the fair market rental value of the  
               building or place for one year to the city or county in  
               whose jurisdiction the nuisance is located.  The actual  
               amount of rent being received for the rental of the  
               building or place, or the existence of any vacancy therein,  
               may be considered, but shall not be the sole determinant of  
               the fair market rental value.  Expert testimony may be used  
               to determine the fair market rental value.

                 While the order remains in effect as to closing, the  
               building or place is and shall remain in the custody of the  
               court.

                 For removing and selling the movable property, the  
               officer is entitled to charge and receive the same fees as  
               he or she would for levying upon and selling like property  
               on execution.

                 For closing the premises and keeping them closed, a  
               reasonable sum shall be allowed by the court.

                 The court may assess a civil penalty not to exceed  
               $25,000 against any and all of the defendants, based upon  
               the severity of the nuisance and its duration.

                 One-half of the civil penalties collected pursuant to  
               this section shall be deposited in the Restitution Fund in  
               the State Treasury, and one-half of the civil penalties  
               collected shall be paid to the city in which the judgment  
               was entered, if the action was brought by the city attorney  
               or city prosecutor.  If the action was brought by a  
               district attorney, one-half of the civil penalties  
               collected shall be paid to the treasurer of the county in  
               which the judgment was entered.  (Penal Code  11230.)

           Existing law  defines "criminal profiteering activity" as any act  
          made for financial gain or advantage if the act may be charged  
          as one of a number of crimes, including human trafficking.   
          (Pen. Code  186.2, subd. (a)(28).)




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           Existing law  defines "pattern of criminal profiteering activity"  
          as engaging in at least two incidents of criminal profiteering  
          that meet the following requirements:

                 have the same or a similar purpose, result,  
               principals, victims, or methods of commission, or are  
               otherwise interrelated by distinguishing  
               characteristics;
                 are not isolated events; and
                 were committed as a criminal activity of organized  
               crime.  (Pen. Code  186.2, subd. (b).)

           Existing law  provides that after conviction of the underlying  
          offense, a person may be subject to asset forfeiture if the  
          prior act occurred within 10 years, excluding any period of  
          imprisonment, of the commission of the underlying offense.   
          (Pen. Code  186.2, subd. (b).)

           Existing law  defines "Organized crime" for purposes of the  
          criminal profiteering forfeiture statutes as 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 personal  
          identifying information, as defined in Section 530.5.  (Penal  
          Code  186.2(d).)

           Existing law  provides that upon proof of specified provisions,  
          the following assets shall be subject to forfeiture:




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                 a (tangible or intangible) property interest  
               acquired through a pattern of criminal profiteering  
               activity; and
                 all proceeds of a pattern of criminal profiteering  
               activity, including all things of value . . .  
               received in exchange for the proceeds . . . derived  
               from the pattern of criminal profiteering activity.   
               (Pen. Code  186.3.)

           Existing law  provides that forfeiture proceedings shall be set  
          for hearing in the superior court in which the underlying  
          criminal offense will be tried.  If the defendant is found  
          guilty of the underlying offense, the issue of forfeiture shall  
          be promptly tried, either before the same jury or before a new  
          jury in the discretion of the court, unless waived by the  
          consent of all parties.  (Pen. Code  186.5, subd. (c).)

           Existing law  requires that before assets are forfeited, the  
          prosecuting agency shall have the burden of establishing  
          beyond a reasonable doubt that the defendant was engaged in a  
          pattern of criminal profiteering activity.  (Pen. Code   
          186.5, subd. (d).)

           This bill provides that upon a person being convicted of human  
          trafficking, if real property is used to facilitate the offense,  
          the procedures for declaring the property to be a nuisance, as  
          described above, shall apply.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          California continues to face a severe prison overcrowding  
          crisis.  The Department of Corrections and Rehabilitation (CDCR)  
          currently has about 170,000 inmates under its jurisdiction.  Due  
          to a lack of traditional housing space available, the department  
          houses roughly 15,000 inmates in gyms and dayrooms.   
          California's prison population has increased by 125% (an average  
          of 4% annually) over the past 20 years, growing from 76,000  
          inmates to 171,000 inmates, far outpacing the state's population  
          growth rate for the age cohort with the highest risk of  




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          incarceration.<1>

          In December of 2006 plaintiffs in two federal lawsuits against  
          CDCR sought a court-ordered limit on the prison population  
          pursuant to the federal Prison Litigation Reform Act.  On  
          February 9, 2009, the three-judge federal court panel issued a  
          tentative ruling that included the following conclusions with  
          respect to overcrowding:

               No party contests that California's prisons are  
               overcrowded, however measured, and whether considered  
               in comparison to prisons in other states or jails  
               within this state.  There are simply too many  
               prisoners for the existing capacity.  The Governor,  
               the principal defendant, declared a state of emergency  
               in 2006 because of the "severe overcrowding" in  
               California's prisons, which has caused "substantial  
               risk to the health and safety of the men and women who  
               work inside these prisons and the inmates housed in  
               them."  . . .  A state appellate court upheld the  
               Governor's proclamation, holding that the evidence  
               supported the existence of conditions of "extreme  
               peril to the safety of persons and property."  
               (citation omitted)  The Governor's declaration of the  
               state of emergency remains in effect to this day.

               . . .  the evidence is compelling that there is no  
               relief other than a prisoner release order that will  
               remedy the unconstitutional prison conditions.

               . . .

               Although the evidence may be less than perfectly  
               ----------------------
          <1>  "Between 1987 and 2007, California's population of ages 15  
          through 44 - the age cohort with the highest risk for  
          incarceration - grew by an average of less than 1% annually,  
          which is a pace much slower than the growth in prison  
          admissions."  (2009-2010 Budget Analysis Series, Judicial and  
          Criminal Justice, Legislative Analyst's Office (January 30,  
          2009).)



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               clear, it appears to the Court that in order to  
               alleviate the constitutional violations California's  
               inmate population must be reduced to at most 120% to  
               145% of design capacity, with some institutions or  
               clinical programs at or below 100%.  We caution the  
               parties, however, that these are not firm figures and  
               that the Court reserves the right - until its final  
               ruling - to determine that a higher or lower figure is  
               appropriate in general or in particular types of  
               facilities.

               . . .

               Under the PLRA, any prisoner release order that we  
               issue will be narrowly drawn, extend no further than  
               necessary to correct the violation of constitutional  
               rights, and be the least intrusive means necessary to  
               correct the violation of those rights.  For this  
               reason, it is our present intention to adopt an order  
               requiring the State to develop a plan to reduce the  
               prison population to 120% or 145% of the prison's  
               design capacity (or somewhere in between) within a  
               period of two or three years.<2>

          The final outcome of the panel's tentative decision, as well as  
          any appeal that may be in response to the panel's final  
          decision, is unknown at the time of this writing.

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.

                                      COMMENTS

          1.  Need for This Bill  
          ---------------------------
          <2>  Three Judge Court Tentative Ruling, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (Feb. 9, 2009).



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          According to the author:

               Typically those trafficked are used for 2 different  
               purposes, either forced labor or sexual exploitation.   
               Statistics show that 90% of victims of human trafficking  
               are female. According to the 2007 report released by the  
               task force investigating human trafficking in California,  
               47% of victims are used in prostitution, 33% are used in  
               domestic servitude, 5% in sweatshops and 2% in agriculture.  
               Research by the Human Rights Center at the University of  
               California found 57 forced labor operations between 1998  
               and 2003 throughout California.  
                
               SB 557 seeks to further assist victims and law enforcement  
               in California, while providing another deterrent for  
               perpetrators.  Specifically, SB 557 allows any real  
               property used to facilitate human trafficking to be  
               declared a public nuisance and seized by the court until  
               the nuisance is abated, and further subjects the trafficker  
               to the costs of the seizure and a civil fine of up to  
               $25,000.

          2.   Background: The Problem of Human Trafficking
           
          AB 22 (Lieber) (2005) and SB 180 (Kuehl) (2005) established a 19  
          member Task Force to examine the issue of human trafficking in  
          California.  That report described the phenomenon of human  
          trafficking as follows: 

               Traffickers lure victims into the United States with  
               deceptive promises of good jobs and better lives, and  
               then force them to work under brutal and inhuman  
               conditions, and deprive them of their freedom.   
               Victims of human trafficking may be involved in  
               agricultural labor, construction labor, hotel and  
               motel cleaning services, illegal transporters,  
               organized theft rings, pornography, prostitution,  
               restaurant services, domestic services, servile  
               marriage (mail-order brides) and sweatshops.  Once in  




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               this country, many suffer extreme physical and mental  
               abuse, including rape, sexual exploitation, torture,  
               beatings, starvation, death threats and threats to  
               family members.

          (Human Trafficking in California, Final Report of the California  
          Alliance to Combat Trafficking and Slavery Task Force, October  
          2007, pg 16.   
           http://safestate.org/documents/HT_Final_Report_ADA.pdf  )  




          3.  Existing Forfeiture Provisions for Human Trafficking and What  
          This Bill Would Do  

          Proceeds of human trafficking operations are subject to  
          forfeiture under the existing criminal profiteering statutes.   
          (Penal Code  186, et seq.)  This bill would, in addition,  
          provide that,  after a person is convicted of the crime of human  
          trafficking  , any real property that person used to facilitate  
          the crime, such as a building used as a sweatshop or a brothel  
          where trafficked women or girls are forced to work, would be  
          declared a nuisance and be subject to seizure pursuant to the  
          statutory scheme for nuisance abatement known as the Red Light  
          Abatement laws.  (Penal Code  11225, et seq.)  


















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          Under the nuisance abatement statutes, either a citizen or a  
          prosecuting agency may bring a civil lawsuit to obtain a court  
          order that, due to specified illegal activity taking place on  
          the premises, the property constitutes a nuisance.  If the court  
          finds the specified illegal activity was in fact taking place on  
          the property, by operation of law the property is deemed a  
                                                           nuisance per se.  The court shall then order the building seized  
          and the property be kept closed for up to one year.  (Penal Code  
           11230.)  If the court finds that any vacancy resulting from  
          closure of the building would be harmful to the community, in  
          lieu of ordering the building or place closed, the court may  
          order the person who is responsible for the existence of the  
          nuisance to pay damages in an amount equal to the fair market  
          rental value of the building or place for one year to the city  
          or county in which the nuisance is located.  The court may also  
          assess a civil penalty of up to $25,000 against any and all of  
          the defendants, based upon the severity of the nuisance and its  
          duration.  (Id.)

          4.   Innocent Owners  

          Long standing case law establishes that any order to seize  
          property under the Red Light Abatement statutes must be  
          consistent with the underlying purpose of the injunction, which  
          is to abate the nuisance.  (See, People ex rel. Hicks v. Sarong  
          Gals, 42 Cal. App. 3d 556, 563 (1974) "The purpose of red light  
          abatement proceedings is to abate a nuisance.") Accordingly,  
          where the property owner takes action in good faith to remove  
          the source of the nuisance before the abatement lawsuit is  
          brought, the purpose for the seizure no longer exists and the  
          seizure may not be ordered.

               It is, of course, well settled -- indeed, it is but the  
               statement of a rule necessarily following from the very  
               logic of such a situation -- that, where a nuisance to  
               abate which an action has been commenced has been abated or  
               suppressed by the parties themselves charged with  
               maintaining the nuisance or otherwise prior to the  
               commencement of the action the further prosecution of the  




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               action cannot be maintained and the action should be  
               dismissed, for the very obvious reason that there is then  
               nothing existing against or upon which the injunctive  
               process of the court can or will operate.  And this rule,  
               of course, applies as well to cases arising under the  
               Red-light Abatement Act as in other cases of nuisances. 

          (People v. Goddard, 47 Cal. App. 730, 740 (1920), citations  
          omitted.)

          In relation to this bill, a situation could arise where, for  
          example, a homeowner is convicted of human trafficking due to  
          his having brought a woman from a foreign country with a promise  
          of employment, instead held the woman against her will, forced  
          her to work as a domestic servant, and paid her nothing.  After  
          his conviction, the person responsible for the trafficking is  
          sent to state prison but the rest of his family still resides in  
          the home.  In this situation, it would appear, so long as there  
          are no other trafficked persons on the premises, the nuisance  
          would have ceased to exist, and the home would not be subject to  
          seizure.

          AFTER A PERSON IS CONVICTED OF HUMAN TRAFFICKING, SHOULD REAL  
          PROPERTY THAT WAS USED TO FACILITATE THE CRIME BE SUBJECT TO  
          NUISANCE ABATEMENT AND THE OWNER SUBJECT TO CIVIL PENALTIES?

          WOULD THIS PROVIDE AN ADDITIONAL DETERRENT TO TRAFFICKERS?

          WOULD AN INNOCENT OWNER HAVE AN OPPORTUNITY TO ESTABLISH THAT  
          THE NUISANCE NO LONGER EXISTS ON THE PROPERTY AND THEREBY AVOID  
          SEIZURE OF THE PROPERTY.


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