BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 677
                                                                  Page  1

          Date of Hearing:   June 15, 2010
          Counsel:        Gabriel Caswell



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                     SB 677 (Norby) - As Amended:  June 10, 2010

           
          SUMMARY  :  Provides 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  :

          1)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 Section  
            236.1.)

          2)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 Section 11225.)

          3)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 (Penal Code Section 11230):

             a)   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  








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               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.  

             b)   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 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.  

             c)   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.

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

             e)   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.

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

             g)   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.

             h)   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  








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               which the judgment was entered.  

          4)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.   [Penal  
            Code Section 186.2(a)(28).]

          5)Defines "pattern of criminal profiteering activity" as  
            engaging in at least two incidents of criminal profiteering  
            that 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.  [Penal Code Section 186.2(b).]

          6)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.   
            [Penal Code Section 186.2(b).]

          7)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 Penal Code Section 186.22(f).   
            "Organized crime" also means false or fraudulent activities,  
            schemes, or artifices, as described in Welfare and  
            Institutions Code Section 14107, and the theft of personal  
            identifying information, as defined in Penal Code Section  
            530.5.  [Penal Code Section 186.2(d).]

          8)Provides that upon proof of specified provisions, the  
            following assets shall be subject to forfeiture:  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  








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            value received in exchange for the proceeds derived from the  
            pattern of criminal profiteering activity.   [Penal Code  
            Section 186.3.]

          9)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.  [Penal Code Section 186.5 (c).]

          10)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.  [Penal Code Section 186.5  
            (d).]

          11)States 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 Section 273.7.)

          12)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 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.  (California Civil Code Section 52.5.)

          13)States 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.  (California Evidence  
            Code Section 1038, et seq.)

          14)Provides that any provision of a contract that purports to  
            allow a deduction from a person's wages for the cost of  








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            emigrating and transporting that person to the United States  
            is void as against public policy.  (California Civil Code  
            Section 1670.7.)

          15)States 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 Section 784.8.)

          16)Provides that a victim of human trafficking can prevent his  
            or her name from becoming a matter of public record.    
            (California Government Code Section 6254.)

          17)States 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  of his or her  
            personal liberty, a person suspected of violating specified  
            prostitution offenses, 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 (Penal  
            Code Section 236.2):

             a)   Signs of trauma, fatigue, injury, or other evidence of  
               poor care;

             b)   The person is withdrawn, afraid to talk, or his or her  
               communication is censored by another person;

             c)   The person does not have freedom of movement;

             d)   The person lives and works in one place;









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             e)   The person owes a debt to his or her employer;

             f)   Security measures are used to control who has contact  
               with the person; and,

             g)   The person does not have control over his or her own  
               government-issued identification or over his or her worker  
               immigration documents.  

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

          1)Author's Statement  :  According to the author, "California is  
            home to one of the largest and most expansive human  
            trafficking problems in the United States.  Typically, those  
            trafficked are used for two 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 677 seeks to further assist victims and law enforcement in  
            California, while providing another deterrent for  
            perpetrators.  Specifically, SB 677 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. 

            "SB 677 restores the provisions of SB 557, which were deleted  
            in the Assembly, to address the subject of the Governor's  
            veto.  To address the Governor's veto message, this bill now  
            includes forced labor as an additional human trafficking  
            offense on any real property besides illegal gambling,  
            lewdness, assignation, and prostitution." 

           2)Human Trafficking  :  Human trafficking involves the  
            recruitment, transportation or sale of people for forced  
            labor.  Through violence, threats and coercion, victims are  
            forced to work in, among other things, the sex trade, domestic  








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            labor, factories, hotels and agriculture.  According to the  
            January 2005 United States Department of State's Human  
            Smuggling and Trafficking Center report, "Fact Sheet:   
            Distinctions Between Human Smuggling and Human Trafficking",  
            there is an estimated 600,000 to 800,000 men, women and  
            children trafficked across international borders each year.   
            Of these, approximately 80% are women and girls and up to 50%  
            are minors.  A recent report by the Human Rights Center at the  
            University of California, Berkeley cited 57 cases of forced  
            labor in California between 1998 and 2003, with over 500  
            victims.  The report, "Freedom Denied", notes most of the  
            victims in California were from Thailand, Mexico, and Russia  
            and had been forced to work as prostitutes, domestic slaves,  
            farm laborers or sweatshop employees.  [University of  
            California, Berkeley Human Rights Center, "Freedom Denied:   
            Forced Labor in California" (February, 2005)].  According to  
            the author: 

          "While the clandestine nature of human trafficking makes it  
            enormously difficult to accurately track how many people are  
            affected, the United States government estimates that about  
            17,000 to 20,000 women, men and children are trafficked into  
            the United States each year, meaning there may be as many as  
            100,000 to 200,000 people in the United States working as  
            modern slaves in homes, sweatshops, brothels, agricultural  
            fields, construction projects and restaurants."

           3)Trafficking Victims Protection Act of 2000 (22 USC Sections  
            7101, et seq.)  .  In October 2000, the Trafficking Victims  
            Protection Act of 2000 (TVPA) was enacted.  TVPA is  
            comprehensive, addressing the various ways of combating  
            trafficking, including prevention, protection and prosecution.  
             The prevention measures include the authorization of  
            educational and public awareness programs.  Protection and  
            assistance for victims of trafficking include making housing,  
            educational, health-care, job training and other federally  
            funded social service programs available to assist victims in  
            rebuilding their lives.  Finally, the TVPA provides law  
            enforcement tools to strengthen the prosecution and punishment  
            of traffickers, making human trafficking a federal crime.

          This bill conforms to federal law with respect to human  
            trafficking involving children under 18 years old.  In such an  
            instance, a prosecutor need not prove force, fraud or  
            coercion.  When the victim is under 18 years old, a prosecutor  








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            need only prove that the child was induced to perform a sex  
            act in relation to the trafficking.  [22 USC Section  
            7102(8)(a).]  According to the California District Attorneys  
            Association:

          "Child victims are often too fragile to testify or falsely  
            believe that they consented to participating in their own  
            sexual abuse.  This bill improves prosecutors' ability to  
            bring cases involving child victims, removing the elements of  
            force, fraud and coercion for child victims.  Like other  
            statutes, such as statutory rape or the federal law against  
            trafficking, the law is premised on the idea that children  
            cannot consent to their own abuse and it is not required to  
            show that they were defrauded or coerced into participating in  
            commercial sex acts."

           4)Final Report of the California Alliance to Combat Trafficking  
            and Slavery Task Force  :  AB 22 (Lieber), Chapter 240, Statutes  
            of 2005, and SB 180 (Kuehl), Chapter 239, Statutes of 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 this country, many suffer extreme  
            physical and mental abuse, including rape, sexual  
            exploitation, torture, beatings, starvation, death threats and  
            threats to family members.  (California Alliance to Combat  
            Trafficking and Slavery Task Force, Human Trafficking in  
            California, Final Report of the California Alliance to Combat  
            Trafficking and Slavery Task Force, October 2007, pg 16.   
            )  

           5)Distinction between Nuisance Forfeiture and Existing  
            Forfeiture Procedures under Criminal Profiteering  :  Proceeds  
            of human trafficking operations are subject to forfeiture  
            under the existing criminal profiteering statutes.  (Penal  








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            Code Section 186, et seq.)  In addition, this bill provides  
            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 "Red Light  
            Abatement" laws).  (Penal Code 11225, et seq.)  

          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 Section 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 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.)

           6)Expansion of Nuisance Red Light Abatement Statutes  :  Under the  
            current Red Light Abatement provisions, a court can determine  
            specified conduct constitutes a nuisance, per se.  Currently,  
            illegal gambling, prostitution, lewdness, assignation, or the  
            running of a bathhouse in a manner that according to the  
            Centers for Disease Control determine could transmit AIDS  
            (including, but not limited to, anal intercourse, oral  
            copulation, or vaginal intercourse) may all result in a judge  
            determining that a parcel or property is being used in a  
            manner creating a nuisance, per se, and the property may be  
            seized.  This bill adds all forms of human trafficking to the  
            list, including those that do not currently involve illegal  
            gambling, prostitution, lewdness, or the illegal operation of  
            a bathhouse.   
           
           7)Innocent Owners  :  Long standing case law establishes that any  
            order to seize property under the Red Light Abatement statutes  








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            must be consistent with the underlying purpose of the  
            injunction, which is to abate the nuisance.  According to  
            People ex rel. Hicks v. Sarong Gals (1974) 42 Cal. App. 3d  
            556, 563, "[t]he 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.  Of course, it is well settled that where a nuisance  
            to abate 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 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 (1920) 47 Cal. App. 730, 740.]

          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 and instead held the woman against her  
            will, forced her to work as a domestic servant, and did not  
            pay her.  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.  
           
           8)Argument in Support  :  According to the  National Council of  
            Jewish Women, Los Angeles Section  , "[h]uman trafficking is the  
            modern day practice of slavery.  It is the fastest growing  
            criminal industry in the world and consists of the  
            recruitment, harboring, and transportation of people for the  
            purpose of forced or coerced labor or sexual exploitation.   
            Every year traffickers generate billions of dollars by  
            exploiting those seeking to cross international borders in  
            search of a better life as well as those who are vulnerable  
            within the United States, including U.S. citizens.  SB 677  
            would create economic disincentives for the practice of  
            slavery, by authorizing the court to declare any real property  
            used to facilitate the crime of human trafficking as a  








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            nuisance and seize that property until the nuisance is  
            stopped.  The bill further authorizes the court to subject the  
            trafficker to the costs of the seizure and a civil fine up to  
            $25,000."  

           9)Related Legislation:   AB 557 (Yee) provided 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.  Required that the conduct be related  
            to the original conduct within the "Red Light Abatement"  
            statute (namely illegal gambling, prostitution, or lewd  
            conduct).  Those remedies included closing the property for  
            one year and a civil fine of up to $25,000.  AB 557 was  
            vetoed.  
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Commission on the Status of Women 
          California Catholic Conference
          California Narcotics Officers Association 
          California Peace Officers Association 
          California Police Chiefs Association 
          City and County of San Francisco 
          Crime Victims United of California
          National Council of Jewish Women,
            Los Angeles Section 
          Los Angeles District Attorney's Office 
          Polaris Project 
          San Francisco District Attorney's Office

           Opposition 
           
          None
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744