BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 90 (Swanson)                                             
          As Amended June 27, 2011 
          Hearing date:  July 5, 2011
          Penal Code
          JM:mc

               CRIMINAL ASSET FORFEITURE: SEXUAL EXPLOITATION OF MINORS

               FUNDING OF PROGRAMS FOR MINORS USED FOR SEXUAL COMMERCE

                                           
                                       HISTORY

          Source:  Alameda County Board of Supervisors

          Prior Legislation: AB 17 (Swanson) - Ch. 211, Stats. 2010

          Support: (Received prior to most recent version of the bill): 
                   Los Angeles County District Attorney; California State 
                   Sheriffs' Association; Child Abuse Prevention Center; 
                   Crime Victims United of California; California Catholic 
                   Conference; National Association of Social Workers, 
                   California Chapter; Alameda County District Attorney; 
                   California Nurses Association; California District 
                   Attorneys Association; California Narcotic Officers' 
                   Association; California Police Chiefs Association; 
                   California Coalition for Youth 

          Opposition:None known

          Assembly Floor Vote:  Ayes 79 - Noes 0






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                                                            AB 90 (Swanson)
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                                      KEY ISSUES
           
          SHOULD ANY CRIME IN WHICH THE DEFENDANT ENCOURAGED, INDUCED, 
          FORCED OR COERCED A MINOR TO ENGAGE IN A COMMERCIAL SEX ACT BE 
          THE BASIS FOR CRIMINAL PROFITEERING ASSET FORFEITURE, AS 
          SPECIFIED?

                                                                (CONTINUED)



          SHOULD THE PROCEEDS OF CRIMINAL PROFITEERING ASSET FORFEITURE IN 
          SUCH CASES BE USED TO FUND PROGRAMS FOR MINORS WHO ARE SEXUALLY 
          EXPLOITED OR THE VICTIMS OF HUMAN TRAFFICKING, AS SPECIFIED? 



                                       PURPOSE

          The purposes of this bill are to 1) provide that any crime in 
          which the defendant persuaded or induced a minor to engage in a 
          commercial sex act can be the basis of criminal profiteering 
          asset forfeiture; 2) provide that any crime in which the 
          defendant coerced or forced a minor to engage in a commercial 
          sex act can be the basis of criminal profiteering asset 
          forfeiture; 3) define a commercial sex act as sexual conduct for 
          which anything of value is given or received by any person; and 
          4) provide that the proceeds of criminal asset forfeiture in 
          such cases be used for programs to assist minors who are 
          sexually exploited or the victims of human trafficking, as 
          specified.

           Existing law  includes the criminal profiteering asset forfeiture 
          law.  Criminal profiteering forfeiture applies where the 
          defendant is convicted of a specified offense and the defendant 
          has engaged in a pattern of criminal profiteering activity, as 
          specified.  (Pen. Code  186.3.)  The following assets or 
          property is subject to forfeiture:

                 Any property interest whether tangible or intangible, 




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               acquired through a pattern of criminal profiteering 
               activity.
                 All proceeds of a pattern of criminal profiteering 
               activity, which property shall include all things of value 
               that may have been received in exchange for the proceeds 
               immediately derived from the pattern of criminal 
               profiteering activity.
           
          Existing law  states that forfeited cash and proceeds of the sale 
          of forfeited property shall be distributed as follows: 

                 To the bona fide or innocent purchaser, conditional 
               sales vendor, or holder of a valid lien, mortgage, or 
               security interest, up to the amount of his or her interest 
               in the property or proceeds, as specified.
                 To the Department of General Services or local 
               governmental entity for all expenditures incurred in 
               connection with the sale of the forfeited property.
                 To the State General Fund or the general fund of the 
               local governmental entity, whichever prosecutes.  (Pen. 
               Code  186.8), except in the child pornography or recycling 
               fraud cases.
                 In a case of fraud involving the state recycling 
               program, to a special fund designated in the Public 
               Resources Code.
                 In the case of child pornography crimes, to the county 
               children's trust fund or State Children's Trust Fund
                 In a case involving human trafficking of minors for 
               purposes of prostitution or lewd conduct, or a case of 
               procurement of a minor, to the Victim-Witness Assistance 
               Fund for child sexual exploitation and abuse counseling and 
               prevention programs.  Fifty percent of the funds shall be 
               granted to community-based organizations that serve minor 
               victims of human trafficking.










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           Existing law  includes human trafficking<1> (Pen. Code  236.1) 
          in the list of crimes for which a forfeiture of assets can be 
          sought for criminal profiteering.  (Pen. Code  186.2, subd. 
          (a)(28).)

           Existing law  includes abduction or procurement by fraudulent 
          inducement for prostitution to the list of crimes for which a 
          forfeiture of assets can be sought for criminal profiteering.  
          (Pen. Code  186.2, subd. (a)(31).) 

           Existing law  includes numerous crimes concerning sexual 
          exploitation of minors for commercial purposes.  These crimes 
          include:

                 Pimping:  Deriving income from the earnings of a 
               prostitute, deriving income from a place of prostitution, 
               or receiving compensation for soliciting a prostitute.  
               Where the victim is a minor under the age of 16, the crime 
               is a punishable by a prison term of three, six or eight 
               years.  (Pen. Code  266h, subds. (a)-(b).)

                 Pandering:  Procuring another for prostitution, inducing 
               another to become a prostitute, procuring another person to 
               be placed in a house of prostitution, persuading a person 
               to remain in a house of  prostitution, procuring another 
               for prostitution by fraud, duress or abuse of authority, 
               and commercial exchange for procurement.  (Pen. Code  
               266i,
               subd. (a).)

                 Procurement:  Transporting or providing a child under 16 
               to another person for purposes of any lewd or lascivious 
               act.  The crime is punishable by a prison term of three, 
               six, or eight years, and by a fine not to exceed $15,000.  
               (Pen. Code  266j.)
             --------------------------
          <1> Human trafficking involves depriving or violating the 
          personal liberty of another with the intent to effect or 
          maintain a felony enticement of a minor into prostitution, 
          pimping or pandering, abduction of a minor for prostitution, 
          extortion, or to obtain forced labor or services.



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                 Taking a minor from her or his parents or guardian for 
               purposes of prostitution.  This is a felony punishable by a 
               prison term of 16 months, two years, or three years and a 
               fine of up to $2,000.  (Pen. Code  267.)

                 Child pornography production:   Using a minor to assist 
               in the making of child pornography for commercial purposes 
               is a felony, with a prison term of 3, 6, or 8 years.  (Pen. 
               Code  311.4, subd. (b).)

           This bill  provides that any case in which the defendant 
          persuaded, induced, coerced or forced  a minor to engage in a 
          commercial sex act sex can be the basis of criminal profiteering 
          asset forfeiture, as specified.   

           This bill  provides that the proceeds of criminal profiteering in 
          cases of commercial sexual exploitation of minors, as specified, 
          shall be distributed to the Victim-Witness Assistance Fund for 
          child sexual exploitation and abuse counseling and prevention 
          programs.  Fifty percent of the funds shall be granted to 
          community-based organizations that serve minor victims of human 
          trafficking.

           This bill  defines a commercial sex act as sexual conduct for 
          which anything of value is given or received by any person.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 




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          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  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 January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  
            
          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

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



                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               We are facing a modern day slave trade in our cities 
               across this state and across the nation.  Countless 
               children, from foster youth to runaways from more 
               affluent neighborhoods are being trapped, sold and 
               mercilessly abused for profit.  Studies show that more 
               than 300,000 children are being bought and sold into 




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               sexual slavery each year.  And those numbers are on 
               the rise due to the state of our economy, decreased 
               prison rehabilitation efforts, and the resulting trend 
               of drug dealers turning to pimping as a more 
               profitable business with less risk of conviction.  It 
               is time that we treat the young victims of sexual 
               exploitation that we find wandering the streets of 
               Broadway with the same care, sensitivity, and legal 
               protection that we provide a young victim found in a 
               classroom in the suburbs.  AB 90 moves our state and 
               its law toward this important goal by 
               re-characterizing laws relating to modern day slavery, 
               properly categorizing the predators, and providing 
               resources to the victims. 

          2.  Sex Trafficking of Minors - Estimated Prevalence  

          There appears to be general agreement that sex trafficking of 
          children is increasing and profitable.  However, the 2007 Final 
          Report of the California Alliance to Combat Trafficking and 
          Slavery Task Force<2> noted that California lacks comprehensive 
          statistics on human trafficking.  Thus, many statistics on human 
          trafficking in general, and sex trafficking of children in 
          particular, are estimates.  The task force report did cite 
          statistics from various sources, including a study finding that 
          80 percent of documented cases in California occurred in urban 
          areas and the majority of victims were non-citizens.  
          Approximately 50 percent of human trafficking cases involved 
          prostitution.  A U.S. State Department report of global 
          trafficking estimated that minors constituted 50 percent of 
          trafficking victims.  (2007 Alliance to Combat Trafficking.  
          Final Report, pp. 33-39.<3>) 

          The Federal Bureau of Investigation (FBI) conducts 24 Innocence 
          ---------------------------
          <2> The task force was administered by the California Attorney 
          General's Office.
          <3> 
           http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf  .
            The report includes citations to the each of the studies 
          quoted in the report.



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          Lost child sexual exploitation task forces and working groups 
          across the country.  Through 2007, 365 cases were opened and 281 
          child victims were located.  The Shared Hope International 
          non-profit organization has reported that approximately 100,000 
          domestic minors are sexually trafficked each year.<4>  

          Numerous examples of trafficking cases were summarized in 
          California Alliance Report.  In 2001, a Berkeley man was 
          prosecuted for smuggling 15 girls from India for labor and 
          sexual exploitation.  In 2000, a man was prosecuted for bringing 
          women and girls from Mexico and forcing them to work as 
          prostitutes in Long Beach.  Traffickers in Los Angeles and San 
          Francisco were prosecuted for forcibly taking 100 women from 
          Korea to be sex workers in massage businesses.  (2007 Alliance 
          to Combat Trafficking, Final Report, p. 18.)


























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          ---------------------------
          <4> 
          http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report
          _on_DMST_2009.pdf








          
          3.     Criminal Profiteering Asset Forfeiture Law   

          Procedure

          Criminal profiteering asset forfeiture is a criminal proceeding 
          held in conjunction with the trial of the underlying criminal 
          offense.  Often, the same jury that heard the criminal charges 
          determines whether the defendant's assets were the ill-gotten 
          gains of criminal profiteering.  

          Proceeds

          Under existing law the forfeited proceeds of criminal 
          profiteering are usually placed in the county general fund with 
          no directions for use.  There are exceptions for forfeiture in 
          child pornography cases, fraud against the state recycling 
          program, human trafficking of minors for prostitution, and 
          procurement of minors for prostitution.  In child pornography 
          cases, the money is deposited in the county's children's trust 
          fund or the State Children's Trust Fund for child abuse and 
          neglect prevention and intervention.  Recycling forfeiture 
          proceeds are deposited in a special account created under the 
          Public Resources Code.  (Pen. Code  186.8; Welf. Inst. Code  
          18966 and 18969.)  

          The proceeds of forfeiture in cases of human trafficking of 
          minors for prostitution and procurement of minors for 
          prostitution are distributed to the Victim-Witness Assistance 
          Fund for child sexual exploitation and abuse counseling and 
          prevention programs.  Fifty percent of the funds shall be 
          granted to community-based organizations that serve minor 
          victims of human trafficking.

          Forfeiture Proceeds Under This Bill

          This bill significantly expands the use of criminal asset 
          forfeiture proceeds to fund programs for preventing child sexual 
          exploitation and for helping victims of such crimes.  The bill 
          does this by essentially providing that any crime in which the 




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          defendant sexually exploited a minor for commercial purposes can 
          be the basis for criminal profiteering asset forfeiture, 
          regardless of the specific statute violated by the defendant.  
          That is, the defendant's conduct controls, not his or her crime 
          of conviction.  And, the bill provides that the forfeited assets 
          shall be used for preventing child sexual exploitation and 
          assisting child sexual exploitation victims.  


          AB 17 (Swanson) Chapter 211, Statutes of 2010, sets a precedent 
          for the use of asset forfeiture to fund programs to address 
          sexual exploitation and trafficking of minors.  This bill 
          expands the policy set in AB 17 and likely makes it easier for 
          prosecutors to use criminal asset forfeiture in cases involving 
          the growing problem of commercial, sexual exploitation of 
          minors.


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