BILL NUMBER: AB 2466 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Blumenfield
FEBRUARY 24, 2012
An act to amend Section 236.3 of, and to add
Section 236.6 to , the Penal Code, relating to
human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 2466, as amended, Blumenfield. Human trafficking: seizure of
assets.
Existing law makes it a felony, generally known as human
trafficking, to deprive or violate the personal liberty of another
with the intent to effect or maintain a felony violation of, among
other crimes, pimping, pandering, and abducting a minor for the
purpose of prostitution. Under existing law, the crime of human
trafficking is punishable by a fine not to exceed $1,000 or by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment. Existing law requires the court to order
a person who is convicted of a crime to pay a restitution fine, as
prescribed, and restitution to the victim or victims for the full
amount of economic loss, unless the court finds compelling and
extraordinary reasons for not doing so and states them on the record.
Additionally, under existing law, real property used to facilitate
the commission of human trafficking may be determined to be a
nuisance and remedies may be imposed against that property.
This bill would allow real property and assets used to
facilitate human trafficking to be determined to be a nuisance. The
bill would authorize the prosecuting agency, at the same
time as the filing of a complaint or indictment charging human
trafficking, to file a petition for protective relief necessary to
preserve property or assets that could be used to pay for remedies
relating to human trafficking, including, but not limited to,
restitution , and fines , and
satisfaction of claims of nuisance . The bill would specify
the process by which a preliminary injunction, temporary restraining
order, or sale of property or assets may be ordered.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 236.3 of the Penal Code is
amended to read:
236.3. Upon conviction of a violation of Section 236.1, real
property or assets used to facilitate the commission of the offense
may be determined to be a nuisance and the remedies imposed therefor
as provided in Article 2 (commencing with Section 11225) of Chapter 3
of Title 1 of Part 4 shall apply.
SEC. 2. SECTION 1. Section 236.6 is
added to the Penal Code, to read:
236.6. (a) To prevent dissipation or secreting of assets or
property, the prosecuting agency may, at the same time as or
subsequent to the filing of a complaint or indictment charging human
trafficking under Section 236.1, file a petition with the criminal
division of the superior court of the county in which the accusatory
pleading was filed, seeking a temporary restraining order,
preliminary injunction, the appointment of a receiver, or any other
protective relief necessary to preserve the property or assets. The
filing of the petition shall commence start
a proceeding that shall be pendent to the criminal proceeding
and maintained solely to effect the remedies available for this
crime, including, but not limited to, payment of restitution
, and payment of fines , and charges
of nuisance . The proceeding shall not be subject to or
governed by the provisions of the Civil Discovery Act as set forth in
Title 4 (commencing with Section 2016.010) of Part 4 of the Code of
Civil Procedure. The petition shall allege that the defendant has
been charged with human trafficking under Section 236.1 and shall
identify that criminal proceeding and the assets and property to be
affected by an order issued pursuant to this section.
(b) The prosecuting agency shall, by personal service or
registered mail, provide notice of the petition to every person who
may have an interest in the property specified in the petition.
Additionally, the notice shall be published for at least three
successive weeks in a newspaper of general circulation in the county
where the property affected by the order is located. The notice shall
state that any interested person may file a verified claim with the
superior court stating the nature and amount of his or her claimed
interest. The notice shall set forth the time within which a claim of
interest in the protected property shall be filed.
(b)
(c) If the property to be preserved is real property,
the prosecuting agency shall record, at the time of filing the
petition, a lis pendens in each county in which the real property is
situated that specifically identifies the property by legal
description, the name of the owner of record , as shown on
the latest equalized assessment roll, and the assessor's parcel
number.
(d) If the property to be preserved consists of assets under the
control of a banking or financial institution, the prosecuting
agency, at the time of filing the petition, may obtain an order from
the court directing the banking or financial institution to
immediately disclose the account numbers and value of the assets of
the accused held by the banking or financial institution. The
prosecuting agency shall file a supplemental petition, specifically
identifying which banking or financial institution accounts shall be
subject to a temporary restraining order, preliminary injunction, or
other protective remedy.
(c)
(e) A person claiming an interest in the protected
property or assets may, at any time within 30 days from the date of
the first publication of the notice of the petition, or within 30
days after receipt of actual notice, whichever is later, file with
the superior court of the county in which the action is pending a
verified claim stating the nature and amount of his or her interest
in the property or assets. A verified copy of the claim shall be
served by the claimant on the Attorney General or district attorney,
as appropriate.
(d) If an interested person, other than the defendant, has not
filed a claim within the 30 days provided in subdivision (c), the
court, upon motion, shall declare that the person has defaulted upon
his or her alleged interest, and that interest shall be subject to
forfeiture upon proof of the provisions of subdivision (a).
(e) The defendant may admit or deny that the property or assets
are subject to forfeiture pursuant to the provisions of this chapter.
If the defendant fails to admit or deny or to file a claim of
interest in the property or assets, the court shall enter a response
of denial on behalf of the defendant.
(f) The imposition of fines and restitution shall be determined by
the superior court in which the underlying criminal offense is
sentenced. A judge who is assigned to the criminal division of the
superior court in the county where the petition is filed may issue a
temporary restraining order in conjunction with, or subsequent to,
the filing of an allegation pursuant to this section. A subsequent
hearing on the petition shall also be heard by a judge assigned to
the criminal division of the superior court in the county in which
the petition is filed. At the time of the filing of an information or
indictment in the underlying criminal case, a subsequent hearing on
the petition shall be conducted by the superior court judge assigned
to the underlying criminal case.
(g) Concurrent with or subsequent to the filing of the petition,
the prosecuting agency may move the superior court for, and the
superior court may issue, either of the following pendente lite
orders to preserve the status quo of the property or assets alleged
in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of the property or
assets.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that they may be
maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of property or
assets that are subject to the provisions of this section.
(h) The following procedures shall be followed in processing the
petition:
(1) No preliminary injunction shall be granted or receiver
appointed without notice to the interested parties and a hearing to
determine that the order is necessary to preserve the property or
assets, pending the outcome of the criminal proceedings ,
and that there is probable cause to believe that the property or
assets alleged in the forfeiture proceedings are proceeds or property
interests forfeitable under this section . However, a
temporary restraining order may be issued pending that hearing
pursuant to the provisions of Section 527 of the Code of Civil
Procedure. The temporary restraining order may be based upon the
sworn declaration of a peace officer with personal knowledge of the
criminal investigation that establishes probable cause to believe
that human trafficking has taken place and that the amount of
restitution and fines established pursuant to subdivision (f) exceeds
or equals the worth of the property or assets subject to the
temporary restraining order. The declaration may include the hearsay
statements of witnesses to establish the necessary facts. The
temporary restraining order may be issued without notice upon a
showing of good cause to the court.
(2) The defendant, or a person who has filed a verified claim
as provided in paragraph (4) of subdivision (c) ,
shall have the right to have the court conduct an order to show cause
hearing within 10 days of the service of the request for a hearing
upon the prosecuting agency, in order to determine whether the
temporary restraining order should remain in effect, whether relief
should be granted from a lis pendens recorded pursuant to subdivision
(b) (c) , or whether an existing order
should be modified in the interests of justice. Upon a showing of
good cause, the hearing shall be held within two days of the service
of the request for a hearing upon the prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of the dissipation of assets outweighs the
potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property or assets
pendente lite.
(B) The difficulty of preserving the property or assets pendente
lite where the underlying alleged crimes involve issues of
fraud and moral turpitude human trafficking .
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of human trafficking.
(D) The likelihood that substantial public harm has occurred where
the human trafficking is alleged to have been committed.
(E) The significant public interest involved in compensating
victims of human trafficking and paying court Imposed
court-imposed restitution and fines.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making an order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of innocent third persons, including an innocent spouse,
who were not involved in the commission of criminal activity.
(6) A petition filed pursuant to this section is part of the
criminal proceedings for purposes of appointment of counsel and shall
be assigned to the criminal division of the superior court of the
county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (g), the court may order an
interlocutory sale of property named in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value of the property. The proceeds of
the interlocutory sale shall be deposited with the court or as
directed by the court pending determination of the proceeding
pursuant to this section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of a lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this section.
(9) In making its orders, the court shall seek to prevent the
property or asset subject to a temporary restraining order or
preliminary injunction from perishing, spoiling, going to waste, or
otherwise being significantly reduced in value. Where the potential
for diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property or asset.
(10) A preservation order shall not be issued against an asset of
a business that is not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.