BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
AB 2466 (Blumenfield) - Human trafficking: seizure of assets.
Amended: August 6, 2012 Policy Vote: Public Safety 6-0
Urgency: No Mandate: No
Hearing Date: August 6, 2012
Consultant: Jolie Onodera
This bill meets the criteria for referral to the Suspense File.
Bill Summary: AB 2466 would authorize a prosecuting agency to
file a petition for protective relief necessary to prevent a
human trafficking defendant from transferring, hiding, or
dissipating assets. This bill would specify a comprehensive
process for preserving the assets and levying upon the assets
upon conviction of the defendant of the underlying crime.
Fiscal Impact:
Potentially significant ongoing foregone revenue to the Victim
Witness Assistance (VWA) Fund. Proceeds from fines imposed for
human trafficking previously directed to the VWA Fund would
instead be paid to the treasurer of the county in which the
judgment was entered or to the General Fund if the action was
undertaken by the Attorney General.
Potential increase in fine revenues and restitution paid to
victims of human trafficking to the extent the seizing of
assets prior to final judgment results in the increased
preservation and distribution of assets.
Minor, absorbable impact to court workload related to
petitions for protective relief.
Background: Existing law provides that any person who deprives
or violates the personal liberty of another is guilty of human
trafficking if the person specifically intends to effect or
maintain a specified felony prostitution-related offense, commit
extortion, use a minor to produce or distribute obscene material
or child pornography, or obtain forced labor or services (Penal
Code (PC) section 236.1(a)). Under existing law, the offense is
punishable by a state prison term of three, four, or five years
if the victim of human trafficking is an adult, or if the victim
is a minor, the offense is punishable by four, six, or eight
years in state prison. Where a minor was trafficked for a
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commercial sex act, the maximum fine is $100,000.
Under existing law, every fine imposed and collected pursuant to
PC section 236.1 is to be deposited in the Victim-Witness
Assistance (VWA) Fund to be available for appropriation to fund
services for victims of human trafficking. At least 50 percent
of the fines collected and deposited are to be granted to
community-based organizations that serve victims of human
trafficking.
Existing law provides that in a criminal profiteering forfeiture
case or in cases involving large scale fraud or embezzlement,
the prosecutor may move the court for orders preserving the
defendant's assets and property, however, similar authority is
not provided under human trafficking cases prior to conviction.
Proposed Law: This bill seeks to preserve the assets of human
trafficking defendants in order for fines and restitution to be
paid, by authorizing the prosecuting agency to obtain a judicial
order preventing the transfer, hiding, or dissipation of assets.
Specifically, this bill:
Authorizes prosecuting agencies, at the same time as or
subsequent to the filing of a complaint or indictment charging
human trafficking under Penal Code section 236.1, to file a
petition seeking a temporary restraining order, preliminary
injunction, the appointment of a receiver, or any other
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 the payment of
restitution and fines.
Requires the prosecuting agency to publish a notice, as
specified, and provide notice of the petition to every person
who may have an interest in the property specified in the
petition.
Provides the court, in making its orders, may consider a
defendant's request for the release of a portion of the
property affected 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.
Provides that if the defendant is convicted of human
trafficking, the trial judge shall continue the preliminary
injunction or temporary restraining order until the date of
criminal sentencing, and shall make a finding at that time as
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to what portion of the property or assets subject to the order
shall be levied upon to pay fines and restitution to victims
of the crime.
Provides that in all cases where property is to be levied
upon, a receiver appointed by the court may liquidate all
property or assets which shall be distributed in the following
order of priority:
o To the receiver, or court-appointed appraiser,
for all reasonable expenditures, as specified.
o To a holder of a valid lien, mortgage, or
security instrument.
o To a victim of restitution for human
trafficking, as specified.
o For payment of a fine imposed. The proceeds
obtained in payment of a fine shall be paid to the
treasurer of the county in which the judgment was
entered or, if the action was undertaken by the AG, to
the treasure for deposit in the General Fund.
Related Legislation: SB 1133 (Leno) 2012 establishes a new asset
forfeiture process for human trafficking of minors for sexual
purposes. This bill has been referred to the Assembly Committee
on Appropriations.
AB 1293 (Blumenfield) Chapter 371/2011 authorizes the
prosecuting agency in conjunction with a criminal proceeding
alleging theft or embezzlement of property worth $100,000 or
more, to file a petition of forfeiture, as prescribed, with the
superior court of the county in which the defendant has been
charged with elder or dependent financial abuse, and alleging
that the defendant has acquired the property or proceeds through
theft or embezzlement of an elder or dependent adult's property.
AB 364 (Bonilla) Chapter 182/2011 authorizes the seizing and
preservation of assets of a criminal defendant charged with a
single large-scale financial crime and repeals a stand-alone
restitution provision in the white collar crime law to thereby
ensure that constitutional and statutory mandatory restitution
apply in such cases, as specified.
Staff Comments: By authorizing a prosecuting agency to seek an
order preserving the property and assets of an individual
charged with human trafficking prior to final judgment, this
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bill could result in an unknown amount of increased restitution
paid to victims as well as fine revenue collected.
Under existing law, every fine imposed and collected pursuant to
PC section 236.1 is to be deposited in the VWA Fund to be
available for appropriation to fund services for victims of
human trafficking, at least 50 percent of which is to be granted
to community-based organizations that serve victims of human
trafficking. As the provisions of this bill provide that fine
proceeds shall be paid to the treasurer of the county in which
the judgment was entered or to the General Fund if the action
was undertaken by the AG, to the extent there is an increased
level of fine revenue collected for human trafficking
convictions under PC section 236.1, there would be an unknown,
but potentially significant level of foregone revenue to the VWA
Fund.
Recommended Amendments: In order to maintain the existing
distribution of fines imposed and collected for human
trafficking convictions under PC section 236.1, staff recommends
an amendment to provide that any fine imposed and collected
shall be distributed as prescribed in PC section 236.1.