BILL ANALYSIS Ó
AB 156
Page 1
Date of Hearing: March 12, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 156 (Holden) - As Amended: March 6, 2013
SUMMARY : Expands the provisions authorizing interception of
wire or electronic communications to apply if a judge determines
that, among other things, there is probable cause to believe
that an individual is committing, has committed, or is about to
commit a violation of human trafficking.
EXISTING LAW :
1)Authorizes the AG, chief deputy attorney general, chief
assistant attorney general, district attorney or the district
attorney's designee to apply to the presiding judge of the
superior court for an order authorizing the interception of
wire, electronic digital pager, or electronic cellular
telephone communications under specified circumstances.
(Penal Code Section 629.50.)
2)Defines "wire communication, electronic pager communication,"
"electronic cellular communication," and "aural transfer" for
the purposes of wiretaps. (Penal Code Section 629.51.)
3)Defines "aural transfer" as a transfer containing the human
voice at any point between and including the point of origin
and the point of reception. (Penal Code Section 629.51.)
4)Specifies the crimes for which an interception order may be
sought: murder; kidnapping; bombing; criminal gangs; and
possession for sale, sale, transportation; or manufacturing of
more than three pounds of cocaine, heroin, PCP,
methamphetamine or its precursors; possession of a destructive
device, weapons of mass destruction or restricted biological
agents. (Penal Code Section 629.52.)
5)Provides that the court may grant oral approval for an
emergency interception of wire, electronic pager or electronic
cellular telephone communications without an order as
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specified. Approval for an oral interception shall be
conditioned upon filing with the court, within 48 hours of the
oral approval, a written application for an order. Approval
of the ex parte order shall be conditioned upon filing with
the judge within 48 hours of the oral approval. (Penal Code
Section 629.56.)
6)Provides that no order entered under this chapter shall
authorize the interception of any wire, electronic pager or
electronic cellular telephone or electronic communication for
any period loner than is necessary to achieve the objective of
the authorization, nor in any event longer than 30 days.
(Penal Section Code 629.58.)
7)Requires that written reports showing what progress has been
made toward the achievement of the authorized objective,
including the number of intercepted communications, be
submitted at least every six days to the judge who issued the
order allowing the interception. (Penal Code Section 629.60.)
8)Provides that whenever an order authorizing an interception is
entered the order shall require a report be made to the AG
showing what persons, facilities, or places are to be
intercepted pursuant to the application, and the action taken
by the judge on each of these applications. (Penal Code
Section 629.61.)
9)Requires the Attorney General to prepare and submit an annual
report to the Legislature, the Judicial Council and the
Director of the Administrative Office of the United States
Court on interceptions conducted under the authority of the
wiretap provisions and specifies what the report shall
include. (Penal Code Section 629.62.)
10)Provides that applications made and orders granted shall be
sealed by the judge. Custody of the applications and orders
shall be where the judge orders. The applications and orders
shall be disclosed only upon a showing of good cause before a
judge and shall not be destroyed except on order of the
issuing or denying judge, and in any event shall be kept for
10 years. (Penal Code Section 629.66.)
11)Provides that a defendant shall be notified that he or she
was identified as the result of an interception prior to the
entry of a plea of guilty or nolo contendere, or at least 10
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days, prior to any trial, hearing or proceedings in the case
other than an arraignment or grand jury proceeding. Within 10
days prior to trial, hearing or proceeding the prosecution
shall provide to the defendant a copy of all recorded
interceptions from which evidence against the defendant was
derived, including a copy of the court order, accompanying
application and monitory logs. (Penal Code Section 629.70.)
12)Provides that any person may move to suppress intercepted
communications on the basis that the contents or evidence were
obtained in violation of the Fourth Amendment to the United
States Constitution or of California electronic surveillance
provisions. (Penal Code Section 629.72.)
13)Provides that the AG, any deputy attorney general, district
attorney or deputy district attorney or any peace officer who,
by any means authorized by this chapter has obtained knowledge
of the contents of any wire, electronic pager, or electronic
cellular telephone communication or evidence derived there
from, may disclose the contents to one of the individuals
referred to in this section and to any investigative or law
enforcement officer as defined in subdivision (7) of Section
2510 of Title 18 of the United State Code to the extent that
the disclosure is permitted pursuant to Penal Code Section
629.82 and is appropriate to the proper performance of the
official duties of the individual making or receiving the
disclosure. No other disclosure, except to a grand jury, of
intercepted information is permitted prior to a public court
hearing by any person regardless of how the person may have
come into possession thereof. (Penal Code Section 629.74.)
14)Provides that if a law enforcement officer overhears a
communication relating to a crime that is not specified in the
wiretap order, but is a crime for which a wiretap order could
have been issued, the officer may only disclose the
information and thereafter use the evidence, if, as soon as
practical, he or she applies to the court for permission to
use the information. If an officer overhears a communication
relating to a crime that is not specified in the order, and
not one for which a wiretap order could have been issued or
any violent felony, the information may not be disclosed or
used except to prevent the commission of a crime. No evidence
derived from the wiretap can be used unless the officers can
establish that the evidence was obtained through an
independent source or inevitably would have been discovered.
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In all instances, the court may only authorize use of the
information if it reviews the procedures used and determines
that the interception was in accordance with state wiretap
laws. [Penal Code Section 629.82 (b).]
15)Provides that human trafficking is one of the offenses which
is "criminal profiteering activity" subjecting proceeds from
the activity to forfeiture proceedings. [Penal Code Section
186.2(28).]
16)Provides that any person who deprives or violates the
personal liberty of another with the intent to obtain forced
labor or services, is guilty of human trafficking and shall be
punished by imprisonment in the state prison for 5, 8, or 12
years and a fine of not more than five hundred thousand
dollars ($500,000). [Penal Code Section 236.1(a).]
17)States that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than five
hundred thousand dollars ($500,000). [Penal Code Section
236.1(b).]
18)Provides that any person who causes, induces, or persuades,
or attempts to cause, induce, or persuade, a person who is a
minor at the time of commission of the offense to engage in a
commercial sex act, with the intent to effect or maintain a
violation of specified sex crimes is guilty of human
trafficking. A violation of this subdivision is punishable by
imprisonment in the state prison as follows: [Penal Code
Section 236.1(c).]
a) Five, 8, or 12 years and a fine of not more than five
hundred thousand dollars ($500,000).
b) Fifteen years to life and a fine of not more than five
hundred thousand dollars ($500,000) when the offense
involves force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim
or to another person.
19)Provides that in determining whether a minor was caused,
induced, or persuaded to engage in a commercial sex act, the
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totality of the circumstances, including the age of the
victim, his or her relationship to the trafficker or agents of
the trafficker, and any handicap or disability of the victim,
shall be considered. [Penal Code Section 236.1(d).]
20)Specifies that "commercial sex act" means sexual conduct on
account of which anything of value is given or received by any
person. [Penal Code Section 236.1(h) (2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Human
trafficking is the world's fastest growing criminal enterprise
and is an estimated $32 billion-a-year global industry.
Approximately 100,000 American children are exploited through
prostitution each year - with the average age of entrance at
only 13 years old.
"AB 156 authorizes a judge to enter an ex parte order
approving the interception of
electronic communications if the judge determines there is
probable cause to believe that an individual is committing,
has committed, or is about to commit human trafficking.
"Law enforcement personnel often have difficulty getting
victims to cooperate because of the traumatizing nature of the
experience. This authority will assist law enforcement
personnel in California with an additional tool to target
those responsible for what has become a lucrative trade for
female minors."
2)Overview of Wiretap Law : In general, California law prohibits
wiretapping. (Penal Code Section 631.) However, a judge may
grant a wiretap if, after reviewing a law enforcement agency's
application, he or she makes specified findings. (Penal Code
Section 629.52.) These findings include that law enforcement
exhaust all normal investigative procedures and fail prior to
applying for a wire intercept. (Penal Code Section 629.50.)
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a) Prior to the enactment of Penal Code Section 629.50 et
seq., wiretapping statutes did not permit the interception
of oral or electronic communications and permitted
wiretapping only during the investigation of specified
offenses involving controlled substances.
b) The Legislature enacted Section 629.50 et seq. in 1995
"in order to expand California wiretap law to conform with
federal law" as it existed at the time. [People v. Zepeda
(2001) 87 Cal.App.4th 1183, 1196.]
Federal law regulates the interception of wire, oral, and
electronic communications under 18 United States Code Sections
2510 to 2520. Under 18 United States Code Section 2516,
federal law enforcement may pursue a wiretap in human
trafficking cases, as specified.
3)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
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
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100,000 to 200,000 people in the United States working as
modern slaves in homes, sweatshops, brothels, agricultural
fields, construction projects and restaurants."
In 2012, Californians voted to pass Proposition 35, which
modified many provisions of California's already tough human
trafficking laws. The proposition increased criminal
penalties for human trafficking, including prison sentences up
to 15-years-to-life and fines up to $1,500,000. Additionally,
the proposition specified that the fines collected are to be
used for victim services and law enforcement. Proposition 35
requires persons convicted of trafficking to register as sex
offenders. Proposition 35 prohibits evidence that victim
engaged in sexual conduct from being used against victim in
court proceedings. Additionally, the proposition lowered the
evidential requirements for showing of force in cases of
minors.
4)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 and 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 with tools to strengthen the prosecution and
punishment of traffickers, making human trafficking a federal
crime.
5)Human Trafficking Studies: The Family Violence Prevention
Fund study, in the Executive Summary of "Turning Pain into
Power: Trafficking Survivors' Perspectives on Early
Intervention Strategies", states the following:
"This study was undertaken to examine the hypothesis that the
health care system might be an ideal place to focus education
and intervention efforts on victims of slavery. Human
trafficking is without question a health care issue: victims
of trafficking suffer a host of health-related problems and
are at high risk of injury, illness and even death from the
circumstances of their forced employment. . . . Is health
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care a missed opportunity to intervene on behalf of trafficked
women and children? . . . If health care providers do
interact with this population unknowingly, what steps could be
taken to enable practitioners to recognize trafficking victims
and understand their special needs?"
A February 2005 report by the Human Rights Center at the
University of California, Berkeley discussed the legislative
response to the human trafficking problem. This report found
that the California State Legislature must address several
critical areas including criminal prosecution and civil
remedies; training for law enforcement to better help them
recognize forced labor cases; the provisions of social
services, including medical care, shelter, witness protection
and other benefits; and the creation of a task force to
examine, propose and coordinate ongoing efforts to combat
trafficking and forced labor.
6)Argument in Support : According to the California Statewide
Law Enforcement Association, "California voters overwhelmingly
approved Proposition 35 last November to recognize the
incredible impact of sex trafficking on its victims. As such,
law enforcement should be able to use all Constitutional tools
to pursue perpetrators of these crimes.
"AB 156 is an important measure and we appreciate your efforts
to help law enforcement deal with these extremely serious
offenses."
7)Prior Legislation :
a) AB 12 (Swanson), Statutes of 2011, Chapter 75, requires
the court to impose a special fine of up to $25,000 in a
case where a defendant is convicted of prostitution
involving a minor; and provides that the proceeds of such
funds be available, upon legislative appropriation, to fund
programs and services for sexually exploited minors in the
county of conviction.
b) AB 90 (Swanson), Statutes of 2011, Chapter 457,
includes, within the definition of criminal profiteering
activity, any crime in which the perpetrator induces,
encourages, or persuades, or causes through force, fear,
coercion, deceit, violence, duress, menace, or threat of
unlawful injury to the victim or to another person, a
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person under 18 years of age to engage in a commercial sex
act, and specifies that the proceeds shall be deposited in
a Victim-Witness Fund as specified.
c) AB 17 (Swanson), Statutes of 2009, Chapter 211, adds
abduction or procurement for prostitution to the criminal
profiteering asset forfeiture law; provides that the court
may impose a fine of up to $20,000, in addition to any
other fines and penalties, where the defendant has been
convicted of abduction of a minor for purposes of
prostitution or procurement of a minor under the age of 16
for lewd conduct; and provides that 50 percent of the
additional fine shall be deposited in the Victim-Witness
Assistance Fund for purposes of grants to community-based
organizations that serve minor victims of human
trafficking.
REGISTERED SUPPORT / OPPOSITION :
Support
A Better Internet Foundation
Abolition International
American Federation of State, County and Municipal Employees
Association for Los Angeles Deputy Sheriffs
California Alliance of Child and Family Services
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California Statewide Law Enforcement Association
Crime Victims United
Enough is Enough
Family Research Council
Girls Against Porn
Hillsides
International Faith Based Coalition
L.A. County Probation Officers Union
Los Angeles Police Protective League
Peace Officers Research Association of California
Public Counsel
Riverside Sheriffs' Association
Roger Young Consulting
Trafficking In America Task Force, Inc.
Women Against Child Trafficking
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Women's Foundation of California
One private individual.
Opposition
American Civil Liberties Union
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744