BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          AB 336 (Ammiano) - Crimes: prostitution: evidence.
          
          Amended: May 29, 2014           Policy Vote: Public Safety 5-2
          Urgency: No                     Mandate: No
          Hearing Date: August 4, 2014                            
          Consultant: Jolie Onodera       
          
          This bill meets the criteria for referral to the Suspense File.


          Bill Summary: AB 336 would provide for specified procedures to  
          be followed, potentially including a hearing out of the presence  
          of the jury, during the prosecution of a prostitution case, if  
          the prosecution intends to introduce as evidence the possession  
          of condoms by the defendant.

          Fiscal Impact: Potentially significant increase in court  
          workload to process motions and potentially hold separate  
          hearings out of the presence of a jury in prostitution cases.  
          For every 500 motions filed (less than 10 motions per court per  
          year), costs could range from $250,000 to $750,000 (General  
          Fund*) assuming one to three additional hours of court time per  
          case.

          *Trial Court Trust Fund

          Background: The Human Rights Watch (HRW) report, "Sex Workers at  
          Risk: Condoms as Evidence of Prostitution in Four U.S. Cities  
          (July 2012)," documents how law enforcement officers and  
          prosecutors in the cities of New York, San Francisco, Los  
          Angeles, and Washington, DC, use condoms to support prostitution  
          charges. According to the report, "The practice makes sex  
          workers and transgender women reluctant to carry condoms for  
          fear of arrest, causes them to engage in sex without protection,  
          and puts them at risk of HIV and other sexually transmitted  
          diseases."

          HRW interviewed more than 300 people for the report, including  
          200 current and former sex workers as well as outreach workers,  
          advocates, prosecutors, public defenders, police, and health  
          department officials. The report includes testimony from sex  
          workers and transgender women who said that police harass,  








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          threaten, and arrest them for carrying condoms. In addition to  
          specific cases in which possession of condoms was used as  
          evidence of prostitution, HRW found that the threats of  
          harassment of sex workers about possessing condoms had resulted  
          in a prevalent belief that one is risking arrest and prosecution  
          as a prostitute by having any condoms in one's possession when  
          approached by law enforcement. As a result, many sex workers  
          will no longer carry any condoms or a sufficient number of  
          condoms, thereby creating multiple opportunities for  
          transmission of HIV to and from the sex worker.

          This bill seeks to establish a judicial process in any  
          prosecution for specified prostitution offenses when the  
          possession of condoms is to be introduced as evidence, to ensure  
          the possession of condoms by the defendant is relevant to the  
          commission of the crime.

          Proposed Law: This bill would provide that in any prosecution  
          for committing an act of disorderly conduct or for loitering in  
          any public place with the intent to commit prostitution, if the  
          possession of one or more condoms is to be introduced as  
          evidence in support of the commission of the crime, the  
          following procedure shall be followed:
                 Requires the prosecutor to make a written motion to the  
               court and to the defendant stating that the prosecution has  
               an offer of proof of the relevancy of the possession by the  
               defendant of one or more condoms.
                 Requires the written motion to be accompanied by an  
               affidavit, to be filed under seal, as specified, in which  
               the offer of proof shall be stated. 
                 Requires the court to order a hearing out of the  
               presence of the jury, if any, if the court finds that the  
               offer of proof is sufficient, and at the hearing allow  
               questioning regarding the offer of proof made by the  
               prosecution.
                 Provides that at the conclusion of the hearing, if  
               evidence found to be relevant, as specified, the court may  
               make an order stating what evidence may be introduced by  
               the prosecutor.
                 Provides that an affidavit resealed by the court shall  
               remain sealed, unless the defendant raises an issue on  
               appeal or collateral review relating to the offer of proof.  

                 Authorizes the Attorney General and appellate counsel to  








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               access the sealed affidavit if the defendant raisers that  
               issue on appeal, and authorizes access to the district  
               attorney and defendant's counsel if the issue is raiser on  
               collateral review.

          Staff Comments: This bill creates a new process, potentially  
          requiring a hearing, for consideration of specified evidence  
          regarding condoms in criminal prosecutions for soliciting  
          prostitution or for loitering with intent to commit  
          prostitution. This bill would require the prosecutor to file a  
          written motion to the court, and for the court to make a  
          decision on the motion, potentially requiring a hearing, on the  
          necessity and value of introducing condoms as evidence to prove  
          the charges.

          The Judicial Council estimates this new process could require  
          one to three additional hours of court time per case. For those  
          motions filed and upon which no hearing is required, about one  
          hour of court time to accept, process, review, and prepare a  
          determination is estimated. For motions filed that require a  
          hearing, an additional two hours of court time is estimated.  
          Based on an estimated cost of $4,000 for an eight-hour court  
          day, an additional one to three hours of court time is estimated  
          to cost between $500 and $1,500 per case.

          It cannot be known with certainty how many motions will be filed  
          in these cases in any one year statewide, and of the motions  
          filed, which motions will require a separate hearing. As a  
          result, as an example of potential costs: for every 500 motions  
          filed (less than 10 motions per court per year), annual costs  
          could range from $250,000 to $750,000 annually. To the extent  
          the actual number of motions filed in these cases is greater or  
          less than 500, costs would be commensurately higher or lower.