BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 524 (Mullin)
As Amended May 24, 2013
Hearing date: June 25, 2013
Penal Code
MK:jr
IMMIGRATION: EXTORTION
HISTORY
Source: The California Labor Federation
Prior Legislation: None applicable
Support: Asian Pacific Islander Legal Outreach; California
Immigrant Policy Center; California Nurses
Association; California State Council of Laborers;
Coalition to Abolish Slavery and Trafficking; the
Mexican American Legal Defense and Education Fund;
California Communities United Institute; San Mateo
County Central Labor Council; California School
Employees Association, AFL-CIO; California Teamsters
Public Affairs Council; Board of the Amalgamated
Transit Union; CA Conference of Machinists;
International Longshore and Warehouse Union;
UNITE-HERE, AFL-CIO; United Food & Commercial Workers
Western States Council; Engineers & Scientists of CA,
IFPTE Local 20 Professional & Technical Engineers,
IFPTE Local 21; Utility Workers Union of America;
National Council of Jewish Women-CA; Crime Victims
Action Alliance; The Service State Employees
International Union
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Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 55 - Noes 18
KEY ISSUE
SHOULD THE LAW PROVIDE THAT A THREAT TO REPORT THE IMMIGRATION
STATUS OR SUSPECTED IMMIGRATION STATUS OF AN INDIVIDUAL OR AN
INDIVIDUAL'S FAMILY MAY INDUCE FEAR SUFFICIENT TO CONSTITUTE
EXTORTION?
PURPOSE
The purpose of this bill is to provide that a threat to report
the immigration status or suspected immigration status of an
individual or the individual's family may induce fear sufficient
to constitute extortion.
Existing law defines "extortion" as the obtaining of property
from another, with his consent, or the obtaining of an official
act of a public officer, induced by a wrongful use of force or
fear, or under color of official right. (Penal Code � 518.)
Existing law states that every person who extorts any money or
other property from another, under circumstances not amounting
to robbery or carjacking, by means of force, or any threat, such
as is mentioned in existing provisions of law relating to
threats sufficient to constitute extortion, shall be punished by
imprisonment for two, three or four years. (Penal Code �520.)
Existing law provides that every person who commits any
extortion under color of official right, in cases for which a
different punishment is not prescribed in the Penal Code, is
guilty of a misdemeanor. (Penal Code � 521.)
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Existing law states that every person who attempts, by means of
any threat, such as is specified in existing provisions of law
relating to threats sufficient to constitute extortion, to
extort money or other property from another is punishable by
imprisonment in the county jail not longer than one year or in
the state prison or by fine not exceeding ten thousand dollars
($10,000), or by both such fine and imprisonment. (Penal Code �
524.)
Existing law provides that fear, such as will constitute
extortion, may be induced by a threat, either:
a) To do an unlawful injury to the person or property of
the individual threatened or of a third person;
b) To accuse the individual threatened, or any relative of
his, or member of his family,
of any crime;
c) To expose, or to impute to him or them any deformity,
disgrace or crime; or,
d) To expose, any secret affecting him or them. (Penal Code �
519)
This bill provides that fear such as will constitute extortion,
also may be induced by a threat to report his, her or their
immigration status or suspected immigration status.
This bill contains uncodified legislative intent stating that
the amendments to Penal Code Section 519 in this bill are
intended to clarify existing law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
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Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
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2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for the Bill
According to the author:
Research indicates that 76% of crimes against
undocumented immigrants go unreported. This reluctance
to report criminal activity can be traced in part to
fear of deportation, a fear that makes undocumented
immigrants particularly attractive targets to potential
offenders. Offenders seek out the most "suitable
target", according to victimization research. Given
undocumented immigrants' reluctance to interact with
police due to fear of deportation, this group is
particularly vulnerable to extortion.
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By explicitly defining extortion to include threats to
report immigration status, this bill would assist
lawyers in building strong cases against anyone who
exploits immigrants by threatening to report their
immigration statuses.
Beyond protecting individuals, this bill could have a
community-wide impact on public safety. If victims are
empowered to report perpetrators to authorities then
the greater community could benefit by getting
perpetrators off the street.
California is home to the greatest number of immigrants
of any state in the country. With 27% of the state's
population comprised of foreign-born persons, we have a
civic obligation to ensure our laws effectively protect
all Californians from exploitation, regardless of
immigration status. Virginia and Colorado, states with
far fewer immigrants than California, have already
passed similar laws.
As stated in the most recent amendments for this bill,
AB 524 seeks to clarify existing law. This
clarification is necessary because threats to report a
person's immigration status are not clearly included in
the existing definition of extortion. Our supporting
organizations, including the Mexican American Legal
Defense Educational Fund and Asian Pacific Islander
Legal Outreach, agree that this bill would help clarify
current gray areas in the California Penal Code with
respect to extortion based on immigration status.
Specifically, some have questioned whether threats to
accuse a person of a "crime" would include threats to
report a person's immigration status or suspected
immigration status. However, being undocumented is a
civil, not criminal, offense. Another question came up
as to whether these threats are covered as threats to
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"expose a secret". However, a person's immigration
status is not necessarily a secret; it's a status.
Because of these gray areas, the consensus was that the
California Penal Code should be amended to explicitly
include threats to report a person's immigration status
or suspected immigration status in the definition of
extortion.
2. Threat to Report Immigration Status Constitutes Extortion
Extortion is the obtaining of property from another, with his
consent, or the obtaining of an official act of a public
officer, induced by a wrongful use of force or fear. It is
punishable as a jail felony by two, three or four years. The
law also provides that fear, that will constitute extortion may
be induced by specified threats. This bill would specifically
include the threat to report an individual or his or her
family's immigration status or suspected immigration status as
fear that is sufficient to constitute extortion. Uncodified
Legislative intent declares that this is intended to clarify
existing law.
3. Prison Impact Considerations
The Assembly Appropriations Committee's analysis of this bill
included the following information concerning its potential to
impact the prison system:
Unknown moderate costs, potentially in excess of
$150,000, depending on the number of persons who are
convicted and committed to state prison for extortion
as a result of the expanded definition of fear. In the
past two years, 41 persons were committed to state
prison for extortion. If this bill results in three
additional commitments, annual GF costs could exceed
$150,000.
4. Support
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Supporters of this bill argue that fear of immigration
consequences keep people working and living in unsafe
environments. Specifically the Asian Pacific Islander Legal
Outreach states:
As a direct service provider to survivors of domestic
violence, elder abuse, human trafficking, and other
crimes in California, API Legal Outreach knows that
thousands of victims of these crimes are threatened
with arrest or deportation every year. Traffickers and
abusers will withhold victims passports and documents,
and subject these victims to years of labor and abuse ,
using these victims' immigration status against them.
Some traffickers and abusers may also use immigration
status to threaten immigrants with the custody of their
children. In addition, domestic violence and
trafficking survivors, who are often sole earners and
frequently are exploited for their labor, need more
worker protections to assist them in breaking the cycle
of violence. Based on threats of deportation, many
victims are afraid to turn to law enforcement for help,
enabling continued abuse and enslavement. Expanding
the definition of extortion to include threats of
deportation would make trafficking-related crimes
easier to punish, and would help ensure that domestic
violence, elder abuse, and trafficking victims receive
adequate protection against extortion under California
law.
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In further support the California State Council of Laborers
states:
Research and individual experiences show that rampant
labor violations and widespread practices of
retaliation have become key features of the low-wage
labor market in California. In many of these
occupations and industries vulnerable immigrants cannot
exercise their labor rights or speak out against unfair
or illegal working conditions without the fear of
retaliation. Bad jobs will not become good jobs when a
substantial portion of the workforce is being
threatened with immigration audits, Immigration &
Customs Enforcement (ICE) raids and implementation of
e-verify as retaliation.
The Laborers have been on the forefront of helping
expose underground economy activities in California,
and 'bring to light' dishonest business practices that
continue to leave law-abiding employers at a
competitive disadvantage. AB 524 helps level the
playing field and prevents unscrupulous employers from
using immigration status as a means of escaping
responsibility for workplace abuses and wage theft
violations. AB 524 is a major step toward improving job
quality in the low-wage jobs that fuel our state's
economy and to remove the ability of employers to use
immigrant status for retaliation or other unlawful
purposes.
5. Opposition
The California District Attorneys Association opposes this bill
stating:
We are concerned that the bill is unnecessary given the
way in which Penal Code Section 519 currently exists.
It appears that several of the existing criteria used
to prove that a threat constituting extortion already
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cover the threat to report a person as being illegally
present in this country.
Perhaps more importantly, we fear that AB 524 will lead
to additional unnecessary expansion of PC 519. If this
section is further amended to add more circumstances
that constitute extortion, defense counsel is likely to
argue that the lack of a specific reference to a
particular set of facts demonstrates the Legislature's
affirmative exclusion of threats that are likely
already covered today from the reach of PC 519.
CDAA's concerns appear accurate. While clearly
well-intentioned, it is likely current law would cover
the fear/threat of reporting immigration status, and it
is also reasonable to suggest that increasing the
specificity of the definition may result in reducing
the application of the current general definition to
other cases
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