BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 327 (Yee)
As Amended April 2, 2013
Hearing date: April 9, 2013
Penal Code
MK:mc
HUMAN TRAFFICKING:
RECALL AND RESENTENCING
HISTORY
Source: California Against Slavery
Prior Legislation: AB 593 (Ma) - Ch. 803, Stats. 2012
AB 1593 (Ma) - Ch. 809, Stats. 2012
AB 2306 (Karnette) - Ch. 146, Stats. 2008
AB 220 (ACoPS) - Ch. 215, Stats. 2005
SB 1385 (Burton) - Ch. 609, Stats. 2004
SB 784 (Karnette) - Ch. 136, Stats.
2003
SB 799 (Karnette) - Ch. 858, Stats.
2001
SB 499 (Burton) - Ch. 652, Stats. 2000
AB 231 (Kuehl) - Ch. 905, Stats. 1995
AB 1211 (Kuehl) - 1995, held in the
Assembly
AB 2295 (B. Friedman) - vetoed, 1993
AB 3436 (Friedman) - Ch. 1138, Stats. 1992
Support: California Attorneys for Criminal Justice; National
Association of Social Workers-California Chapter; Legal
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Services for Prisoners with Children
Opposition:California District Attorneys Association
KEY ISSUES
SHOULD A WRIT OF HABEAS CORPUS BE PROSECUTED WHEN COMPETENT AND
SUBSTANTIAL EXPERT TESTIMONY RELATING TO HUMAN TRAFFICKING WAS NOT
PRESENTED TO THE TRIER OF FACT; AND IF IT HAD BEEN, THERE IS A
REASONABLE PROBABILITY THAT THE RESULT OF THE PROCEEDINGS WOULD BE
DIFFERENT?
SHOULD THE BOARD OF PAROLE HEARINGS INCLUDE IN THEIR REPORT TO THE
GOVERNOR ON COMMUTATIONS AND PARDONS EVIDENCE THAT THE PRISONER WAS
A VICTIM OF HUMAN TRAFFICKING?
SHOULD THE BOARD OF PAROLE HEARINGS GIVE GREAT WEIGHT TO EVIDENCE
THAT THE PRISONER WAS A VICTIM OF HUMAN TRAFFICKING?
PURPOSE
The purpose of this bill is to allow a writ of habeas corpus
when evidence of human trafficking was not presented at trial
and to provide that the Board of Parole Hearings (BPH) shall
give great weight to evidence that a prisoner was a victim of
human trafficking.
Existing law provides that in a criminal action expert testimony
is admissible by either the prosecution or defense regarding
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intimate partner battering and its effects, including the nature
and effect of physical, emotional, or mental abuse on the
beliefs, perceptions, or behavior of victims of domestic
violence, except when offered against a defendant to prove the
occurrence of the act or acts of abuse which form the basis of a
criminal charge. (Evidence Code § 1107.)
Existing law provides that every person unlawfully imprisoned or
restrained of his or her liberty, under any pretense whatever,
may prosecute a writ of habeas corpus to inquire into the cause
of such imprisonment or restraint. (Penal Code § 1473(a).)
Existing law states that a writ of habeas corpus may be
prosecuted for, but not limited to, the following reasons:
false evidence that is substantially material or
probative on the issue of guilt, or punishment was
introduced against a person at any hearing or trial
relating to his incarceration;
false physical evidence believed by a person to be
factual, material or probative on the issue of guilt, which
was known by the person at the time of entering a plea of
guilty and which was a material factor directly related to
the plea of guilty by the person; and,
any allegation that the prosecution knew or should have
known of the false nature of the evidence is immaterial to
the prosecution of a writ of habeas corpus. (Penal Code §
1473(b).)
Existing law states that nothing in this section shall be
construed as limiting the grounds for which a writ of habeas
corpus may be prosecuted or as precluding the use of any other
remedies. (Penal Code § 1473(d).)
Existing law requires the Board of Prison Terms (BPT), in
considering a prisoner's suitability for parole, to consider any
evidence that, at the time of the commission of the crime, the
prisoner had experienced intimate partner battering and was
convicted of the offense prior to this defense being recognized.
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(Penal Code § 4801(b).)
Existing law provides that a writ of habeas corpus may be
brought on the basis that competent and substantial expert
testimony relating to intimate partner battering and its
effects, as defined, was not received into evidence at the trial
relating to the prisoner's incarceration for a murder
conviction, and was of such substance that had it been received
into evidence, there is a reasonable probability, sufficient to
undermine confidence in the judgment of conviction, that the
result of the proceedings would have been different. (Penal
Code § 1473.5(a).)
This bill would extend the writ of habeas corpus to cases where
competent and substantial expert testimony relating to human
trafficking and its effects was not presented to the trier of
fact at the trial court proceedings and is of such substance
that had the competent and substantial expert testimony been
presented, there is a reasonable probability, sufficient to
undermine confidence in the judgment of conviction or sentence,
that the result of the proceedings would have been different.
Existing law authorizes the BPH to report to the Governor, from
time to time, the names of any and all persons imprisoned in any
state prison who, in its judgment, ought to have a commutation
of sentence or be pardoned and set at liberty on account of good
conduct, or unusual term of sentence, or any other cause,
including evidence of intimate partner battering and its
effects. Existing law defines "intimate partner battering and
its effects" to include evidence of the nature and effects of
physical, emotional, or mental abuse upon the beliefs,
perceptions, or behavior of victims of domestic violence where
it appears the criminal behavior was the result of that
victimization. (Penal Code § 4801(a).)
This bill provides that BPH shall include evidence that the
prisoner was a victim of human trafficking in a report on a
commutation or pardon to the Governor.
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Existing law requires BPH, in reviewing a prisoner's suitability
for parole shall give great weight to any information or
evidence that, at the time of the commission of the crime, the
prisoner had experienced intimate partner battering, but was
convicted of the offense prior to the enactment of Section 1107
of the Evidence Code. The BPH shall state on the record the
information or evidence that it considered pursuant to this
subdivision, and the reasons for the parole decision. The BPH
shall annually report to the Legislature and the Governor on the
cases the BPH considered pursuant to this subdivision during the
previous year, including the BPH's decision and the findings of
its investigations of these cases. (Penal Code § 4801(b)(1).)
This bill provides that BPH shall also give great weight to
evidence that the prisoner was a victim of human trafficking at
the time of the offense.
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.
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
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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 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 oppose 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.
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unsettled. 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
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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 This Bill
According to the author:
Human trafficking is a criminal business that profits
from enslaving people for forced labor or sexual
servitude. Human trafficking is happening in the U.S.
where the average age that a victim is first trafficked
for sex trade is 12 to 14 years old. Many victims are
runaway girls or children in foster care who have
suffered sexual abuse. Traffickers are master
manipulators who gain a victim's trust before forcing
them into commercial sex acts and keeping them
compliant through violence and drugs. California
harbors three of the FBI's 13 highest child sex
trafficking areas in the nation: Los Angeles, San
Francisco and San Diego.
Currently, a victim who is being sold, beaten,
exploited by a trafficker does not have the same
protection as a domestic violence victim. Similar to
domestic violence victims, trafficked victims suffer
physical and psychological abuse. A trafficked victim
suffers a combination of Stockholm Syndrome/trauma
bonding, PTSD, ongoing sexual and physical violence.
Due to a lack of awareness, victims of human
trafficking are often not recognized as a victim and
thus evidence surrounding the abuse related to the
charges against them are not being considered in court.
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2. Existing Writ for Intimate Partner Battering
Habeas corpus, also known as "the Great Writ", is a process
guaranteed by both the federal and state constitutions to obtain
prompt judicial relief from illegal restraint. The functions of
the writ is set forth in Penal Code Section 1473(a): "Every
person unlawfully imprisoned or restrained of his or her
liberty, under any pretense whatever, may prosecute a writ of
habeas corpus, to inquire into the cause of such imprisonment or
restraint." SB 799 (Karnette), Chapter 858, Statutes of 2001,
specifically permitted habeas corpus petitions for battered
persons convicted of killing their abusers. SB 799 created a
new habeas corpus remedy under Penal Code Section 1473.5 for a
narrow class of prisoners on the basis that they did not have
BWS testimony presented at trial. Penal Code Section 1473.5
originally had a sunset date, which was extended and then
eventually eliminated last year by AB 593 (Ma). AB 593 (Ma)
also expanded the writ under Penal Code section 1473.5 to
include cases where evidence was admitted, but it was not
competent and substantial.
3. Writ of Habeas Corpus for Evidence of Human Trafficking
This bill would allow a writ of habeas corpus when it is shown
that competent and substantial evidence related to human
trafficking and its effects was not presented by the trier of
fact at the trial court proceedings and is of such substance
that had it been presented, there is a reasonable probability,
sufficient to undermine confidence in the judgment of conviction
of sentence that the result in the proceedings would be
different.
As noted in Comment 2, the writ created by the section this bill
amends was for a specific narrow class of people who were
convicted of killing their abusers before the Evidence Code made
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it clear that evidence of domestic violence was admissible at
trial. The crime of "human trafficking" was created in 2005 and
has been expanded since including by Proposition 35 in 2012.
Does this make it analogous to the domestic violence situation?
While evidence of "human trafficking" would not have come in
prior to the creation of the crime, it is possible that evidence
of things that are also in human trafficking could have come in,
for example, evidence that a person was held against her will to
be a prostitute by a pimp in a trial where the woman has been
charged with killing her pimp. Would a person who had this
evidence brought in at the trial still be permitted to bring a
writ under this section? This section originally was intended
to apply to women who were serving long or life sentences for
murder. To what types of cases would this expansion apply?
SHOULD A PERSON BE PERMITTED TO BRING A WRIT OF HABEAS CORPUS IF
HE OR SHE WAS A VICTIM OF HUMAN TRAFFICKING AND AT HIS OR HER
TRIAL COMPETENT AND SUBSTANTIAL EVIDENCE OF HUMAN TRAFFICKING
WAS NOT PRESENTED?
4. BPH to Give Great Weight to Evidence that the Person is a
Victim of Human Trafficking
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Evidence of intimate partner battering has been part of what the
Board of Parole Hearings (BPH) could use for a reason for
commuting a sentence since SB 3436 (Friedman) was passed in
1992. Bills since then have defined what at the time was called
"battered woman syndrome" (AB 231 (Khuel) 1995); required that
the board consider whether a prisoner had experienced battered
woman syndrome at the time of the offense and was sentenced
prior to 1991 (SB 499 (Burton) 2000); and changed the term
"battered woman syndrome" to "intimate partner battering" (AB
220 (ACoPS) 2005). AB 1593 (Ma) 2012, further changed the
section requiring that the BPH "give great weight" to the fact
that the prisoner had experienced intimate partner battering.
This bill would provide that BPH should give great weight to
evidence that the prisoner was a victim of human trafficking at
the time of the offense. BPH can also include evidence that the
prisoner was a victim of human trafficking when suggesting a
commutation of sentence or pardon to the governor.
SHOULD EVIDENCE THAT A PRISONER WAS A VICTIM OF HUMAN
TRAFFICKING BE GIVEN GREAT WEIGHT BY THE BOARD OF PAROLE
HEARINGS?
5. Support
In Support, California Attorneys for Criminal Justice states:
Human Trafficking affects women, men and children in
our state every day and leaves devastating physical and
emotional effects on victims. Trafficked victims are
subject to sexual exploitation, abuse or are often
times forced into prostitution. In many cases, victims
are required to use a variety of controlled substances
and develop drug abuse problems that affect them for
the rest of their lives. This traumatic experience
leaves victims with severe psychological disorders
including, depression, disorientation and emotional
disturbance. This bill will help protect individuals
who have committed a crime in response to being a
victim of human trafficking.
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The writ of habeas corpus is a critical safeguard for
incarcerated individuals who may have been denied their
constitutional rights during trial. Like evidence
regarding intimate partner battering, the subject of
prior amendments to Penal Code section 1473.5, expert
testimony regarding the impacts of human trafficking is
a piece of evidence that could be pivotal in a trial
and withholding such evidence would absolutely undercut
the conviction.
6. Opposition
The California District Attorneys Association opposes this bill
stating:
Existing law, Penal Code Section 1473, provides that
every person unlawfully imprisoned or restrained of his
liberty, under any pretense whatever, may prosecute a
writ of habeas corpus, to inquire into the cause of
such imprisonment or restraint. As such, this bill is
unnecessary. Further, the provision of law that SB 327
amends was created for a discrete situation unique to
the issue of IPB and was amended in the wake of a
statute and case law specifically allowing the
introduction of expert testimony on IPB, then known as
battered woman's syndrome. Proponents of this special
writ had identified a finite group of defendants who
had been convicted of serious offenses without the
benefit of expert testimony on IPB and its effects.
SB 327 attempts to shoehorn a solution in search of a
problem into an existing code section that bears little
connection to the issue you have identified.
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SB 327 additionally gives a person who may have
previously filed an unsuccessful writ of habeas corpus
based on human trafficking the ability to use the same
evidence to attempt gain release from incarceration a
second time via parole proceedings. We feel it is
inappropriate to direct BPH operations legislatively by
expressing a bias toward evidence of human trafficking,
especially if such evidence was unconvincing to a court
in a habeas proceeding.
The bottom line is that this bill is unnecessary and,
in fact, could foster the false notion that a person
convicted of an offense without the benefit of expert
testimony of the mitigating factor of being a human
trafficking victim would not be able to prosecute a
writ of habeas corpus under existing law.
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