Senate Bill No. 473

Introduced by Senator Block

(Coauthor: Assembly Member Chávez)

February 21, 2013

An act to amend Section 186.22 of, and to add Section 266m to, the Penal Code, relating to human trafficking.

LEGISLATIVE COUNSEL’S DIGEST

SB 473, as introduced, Block. Human trafficking.

Existing law, as amended by Proposition 21 as approved by the voters at the March 7, 2000, statewide primary election, provides that any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished, as specified. Existing law defines “a pattern of criminal gang activity” as the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, 2 or more listed offenses. Proposition 21 may be amended by a statute passed by a 2⁄3 vote of the membership of each house of the Legislature.

This bill would add pimping, pandering, and human trafficking as offenses that may be used to establish a pattern of criminal activity for the purposes. Because this bill would amend Proposition 21 it therefore requires a 2⁄3 vote.

Existing law provides various penalties for human trafficking and sex trafficking offenses.

This bill would require that any person convicted of a human trafficking offense or a specified sex trafficking offense where any part of the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary school, vocational, junior high, or high school during the hours that the school is open for classes or school-related programs, or at any time when minors are using the facility, receive, in addition to any other penalty imposed, punishment of 3 years in state prison.

Because this bill would change the definition of a crime and require a higher level of service from local prosecutors in pleading and proving the enhancement, it would impose a state-mandated local program.

The bill would also correct cross-references and make conforming changes.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 186.22 of the Penal Code, as amended
by Section 2 of Chapter 361 of the Statutes of 2011, is amended
to read:

186.22.  

(a) Any person who actively participates in any
criminal street gang with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity, and who
willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year,
or by imprisonment in the state prison for 16 months, or two or
three years.

(b) (1) Except as provided in paragraphs (4) and (5), any person
who is convicted of a felony committed for the benefit of, at the
direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal
conduct by gang members, shall, upon conviction of that felony,
in addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished as follows:

(A) Except as provided in subparagraphs (B) and (C), the person
shall be punished by an additional term of two, three, or four years
at the court’s discretion.

(B) If the felony is a serious felony, as defined in subdivision
(c) of Section 1192.7, the person shall be punished by an additional
term of five years.

(C) If the felony is a violent felony, as defined in subdivision
(c) of Section 667.5, the person shall be punished by an additional
term of 10 years.

(2) If the underlying felony described in paragraph (1) is
committed on the grounds of, or within 1,000 feet of, a public or
private elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or school-related
programs or when minors are using the facility, that fact shall be
a circumstance in aggravation of the crime in imposing a term
under paragraph (1).

(3) The court shall order the imposition of the middle term of
the sentence enhancement, unless there are circumstances in
aggravation or mitigation. The court shall state the reasons for its
choice of sentencing enhancements on the record at the time of
the sentencing.

(4) Any person who is convicted of a felony enumerated in this
paragraph committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang
members, shall, upon conviction of that felony, be sentenced to
an indeterminate term of life imprisonment with a minimum term
of the indeterminate sentence calculated as the greater of:

(A) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement
applicable under Chapter 4.5 (commencing with Section 1170) of
Title 7 of Part 2, or any period prescribed by Section 3046, if the
felony is any of the offenses enumerated in subparagraph (B) or
(C) of this paragraph.

(B) Imprisonment in the state prison for 15 years, if the felony
is a home invasion robbery, in violation of subparagraph (A) of
paragraph (1) of subdivision (a) of Section 213; carjacking, as
defined in Section 215; a felony violation of Section 246; or a
violation of Section 12022.55.

(C) Imprisonment in the state prison for seven years, if the
felony is extortion, as defined in Section 519; or threats to victims
and witnesses, as defined in Section 136.1.

(5) Except as provided in paragraph (4), any person who violates
this subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.

(c) If the court grants probation or suspends the execution of
sentence imposed upon the defendant for a violation of subdivision
(a), or in cases involving a true finding of the enhancement
enumerated in subdivision (b), the court shall require that the
defendant serve a minimum of 180 days in a county jail as a
condition thereof.

(d) Any person who is convicted of a public offense punishable
as a felony or a misdemeanor, which is committed for the benefit
of, at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members, shall be punished by
imprisonment in the county jail not to exceed one year, or by
imprisonment in the state prison for one, two, or three years,
provided that any person sentenced to imprisonment in the county
jail shall be imprisoned for a period not to exceed one year, but
not less than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he or she
has served 180 days. If the court grants probation or suspends the
execution of sentence imposed upon the defendant, it shall require
as a condition thereof that the defendant serve 180 days in a county
jail.

(e) As used in this chapter, “pattern of criminal gang activity”
means the commission of, attempted commission of, conspiracy
to commit, or solicitation of, sustained juvenile petition for, or
conviction of two or more of the following offenses, provided at
least one of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three years
after a prior offense, and the offenses were committed on separate
occasions, or by two or more persons:

(1) Assault with a deadly weapon or by means of force likely
to produce great bodily injury, as defined in Section 245.

(2) Robbery, as defined in Chapter 4 (commencing with Section
211) of Title 8 begin delete of Part 1 end delete .

(3) Unlawful homicide or manslaughter, as defined in Chapter
1 (commencing with Section 187) of Title 8 begin delete of Part 1 end delete .

(4) The sale, possession for sale, transportation, manufacture,
offer for sale, or offer to manufacture controlled substances as
defined in Sections 11054, 11055, 11056, 11057, and 11058 of
the Health and Safety Code.

(5) Shooting at an inhabited dwelling or occupied motor vehicle,
as defined in Section 246.

(6) Discharging or permitting the discharge of a firearm from
a motor vehicle, as defined in begin delete subdivisions (a) and (b) of Section
12034 until January 1, 2012, and, on or after that date, end delete subdivisions
(a) and (b) of Section 26100.

(7) Arson, as defined in Chapter 1 (commencing with Section
450) of Title 13.

(8) The intimidation of witnesses and victims, as defined in
Section 136.1.

(9) Grand theft, as defined in subdivision (a) or (c) of Section
487.

(10) Grand theft of any firearm, vehicle, trailer, or vessel.

(11) Burglary, as defined in Section 459.

(12) Rape, as defined in Section 261.

(13) Looting, as defined in Section 463.

(14) Money laundering, as defined in Section 186.10.

(15) Kidnapping, as defined in Section 207.

(16) Mayhem, as defined in Section 203.

(17) Aggravated mayhem, as defined in Section 205.

(18) Torture, as defined in Section 206.

(19) Felony extortion, as defined in Sections 518 and 520.

(20) Felony vandalism, as defined in paragraph (1) of
subdivision (b) of Section 594.

(21) Carjacking, as defined in Section 215.

(22) The sale, delivery, or transfer of a firearm, as defined in
begin delete Section 12072 until January 1, 2012, and, on or after that date, end delete
Article 1 (commencing with Section 27500) of Chapter 4 of
Division 6 of Title 4 of Part 6.

(23) Possession of a pistol, revolver, or other firearm capable
of being concealed upon the person in violation of begin delete paragraph (1)
of subdivision (a) of Section 12101 until January 1, 2012, and, on
or after that date, end delete Section 29610.

(24) Threats to commit crimes resulting in death or great bodily
injury, as defined in Section 422.

(25) Theft and unlawful taking or driving of a vehicle, as defined
in Section 10851 of the Vehicle Code.

(26) Felony theft of an access card or account information, as
defined in Section 484e.

(27) Counterfeiting, designing, using, or attempting to use an
access card, as defined in Section 484f.

(28) Felony fraudulent use of an access card or account
information, as defined in Section 484g.

(29) Unlawful use of personal identifying information to obtain
credit, goods, services, or medical information, as defined in
Section 530.5.

(30) Wrongfully obtaining Department of Motor Vehicles
documentation, as defined in Section 529.7.

(31) Prohibited possession of a firearm in violation of begin delete Section
12021 until January 1, 2012, and, on or after that date, end delete Chapter 2
(commencing with Section 29800) of Division 9 of Title 4 of Part
6.

(32) Carrying a concealed firearm in violation of begin delete Section 12025
until January 1, 2012, and, on or after that date, end delete Section 25400.

(33) Carrying a loaded firearm in violation of begin delete Section 12031
until January 1, 2012, and, on or after that date, end delete Section 25850.

begin insert

(34) Pimping in violation of Section 266h.

end insert begin insert

(35) Pandering in violation of Section 266i.

end insert begin insert

(36) Human trafficking in violation of Section 236.1.

end insert

(f) As used in this chapter, “criminal street gang” means any
ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated in paragraphs (1) to (25), inclusive, or (31) to begin delete (33), end delete
begin insert (36), end insert inclusive, of subdivision (e), having a common name or
common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern
of criminal gang activity.

(g) Notwithstanding any other law, the court may strike the
additional punishment for the enhancements provided in this
section or refuse to impose the minimum jail sentence for
misdemeanors in an unusual case where the interests of justice
would best be served, if the court specifies on the record and enters
into the minutes the circumstances indicating that the interests of
justice would best be served by that disposition.

(h) Notwithstanding any other provision of law, for each person
committed to the Division of Juvenile Facilities for a conviction
pursuant to subdivision (a) or (b) of this section, the offense shall
be deemed one for which the state shall pay the rate of 100 percent
of the per capita institutional cost of the Division of Juvenile
Facilities, pursuant to Section 912.5 of the Welfare and Institutions
Code.

(i) In order to secure a conviction or sustain a juvenile petition,
pursuant to subdivision (a) it is not necessary for the prosecution
to prove that the person devotes all, or a substantial part, of his or
her time or efforts to the criminal street gang, nor is it necessary
to prove that the person is a member of the criminal street gang.
Active participation in the criminal street gang is all that is
required.

(j) A pattern of gang activity may be shown by the commission
of one or more of the offenses enumerated in paragraphs (26) to
(30), inclusive, of subdivision (e), and the commission of one or
more of the offenses enumerated in paragraphs (1) to (25),
inclusive, or (31) to begin delete (33), end delete begin insert (36), end insert inclusive, of subdivision (e). A
pattern of gang activity cannot be established solely by proof of
commission of offenses enumerated in paragraphs (26) to (30),
inclusive, of subdivision (e), alone.

(k) This section shall become operative on January 1, 2014.

SEC. 2.  

Section 266m is added to the Penal Code, to read:

266m.  

(a) Any person who is convicted of a felony violation
of Section 236.1, 266, 266a, 266b, 266c, 266d, 266e, 266f, 266g,
266h, 266i, or 266j, where any part of the violation takes place on
the grounds of, or within 1,000 feet of, a public or private
elementary, vocational, junior high, or high school, during hours
in which the facility is open for classes or school-related programs
or when minors are using the facility, shall receive, in addition to
any other penalty imposed, punishment of three years in state
prison.

(b) A violation of this section does not require physical presence
on school grounds or within 1,000 feet of school grounds.

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.