BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1388
                                                                  Page  1


          Date of Hearing:   June 24, 2014
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                      SB 1388 (Lieu) - As Amended:  May 20, 2014

           
          SUMMARY  :  Redefines the crime of prostitution, imposes a  
          mandatory minimum jail sentence for a first-offense, and imposes  
          mandatory minimum fines as specified.  Specifically,  this bill  :

          1)Redefines prostitution crimes by replacing the term  
            "prostitution" with the term "commercial sex" and separates as  
            crimes the following: 

             a)   The purchase or agreeing to purchase sex; and, 

             b)   Agreeing to provide or providing sex.  

          2)Requires that all persons who are granted probation for  
            purchasing or agreeing to purchase a commercial sexual act  
            must serve a continuous jail term of at least 48 hours and pay  
            a minimum mandatory fine of not less than $1,000 ($4,170 with  
            penalties and assessments), and up to $50,000 ($205,070).    

             a)   Specifies the court may not waive the requirement that a  
               defendant - whether granted probation or not - serve at  
               least 48 hours of continuous confinement.  

             b)   Provides that fines collected from a person who has been  
               convicted of purchasing or offering to purchase a  
               commercial sex act shall be deposited in the Victim-Witness  
               Assistance Fund to fund grants to "local programs."  Fifty  
               percent of each fine shall be granted to public agencies  
               and nonprofit corporations providing exit or recovery  
               services to persons exploited through commercial sex.   
               Fifty percent of the fines shall be granted to law  
               enforcement and prosecution agencies in the jurisdiction of  
               the crime "to fund programs to prevent sex purchasing."  

          3)Creates an additional minimum mandatory fine of $1,000  








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            ($4,170) and up to $10,000 ($41,070), in addition to any other  
            fines imposed, for any person who agrees to purchase a  
            commercial sex act with a minor.   

          4)Specifies an additional minimum mandatory fine of $5,000  
            ($20,570), in addition to an existing fine of up to $5,000  
            ($20,570) for placing a minor into prostitution, or furnishing  
            a minor to another person for sexual conduct.  


           


          EXISTING LAW  :  
           
           1)Defines "unlawful sexual intercourse" as an act of sexual  
            intercourse accomplished with a person under the age of 18  
            years, when no other aggravating elements - such as force or  
            duress - are present.  (Pen. Code § 261.5, subd. (a).)  

           2)Provides the following penalties for unlawful sexual  
            intercourse:  

              a)   Where the defendant is not more than three years older  
               or three years younger than the minor, the offense is a  
               misdemeanor;  

              b)   Where the defendant is more than three years older than  
               the minor, the offense is an alternate felony-misdemeanor,  
               punishable by a jail term of up to one year, a fine of up  
               to $1,000, or both, or by a prison term of 16 months, two  
               years or three years and a fine of up $10,000; or,
              
              c)   Where the defendant is at least 21 years of age and the  
               minor is under the age of 16, the offense is an alternate  
               felony-misdemeanor, punishable by a jail term of up to one  
               year, a fine of up to $1,000, or both, or by a prison term  
               of 16 months, two years or three years and a fine of up  
               $10,000.  (Pen. Code § 261.5, subd (b)-(d).)  

           3)Provides that in the absence of aggravating elements each  
            crime of sodomy, oral copulation or penetration with a foreign  
            or unknown object with a minor is punishable as follows:  









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              a)   Where the defendant is over 21 and the minor under 16  
               years of age, the offense is a felony, with a prison term  
               of 16 months, 2 years or 3 years.  

              b)   In other cases sodomy with a minor is a wobbler, with a  
               felony prison term of 16 months, 2 years or 3 years.  (Pen.  
               Code §§ 286, subd. (b), 288a, subd. (b), 289, subd.  (h).)  

           4)Provides that where each crime of sodomy, oral copulation or  
            penetration with a foreign or unknown object with a minor who  
            is under 14 and the perpetrator is more than 10 years older  
            than the minor, the offense is a felony, punishable by a  
            prison term of 3, 6 or 8 years.  (Pen. Code §§ 286, subd.  
            (c)(1), 288a, subd. (c)(1), 289, subd. (j).)  

           5)Provides that any person who engages in lewd conduct - any  
            sexually motivated touching or a defined sex act - with a  
            child under the age of 14 is guilty of a felony, punishable by  
            a prison term of 3, 6 or 8 years.  Where the offense involves  
            force or coercion, the prison term is 5, 8 or 10 years.  (Pen.  
            Code § 288, subd. (b).) 

           6)Provides that where any person who engages in lewd conduct  
            with a child who is 14 or 15 years old, and the person is at  
            least 10 years older than the child, the person is guilty of  
            an alternate felony-misdemeanor, punishable by a jail term of  
            up to one year, a fine of up to $1,000, or both, or by a  
            prison term of 16 months, two years or three years and a fine  
            of up $10,000.  (Pen. Code § 288, subd. (c)(1).)  

           7)Includes numerous crimes concerning sexual exploitation of  
            minors for commercial purposes.  These crimes include:  

              a)   Pimping:  Deriving income from the earnings of a  
               prostitute, deriving income from a place of prostitution,  
               or receiving compensation for soliciting a prostitute.   
               Where the victim is a minor under the age of 16, the crime  
               is punishable by a prison term of three, six or eight  
               years.  (Pen. Code § 266h, subds. (a)-(b);
              
              b)   Pandering:  Procuring another for prostitution, inducing  
               another to become a prostitute, procuring another person to  
               be placed in a house of prostitution, persuading a person  
               to remain in a house of prostitution, procuring another for  








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               prostitution by fraud, duress or abuse of authority, and  
               commercial exchange for procurement.  (Pen. Code § 266i,  
               subd. (a).);  

              c)   Procurement:  Transporting or providing a child under 16  
               to another person for purposes of any lewd or lascivious  
               act.  The crime is punishable by a prison term of three,  
               six, or eight years, and by a fine not to exceed $15,000.   
               (Pen. Code § 266j.)  

              d)   Taking a minor from her or his parents or guardian for  
               purposes of prostitution.  This is a felony punishable by a  
               prison term of 16 months, two years, or three years and a  
               fine of up to $2,000.  (Pen. Code § 267.); and,  

           8)Provides that where a person is convicted of pimping or  
            pandering involving a minor the court may order the defendant  
            to pay an additional fine of up to $5,000.  In setting the  
            fine, the court shall consider the seriousness and  
            circumstances of the offense, the illicit gain realized by the  
            defendant and the harm suffered by the victim.  The proceeds  
            of this fine shall be deposited in the Victim-Witness  
            Assistance Fund and made available to fund programs for  
            prevention of child sexual abuse and treatment of victims.   
            (Pen. Code § 266k, subd. (a).)   

           9)Provides that where a defendant is convicted of taking a minor  
            under the age 16 from his or her parents to provide to others  
            for prostitution (Pen. Code § 267) or transporting or  
            providing a child under the age of 16 for purposes of any lewd  
            or lascivious act (Pen. Code § 266j), the court may impose an  
            additional fine of up to $20,000.  (Pen. Code § 266k, subd.  
            (b).)  

           10)Provides that where a defendant is convicted under the Penal  
            Code of taking a minor (under the age of 18) from his or her  
            parents for purposes of prostitution (Pen. Code § 267), or  
            transporting or providing a child under the age of 16 for  
            purposes of any lewd or lascivious act (266j), the court, if  
            it decides to impose a specified additional fine, the fine  
            must be no less than $5,000, but no more than $20,000.  (Pen.  
            Code § 266k, subd. (b).)  

           11)Provides that any person who solicits, agrees to engage in,  








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            or engages in an act of prostitution is guilty of a  
            misdemeanor.  The crime does not occur unless the person  
            specifically intends to engage in an act of prostitution and  
            some act is done in furtherance of agreed upon act.   
            Prostitution includes any lewd act between persons for money  
            or other consideration.  (Pen. Code § 647, subd. (b).)  

           12)Provides that if the defendant agreed to engage in an act of  
            prostitution, the person soliciting the act of prostitution  
            need not specifically intend to engage in an act or  
            prostitution.  (Pen. Code § 647, subd. (b).)  

           13)Provides that where any person is convicted of a second  
            prostitution offense, the person shall serve a sentence of at  
            least 45 days, no part of which can be suspended or reduced by  
            the court regardless of whether or not the court grants  
            probation.  (Pen. Code § 647, subd. (k).)  

           14)Provides that where any person is convicted for a third  
            prostitution offense, the person shall serve a sentence of at  
            least 90 days, no part of which can be suspended or reduced by  
            the court regardless of whether or not the court grants  
            probation.  (Pen. Code § 647, subd. (k).)  

          FISCAL EFFECT :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "This  
            bi-partisan measure seeks to shift the paradigm away from  
            prosecuting victims to prosecuting Johns and those who pimp  
            out sex workers.  By increasing penalties and including  
            incarceration time for men and women who violate a human's  
            right to free will, it is my hope that increased punishment  
            and harsher repercussions will deter this odious and criminal  
            behavior.  The country and the world need to know that  
            California's children are not for sale."

           2)Mandatory Minimum Jail Sentence for First-Offense Prostitution  
            Offenses  :  Adults who procure the services of adult  
            prostitutes will face minimum mandatory jail time of 48 hours  
            for a first-offense of misdemeanor prostitution.  The court  
            will have no discretion in deciding whether or not to sentence  
            a defendant to jail.  Courts are generally in the best  








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            position to determine the whether the facts and circumstances  
            of a particular case merit jail time.  This bill would remove  
            that discretion from judges.  "Johns" who engage in  
            misdemeanor prostitution offenses will take up valuable jail  
            space that could be used to house offenders who commit violent  
            offenses.  The mandatory jail time applies to all persons who  
            solicit a prostitute, not merely those who solicit a human  
            trafficking victim.     
           
           3)Graduated Sanctions Already Exist for Recidivist Johns  :  For a  
            first offense conviction of prostitution the defendant faces  
            up to 180 days in jail.  If a defendant has one prior  
            conviction of prostitution he or she must receive a county  
            jail sentence of not less than 45 days.  If the defendant has  
            two or more prior convictions, the minimum sentence is 90 days  
            in the county jail.  This bill would require 48 hours of  
            custody for a first offense.  

           4)Prostitution and Human Trafficking, Though Related, are not  
            Always the Same Thing  :  A growing number of policy discussions  
            are equating prostitution offenses with human trafficking  
            offenses.  There is no doubt that the crimes are related,  
            however, they are not the same crime.  A number of proposals  
            seek to treat all prostitution offenses more severely because  
            of the grave threat and nature of human trafficking.  Human  
            trafficking is a very serious crime, involving forced  
            servitude, with very serious penalties.  Most prostitution  
            offenses between a person who is soliciting a prostitute and  
            the prostitute themselves are misdemeanor crimes, which are  
            unrelated to human trafficking.  Additionally, pimps and  
            panderers generally are treated more severely by the law, with  
            much more serious consequences than the prostitute or the  
            "john."  Unlike the crimes of pimping and pandering, human  
            trafficking is a crime that generally involves some form of  
            force or coercion.  

          California has existing strict laws for the treatment of pimps  
            and panderers, as well as human traffickers.  However, those  
            crimes are not the same and should not be treated the same.   
            Furthermore, not every person who solicits a prostitute is  
            engaged in the crime of human trafficking.  In fact, the vast  
            majority are not purchasing a commercial sex act with a person  
            who is being forced to engage in the activity through the  
            auspices of human trafficking.  Categorizing all "johns" as  








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            human traffickers, or all pimps and panderers as human  
            traffickers, is unproductive in setting criminal justice  
            policy.   Blurring the lines between the less severe crimes  
            related to prostitution, and the more severe crimes related to  
            human trafficking, weakens the severity of human trafficking  
            offenses.  For instance, this committee has approved bills to  
            add human trafficking to the list of serious felonies.   
            However, if we continue to expand the definition of human  
            trafficking to include more minor prostitution-related  
            offenses the committee would have to re-evaluate in the future  
            whether it would still consider human trafficking a serious  
            felony.  
             
             According to the Polaris Project, "Human trafficking is a form  
            of modern-day slavery where people profit from the control and  
            exploitation of others.  As defined under U.S. federal law,  
            victims of human trafficking include children involved in the  
            sex trade, adults age 18 or over who are coerced or deceived  
            into commercial sex acts, and anyone forced into different  
            forms of 'labor or services,' such as domestic workers held in  
            a home, or farm-workers forced to labor against their will.   
            The factors that each of these situations have in common are  
            elements of force, fraud, or coercion that are used to control  
            people."   
            (<  http://www.polarisproject.org/human-trafficking/overview  >.)   


            Pimping under California law means receiving compensation from  
            the solicitation of a known prostitute.  (Pen. Code, § 266h.)   
            Whereas pandering means procuring another person for the  
            purpose of prostitution by intentionally encouraging or  
            persuading that person to become or continue being a  
            prostitute.  (Pen. Code, § 266i.)  Oftentimes, pimps use  
            mental, emotional, and physical abuse to keep their  
            prostitutes generating money.  Consequently, there has been a  
            paradigm shift where pimping and pandering is now viewed as  
            possible human trafficking.

            This new approach has been criticized by some because it blurs  
            the line between human trafficking and prostitution.  Sex  
            workers say it discounts their ability to willingly work in  
            the sex industry.  (See Nevada Movement Draws the Line on  
            Human Trafficking by Tom Ragan, Las Vegas Review Journal, May  
            26, 2013, <  








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             http://www.reviewjournal.com/news/las-vegas/nevada-movement-dra 
            ws-line-human-trafficking  >.)   
             
              a)   Prostitution Generally  :  The basic crime of prostitution  
               is a misdemeanor offense.  (Pen. Code § 647(b).)   
               Prostitution can be generally defined as "soliciting or  
               agreeing to engage in a lewd act between persons for money  
               or other consideration."  Lewd acts include touching the  
               genitals, buttocks, or female breast of either the  
               prostitute or customer with some part of the other person's  
               body for the purpose of sexual arousal or gratification of  
               either person.  
                
                To implicate a person for prostitution themselves, the  
               prosecutor must prove that the defendant "solicited" or  
               "agreed" to "engage" in prostitution.  A person agrees to  
               engage in prostitution when the person accepts an offer to  
               commit prostitution with specific intent to accept the  
               offer, whether or not the offerer has the same intent.

               For the crime of "soliciting a prostitute" the prosecutors  
               must prove that the defendant requested that another person  
               engage in an act of prostitution, and that the defendant  
               intended to engage in an act of prostitution with the other  
               person, and the other person received the communication  
               containing the request.  The defendant must do something  
               more than just agree to engage in prostitution.  The  
               defendant must do some act in furtherance of the agreement  
               to be convicted.  Words alone may be sufficient to prove  
               the act in furtherance of the agreement to commit  
               prostitution 

               Violation of Pen. Code § 647(b) is a misdemeanor.  For a  
               first offense conviction of prostitution the defendant  
               faces up to 180 days in jail.  If a defendant has one prior  
               conviction of prostitution he or she must receive a county  
               jail sentence of not less than 45 days.  If the defendant  
               has two or more prior convictions, the minimum sentence is  
               90 days in the county jail. 

               In addition to the punishment described above, if the  
               defendant is conviction of prostitution, he or she faces  
               fines, probation, possible professional licensing  
               restrictions or revocations, possible immigration  








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               consequences, possible asset forfeiture, and possible  
               driving license restrictions.  

               Closely associated crimes to prostitution include:   
               abduction of a minor for prostitution (Pen. Code 267);  
               seduction for prostitution (Pen. Code 266); keeping a house  
               of prostitution (Pen. Code 315); leasing a house for  
               prostitution (Pen. Code 318); sending a minor to a house of  
               prostitution (Pen. Code 273e); taking a person against that  
               person's will for prostitution (Pen. Code 266a); compelling  
               a person to live in an illicit relationship (Pen. Code  
               266b); placing or leaving one's wife in a house of  
               prostitution (Pen. Code 266g); loitering for prostitution  
               (Pen. Code 653.22 subd. (a)); pimping ( Pen. Code 266h);  
               or, pandering ( Pen. Code 266i).  Most of these crimes are  
               punished much more severely than the underlying  
               prostitution offense, particularly the crimes of pimping,  
               pandering, and procurement.  

              b)   Human Trafficking Generally  :  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  








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               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 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 victims in court proceedings.   
               Additionally, the proposition lowered the evidential  
               requirements for showing of force in cases of minors.   
                
                i)     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.

                ii)    Recent Update to Human Trafficking Laws  :  In 2012,  
                 Californians voted to pass Proposition 35, which modified  
                 many provisions of California's already tough human  
                 trafficking laws.  Specifically, Proposition 35 increased  
                 criminal penalties for human trafficking offenses,  
                 including prison sentences up to 15-years-to-life and  








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                 fines up to $1.5 million.  The proposition specified that  
                 the fines collected are to be used for victim services  
                 and law enforcement.  In criminal trials, the proposition  
                 prohibits the use of evidence that a person was involved  
                 in criminal sexual conduct (such as prostitution) to  
                 prosecute that person for that crime if the conduct was a  
                 result of being a victim of human trafficking, and makes  
                 evidence of sexual conduct by a victim of human  
                 trafficking inadmissible for the purposes of attacking  
                 the victim's credibility or character in court.  The  
                 proposition lowered the evidentiary requirements for  
                 showing of force in cases of minors. 

               Proposition 35 also requires persons convicted of human  
                 trafficking to register as sex offenders and expanded  
                 registration requirements by requiring registered sex  
                 offenders to provide the names of their internet  
                 providers and identifiers, such as e-mail addresses, user  
                 names, and screen names, to local police or sheriff's  
                 departments.  After passage of Proposition 35, plaintiffs  
                 American Civil Liberties Union and Electronic Frontier  
                 Foundation filed a law suit claiming that these  
                 provisions unconstitutionally restricts the First  
                 Amendment rights of registered sex offenders in the  
                 states.  A United States District Court judge granted a  
                 preliminary injunction prohibiting the implementation or  
                 enforcement of Proposition 35's provisions that require  
                 registered sex offenders to provide certain information  
                 concerning their Internet use to law enforcement.  [Doe  
                 v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013  
                 LEXIS 5428.]  

                
                iii)California Attorney General's Report on Human  
                 Trafficking  :  The California Attorney General's Human  
                 Trafficking in California 2012 report stated that human  
                 trafficking investigations and prosecutions have become  
                 more comprehensive and organized.  There are nine human  
                 trafficking task forces in California, composed of local,  
                 state and federal law enforcement and prosecutors.

                 Data on human trafficking has improved, although the data  
                 still does not reflect the actual extent and range of  
                 human trafficking.  Data from 2010 through 2012 collected  








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                 by the California task forces are set out in the  
                 following chart:

                    California Human Trafficking Task Forces Data  
          2010-2012

                  --------------------------------------------------------- 
                 |Investigations                  |2,552                   |
                 |--------------------------------+------------------------|
                 |Victims Identified              |1,277                   |
                 |--------------------------------+------------------------|
                 |Arrests Made                    |1,798                   |
                  --------------------------------------------------------- 

                   Trafficking by Category

                 ---------------------------------------------------------- 
                |Sex Trafficking                 |56%                      |
                |--------------------------------+-------------------------|
                |Labor Trafficking               |23%                      |
                |--------------------------------+-------------------------|
                |Unclassified or Insufficient    |21%                      |
                |Information                     |                         |
                 ---------------------------------------------------------- 
           
           
           5)Incentive to Refuse Probation for Defendants Convicted of  
            Offering to Purchase of Purchasing Commercial Sex  :  This bill  
            provides that where a person convicted of agreeing to purchase  
            or purchasing a commercial sex act is granted probation, the  
            defendant must serve a continuous jail term of at least 48  
            hours and pay a fine of between $1,000 and $50,000.  The  
            sentencing court cannot decline to impose the jail term.  A  
            person convicted of such a crime who is not granted probation  
            must serve a continuous jail term of at least 48 hours, but  
            there is no requirement that the defendant pay a fine.  If the  
            court imposes a fine, the maximum fine is $1,000, the default  
            maximum misdemeanor fine.  

            Arguably, subjecting only persons granted probation for  
            purchasing or agreeing to purchase a commercial sex act to a  
            mandatory fine of between $1,000 and $50,000 creates a very  
            strong incentive for defendants to refuse probation.  A  
            defendant who refused probation would serve his jail term and  








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            face no more than a $1,000 fine.  A defendant who refuses  
            probation would not receive supervision after serving his jail  
            term and could not have his punishment modified, unlike a  
            probationer.  The court has essentially no authority over a  
            person who refuses probation and has suffered whatever  
            punishment the court imposes.  Additionally, any treatment  
            offered by probation would not be provided to an offender.  
                
            6)Minimum Mandatory Fines Remove Judicial Discretion and are  
            Subject to Penalties and Assessments  :  Judges are in the best  
            position to determine the appropriate sentence in a particular  
            case.  The judge presiding over a particular case is an  
            independent arbiter of the facts and circumstances presented.   
            The Legislature should pause before removing this discretion  
            from judges, and tie their hands in particular matters.  For  
            this reason, minimum mandatory fines have been generally  
            disfavored as a form of punishment.   
           
            This bill imposes a number of "additional" fines on top of an  
            existing base fine.   Specifically, this bill does the  
            following:   

             a)   Requires that all persons who are granted probation for  
               purchasing or agreeing to purchase a commercial sexual act  
               (regardless of the age of the person solicited) must serve  
               a continuous jail term of at least 48 hours and pay a  
               minimum mandatory fine of not less than $1,000, and up to  
               $50,000;   

             b)   Creates an additional minimum mandatory fine of $1,000  
               and up to $10,000, in addition to any other fines imposed,  
               for any person who agrees to purchase a commercial sex act  
               with a minor; and,   

             c)   Specifies an additional minimum mandatory fine of $5,000  
               in addition to an existing fine of up to $5,000 for placing  
               a minor into prostitution, or furnishing a minor to another  
               person for sexual conduct.  Under existing law, the court  
               can already issue a fine of up to $20,000.  

            Setting the penalty, or range of penalties, for a crime is an  
            inherently legislative function.  The Legislature does have  
            the power to require a minimum term or other specific  
            sentence.  (Keeler v. Superior Court (1970) 2 Cal.3d 619,  








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            631.)  Sentencing, however, is solely a judicial power.   
            (People v. Tenorio (1970) 3 Cal.3d 89, 90-93; People v.  
            Superior Court (Fellman) (1976) 59 Cal.App.3d 270, 275.)   
            California law effectively directs judges to impose an  
            individualized sentence that fits the crime and the  
            defendant's background, attitude, and record.  (Cal. Rules of  
            Court, rules 4.401-4.425.)  This bill limits judicial  
            discretion and requires a minimum fine of $500 to be imposed  
            in each case, regardless of the facts of the case and the  
            defendant's record.  

            Also, there are penalty assessments and fees assessed on the  
            base fine for a crime.  Assuming a defendant was fined $50,000  
            for engaging in prostitution as the maximum fine, the  
            following penalty assessments would be imposed pursuant to the  
            Penal Code and the California Government Code:

            Base Fine:                                                      
                                                                        $  
            50,000

            Penal Code 1464 assessment:                                     
                   $ 50,000  ($10 for every $10)
            Penal Code 1465.7 surcharge:                                    
                                                                  10,000   
            (20% surcharge)
            Penal Code 1465.8 assessment:                                   
                            40  ($40 fee per offense)
            Government Code 70372 assessment:                               
               25,000  ($5 for every $10)
            Government Code 70373 assessment:                               
                      30  ($30 for felony or misd.)
            Government Code 76000 assessment:                               
                35,000  ($7 for every $10)
            Government Code 76000.5 assessment:                             
               10,000  ($2 for every $10) 
            Government Code 76104.6 assessment:                             
                 5,000  ($1 for every $10)
            Government Code 76104.7 assessment:                             
               20,000  ($4 for every $10)

            Total Additional Fine with Assessments:                    $  
            205,070.00  
             








                                                                  SB 1388
                                                                  Page  15


            Under this legislation an individual, who solicits a  
            prostitute, could be fined over $200,000.00 for consensual  
            sexual activity between two adults.  

           7)Double Punishment  :  This bill seeks to impose a number of  
            second punishments for single acts.  The bill is imposing a  
            number of "additional" fines on top of existing criminal fines  
            related to commercial sex acts with minors.  For one of the  
            fines, the bill seeks to divert the additional funds to law  
            enforcement and victim services.  The bill is imposing an  
            additional fine on top of the existing punishment.  As a  
            public policy, the Legislature imposes a distinct fine for  
            each distinct criminal act.   As outlined above, each fine is  
            subject to individual penalties and assessments.  An offender  
            suffering two fines for one act would pay many of the  
            assessments twice for one act.    
           
           8)Fine Distribution to Law Enforcement Creates a Potential  
            Conflict of Interest  :  The payment of criminal fines or fees  
            to a law enforcement entity or for direct law enforcement  
            purposes raises issues of an improper bounty - an incentive  
            for law enforcement agencies to pursue investigations based on  
            financial interest, rather than public safety.  These concerns  
            may be heightened when government budgets are strained.

            Further, designating that criminal fines be paid to a  
            particular kind of law enforcement program could set a  
            precedent under which other law enforcement entities could  
            press to receive the proceeds of criminal fines.   
            Investigations of many crimes - murders, sexual assaults,  
            financial crimes, construction fraud and worker's compensation  
            fraud - may be as costly and complicated as commercial sex  
            crimes.  For example, the Contractors' State License Board  
            uses stings to catch unlicensed contractors.  If criminal  
            fines are used to fund decoy programs in which law enforcement  
            personnel pretend to be commercial sex workers, law  
            enforcement officers and prosecutors who handle other complex  
            cases could well demand that fines be used to support their  
            operations.  

            To avoid creation of an incentive for law enforcement to  
            pursue certain crimes for financial purposes, not solely law  
            enforcement purposes, and to avoid a precedent for funding law  
            enforcement through criminal fines, it is suggested that the  








                                                                  SB 1388
                                                                  Page  16


            bill could be amended to deposit special fines in commercial  
            sex cases into victim services.

            In this bill, another concern is that the law enforcement  
            funding is designated for prevention programs.  As the name  
            states, law enforcement entities enforce the criminal law by  
            arresting subjects and collecting evidence for the prosecutor.  
             Law enforcement agencies conduct prostitution "stings" in  
            which a law enforcement decoy pretends to be a prostitute in  
            order to arrest a person for solicitation of prostitution.   
            While this can be said to prevent a prostitution offense on  
            the night of arrest, it cannot be determined if the arrested  
            person would seek out prostitutes at a later time.  Further,  
            the person might learn from the arrest how to avoid decoys and  
            arrests on other occasions.  Further, law enforcement entities  
            generally do not have programs to turn prostitutes away from  
            sexual commerce and toward different employment and social  
            contacts and conducting stings to arrest sex purchasers would  
            not directly affect sex workers. 

           9)Recidivism Rates for Persons Arrested for Soliciting  
            Prostitution are Low  :  A study in 2002 in the Western  
            Criminology Review of a now defunct first-offender program in  
            Portland (SEEP) found very low recidivism rates for all  
            prostitution arrestees regardless of whether they were  
            referred to SEEP and participated, were referred to SEEP but  
            did not attend, or were not referred to the program.  The  
            study considered only a two-year period and a relatively small  
            number of offenders.  The researchers inferred from the data  
            that an arrest, per se, could have deterred offenders, as  
            prostitution offenses involve significant shame.  The authors,  
            however, also questioned if the offenders continued to solicit  
            prostitutes but simply learned how to avoid arrest.  They  
            could not say whether the education from the SEEP program  
            would have led the participants to a avoid prostitution for a  
            substantial time in the future.

            A number of cities around the country have adopted special  
            first-offender prostitution diversion programs that educate  
            men arrested for soliciting an act of prostitution about the  
            harms caused by or attendant to the commercial sex trade.  The  
            San Francisco program - First Offender Prostitution Program  
            (FOPP) - was one of the first of these programs.  The program  
            requires men arrested for the first time for a prostitution  








                                                                  SB 1388
                                                                  Page  17


            offense to attend a one-day course of the harms caused or  
            exacerbated by the demand for prostitution.  Men who complete  
            the course are diverted out of the criminal justice system.

            A report on the San Francisco FOPP conducted by Abt Associates  
            concluded that program was well run and effective.  The  
            program educated participants about the risk of harm to  
            prostitution customers, such as robbery, reinforcement of  
            sexually compulsive behaviors and sexually transmitted  
            diseases (STDs).  The course also examined the negative  
            consequences for prostitutes, such as drug abuse, STDs and  
            other health problems, criminal convictions, exploitation by  
            pimps, rape and other violence and harm to the community.  The  
            Abt report found a sharp drop in recidivism attributable to  
            the program. 

            The claims of a sharp drop in recidivism in the Abt report  
            have been criticized and questioned.  One study by researchers  
            from DePaul University and American University found  
            methodological flaws in the Abt report.  The study from the  
            Western Criminology Review (noted above) found that recidivism  
            rates attributable to FOPP programs are difficult to measure,  
            as johns arrested for prostitution offenses can easily learn  
            how to avoid arrest.  Further, the increasing shift of  
            prostitution to the Internet makes it difficult to measure  
            recidivism. 

           10)No Knowledge Requirement  :  There is no requirement that an  
            offender who solicits a minor know that the person engaged in  
            prostitution is a minor.  (Pen. Code § 236.1 subd. (f).)  

           11)Sexual Contact with Minors is Already Heavily Punished by  
            Other Crimes  :  Sexual conduct with a minor constitutes a  
            felony in most instances, regardless of whether anything of  
            value was offered or exchanged for the sexual acts.  Arguably,  
            the exchange of money could be an aggravating factor in the  
            underlying sex crime, as it could be seen as an improper  
            attempt to normalize the behavior or coerce the victim.  If  
            the minor involved in commercial sex of was under the age of  
            14, the defendant has committed the felony of lewd conduct,  
            with a prison term of three, six or eight years.  (Pen. Code §  
            288, subd. (a).)  The crime is punishable by a term of 5, 8 or  
            10 years if the defendant used force, threats, duress or  
            coercion.  Solicitation of an act of prostitution from a minor  








                                                                  SB 1388
                                                                  Page  18


            under the age of 14 could likely be prosecuted as attempted  
            lewd conduct - the intention to commit the crime and a direct  
            step towards its commission.  The prison or jail term of an  
            attempt is generally one-half the punishment for the completed  
            crime.  Where the defendant solicited or employed a minor who  
            was14 or 15 years old, and the defendant was at least 10 years  
            older than the minor, the defendant has committed an alternate  
            felony-misdemeanor.

            Any defined sex act - sodomy, sexual penetration, oral  
            copulation or sexual intercourse - with a minor is a crime.   
            The penalties depend on the relative ages of the defendant and  
            the minor and whether the crime involved some form of force,  
            coercion or improper advantage.  

            A defendant charged with a prostitution-related offense  
            involving a minor could also be charged and convicted of a sex  
            crime in the same case.  Generally, because the defined sex  
            crime and the sexual commerce offense would involve a single  
            transaction or act, the defendant could only be punished for  
            one offense - the offense carrying the greatest penalty.   
            (Pen. Code § 654.)   
             
           12)Argument in Support  :  According to the Junior Leagues of  
            California, "eliminating human trafficking and slavery in all  
            its forms and educating the community at large is a key focus  
            area of the Junior Leagues of California and its member  
            leagues.  
             
             "Human trafficking is considered to be one of the fastest  
            growing criminal industries.  Each year, human traffickers  
            generate billions of dollars in profits by victimizing  
            millions of people around the world.  According to the Polaris  
            Project, 41% of sex trafficking and 20% of labor trafficking  
            cases referenced U.S. citizens as victims.  Women were  
            referenced as victims in 85% of sex trafficking cases and men  
            are referenced in 40% of labor trafficking.  In addition, more  
            than 100,000 children are estimated to be sex trafficked in  
            the United States annually."

           13)Argument in Opposition:   According to the  California Public  
            Defenders Association  , "SB 1388 proposes to amend section  
            266k(b) to require additional fines from $5,000 to $20,000 for  
            individuals convicted of procuring a minor under the age of 16  








                                                                  SB 1388
                                                                  Page  19


            for prostitution (Penal Code Section 266j) or taking a minor  
            under 18 years of age without the legal guardian's permission  
            for purposes of prostitution (Penal Code Section 267).  Under  
            existing law, procuring a minor under 16 has a maximum fine of  
            $15,000 and taking a minor without the legal guardian's  
            permission has a maximum fine of $2,000.  Under existing Penal  
            Code Section 266k(b), the court may impose an additional  
            maximum fine of $20,0000.  However, there is no minimum  
            additional fine.  
             
             "SB 1388 proposes to amend Penal Code Section 647(b) to  
            clarify the language of agreeing to purchase or perform  
            commercial sex acts.  It also provides for mandatory 48 hour  
            minimum jail sentence and if probation is granted, a minimum  
            fine of $1,000 and a maximum fine of $50,000 for purchasers of  
            commercial sex acts.  It would also provide an additional fine  
            of a minimum of $1,000 and a maximum of $10,000 if the victim  
            prostitute was a minor. Under existing law, the maximum fine  
            for a misdemeanor is $1,000.

            "The funds collected go variously to the Victim Witness Fund  
            to disburse to local nonprofits, the county's general fund for  
            collecting the fines, law enforcement and prosecution agencies  
            in the local jurisdiction and a new state Commercial Sexual  
            Exploitation of Children Services Fund. 

            "We object to these massive fine increases.  A potential fifty  
            (50) fold increased fine for a misdemeanor violation of  
            solicitation for prostitution is unjust and counterproductive.

            "Although it is a worthy goal to end the sexual exploitation  
            of minors most of whom come from impoverished or abusive  
            families, it should not be funded by impoverishing other  
            families and children.  Doing so merely replicates the cycle  
                                                                                          of poverty and abuse.

            "The individuals charged under California's human trafficking  
            and prostitution statutes are not human trafficking kingpins  
            or madams. They are for the most part individuals with no  
            organized crime ties.

            "Individuals who are convicted of misdemeanor violations of  
            Penal Code Section 647(b) are already subject to a mandatory  
            restitution fine up to $1,000 and restitution to any victims.   








                                                                  SB 1388
                                                                  Page  20




            "The restitution fund fines are subject to penalty  
            assessments.  Penalty assessments have proliferated wildly  
            over the past few decades, to the point where a typical total  
            fine is now triple or quadruple the base fine.  An inevitable  
            side effect of these ballooning fines is that fewer and fewer  
            criminal defendants can afford to pay them.  Three quarters of  
            misdemeanor defendants and 90% of felony defendants are  
            indigent, as indicated by the fact they are represented by  
            public defenders or other appointed counsel.  When defendants  
            cannot pay the fine it is unconstitutional to imprison them  
            for their poverty, so the fine goes uncollected and measures  
            such as this are virtually dead letters.  In other cases  
            defendants who are already sentenced to jail, but can't afford  
            the monetary portion of their sentence will simply opt to  
            convert the fine to additional jail time, which results in  
            more cost to the government rather than more money in their  
            coffers.   

            "Since counties now routinely send the unpaid balance of these  
            fines and fees to the State Controller for collection, it is  
            almost impossible for many individuals who now have a  
            conviction to get back on their feet and support themselves  
            and their families.

            "These proposed increased fines on top of all the fines and  
            fees detailed above is bad public policy.  By making it even  
            more difficult for convicted misdemeanants and felons to  
            become law abiding citizens, it will endanger the public."

           14)Related Legislation:   AB 1791 (Maienschein), increases the  
            penalty for solicitation of prostitution when the person being  
            solicited is a minor from six months in the county jail to one  
            year in the county jail.  Was amended in Assembly Public  
            Safety Committee to remove provisions which imposed felony  
            penalties and lifetime registration on persons who solicit a  
            minor for prostitution.  AB 1791 has been referred to Senate  
            Public Safety.  

           15)Prior Legislation  : 

             a)   AB 90 (Swanson) , statutes of 2011, Ch. 457, included,  
               within the definition of criminal profiteering activity,  








                                                                  SB 1388
                                                                  Page  21


               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 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.

             b)   AB 17 (Swanson), statutes of 2010,  Ch. 211, added  
               abduction or procurement for prostitution to the criminal  
               profiteering asset forfeiture law; provided 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 provided 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.

             c)   AB 22 (Lieber), Chapter 240, Statutes of 2005, created  
               the California Trafficking Victims Protection Act, which  
               established civil and criminal penalties for human  
               trafficking and allowed for forfeiture of assets derived  
               from human trafficking.  In addition, the Act required law  
               enforcement agencies to provide Law Enforcement Agency  
               Endorsement to trafficking victims, providing trafficking  
               victims with protection from deportation and created the  
               Human Trafficking Task Force.
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          A21 Campaign 
          Alameda County District Attorney 
          American Academy of Pediatrics
          American Federation of State, County and Municipal Employees
          Association for Los Angeles County Deputy Sheriffs 
          Association for the Recovery of Children  
          Bridge Network 
          California Catholic Conference 
          California Fraternal Order of Police 








                                                                  SB 1388
                                                                  Page  22


          California Narcotic Officers' Association 
          California Police Chiefs Association 
          California State Sheriffs' Association 
          California Statewide Law Enforcement Association 
          City of Long Beach 
          City of Los Angeles 
          City of Vista 
          Christians Against Slavery 
          Church State Council 
          Community Against Sexual Harm 
          Community Overcoming Relationship Abuse 
          Concerned Women for America 
          County of Los Angeles 
          Domestic Violence Center
          First United Methodist Church of Escondido
          Freedom from Exploitation  
          Gems Uncovered  
          Generate Hope 
          Grandma's House of Hope 
          Guadalupe Art Program 
          Joyful Child Foundation 
          Journey Community Church 
          Junior Leagues of California
          Junior Leagues of Orange County
          Laura's House 
          Long Beach Peace Officers Association 
          Los Angeles Professional Peace Officers Association
          Los Angeles Police Protective League 
          Mary Magdalene Project 
          MISSSEY 
          New Directions for Women 
          Peace Officer Research Association of California
          Red Window Project    
          Riverside Sheriffs' Association 
          Sacramento County Deputy Sheriffs Association
          Safety Corridor Coalition
          Soroptimist International of Vista
          Soroptimists Together Against Trafficking  
          Surviving Parents Coalition   
          Survivors for Solutions 
          United Nations Association, San Diego Chapter 
          Urban Counties Caucus 
          Without Permission 









                                                                  SB 1388
                                                                  Page  23


           Opposition 
           
          California Attorneys for Criminal Justice 
          California Public Defenders Association 
          Erotic Service Providers Union 
          Transgender Law Center 
          US PROStitutes Collective 
           
           1 Private Citizen 

           Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744