BILL ANALYSIS Ó
AB 526
Page 1
Date of Hearing: April 7, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
526 (Holden) - As Introduced February 23, 2015
SUMMARY: Increases the fine for the crime of abducting a minor
for prostitution from a maximum of $2,000 to a maximum of
$5,000.
EXISTING LAW:
1)Provides that every person who takes away any other person
under the age of 18 years from the parent, guardian, or other
person having the legal charge of the other person, without
their consent, for the purpose of prostitution, is punishable
by imprisonment in the state prison and a fine not exceeding
$2,000. (Pen. Code, § 267.)
2)States that upon conviction of any person for a violation of
either procurement of a child under 16 for lewd or lascivious
acts or abduction of a minor for purposes of prostitution, the
court may impose an additional fine not to exceed $25,000.
(Pen. Code, § 266k, subd. (b).)
3)States that a person who, for the purpose of committing a lewd
or lascivious act, persuades or entices by false promises,
misrepresentations, or the like, any child under 14 years of
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age, to go out of the country, state, county, or into another
part of the same county, is guilty of kidnapping. (Pen. Code,
§ 207, subd. (b).)
4)Provides that when a person is convicted of kidnapping a
victim under 14 years of age, the kidnapping is punishable by
imprisonment in the state prison for 5, 8, or 11 years. (Pen.
Code, § 208.)
5)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).)
6)States any person who, knowing another person is a prostitute,
lives or derives support or maintenance in whole or in part
from the earnings or proceeds of the person's prostitution, or
from money loaned or advanced to or charged against that
person by any keeper or manager or inmate of a house or other
place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the
person, when the prostitute is a minor, is guilty of pimping a
minor, a felony, and shall be punishable as follows:
a) If the person engaged in prostitution is a minor over
the age of 16 years, the offense is punishable by
imprisonment in the state prison for three, four, or six
years.
b) If the person engaged in prostitution is under 16 years
of age, the offense is punishable by imprisonment in the
state prison for three, six, or eight years. (Pen. Code, §
266h, subd. (b).)
7)Provides that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
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felony violation of enticement of a minor into prostitution,
pimping or pandering, abduction of a minor for the purposes of
prostitution, child pornography, or extortion, is guilty of
human trafficking, and shall be punished by imprisonment in
the state prison for 8, 14, or 20 years and a fine of not more
than $500,000. (Penal Code Section 236.1, subd. (b).)
8)States that any person who causes, induces, or persuades, or
attempts to cause, induce, or persuade, a person who is a
minor at the time of commission of the offense to engage in a
commercial sex act, with the intent to effect or maintain a
violation of enticement of a minor into prostitution, pimping
or pandering, abduction of a minor for the purposes of
prostitution, child pornography, or extortion, is guilty of
human trafficking, and shall be punishable by imprisonment in
the state prison as follows:
a) Five, 8, or 12 years and a fine of not more than
$500,000.
b) Fifteen years to life and a fine of not more than
$500,000 when the offense involves force, fear, fraud,
deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person. (Penal
Code Section 236.1, subd. (c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "For more than
30 years, the penalty for committing abduction for the
purposes of prostitution has not been increased to match the
growing criminal enterprise of human trafficking. AB 526
would increase the penalty threshold of committing abduction
for the purposes of prostitution from up to a $2,000 fine to
up to a $5,000 fine."
2)Existing Penalty Assessments: There are penalty assessments
and fees assessed on the base fine for a crime. Assuming a
defendant was fined the maximum $5,000, as provided in this
bill, the following penalty assessments would be imposed
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pursuant to the Penal Code and the Government Code:
Base Fine:
$ 5,000
Penal Code 1464 state penalty on fines:
5,000 ($10
for every $10)
Penal Code 1465.7 state surcharge:
1,000 (20% surcharge)
Penal Code 1465.8 court operation assessment:
40 ($40 fee per offense)
Government Code 70372 court construction penalty:
2,500 ($5 for every $10)
Government Code 70373 assessment:
30
($30 per felony/misdo)
Government Code 76000 penalty:
3,500 ($7 for every $10)
Government Code 76000.5 EMS penalty:
1,000 ($2 for every $10)
Government Code 76104.6 DNA fund penalty:
500 ($1 for every $10)
Government Code 76104.7 addt'l DNA fund penalty:
2,000 ($4 for every $10)
Total Fine with Assessments:
$20,570
It should be noted that this figure does not include victim
restitution, or the restitution fine, and that other fines and
fees, such as the jail booking fee, attorney fees, and
probation department fees, may also be applicable.
3)Practical Considerations: Criminal fines and penalties have
climbed steadily in recent decades. Government entities
tasked with collecting these fines have realized diminishing
returns from collection efforts. Government resources can be
wasted in futile collection attempts. A recent San Francisco
Daily Journal article noted, "When it comes to collecting
fines, superior court officials in several counties describe
the process as 'very frustrating,' 'crazy complicated' and
'inefficient.'" (See State Judges Bemoan Fee Collection
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Process, San Francisco Daily Journal, 1/5/2015 by Paul Jones
and Saul Sugarman.)
The fines applicable to procuring and abducting minors for
purposes of prostitution may provide an example of this
problem. Simply put, criminal defendants can generally not
produce a substantial flow of money for fines. That well will
quickly run dry. In the same Daily Journal article, the
Presiding Judge of San Bernardino County was quoted as saying
"the whole concept is getting blood out of a turnip." (Daily
Journal, supra.) The article noted in particular that
"Felons convicted to prison time usually can't pay their debts
at all. The annual growth in delinquent debt partly reflects
a supply of money that doesn't exist to be collected."
(Ibid.)
4)Prioritization of Court-Ordered Debt: Current law under Penal
Code section 1203.1d prioritizes the order in which delinquent
court-ordered debt received is to be satisfied. The priorities
are 1) victim restitution, 2) state surcharge, 3) restitution
fines, penalty assessments, and other fines, with payments
made on a proportional basis to the total amount levied for
all of these items, and 4) state/county/city reimbursements,
and special revenue items.
5)Potential Double Punishment Issues: Penal Code section 654
states, in relevant part:
"An act or omission that is punishable in different ways by
different provisions of law shall be punished under the
provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be
punished under more than one provision." Fines are penal in
nature and therefore subject to the limitations of Penal Code
section 654. (People v. Tarris (2009) 180 Cal.App.4th 612,
628.)
As the author correctly notes, the fine for the crime of
abducting a minor for prostitution has not been increased in
decades. The fine was doubled in 1983. (See AB 1485 (Sher),
Chapter 1092, Statutes of 1983.)
Nevertheless, other fines that affect the same or similar
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conduct have been enacted or increased. Most notably, in 2009
the Legislature enacted a separate and additional fine of up
to $20,000 specifically applicable to convictions for the
crime of abduction of a minor for purposes of prostitution.
(Pen. Code, § 266k, subd. (b).) That fine was increased to
$25,000 last year. (SB 1388 (Lieu), Chapter 714, Statutes of
2014.) Admittedly that fine is discretionary. (Pen. Code, §
266k, subd. (b).) However, it raises the question whether if
the larger fine is imposed, the fine at issue in the bill can
also be imposed.
6)Argument in Support: According to one private individual,
"Currently the penalty for kidnapping a child and forcing the
child into prostitution is prison time plus a $2,000 fine. AB
526 would increase the fine to $5,000.
"Our nation has an epidemic of child prostitution. According to
a report by the FBI, 100,000 children are sold for sex each
year within the United States, and as many as 300,000 children
are at risk of becoming victims of sexual exploitation.
Usually the exploitation starts during adolescence. For boys
the average age is between eleven and thirteen, and, for
girls, between twelve and fourteen.
"California has emerged as a magnet for sexual exploitation of
children. Three of the nation's High Intensity Child
Prostitution areas, as identified by the FBI, are located in
California: the San Francisco, Los Angeles, and San Diego
metropolitan areas.
"I think this is disgraceful. Hopefully the higher the fine for
this sexual exploitation will persuade some adults from doing
this to children. I think the fine should be even higher.
But, AB 526 is a step in the right direction."
7)Argument in Opposition: According to the California Public
Defenders Association, "This bill would modify a
seldom-invoked penal code section. After the passage of Prop
35 in 2012, Penal Code § 236.1 was amended to read, in part,
"Any person who deprives or violates the personal liberty of
another with the intent to obtain forced labor or services, is
guilty of human trafficking and shall be punished by
imprisonment in the state prison for 5, 8, or 12 years and a
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fine of not more than five hundred thousand dollars
($500,000).
"The punishment is increased for victims who are minors; under
certain circumstances, the possible punishment is a life
sentence under Penal Code § 236.1(c)(1)-(2).
"Prosecutors will not use Penal Code § 267, because Penal Code §
236.1 is available to them. In the unlikely event that PC §
267 is charged, it will serve only to hamper low-income
defendants from complying with their sentence. Wealthier
defendants will be much more able to pay a $5,000 fine than
poor defendants. Furthermore, any money that a defendant has
ought to go to the true victim-the prostituted minor.
Increasing the statutory fine will take money away from
victims and give it to the State."
8)Related Legislation: AB 733 (Chavez), among other things,
would make the fine for a person convicted of soliciting a
minor mandatory and would fix the amount of the fine at
$10,000. AB 733 is pending hearing in this committee.
9)Prior Legislation:
a) SB 1388 (Lieu), Chapter 714, Statutes of 2014, in
pertinent part, imposed a number of "additional" fines on
top of existing criminal fines related to commercial sex
acts with minors.
b) AB 17 (Swanson), Chapter 211, Statutes of 2009, in
pertinent part, created an additional fine not to exceed
$20,000 for abduction of a minor for purposes of
prostitution and procurement of a minor under the age of 16
for purposes of lewd acts.
REGISTERED SUPPORT / OPPOSITION:
Support
52 Private Individuals
AB 526
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Opposition
California Public Defenders Association
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744