BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 526 Hearing Date: June 23, 2015
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|Author: |Holden |
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|Version: |February 23, 2015 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JRD |
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Subject: Abduction
HISTORY
Source: Author
Prior Legislation: SB 1388 (Lieu) -- Chapter 714, Statutes of
2014
AB 17 (Swanson) -- Chapter 211, Statutes of 2009
Support: California Police Chiefs; Several individuals
Opposition:California Public Defenders Assocaition
Assembly Floor Vote: 77 - 0
PURPOSE
The purpose of this legislation is to increase 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 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 age, to go out of the country, state, county, or
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into another part of the same county, is guilty of kidnapping.
(Penal Code § 207(b).)
Existing law 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. (Penal Code § 208.)
Existing law 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. (Penal Code § 266k(a).)
Existing law 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. (Penal Code § 266k(b).)
Existing law provides that any person who deprives or violates
the personal liberty of another with the intent to effect or
maintain a 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 (b).)
Existing law 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:
Five, 8, or 12 years and a fine of not more than
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$500,000.
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(c).)
Existing law 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. (Penal Code § 267.)
This bill increases the fine for the crime of abducting a person
under the age of 18 years for prostitution from a maximum of
$2,000 to a maximum of $5,000.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
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adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity." (
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Legislation
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
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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. Effect of Legislation
This legislation would raise the base fine for the crime of
abduction for the purposes of prostitution from $2,000 to
$5,000. Because existing law requires that a number of penalty
assessments and fees be added to a base fine, if a defendant was
fined the maximum $5,000, as provided in this bill, the
following would be imposed pursuant to the Penal and 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 $10)
Total Fine with Assessments:
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$ 20,570<1>
Criminal fines and penalties have climbed steadily in recent
decades. Government entities tasked with collecting these fines
have realized diminishing returns from collection efforts. 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.'" (State Judges Bemoan Fee
Collection Process, Paul Jones and Saul Sugarman, San Francisco
Daily Journal, January 15, 2015.) In fact, according to the
Daily Journal article,"[f]elons 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." (Id.) Given that a conviction for abduction for
purposes of prostitution carries prison time, this legislation
could contribute to the growing about of delinquent, unpaid
debt.
3. Argument in Support
According to the California Police Chiefs Association:
The California Police Chiefs Association is pleased
to support Assembly Bill 526, which increases the
penalty for abduction for purposes of prostitution
from two thousand dollars to five thousand dollars.
After drug trafficking, human trafficking is the
world's second most profitable criminal enterprise, a
status it shares with illegal arms trafficking. Like
drug and arms trafficking, the United States is one
of the top destination countries for trafficking in
persons.
For more than 30 years, California Penal Code section
267 has not been altered to match the growth of this
criminal practice. AB 526 would increase the penalty
and serve as a deterrent for committing abduction for
the purposes [of] prostitution.
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<1> 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.
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4. Argument in Opposition
According to the California Public Defenders Association:
Under current law, Penal Code §267, "taking away" a
minor from his or her parent or guardian, for the
purposes of prostitution, is a straight felony with a
maximum fine of $2,000. SB 526 would increase the
fine to $5,000.
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 forces labor or
services, is guilty of human trafficking and shall be
punished by imprisonment in state prison for 5, 8, or
12 years and a 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 more
defendants. Furthermore, any money that ta 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.
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