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.  
               ----------------------
          <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.  

                                      -- END -





          









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