AB 1051, as amended, Maienschein. Human trafficking.
Existing law, as amended by Proposition 21, as approved by the voters at the March 7, 2000, statewide primary election, provides that any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished, as specified. Existing law defines “a pattern of criminal gang activity” as the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, 2 or more listed offenses. Proposition 21 may be amended by a statute passed by a 2⁄3 vote of the membership of each house of the Legislature.
This bill would add human trafficking as an offense that may be used to establish a pattern of criminal gang activity. Because this bill would amend Proposition 21, the bill requires a 2⁄3 vote.
Existing law provides various penalties for human trafficking and sex trafficking offenses.
This bill would require that a person convicted of a human trafficking offense or of specified sex trafficking offenses where any part of the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary school, vocational, junior high, or high school during the hours that the school is open for classes or school-related programs, or at any time when minors are using the facility, to receive, in addition to any other penalty imposed, punishment of 3 years in state prison. The bill would also require that the person sentenced under this provision serve the entire term of his or her imprisonment for the underlying offense, as well as the additional term imposed, in the state prison.
Because this bill would change the definition of a crime, impose an enhancement on certain crimes, and require a higher level of service from local prosecutors in pleading and proving the enhancement, it would impose a state-mandated local program.
The bill would also correct cross-references and make conforming changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: 2⁄3. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Section 186.22 of the Penal Code, as amended
2by Section 1 of Chapter 508 of the Statutes of 2013, is amended
3to read:
(a) A person who actively participates in any criminal
5street gang with knowledge that its members engage in or have
6engaged in a pattern of criminal gang activity, and who willfully
7promotes, furthers, or assists in any felonious criminal conduct by
8members of that gang, shall be punished by imprisonment in a
9county jail for a period not to exceed one year, or by imprisonment
10in the state prison for 16 months, or two or three years.
P3 1(b) (1) Except as provided in paragraphs (4) and (5), a person
2who is convicted of a felony committed for the benefit of, at the
3direction of, or in association with any criminal street gang, with
4the specific intent to promote,
further, or assist in any criminal
5conduct by gang members, shall, upon conviction of that felony,
6in addition and consecutive to the punishment prescribed for the
7felony or attempted felony of which he or she has been convicted,
8be punished as follows:
9(A) Except as provided in subparagraphs (B) and (C), the person
10shall be punished by an additional term of two, three, or four years
11at the court’s discretion.
12(B) If the felony is a serious felony, as defined in subdivision
13(c) of Section 1192.7, the person shall be punished by an additional
14term of five years.
15(C) If the felony is a violent felony, as defined in subdivision
16(c) of Section 667.5, the person shall be punished by an additional
17term of 10 years.
18(2) If the underlying felony described in paragraph (1) is
19committed on the grounds of, or within 1,000 feet of, a public or
20private elementary, vocational, junior high, or high school, during
21hours in which the facility is open for classes or school-related
22programs or when minors are using the facility, that fact shall be
23a circumstance in aggravation of the crime in imposing a term
24under paragraph (1).
25(3) The court shall select the sentence enhancement which, in
26the court’s discretion, best serves the interests of justice and shall
27state the reasons for its choice on the record at the time of the
28sentencing in accordance with the provisions of subdivision (d) of
29Section 1170.1.
30(4) A person who is convicted of a
felony enumerated in this
31paragraph committed for the benefit of, at the direction of, or in
32association with any criminal street gang, with the specific intent
33to promote, further, or assist in any criminal conduct by gang
34members, shall, upon conviction of that felony, be sentenced to
35an indeterminate term of life imprisonment with a minimum term
36of the indeterminate sentence calculated as the greater of:
37(A) The term determined by the court pursuant to Section 1170
38for the underlying conviction, including any enhancement
39applicable under Chapter 4.5 (commencing with Section 1170) of
40Title 7 of Part 2, or any period prescribed by Section 3046, if the
P4 1felony is any of the offenses enumerated in subparagraph (B) or
2(C) of this paragraph.
3(B) Imprisonment in the state
prison for 15 years, if the felony
4is a home invasion robbery, in violation of subparagraph (A) of
5paragraph (1) of subdivision (a) of Section 213; carjacking, as
6defined in Section 215; a felony violation of Section 246; or a
7violation of Section 12022.55.
8(C) Imprisonment in the state prison for seven years, if the
9felony is extortion, as defined in Section 519; or threats to victims
10and witnesses, as defined in Section 136.1.
11(5) Except as provided in paragraph (4), a person who violates
12this subdivision in the commission of a felony punishable by
13imprisonment in the state prison for life shall not be paroled until
14a minimum of 15 calendar years have been served.
15(c) If the court grants probation or suspends the execution of
16sentence
imposed upon the defendant for a violation of subdivision
17(a), or in cases involving a true finding of the enhancement
18enumerated in subdivision (b), the court shall require that the
19defendant serve a minimum of 180 days in a county jail as a
20condition thereof.
21(d) A person who is convicted of a public offense punishable
22as a felony or a misdemeanor, which is committed for the benefit
23of, at the direction of, or in association with a criminal street gang,
24with the specific intent to promote, further,
or assist in any criminal
25conduct by gang members, shall be punished by imprisonment in
26a county jail not to exceed one year, or by imprisonment in a state
27prison for one, two, or three years, provided that a person sentenced
28to imprisonment in a county jail shall be imprisoned for a period
29not to exceed one year, but not less than 180 days, and shall not
30be eligible for release upon completion of sentence, parole, or any
31other basis, until he or she has served 180 days. If the court grants
32probation or suspends the execution of sentence imposed upon the
33defendant, it shall require as a condition thereof that the defendant
34serve 180 days in a county jail.
35(e) As used in this chapter, “pattern of criminal gang activity”
36means the commission of, attempted commission of, conspiracy
37to commit, or solicitation of, sustained
juvenile petition for, or
38conviction of two or more of the following offenses, provided at
39least one of these offenses occurred after the effective date of this
40chapter and the last of those offenses occurred within three years
P5 1after a prior offense, and the offenses were committed on separate
2occasions, or by two or more persons:
3(1) Assault with a deadly weapon or by means of force likely
4to produce great bodily injury, as defined in Section 245.
5(2) Robbery, as defined in Chapter 4 (commencing with Section
6211) of Title 8.
7(3) Unlawful homicide or manslaughter, as defined in Chapter
81 (commencing with Section 187) of Title 8.
9(4) The sale, possession for
sale, transportation, manufacture,
10offer for sale, or offer to manufacture controlled substances as
11defined in Sections 11054, 11055, 11056, 11057, and 11058 of
12the Health and Safety Code.
13(5) Shooting at an inhabited dwelling or occupied motor vehicle,
14as defined in Section 246.
15(6) Discharging or permitting the discharge of a firearm from
16a motor vehicle, as defined in subdivisions (a) and (b) of Section
17begin insert 12034 until January 1, 2012, and, on or after that date,
18subdivisions (a) and (b) of Section end insert 26100.
19(7) Arson, as defined in Chapter 1 (commencing with Section
20450) of Title 13.
21(8) The intimidation of witnesses and victims, as defined in
22Section 136.1.
23(9) Grand theft, as defined in subdivision (a) or (c) of Section
24487.
25(10) Grand theft of any firearm, vehicle, trailer, or vessel.
26(11) Burglary, as defined in Section 459.
27(12) Rape, as defined in Section 261.
28(13) Looting, as defined in Section 463.
29(14) Money laundering, as defined in Section 186.10.
30(15) Kidnapping, as defined in Section 207.
31(16) Mayhem, as defined in Section 203.
32(17) Aggravated mayhem, as defined in Section 205.
33(18) Torture, as defined in Section 206.
34(19) Felony extortion, as defined in Sections 518 and 520.
35(20) Felony vandalism, as defined in paragraph (1) of
36subdivision (b) of Section 594.
37(21) Carjacking, as defined in Section 215.
38(22) The sale, delivery, or transfer of a firearm, as defined in
39begin insert Section 12072 until January 1, 2012, and, on or after that date, end insert
P6 1
Article 1 (commencing with Section 27500) of Chapter 4 of
2Division 6 of Title 4 of Part 6.
3(23) Possession of a pistol, revolver, or other firearm capable
4of being concealed upon the person in violation ofbegin insert paragraph (1)
5of subdivision (a) of Section 12101 until January 1, 2012, and, on
6or after that date, end insert Section 29610.
7(24) Threats to commit crimes resulting in death or great bodily
8injury, as defined in Section 422.
9(25) Theft and unlawful taking or driving of a vehicle, as defined
10in Section 10851 of the Vehicle Code.
11(26) Felony theft of an access card or
account information, as
12defined in Section 484e.
13(27) Counterfeiting, designing, using, or attempting to use an
14access card, as defined in Section 484f.
15(28) Felony fraudulent use of an access card or account
16information, as defined in Section 484g.
17(29) Unlawful use of personal identifying information to obtain
18credit, goods, services, or medical information, as defined in
19Section 530.5.
20(30) Wrongfully obtaining Department of Motor Vehicles
21documentation, as defined in Section 529.7.
22(31) Prohibited possession of a firearm in violation ofbegin insert
Section
2312021 until January 1, 2012, and on or after that date, end insert Chapter
242 (commencing with Section 29800) of Division 9 of Title 4 of
25Part 6.
26(32) Carrying a concealed firearm in violation of Sectionbegin insert 12025
27until January 1, 2012, and, on or after that date, Section end insert 25400.
28(33) Carrying a loaded firearm in violation of Sectionbegin insert 12031
29until January 1, 2012, and, on or after that date, Section end insert
25850.
30(34) Human trafficking in violation of Section 236.1.
31(f) As used in this chapter, “criminal street gang” means any
32ongoing organization, association, or group of three or more
33persons, whether formal or informal, having as one of its primary
34activities the commission of one or more of the criminal acts
35enumerated in paragraphs (1) to (25), inclusive, or (31) to (34),
36inclusive, of subdivision (e), having a common name or common
37identifying sign or symbol, and whose members individually or
38collectively engage in or have engaged in a pattern of criminal
39gang activity.
P7 1(g) Notwithstanding any other law, the court may strike the
2additional punishment for the enhancements provided in this
3section
or refuse to impose the minimum jail sentence for
4misdemeanors in an unusual case where the interests of justice
5would best be served, if the court specifies on the record and enters
6into the minutes the circumstances indicating that the interests of
7justice would best be served by that disposition.
8(h) Notwithstanding any other law, for each person committed
9to the Department of Corrections and Rehabilitation, Division of
10Juvenile Facilities for a conviction pursuant to subdivision (a) or
11(b) of this section, the offense shall be deemed one for which the
12state shall pay the rate of 100 percent of the per capita institutional
13cost of the Department of Corrections and Rehabilitation, Division
14of Juvenile
Facilities.
15(i) In order to secure a conviction or sustain a juvenile petition,
16pursuant to subdivision (a) it is not necessary for the prosecution
17to prove that the person devotes all, or a substantial part, of his or
18her time or efforts to the criminal street gang, nor is it necessary
19to prove that the person is a member of the criminal street gang.
20Active participation in the criminal street gang is all that is
21required.
22(j) A pattern of gang activity may be shown by the commission
23of one or more of the offenses enumerated in paragraphs (26) to
24(30), inclusive, of subdivision (e), and the commission of one or
25more of the offenses enumerated in paragraphs (1) to (25),
26inclusive, or (31) to (34), inclusive, of subdivision (e). A pattern
27of gang activity cannot
be established solely by proof of
28commission of offenses enumerated in paragraphs (26) to (30),
29inclusive, of subdivision (e), alone.
30(k) This section shall remain in effect only until January 1, 2017,
31and as of that date is repealed, unless a later enacted statute, that
32is enacted before January 1, 2017, deletes or extends that date.
Section 186.22 of the Penal Code, as amended by
34Section 2 of Chapter 508 of the Statutes of 2013, is amended to
35read:
(a) A person who actively participates in any criminal
37street gang with knowledge that its members engage in or have
38engaged in a pattern of criminal gang activity, and who willfully
39promotes, furthers, or assists in any felonious criminal conduct by
40members of that gang, shall be punished by imprisonment in a
P8 1county jail for a period not to exceed one year, or by imprisonment
2in the state prison for 16 months, or two or three years.
3(b) (1) Except as provided in paragraphs (4) and (5), a person
4who is convicted of a felony committed for the benefit of, at the
5direction of, or in association with any criminal street gang, with
6the specific intent to promote,
further, or assist in any criminal
7conduct by gang members, shall, upon conviction of that felony,
8in addition and consecutive to the punishment prescribed for the
9felony or attempted felony of which he or she has been convicted,
10be punished as follows:
11(A) Except as provided in subparagraphs (B) and (C), the person
12shall be punished by an additional term of two, three, or four years
13at the court’s discretion.
14(B) If the felony is a serious felony, as defined in subdivision
15(c) of Section 1192.7, the person shall be punished by an additional
16term of five years.
17(C) If the felony is a violent felony, as defined in subdivision
18(c) of Section 667.5, the person shall be punished by an additional
19term of 10 years.
20(2) If the underlying felony described in paragraph (1) is
21committed on the grounds of, or within 1,000 feet of, a public or
22private elementary, vocational, junior high, or high school, during
23hours in which the facility is open for classes or school-related
24programs or when minors are using the facility, that fact shall be
25a circumstance in aggravation of the crime in imposing a term
26under paragraph (1).
27(3) The court shall order the imposition of the middle term of
28the sentence enhancement, unless there are circumstances in
29aggravation or mitigation. The court shall state the reasons for its
30choice of sentencing enhancements on the record at the time of
31the sentencing.
32(4) A person who is convicted of a felony
enumerated in this
33paragraph committed for the benefit of, at the direction of, or in
34association with any criminal street gang, with the specific intent
35to promote, further, or assist in any criminal conduct by gang
36members, shall, upon conviction of that felony, be sentenced to
37an indeterminate term of life imprisonment with a minimum term
38of the indeterminate sentence calculated as the greater of:
39(A) The term determined by the court pursuant to Section 1170
40for the underlying conviction, including any enhancement
P9 1applicable under Chapter 4.5 (commencing with Section 1170) of
2Title 7 of Part 2, or any period prescribed by Section 3046, if the
3felony is any of the offenses enumerated in subparagraph (B) or
4(C) of this paragraph.
5(B) Imprisonment in the state prison for 15
years, if the felony
6is a home invasion robbery, in violation of subparagraph (A) of
7paragraph (1) of subdivision (a) of Section 213; carjacking, as
8defined in Section 215; a felony violation of Section 246; or a
9violation of Section 12022.55.
10(C) Imprisonment in the state prison for seven years, if the
11felony is extortion, as defined in Section 519; or threats to victims
12and witnesses, as defined in Section 136.1.
13(5) Except as provided in paragraph (4), a person who violates
14this subdivision in the commission of a felony punishable by
15imprisonment in the state prison for life shall not be paroled until
16a minimum of 15 calendar years have been served.
17(c) If the court grants probation or suspends the execution of
18sentence
imposed upon the defendant for a violation of subdivision
19(a), or in cases involving a true finding of the enhancement
20enumerated in subdivision (b), the court shall require that the
21defendant serve a minimum of 180 days in a county jail as a
22condition thereof.
23(d) A person who is convicted of a public offense punishable
24as a felony or a misdemeanor, which is committed for the benefit
25of, at the direction of, or in association with a criminal street gang,
26with the specific intent to promote, further,
or assist in any criminal
27conduct by gang members, shall be punished by imprisonment in
28a county jail not to exceed one year, or by imprisonment in a state
29prison for one, two, or three years, provided that a person sentenced
30to imprisonment in a county jail shall be imprisoned for a period
31not to exceed one year, but not less than 180 days, and shall not
32be eligible for release upon completion of sentence, parole, or any
33other basis, until he or she has served 180 days. If the court grants
34probation or suspends the execution of sentence imposed upon the
35defendant, it shall require as a condition thereof that the defendant
36serve 180 days in a county jail.
37(e) As used in this chapter, “pattern of criminal gang activity”
38means the commission of, attempted commission of, conspiracy
39to commit, or solicitation of, sustained
juvenile petition for, or
40conviction of two or more of the following offenses, provided at
P10 1least one of these offenses occurred after the effective date of this
2chapter and the last of those offenses occurred within three years
3after a prior offense, and the offenses were committed on separate
4occasions, or by two or more persons:
5(1) Assault with a deadly weapon or by means of force likely
6to produce great bodily injury, as defined in Section 245.
7(2) Robbery, as defined in Chapter 4 (commencing with Section
8211) of Title 8.
9(3) Unlawful homicide or manslaughter, as defined in Chapter
101 (commencing with Section 187) of Title 8.
11(4) The sale, possession for sale,
transportation, manufacture,
12offer for sale, or offer to manufacture controlled substances as
13defined in Sections 11054, 11055, 11056, 11057, and 11058 of
14the Health and Safety Code.
15(5) Shooting at an inhabited dwelling or occupied motor vehicle,
16as defined in Section 246.
17(6) Discharging or permitting the discharge of a firearm from
18a motor vehicle, as defined in subdivisions (a) and (b) of Section
19begin insert 12034 until January 1, 2012, and, on or after that date,
20subdivisions (a) and (b) of Section end insert 26100.
21(7) Arson, as defined in Chapter 1 (commencing with Section
22450) of Title 13.
23(8) The intimidation of witnesses and victims, as defined in
24Section 136.1.
25(9) Grand theft, as defined in subdivision (a) or (c) of Section
26487.
27(10) Grand theft of any firearm, vehicle, trailer, or vessel.
28(11) Burglary, as defined in Section 459.
29(12) Rape, as defined in Section 261.
30(13) Looting, as defined in Section 463.
31(14) Money laundering, as defined in Section 186.10.
32(15) Kidnapping, as defined in Section 207.
33(16) Mayhem, as defined in Section 203.
34(17) Aggravated mayhem, as defined in Section 205.
35(18) Torture, as defined in Section 206.
36(19) Felony extortion, as defined in Sections 518 and 520.
37(20) Felony vandalism, as defined in paragraph (1) of
38subdivision (b) of Section 594.
39(21) Carjacking, as defined in Section 215.
P11 1(22) The sale, delivery, or transfer of a firearm, as defined in
2begin insert Section 12072 until January 1, 2012, and, on or after that date, end insert
3
Article 1 (commencing with Section 27500) of Chapter 4 of
4Division 6 of Title 4 of Part 6.
5(23) Possession of a pistol, revolver, or other firearm capable
6of being concealed upon the person in violation ofbegin insert paragraph (1)
7of subdivision (a) of Section 12101 until January 1, 2012, and, on
8or after that date, end insert Section 29610.
9(24) Threats to commit crimes resulting in death or great bodily
10injury, as defined in Section 422.
11(25) Theft and unlawful taking or driving of a vehicle, as defined
12in Section 10851 of the Vehicle Code.
13(26) Felony theft of an access card or
account information, as
14defined in Section 484e.
15(27) Counterfeiting, designing, using, or attempting to use an
16access card, as defined in Section 484f.
17(28) Felony fraudulent use of an access card or account
18information, as defined in Section 484g.
19(29) Unlawful use of personal identifying information to obtain
20credit, goods, services, or medical information, as defined in
21Section 530.5.
22(30) Wrongfully obtaining Department of Motor Vehicles
23documentation, as defined in Section 529.7.
24(31) Prohibited possession of a firearm in violation ofbegin insert
Section
2512021 until January 1, 2012, and, on or after that date, end insert Chapter
262 (commencing with Section 29800) of Division 9 of Title 4 of
27Part 6.
28(32) Carrying a concealed firearm in violation of Sectionbegin insert 12025
29until January 1, 2012, and, on or after that date, Section end insert 25400.
30(33) Carrying a loaded firearm in violation of Sectionbegin insert 12031
31until January 1, 2012, and, on or after that date, Section end insert 25850.
32(34) Human trafficking in violation of Section 236.1.
33(f) As used in this chapter, “criminal street gang” means any
34ongoing organization, association, or group of three or more
35persons, whether formal or informal, having as one of its primary
36activities the commission of one or more of the criminal acts
37enumerated in paragraphs (1) to (25), inclusive, or (31) to (34),
38inclusive, of subdivision (e), having a common name or common
39identifying sign or symbol, and whose members individually or
P12 1collectively engage in or have engaged in a pattern of criminal
2gang activity.
3(g) Notwithstanding any other law, the court may strike the
4additional punishment for the enhancements provided in this
5section or refuse to impose the minimum jail sentence for
6misdemeanors in an unusual case where the interests of justice
7would best be served, if the court specifies on the record and enters
8into
the minutes the circumstances indicating that the interests of
9justice would best be served by that disposition.
10(h) Notwithstanding any other law, for each person committed
11to the Department of Corrections and Rehabilitation, Division of
12Juvenile Facilities for a conviction pursuant to subdivision (a) or
13(b) of this section, the offense shall be deemed one for which the
14state shall pay the rate of 100 percent of the per capita institutional
15cost of the Department of Corrections and Rehabilitation, Division
16of Juvenile Facilities.
17(i) In order to secure a conviction or sustain a juvenile petition,
18pursuant to subdivision (a) it is not necessary for the prosecution
19to prove that the person devotes all, or a substantial part, of his or
20her time or efforts to the criminal street
gang, nor is it necessary
21to prove that the person is a member of the criminal street gang.
22Active participation in the criminal street gang is all that is
23required.
24(j) A pattern of gang activity may be shown by the commission
25of one or more of the offenses enumerated in paragraphs (26) to
26(30), inclusive, of subdivision (e), and the commission of one or
27more of the offenses enumerated in paragraphs (1) to (25),
28inclusive, or (31) to (34), inclusive, of subdivision (e). A pattern
29of gang activity cannot be established solely by proof of
30commission of offenses enumerated in paragraphs (26) to (30),
31inclusive, of subdivision (e), alone.
32(k) This section shall become operative on January 1, 2017.
Section 266m is added to the Penal Code, to read:
(a) A person who is convicted of a felony violation of
35Section 236.1, 266, 266a, 266b, 266c, 266d, 266e, 266f, 266g,
36266h, 266i, or 266j, where any part of the violation takes place on
37the grounds of, or within 1,000 feet of, a public or private
38elementary, vocational, junior high, or high school, during hours
39that the school is open for classes or school-related programs or
40at any time when minors are using the facility, shall receive, in
P13 1addition to any other penalty imposed, punishment of three years
2in the state prison.
3(b) A person sentenced pursuant to this section shall serve the
4entire term of his or her imprisonment for the underlying offense
5as well as
the additional term imposed pursuant to this section in
6the state prison.
No reimbursement is required by this act pursuant to
8Section 6 of Article XIII B of the California Constitution because
9the only costs that may be incurred by a local agency or school
10district will be incurred because this act creates a new crime or
11infraction, eliminates a crime or infraction, or changes the penalty
12for a crime or infraction, within the meaning of Section 17556 of
13the Government Code, or changes the definition of a crime within
14the meaning of Section 6 of Article XIII B of the California
15Constitution.
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