BILL ANALYSIS Ó
AB 1051
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Date of Hearing: April 28, 2015
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
1051 (Maienschein) - As Amended April 20, 2015
As Proposed to be Amended in Committee
SUMMARY: Changes the definition of "pattern of criminal gang
activity" to add the crime of human trafficking and creates a
new one-year state prison enhancement for specified crimes
committed against a minor on the grounds of, or within 1,000
feet of a school. Specifically, this bill:
1)Adds human trafficking to the list of offenses that may be
used to establish a pattern of criminal activity for the
purpose of enhancing the sentence of any person who commits a
crime for the benefit of a criminal street gang.
2)Provides that any person who is convicted of human
trafficking, where the offense was committed against a minor,
or abduction of a minor for the purpose of prostitution, where
any part of the violation takes place on the grounds of, or
within 1,000 feet of, a public or private elementary,
vocational, junior high, or high school, during hours that the
school is open for classes or school-related programs or at
any time when minors are using the facility, shall receive, in
addition to any other penalty imposed, punishment of one year
in the state prison.
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EXISTING LAW:
1)States 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 by
imprisonment in a county jail for a period not to exceed one
year, or by imprisonment in the state prison for 16 months, or
two or three years. (Pen. Code, § 186.22, subd. (a).)
2)Provides the following enhancements to be added and served
consecutively that applies to any person who is convicted of a
felony committed for the benefit of, at the direction of, or
in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal
conduct by gang members:
a) An additional term of two, three, or four years at the
court's discretion, unless the felony is a serious felony,
as defined, or a violent felony, as defined;
b) If the felony is a serious felony, as defined, the
person shall be punished by an additional term of five
years; and,
c) If the felony is a violent felony, as defined, the
person shall be punished by an additional term of 10 years.
(Pen. Code, § 186.22, subd. (b)(1).)
3)Specifies, if the underlying felony is committed on the
grounds of, or within 1,000 feet of, a public or private
elementary, vocational, junior high, or high school, during
hours in which the facility is open for classes or
school-related programs or when minors are using the facility,
that fact shall be a circumstance in aggravation of the crime
in imposing a term of imprisonment. (Pen. Code, § 186.22,
subd. (b)(2).)
4)Defines "pattern of criminal gang activity" to mean the
commission of, attempted commission of, conspiracy to commit,
or solicitation of, sustained juvenile petition for, or
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conviction of two or more of the following offenses, provided
at least one of these offenses occurred after the effective
date of this chapter and the last of those offenses occurred
within three years after a prior offense, and the offenses
were committed on separate occasions, or by two or more
persons:
a) Assault with a deadly weapon or by means of force likely
to produce great bodily injury;
b) Robbery;
c) Unlawful homicide or manslaughter;
d) The sale, possession for sale, transportation,
manufacture, offer for sale, or offer to manufacture
controlled substances;
e) Shooting at an inhabited dwelling or occupied motor
vehicle;
f) Discharging or permitting the discharge of a firearm
from a motor vehicle;
g) Arson;
h) The intimidation of witnesses and victims;
i) Grand theft;
j) Grand theft of any firearm, vehicle, trailer, or vessel;
aa) Burglary;
bb) Rape;
cc) Looting;
dd) Money laundering;
ee) Kidnapping;
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ff) Mayhem;
gg) Aggravated mayhem;
hh) Torture;
ii) Felony extortion;
jj) Felony vandalism;
aaa) Carjacking;
bbb) The sale, delivery, or transfer of a firearm;
ccc) Possession of a pistol, revolver, or other firearm
capable of being concealed upon the person;
ddd) Threats to commit crimes resulting in death or great
bodily injury;
eee) Theft and unlawful taking or driving of a vehicle;
fff) Felony theft of an access card or account information;
ggg) Counterfeiting, designing, using, or attempting to use
an access card;
hhh) Felony fraudulent use of an access card or account
information;
iii) Unlawful use of personal identifying information to
obtain credit, goods, services, or medical information;
jjj) Wrongfully obtaining Department of Motor Vehicles
documentation;
aaaa)Prohibited possession of a firearm;
bbbb)Carrying a concealed firearm; and,
cccc)Carrying a loaded firearm. (Pen. Code, § 186.22, subd.
(e).)
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5)Defines a "criminal street gang" to mean any ongoing
organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary
activities the commission of one or more of the criminal acts
enumerated, having a common name or common identifying sign or
symbol, and whose members individually or collectively engage
in or have engaged in a pattern or criminal gang activity.
(Pen. Code, § 186.22, subd. (f).)
6)Provides that any person who deprives or violates the personal
liberty of any other with the intent to obtain forced labor or
services is guilty of human trafficking and shall be punished
in state prison for 5, 8, or 12 years and a fine of not more
than $500,000. (Pen. Code, § 236.1, subd. (a).)
7)States that any person who deprives or violates the personal
liberty of any other with the intent to effect or maintain a
violation of specified offenses related to sexual conduct,
obscene matter 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. (Pen.
Code, § 236.1, subd. (b).)
8)Specifies the following penalties for any person who causes,
induces, or persuades, or attempts to cause, induce, persuade,
a person who is minor at the time of commission of the offense
to engage in a commercial sex act, as provided:
a) Five, 8, or 12 years and a fine of not more than
$500,000; or,
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. (Pen.
Code, § 236.1, subd. (c).)
9)Provides that any person who takes away any other person under
the age of 18 years from the father, mother, or guardian, or
other person, without their consent, for the purpose of
prostitution, is punishable by imprisonment in the state
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prison and a fine not exceeding $2,000. (Pen. Code, § 267.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Human
trafficking is increasing at an alarming rate across the
country, and especially in San Diego County. Criminal street
gangs have embraced pimping and human trafficking as a new
revenue booster; as it now rivals narcotic sales as a major
source of funding for many gangs. This crime targets our most
vulnerable youth, who are often recruited within the walls of
the schools they attend. AB 1051 is an important effort to put
a stop to the growing epidemic of human trafficking and sexual
exploitation of minors by organized gang activity."
2)Current Penalties for Human Trafficking: In 2012, California
voters enacted Proposition 35, which modified many provisions
of California's already tough human trafficking laws.
Specifically, Proposition 35 expanded the definition of human
trafficking and increased criminal penalties and fines for
human trafficking offenses. The proposition specified that
the fines collected are to be used for victim services and law
enforcement. In criminal trials, the proposition 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 also
lowered the evidentiary requirements for showing of force in
cases of minors. (See Proposition 35 voter guide available at
Secretary of State's website,
< http://www.voterguide.sos.ca.gov/past/2012/general/proposition
s/35/analysis.htm > (as of Apr. 22, 2015.)
The current penalties for human trafficking are very severe.
Human trafficking for the purpose of obtaining forced labor or
services is punishable by imprisonment in state prison for up
to 12 years. If the offense involves human trafficking for the
purpose of specified sexual conduct, obscene matter or
extortion, the punishment proscribed is up to 20 years
imprisonment in state prison. If the offense involves causing
a minor to engage in a commercial sex act, the penalty imposed
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may be 15-years to life. (Pen. Code, § 236.1.) The court may
also impose up to a $1.5 million fine on a person convicted of
human trafficking. (Pen. Code §§ 236.1 and 236.4.)
3)State Prison Overcrowding Considerations: In January 2010, a
three-judge panel issued a ruling ordering the State of
California to reduce its prison population to 137.5% of design
capacity because overcrowding was the primary reason that CDCR
was unable to provide inmates with constitutionally adequate
healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State
Supreme Court upheld the decision, declaring that "without a
reduction in overcrowding, there will be no efficacious remedy
for the unconstitutional care of the sick and mentally ill"
inmates in California's prisons. (Brown v. Plata (2011) 131
S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)
After continued litigation, 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 its most recent status report to the court (February 2015),
the administration reported that as "of February 11, 2015,
112,993 inmates were housed in the State's 34 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).
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
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Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14).)
Moreover, there are still approximately 10,500 prisoners being
housed in out of state and in private prisons. (See latest
CDCR monthly population report, as of March 31, 2015:
< http://www.cdcr.ca.gov/Reports_Research/Offender_Information_S
ervices_Branch/Monthly/TPOP1A/TPOP1Ad1503.pdf >.)
This bill adds human trafficking to the list of offenses that
may be used to establish a pattern of criminal activity for
the purpose of enhancing the sentence of any person who
commits a crime for the benefit of a criminal street gang.
The gang enhancement provides for an additional two, three or
four years imprisonment on top of the sentence for the
underlying offense. This bill also creates a new enhancement
of one year when the defendant is convicted of a human
trafficking offense, where the offense was committed against a
minor, or convicted of abducting a minor for the purpose of
prostitution, where the offense was committed on the grounds
of, or within 1,000 feet of a school.
Although the state is currently in compliance with the
court-ordered population cap, creating new enhancements that
increase the length of time that an inmate must serve in
prison will reverse the progress made in reducing the state
prison population. This is contrary to the court's order for a
durable solution to prison overcrowding.
4)Proposed Amendments: This bill is being considered as proposed
to be amended. The current provisions of the bill creates a
new three-year prison enhancement if the defendant was
convicted of human trafficking or other specified offenses, on
the grounds of, or within 1,000 feet of a school. The bill
also excludes a person convicted of human trafficking or any
of the other offenses listed from earning any credits while in
state prison.
The proposed amendments reduce the three-year enhancement to
one year, and limits applicability of the enhancement to a
person convicted of human trafficking, where the offense was
committed against a minor, or a conviction for abduction of a
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minor for prostitution, if the offense took place on the
grounds of, or within 1,000 feet of a school. The proposed
amendments also delete the provision that excludes defendants
convicted of these crimes from earning credits in prison.
5)Governor's Veto Message for SB 473: SB 473 (Block), of the
2013 to 2014 Legislative Session, was similar to this bill.
When it was referred to this Committee, the bill contained
similar provisions that are in this bill, specifically the
provision adding human trafficking to the list of offenses
that may be used to establish a pattern of criminal activity
and the provision requiring a new state prison enhancement if
the offense took place upon the grounds of, or within 1,000
feet of, a school. SB 473 passed out of this Committee as
proposed to be amended removing the three-year enhancement.
Ultimately, the bill was vetoed by the Governor.
According to the Governor's veto message: "I am returning Senate
Bill 473 without my signature.
"Under current law, human trafficking convictions impose
substantial punishment, up to 20 years for sex trafficking
offenses and 15 years-to-life for certain crimes involving
children. These sentences are more than three times the
punishment that existed two years ago. SB 473 would add yet
another set of enhancements, the third in nine years. No
evidence has been presented to support these new penalties."
6)Argument in Support: According to the San Diego County Board
of Supervisors, the sponsor of this bill, "Human trafficking
is increasing at an alarming rate across the country,
especially in San Diego. Criminal street gangs have embraced
human trafficking as a new revenue booster; as it now rivals
narcotic sales as a major source of funding for many gangs.
This crime targets our most vulnerable youth, who are often
recruited within the walls of the schools they attend.
". . .AB 1051 adds human trafficking to the list of crimes used
to enhance penalties for persons affiliated with a criminal
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street gang. It also creates a 'safe school zone' by
increasing sentences for convictions related to human
trafficking incidents that occur within 1,000 feet of a
school."
7)Argument in Opposition: According to the California Attorneys
for Criminal Justice, "In 2011 the legislature expanded the
scope of "human trafficking" laws and significantly increased
the penalties. There were more extreme measures the
legislature declined to pass, and in 2012 the proponents
qualified those extreme measures for the ballot as Proposition
35. That measure passed in November 2012 and is available to
prosecute an extremely wide range of activities involving
commercial activities and minors.
"No reliable studies have found federal laws and current state
laws inadequate to meet the needs of law enforcement going
after commercial sex traffickers.
"In particular Section 3 of the bill, which would add Section
266m to the Penal Code is wholly unnecessary. This statute
would provide for a three year enhancement to specified crimes
taking place within 1000 feet of a school, including human
trafficking and pimping. Penal Code §236.1 already provides
for penalties up to 12 years for crimes involving minors, and
life if force or coercion is used. Every other crime listed in
your proposed §266m can be charged under 236.1 where minors
are targeted, without regard to location. Manifestly, there is
no need to increase the potential penalties."
8)Related Legislation: AB 526 (Holden) would increase the fine
for the crime of abducting a minor for prostitution from a
maximum of $2,000 to a maximum of $5,000. AB 526 is pending a
vote on the Assembly Floor.
9)Prior Legislation:
a) SB 473 (Block), of the 2013-2014 Legislative Session,
would have added pimping, pandering, and human trafficking
to the list of offenses that may be used to establish a
pattern of criminal activity for the purpose of enhancing
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the sentence of any person who commits a crime for the
benefit of a criminal street gang. SB 473 was vetoed.
b) AB 918 (Block), of the 2011-12 Legislative Session, was
substantially similar to SB 473. AB 918 was held on the
Appropriations Committee's Suspense File.
REGISTERED SUPPORT / OPPOSITION:
Support
San Diego County Board of Supervisors (Sponsor)
Alameda County District Attorney's Office (Co-Sponsor)
California Alliance of Child and Family Services
California Catholic Conference
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
California Statewide Law Enforcement Association
Contra Costa County Board of Supervisors
Crime Victims United
Junior Leagues of California, State Public Affairs Committee
Junior League of Napa-Sonoma
Junior League of San Diego
Los Angeles County Board of Supervisors
Peace Officers Research Association of California
San Francisco Unified School District
San Diego County District Attorney's Office
San Diego County Sheriff's Department
State Public Affairs Committee, Junior Leagues of California
Urban Counties Caucus
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children
Analysis Prepared
by: Stella Choe / PUB. S. / (916) 319-3744
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