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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