BILL ANALYSIS                                                                                                                                                                                                    Ó



            SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

            Bill No:    AB 1051       Hearing Date:    July 7, 2015    
            
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            |Author:    |Maienschein                                          |
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            |Version:   |May 4, 2015                                          |
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            |Urgency:   |No                     |Fiscal:    |Yes              |
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            |Consultant:|JM                                                   |
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                             Subject:  Human Trafficking 



            HISTORY
            
            Source:   Alameda County District Attorney; County of San  
                      Diego; San Diego Regional Chamber of Commerce

            Prior Legislation:SB 473 (Block) 2014, Vetoed

            Support:  California Alliance of Child and Family Services;  
                      California Catholic Conference; California District  
                      Attorneys Association; California Narcotics  
                      Officers' Association; California Police Chiefs  
                      Association; California State Sheriffs Association;  
                      California Statewide Law Enforcement Association;  
                      City of Camarillo; Contra Costa County; County of  
                      Los Angeles; Crime Victims United of California;  
                      Junior Leagues of California; Grossmont Union High  
                      School District; Junior League of Napa-Sonoma;  
                      Junior League of San Diego; Los Angeles County  
                      District Attorney; Peace Officers Research  
                      Association of California; San Bernardino County;  
                      San Diego County District Attorney; San Diego  
                      County Sheriff; San Francisco Unified School  
                      District; Urban Counties Caucus

            Opposition:California Attorneys for Criminal Justice; Legal  








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                      Services for Prisoners with Children

            Assembly Floor Vote:                 74 - 0


            PURPOSE

            The purpose of this bill is to: 1) add human trafficking to  
            the list of crimes constituting a pattern of gang activity;  
            and 2) enact a new one-year prison enhancement if the  
            defendant's underlying offense is either human trafficking  
            involving a minor, or abduction of a minor for purposes of  
            prostitution, and the offense was committed on the grounds of  
            a school, or within 1,000 feet of a school while the school  
            is open for classes or programs, or minors are using the  
            facility.  

            Existing law defines "criminal street gang" as 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 enumerated  
            offenses, having a common name or identifying sign or  
            symbol, and whose members engage in a pattern of gang  
            activity.  (Pen. Code § 186.22, subd. (f).)

            Existing law provides that a pattern of criminal gang  
            activity can be established by a single prior offense and  
            the crime charged in the current prosecution.  (People v.  
            Gardeley (1996) 14 Cal.4th 605, 625.)

            Existing law does not require that a person convicted of  
            a gang-related crime<1> be shown to be a member of a  
            gang.  The defendant in a gang-related case need not have  
            been involved in the conduct establishing a pattern of  
            gang activity.  (People v. Gardeley (1996) 14 Cal.4th  
            605, 621-622.)

            Existing law provides that any person who actively  
            participates in a criminal street gang with knowledge that  
            ------------------------
            <1> The term "gang-related" generally means any crime done  
            for the benefit of, at the direction of, or in association  
            with a gang, with the specific intent to promote criminal  
            conduct by gang members.  (Pen. Code § 186.22, subd. (b).) 









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            its members engage in or have engaged in a pattern of  
            criminal gang activity and who promotes, furthers, or  
            assists in any felonious conduct by members of the gang,  
            shall be punished by imprisonment in the county jail for up  
            to one year, or by 16 months, 2, or 3 years in state prison.  
             (Pen. Code § 186.22, subd. (a).)

            Existing law provides that 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 criminal  
            conduct by gang members, shall receive a sentence  
            enhancement or special gang penalty<2>, as specified  
            immediately below.  (Pen. Code § 186.22, subd. (b).)

             The (minimum) enhancements (in addition to the prison  
              term for the underlying felony) are:

            § Felony (other than specified) 2, 3, or 4 years
            § Serious felony                5 years
            § Violent felony                10 years
            § Home invasion robbery         life, min. 15 years before  
              parole eligibility
            § Carjacking             life, min. 15 years
            § Shooting from vehicle         life, min. 15 years
            § Extortion or witness intimidation   life, min. 7 years

            Existing law defines a "pattern of criminal gang activity"  
            as the following:

             The commission of two or more of enumerated offenses -  
              commonly called "predicate offenses;
             At least one of the offenses must have occurred after  
              the effective date of the gang statute and the last of  
              the offenses occurred within three years of a prior  
              offense;
             The offenses were committed on separate occasions, or by  
              two or more persons.
             The offenses need not result in a conviction, although  
            -----------------------
            <2> An enhancement is a specific term or number of years  
            added to the standard sentence for a crime.  A special  
            penalty provision is a separate sentencing scheme, not simply  
            a term of years added to the standard sentence









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              prosecutors typically prove the pattern through prior  
              convictions, as proof of convictions is generally  
              certain and simple.  


            Existing law specifies the list of crimes constituting a  
            pattern of gang activity:

            1)Assault with a deadly weapon or by means of force likely to  
              produce great bodily injury;
            2)Robbery;
            3)Unlawful homicide or manslaughter;
            4)Sale, possession for sale, manufacture, et cetera, of  
              controlled substances;
            5)Shooting at an inhabited dwelling or occupied motor  
              vehicle;
            6)Discharging or permitting the discharge of a firearm from a  
              motor vehicle;
            7)Arson;
            8)Intimidation of witnesses and victims;
            9)Grand theft, as specified;
            10) Grand theft of any firearm, vehicle, trailer, or vessel;
            11) Burglary;
            12) Rape;
            13) Looting, as defined;
            14) Money laundering;
            15) Kidnapping;
            16) Mayhem;
            17) Aggravated mayhem;
            18) Torture;
            19) Felony extortion;
            20) Felony vandalism;
            21) Carjacking;
            22) Sale, delivery, or transfer of a firearm;
            23) Possession of a pistol, revolver, or other firearm capable  
              of being concealed upon the person;
            24) Threats to commit crimes resulting in death or great  
              bodily injury, as defined;
            25) Theft and unlawful taking or driving of a vehicle;
            26) Felony theft of an access card or account information, as  
              defined;
            27) Counterfeiting, designing, using, attempting to use an  
              access card, as defined;
            28) Felony fraudulent use of an access card or account  









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              information, as defined;
            29) Identity theft, as defined and specified;
            30) Wrongfully obtaining Department of Motor Vehicles (DMV)  
              documentation, as defined;
            31) Prohibited possession of a firearm;
            32) Carrying a concealed firearm, as specified;
            33) Carrying a loaded firearm, as specified.  (Pen. Code §  
              186.22, subd. (e).)

            Existing law provides that a pattern of gang activity cannot  
            be established solely by . . . offenses enumerated in  
            paragraphs (26) to (30) - crimes involving access card,  
            identity theft and fraudulent obtaining of  DMV  
            documentation.  (Pen. Code § 186.22, subd. (j).)"

            Existing law provides that any person who deprives or  
            violates the personal liberty of another is guilty of human  
            trafficking if the person specifically intends one of the  
            following: 1) to effect or maintain a specified felony  
            commercial sex or prostitution-related offense; 2) commit  
            extortion; 3) specified child pornography offenses or 4)  
            obtain forced labor or services.  (Pen. Code § 236.1, subd.  
            (a)-(b).)

                   Human trafficking for forced or coerced labor or  
                 services is punishable by a prison term of 5, 8 or 12  
                 years and a fine of up to $500,000.  (Pen. Code § 236.1,  
                 subd. (b).) 
                   Human trafficking involving forced or coerced sex  
                 trafficking, child pornography or extortion is  
                 punishable by a prison term of 8, 14 or 20 years and a  
                 fine of up to $500,000.  (Pen. Code § 236.1, subd. (b).)

            Existing law provides that human trafficking of a minor does  
            not include an element of deprivation of the victim's  
            liberty.   Trafficking of a minor is committed through  
            inducing, persuading causing a minor to engage commercial sex  
            acts, child pornography or extortion, or attempting to do so,  
            is punishable as follows:

             5, 8 or 12 years in prison and a fine of up to $500,000.  
                   15-years-to-life and a fine of up to $500,000 if the  
                 offense involved force, threats, coercion, fraud or  
                 deceit, as specified.  (Pen. Code § 236.1, subd. (c).)









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            Existing law includes these special rules applicable to human  
            trafficking of a minor:

                   Whether the defendant caused, induced or persuaded a  
                 minor to engage in a commercial sex act depends on the  
                 totality of circumstances, including the relationship  
                 between the victim and the defendant.
                   Mistake of fact as to the age of the victim is not a  
                 defense.
                   Consent by a minor to an act underlying a human  
                 trafficking charge is not a defense.  (Pen. Code §  
                 236.1, subd. (d)-(f) 

            Existing law provides for the following enhancements and  
            special fines in human trafficking cases:

                   The court may impose on the defendant an additional  
                 fine of up to $1,000,000.  (Pen. Code § 236.4, subd.  
                 (a).)
                   A defendant who inflicts great bodily injury on the  
                 victim of human trafficking shall be punished by a  
                 consecutive  prison term enhancement of 5, 7, or 10  
                 years.  (Pen. Code § 236.4, subd. (b).)
                   A defendant shall receive a consecutive prison  
                 enhancement term of 5 years for each prior human  
                 trafficking conviction.

            Existing law provides that all fines imposed in trafficking  
            offenses shall be deposited into the Victim Witness  
            Assistance Fund, to be paid or granted as follows:

                   70% to public agencies and non-profits to provide  
                 direct victim services.
                   30% to law enforcement and prosecutors in  
                 jurisdiction where charges filed for prevention, witness  
                 protection and rescue.  (Pen. Code § 236.4, subd. (d).)

            Existing law defines "unlawful deprivation of liberty" as  
            sustained and substantial restriction of another's liberty  
            accomplished through fraud, deceit, coercion, violence,  
            duress, menace or a credible threat of injury to the victim  
            or another person.  (Pen. Code § 186.22, subd. (d).)










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            Existing law provides that a victim of human trafficking may  
            bring a civil lawsuit for actual damages, compensatory  
            damages, punitive damages, injunctive relief, any combination  
            of those, or any other appropriate relief.  (Civ. Code §  
            52.5.)  

            Existing law 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 prison and a fine not exceeding  
            $2,000.  (Pen. Code, § 267.)

            Exiting law includes numerous enhancements or special penalty  
            provisions for crimes committed on or near schools or that  
            pose particular danger to children:

                   Selling or providing specified drugs to a minor on  
                 school grounds: enhancement of 5, 7, or 9 years.   
                 (Health & Saf. Code § 11353.5.)  
                    Manufacturing methamphetamine or PCP in a place where  
                 a person under the age of 16- resides: enhancement of 2  
                 years and 5 years where great bodily injury occurs.   
                 (Health & Saf. Code § 11379.7.)  
                    Using minor for drug transactions involving  
                 methamphetamine, PCP, LSD on grounds of a church,  
                 school, playground, et cetera, (Health & Saf. Code §  
                 11380.1.): enhancement of 1 year (church, playground, et  
                 cetera); 2 years (school); 1, 2 or 3 years (minor used  
                 was four years younger than the perpetrator). 

             Existing law includes the "Gun-Free School Zone Act," which  
            prohibits possession of a firearm on the grounds of a school  
            or within 1,000 feet of a school without the written  
            permission of the superintendent or his or her  
            representative.<3> Penalties are imposed pursuant to Section  
            1170, subdivision (h), such that eligible defendants receive  
            jail felony terms.

            -------------------------
            <3> Exceptions apply for otherwise lawful possession in a  
            private residence.











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                   Possession on school grounds is a felony, with a term  
                 of two, three or five years.
                   Possession within 1,000 feet of school grounds is a  
                 felony, with a term of two, three or five years where  
                 the defendants has a specified prior conviction, if the  
                 person is prohibited from possessing a firearm, per se,  
                 or the firearm is concealable on the person.
                   The crime is an alternate felony-misdemeanor, with a  
                 felony term of two, three or five years, in other cases.  
                  (Pen. Code § 626.9. subds. (a)-(f).)

            This bill:  

                   Adds human trafficking to the list of offenses that  
                 may be used to establish a pattern of criminal activity,  
                 and thus the existence of a gang.   

                   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.




                     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.   









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            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 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  









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                 proportionate, and cannot be achieved through any other  
                 reasonably appropriate remedy.


            











            COMMENTS

            1.Need for this Bill

            According to the author:

                 According to recent media stories in the San Diego  
                 Union-Tribune and Los Angeles Times regarding a  
                 cross-country sex-trafficking ring run out of San  
                 Diego County, 22 gang members and associates were  
                 charged in the case where about 100 victims were  
                 identified, many of whom were recruited from their  
                 school. The large scope of this problem and its  
                 prevalence has led local school districts to begin  
                 training their employees to spot signs and  
                 intervene. The Grossmont Union High School District  
                 has even developed a manual to aid with training on  
                 spotting Human Trafficking and working with law  
                 enforcement. The problem of Human Trafficking and  
                 the use of schools to recruit victims is growing  
                 across the country, and here in San Diego.
                 Current law 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 is  
                 subject to certain sentencing. The definition of a  
                 criminal street gang triggers enhanced penalties  
                 and bail, affects probation and parole conditions,  









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                 augments law enforcement tools, and affects the way  
                 the case is handled by all stakeholders in the  
                 system. Penal Code 186.22 defines a criminal gang  
                 and lists 33 offenses that are associated with gang  
                 activity. Currently that list does not include  
                 human trafficking.

            2.Existing Law; This Bill


            A "criminal street gang" is an organization of three or more  
            persons, with a common name or identifying symbols, whose  
            members engage in a "pattern of gang activity" as one of its  
            primary activities.  A pattern of gang activity means the  
            commission of two or more of a list of specified offenses  
            that are committed within at least a three-year period.  This  
            bill adds human trafficking to the 33 current crimes that can  
            be part of a pattern of gang activity.  The 33 crimes that  
            can be alleged as establishing a pattern of gang activity are  
            commonly describe by courts and practitioners as "predicate"  
            gang crimes, because they must be established before gang  
            penalties can be imposed.   


            Once the existence of the gang is shown, a defendant who  
            commits any crime at the direction of, in association with,  
            or for the benefit of the gang will receive substantially  
            enhanced penalties.  Depending on the crime of conviction,  
            the additional penalties for any gang-related felony range  
            from a two year enhancement to a term of at least 15-years to  
            life.  A non-gang member who commits a crime in association  
            with others who are gang members will receive a gang  
            punishment, as long as the crime promotes criminal conduct by  
            gang members.  


            This bill does not change gang penalties.  Rather, it expands  
            the definition of a gang and, with that expansion, furthers  
            the scope of sentencing available under the California Street  
                                                           Terrorism Enforcement and Prevention Act.  In addition to  
            sentencing, this bill would impact the admissibility of  
            evidence in these kinds of cases.  A prosecutor generally is  
            prohibited from introducing evidence of prior crimes  
            committed by the defendant or associates of the defendant  









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            that are not charged in the current offense.  This evidence  
            is inadmissible because jurors might focus on the prior crime  
            and not the evidence in the current case.  (People v.  
            Thompson (1980) 27 Cal.3d 393.)  However, where a defendant  
            is charged with committing a crime for the benefit of a gang,  
            the prosecutor must establish beyond a reasonable doubt that  
            members of the gang have engaged in predicate crimes as a  
            primary activity.  The prosecutor can present evidence that  
            the defendant or his gang associates committed any of the  
            crimes in the predicate crime list, regardless of the crime  
            charged in the current case.  If this bill is enacted, a  
            prosecutor alleging that a human trafficking offense is  
            gang-related can introduce detailed evidence relating to  
            prior crimes.  


            3.Expansion of Gang Statutes over Time - Predicate Offenses


            The California Street Terrorism Enforcement and Prevention  
            Act (STEP Act) was passed in 1988.  The legislative findings  
            as to the purpose of the STEP Act stated:  "[I]t is the right  
            of every person . . . to be secure and protected from fear,  
            intimidation, and physical harm caused by the activities of  
            violent groups and individuals."  (Pen. Code § 186.21,  
            italics added.)


            Amendments increasing the predicate crimes and penalties have  
            been steadily added to this law.  The original predicate  
            offenses included assault (Pen. Code § 245) robbery, unlawful  
            homicide or manslaughter, trafficking in controlled  
            substances, shooting at an inhabited vehicle (added in 1991),  
            arson and witness intimidation.  Over time, the offenses of  
            grand theft of a vehicle, grand theft exceeding $10,000,  
            burglary, rape, looting, money laundering, kidnapping,  
            mayhem, torture, felony extortion, felony vandalism and  
            carjacking, firearm trafficking and handgun possession,  
            criminal threats (Pen Code § 422) and theft or taking of a  
            vehicle have been added.  Proposition 21 (March 2000 primary  
            election) greatly increased the enhancement imposed where a  
            defendant committed a felony for the benefit of a gang.  SB  
            444 (Ackerman), Chapter 482, Statutes of 2005, added access  
            card theft and related crimes to the predicate gang crimes  









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            list.  (A pattern of committing access card crimes cannot  
            alone establish the existence of a gang.  The pattern must be  
            shown by access card crimes and commission of at least one  
            other predicate gang offense.)   


            4.Enhancement for Human Trafficking or Abducting a Minor for  
              Prostitution on the Grounds of, or within 1,000 feet of a  
              School

            This bill would direct the court to impose a sentence  
            enhancement of one year in prison if the defendant has been  
            convicted of human trafficking, or abduction of a minor for  
            purposes of prostitution, and the crime occurred on the  
            grounds of a school, or within 1,000 feet of a school.  Human  
            trafficking of a minor includes a relatively long list of  
            crimes involving commercial sex, including prostitution and  
            child pornography.  If the minor is brought into such  
            activities through "force, fear, fraud, deceit, coercion,  
            violence, duress, menace, or threat of unlawful injury to the  
            victim or to another person," the penalty is a term of  
            15-years-to-life in prison and a fine of up to $500,000.   
            With mandatory penalty assessments, a fine of $500,000 is  
            actually a fine of over $2,000,000.  It is hard to imagine  
            that a trafficker could lure a minor into commercial sex  
            trade without at least deceit or fraud.  That is, if the  
            trafficker misrepresented what the minor would be doing or  
            the conditions under which they would be done, that would  
            clearly appear to be fraud and deceit.  

            Under existing law, perpetrators face a life sentence or a  
            long determinate prison term and a very large fine for human  
            trafficking that involves bringing a minor into the  
            commercial sex trade.  It would appear that if very severe  
            felony penalties would not deter a potential human  
            trafficker, an additional year in prison would be of little  
            consequence.  Further, many, if not all, cases where a minor  
            under the age of 14 is abducted for purposes of prostitution  
            would constitute kidnapping for purposes of engaging in  
            sexual conduct. That form of kidnapping if punishable by a  
            prison term of 5, 8 or 11 years if the minor is under the age  
            of 14.  Kidnapping per se - taking a person by fore or fear -  
            is punishable by a prison term of 3, 5 of 8 years.  (Pen.  
            Code §§ 207-208.)  









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            The punishment for human trafficking of a minor, when the  
            crime does not involve some sort of deceit, coercion or  
            force, is still relatively severe - 5, 8 or 12 years and a  
            fine of up to $500,000 (again over $2,000,000 with mandatory  
            penalty assessments). If this bill is enacted, the prison  
            term could perhaps be 13 years instead of 12 in a determinate  
            sentence.  For a life term, the defendant would be eligible  
            for parole in 16 years, not 15.  Again, it is doubtful that a  
            possible additional year in prison would change a  
            perpetrator's decision to engage in human trafficking of a  
            minor in light of the severe existing penalties.

            California sentencing law is so complex that an enhancement  
            for committing human trafficking on or near a school may not  
            necessarily result in additional punishment.  In some cases,  
            imposition of the enhancement could result in a lower  
            penalty.  The imposition of the prison term for a crime and  
            enhancements attached to that term require the court to make  
            a series of inter-related decision.  The process becomes  
            particularly elaborate when the defendant was convicted of  
            multiple crimes and numerous enhancements apply.

            For this bill, the most important sentencing rule is the  
            prohibition on "dual use of facts" - the use of one fact to  
            impose more than one punishment.  A close reading of many  
            enhancements would reveal that they could also be used as  
            factors in aggravation of the base term - the stated penalty  
            "triad."  The sentencing triad for the less egregious form of  
            human trafficking of a minor is 5, 8 or 12 years.  The  
            sentencing triad for abducting a minor for prostitution is 16  
            months, 2 years or 3 years.  Penal Code Section 1170,  
            subdivision (b), provides, in relevant part:

                 When a judgment of imprisonment is to be imposed  
                 and the statute specifies three possible terms, the  
                 choice of the appropriate term shall rest within  
                 the sound discretion of the court. ?The court shall  
                 set forth on the record the reasons for imposing  
                 the term selected and the court may not impose an  
                 upper term by using the fact of any enhancement  
                 upon which sentence is imposed under any provision  
                 of law. A term of imprisonment shall not be  
                 specified if imposition of sentence is suspended.   









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                 (Italics and bold font added.)  

            Under current law, where a defendant has been convicted  
            of human trafficking of a minor without force, coercion  
            or deceit, the court would impose a term of 5, 8 or 12  
            years.  Penal Code Section 1170.1, subdivision (d)  
            provides as to the imposition of the appropriate term:

                 If an enhancement is punishable by one of three  
                 terms, the court shall impose the middle term  
                 unless there are circumstances in aggravation or  
                 mitigation, and state the reasons for its sentence  
                 choice, other than the middle term, on the record  
                 at the time of sentencing. 


            Thus, the court would sentence a person convicted non-forced,  
            non-coerced, non-fraudulent human trafficking to a term of 8  
            years unless there are factors in mitigation or aggravation.   
            If the offense occurred on or near a school, the prosecutor  
            would almost certainly argue that the school location or  
            proximity of the crime was a factor in aggravation.  If the  
            enhancement described in this bill applied and there were no  
            factors in mitigation and no other factors in aggravation,  
            the following would apply:

                   The court could rely on the school location or  
                 proximity of the crime as a factor in aggravation and  
                 impose the 12-year term.  The court could not impose  
                 punishment on the enhancement defined by this bill.

                   The court could impose the enhancement defined in  
                 this bill for human trafficking committed on or near a  
                 school and impose the middle term of 8 years and the  
                 1-year enhancement, for a term of 9-years.  The court  
                 could not impose the upper term based on the school  
                 location or proximity factor. 

            This analysis would also apply to a conviction for  
            abduction for purposes of prostitution.  The fact that  
            the crime occurred on or near a school could be used by  
            the trial court as either a factor in aggravation or to  
            impose the enhancement, but not both.  










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            Finally, it appears that most cases of abduction for  
            purposes of prostitution of a minor could be charged as  
            human trafficking in any event.  Human trafficking  
            includes the elements of inducing, causing or persuading  
            a person to engage in a commercial sex act.  However,  
            those elements are also generally the elements of  
            abduction for prostitution.  Abduction for prostitution  
            is defined in terms of taking a minor from her or his  
            parent of guardian, it is difficult to imagine many  
            cases where some coercion, force or deceit would not  
            have been used against the minor.

            5.  Research on Sentences as a Deterrent to Crime

            Criminal justice experts and commentators have noted that,  
            with regard to sentencing, "a key question for policy  
            development regards whether enhanced sanctions or an enhanced  
            possibility of being apprehended provide any additional  
            deterrent benefits.

                 Research to date generally indicates that increases  
                 in the certainty of punishment, as opposed to the  
                 severity of punishment, are more likely to produce  
                 deterrent benefits.<4>

            A comprehensive report published in 2014, entitled The  
            Growth of Incarceration in the United States, discusses  
            the effects on crime reduction through incapacitation  
            and deterrence, and describes general deterrence  
            compared to specific deterrence:

                 A large body of research has studied the effects of  
                 incarceration and other criminal penalties on  
                 crime.  Much of this research is guided by the  
                 hypothesis that incarceration reduces crime through  
                 incapacitation and deterrence. Incapacitation  
                 refers to the crimes averted by the physical  
                 isolation of convicted offenders during the period  
                 --------------------
            <4>   Valerie Wright, Ph.D., Deterrence in Criminal Justice  
            Evaluating Certainty vs. Severity of Punishment (November  
            2010), The Sentencing Project  
            (http://www.sentencingproject.org/doc/Deterrence%20Briefing  
            %20.pdf.)









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                 of their incarceration.  Theories of deterrence  
                 distinguish between general and specific behavioral  
                 responses. General deterrence refers to the crime  
                 prevention effects of the threat of punishment,  
                 while specific deterrence concerns the aftermath of  
                 the failure of general deterrence-that is, the  
                 effect on reoffending that might result from the  
                 experience of actually being punished.  Most of  
                 this research studies the relationship between  
                 criminal sanctions and crimes other than drug  
                 offenses.  A related literature focuses  
                 specifically on enforcement of drug laws and the  
                 relationship between those criminal sanctions and  
                 the outcomes of drug use and drug prices.<5>

            In regard to deterrence, the authors note that in "the  
            classical theory of deterrence, crime is averted when  
            the expected costs of punishment exceed the benefits of  
            offending. Much of the empirical research on the  
            deterrent power of criminal penalties has studied  
            sentence enhancements and other shifts in penal policy.  
            . . .

                 Deterrence theory is underpinned by a rationalistic  
                 view of crime.  In this view, an individual  
                 considering commission of a crime weighs the  
                 benefits of offending against the costs of  
                 punishment.  Much offending, however, departs from  
                 the strict decision calculus of the rationalistic  
                 model.  Robinson and Darley (2004) review the  
                 limits of deterrence through harsh punishment.   
                 They report that offenders must have some knowledge  
                 of criminal penalties to be deterred from  
                 committing a crime, but in practice often do  
                 --------------------
            <5>   The Growth of Incarceration in the United States  
            (2014), Jeremy Travis, Bruce Western and Steve Redburn,  
            Editors, Committee on Causes and Consequences of High Rates  
            of Incarceration, The National Research Council, p. 131  
            (citations omitted)  
            (http://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration. 
            pdf,)











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                 not."<6>

            Members may wish to discuss whether the "rationalistic  
            view" of crime described above likely would apply to  
            persons who abduct minors for purposes of prostitution  
            from schools, commit human trafficking of a minor or  
            engage in human trafficking as gang activity.  That is,  
            would sentencing enhancements and changes in the  
            definition of a gang proposed by this bill be known by  
            these offenders and, if so, whether the additional time  
            or expansion of the gang law would discourage commission  
            of the crime.

            The authors of the 2014 report discussed above conclude  
            that incapacitation of certain dangerous offenders can  
            have "large crime prevention benefits," but that  
            incremental, lengthy prison sentences are ineffective  
            for crime deterrence:

                 Whatever the estimated average effect of the  
                 incarceration rate on the crime rate, the available  
                 studies on imprisonment and crime have limited  
                 utility for policy. The incarceration rate is the  
                 outcome of policies affecting who goes to prison  
                 and for how long and of policies affecting parole  
                 revocation.  Not all policies can be expected to be  
                 equally effective in preventing crime.  Thus, it is  
                 inaccurate to speak of the crime prevention effect  
                 of incarceration in the singular. Policies that  
                 effectively target the incarceration of highly  
                 dangerous and frequent offenders can have large  
                 crime prevention benefits, whereas other policies  
                 will have a small prevention effect or, even worse,  
                 increase crime in the long run if they have the  
                 effect of increasing postrelease criminality.



                 --------------------
            <6>   Id. at 132-133.









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                 Evidence is limited on the crime prevention effects  
                 of most of the policies that contributed to the  
                 post-1973 increase in incarceration rates.  
                 Nevertheless, the evidence base demonstrates that  
                 lengthy prison sentences are ineffective as a crime  
                 control measure. Specifically, the incremental  
                 deterrent effect of increases in lengthy prison  
                 sentences is modest at best. Also, because  
                 recidivism rates decline markedly with age and  
                 prisoners necessarily age as they serve their  
                 prison sentence, lengthy prison sentences are an  
                 inefficient approach to preventing crime by  
                 incapacitation unless they are specifically  
                 targeted at very high-rate or extremely dangerous  
                 offenders.  For these reasons, statutes mandating  
                 lengthy prison sentences cannot be justified on the  
                 basis of their effectiveness in preventing  
                 crime.<7>

            Members may wish to discuss whether the sentence  
            enhancement proposed by this bill and the expansion of  
            the definition of a gang would provide any appreciable  
            crime deterrent benefits.

            BASED ON THE RESEARCH DESCRIBED ABOVE, WOULD THE  
            SENTENCING ENHANCEMENTS AND EXPANSION OF THE DEFINITION  
            OF A GANG PROPOSED BY THIS BILL IMPROVE PUBLIC SAFETY?  

            IN A COST-BENEFIT ANALYSIS, WOULD THE ADDED COSTS OF  
            INCARCERATION FROM THE EXPANSION OF THE SENTENCING FOR  
            COMMITTING CRIMES ON OR NEAR SCHOOL GROUNDS AND THE  
            EXPANSION OF THE DEFINITION OF A GANG BE OUTWEIGHED BY  
            ITS PUBLIC SAFETY BENEFIT, EITHER THROUGH INCAPACITATION  
            OR DETERRENCE?

            6.Prior Legislation


            Like this bill, last session AB 473 (Block) also proposed to  
            add human trafficking to the California Street Terrorism  
            Enforcement and Prevention Act.  That measure, which passed  
            this Committee (7-0), was vetoed.  Governor Brown stated:


            -------------------------


            <7>   Id. at 155-156 (emphasis added).







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                 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

                 Today I have signed AB 1610, AB 1791, SB 955 and SB  
                 1388, bills that will solidly enhance enforcement  
                 of human trafficking laws through use of wiretap,  
                 ensuring the availability of a victim's testimony  
                 at trial and strengthening penalties for certain  
                 human trafficking crimes involving minors.



                                       -- END -