BILL NUMBER: AB 1708 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 15, 2016
INTRODUCED BY Assembly Member Gonzalez
JANUARY 25, 2016
An act to amend Section 784.7 of the Penal Code, relating
to crimes. An act to amend Section 647 of, and to add
Section 266m to, the Penal Code, relating to disorderly conduct.
LEGISLATIVE COUNSEL'S DIGEST
AB 1708, as amended, Gonzalez. Criminal actions: venue.
Disorderly conduct: prostitution.
Existing law provides that a person who solicits or agrees to
engage in or engages in any act of prostitution is guilty of
disorderly conduct, a misdemeanor, punishable by imprisonment in the
county jail for no more than 6 months or by a fine not exceeding
$1,000, or by both that fine and imprisonment. Existing law also
imposes increased minimum terms of imprisonment for a violation of
that provision if a person has previously been convicted of
soliciting or agreeing to engage in or engaging in any act of
prostitution. Existing law defines "prostitution" to include any lewd
act between persons for money or other consideration. Existing law
additionally makes prostitution involving soliciting a minor
punishable by imprisonment of not less than 2 days and not more than
one year and a fine not exceeding $10,000. Existing law allows a
court to, when the interests of justice are best served, reduce or
eliminate the mandatory 2 days in the county jail.
This bill would recast those provisions to distinguish between a
person who commits prostitution by providing money or other
consideration and a person who commits prostitution by receiving
money or other consideration. The bill would provide that
prostitution committed by receiving money or other consideration is
not a crime for a person under 18 years of age and that it is an
affirmative defense that a person engaged in the acts constituting
the offense did so due to being a victim of human trafficking. The
bill would require a person who commits prostitution by providing
money or other consideration to serve at least 72 hours in the county
jail. The bill would expand the scope of prostitution involving
soliciting a minor to include a situation where the person who was
solicited is posing as a minor and the person engaged in the
solicitation had specific intent to solicit a minor. The bill would
provide that the provisions involving soliciting a minor apply only
to persons who commit prostitution involving providing money or other
consideration. The bill would require a person who commits
prostitution involving soliciting a minor to serve a period of at
least 72 hours in the county jail, and would prohibit the court from
eliminating the mandatory minimum sentence. The bill would
additionally make a person who commits prostitution by providing
money or other consideration punishable by a minimum fine of $1,000.
This bill would require those fines to be used by the county where
the offense occurred for services for victims of human trafficking.
Existing law provides various penalties for human trafficking and
sex trafficking offenses.
This bill would require a person convicted of a human trafficking
offense, specified sex trafficking offenses, or certain felony human
trafficking offenses, where any part of the violation takes place
upon the grounds of, or within 1,000 feet of, a public or private
elementary school, vocational, junior high, or high school during the
hours that the school is open for classes or school-related
programs, or at any time when minors are using the facility, to
receive, in addition to any other penalty imposed, punishment of one
year in state prison.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law governs venue in criminal actions. If more than one
violation of any of specified criminal offenses occurs in more than
one jurisdictional territory, the jurisdiction of any one of those
offenses, and of any offenses properly joinable with that offense,
shall be in any jurisdiction where at least one of the offenses
occurred, as specified.
This bill would make technical, nonsubstantive changes to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 647 of the Penal
Code is amended to read:
647. Except as provided in subdivision (l), every
a person who commits any of the following acts
is guilty of disorderly conduct, a misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or
dissolute conduct in any public place or in any place open to the
public or exposed to public view.
(b) (1) Who solicits or who agrees to engage in or who engages in
any act of prostitution and provides money or other consideration.
(2) Who solicits or who agrees to engage in or who engages in any
act of prostitution and receives money or other consideration.
(b) Who solicits or who agrees to engage in or who engages in any
act of prostitution.
(3) A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
No An agreement to engage in an act of
prostitution shall constitute a violation of
does not violate this subdivision unless some act, in addition
to the agreement, is done within this state in furtherance of the
commission of an act of prostitution by the person agreeing to engage
in that act. As used in this subdivision, "prostitution" includes
any lewd act between persons for money or other consideration.
(4) Paragraph (2) of this subdivision does not apply to a person
under 18 years of age.
(5) It shall be an affirmative defense to a violation of paragraph
(2) that the acts constituting the violation were committed by a
person as a result of being a victim of human trafficking, as defined
by Section 236.1.
(6) Except as provided in subdivisions (k) and (m), a violation of
paragraph (1) is punishable by imprisonment in a county jail for not
less than 72 hours and not more than six months and by a fine not
exceeding one thousand dollars ($1,000). The fine imposed shall be
deposited in the treasury of the county in which the offense occurred
and used by the county to fund services for victims of human
trafficking. Upon a violation of paragraph (1), a person is not
eligible for release upon completion of sentence, on probation, on
parole, on work furlough or work release, or on any other basis until
he or she has served a period of not less than three days in a
county jail. In all cases in which probation is granted, the court
shall require as a condition of probation that the person be confined
in a county jail for at least three days. The court shall not
absolve a person who violates paragraph (1) from the obligation of
spending at least 72 hours in confinement in a county jail.
(c) Who accosts other persons in any public place or in any place
open to the public for the purpose of begging or soliciting alms.
(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.
(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.
(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.
(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour treatment
and evaluation of inebriates. A peace officer may place a person in
civil protective custody with that kind and degree of force which
would be lawful were he or she effecting an arrest for a misdemeanor
without a warrant. A person who has been placed in civil protective
custody shall not thereafter be subject to any criminal prosecution
or juvenile court proceeding based on the facts giving rise to this
placement. This subdivision shall not apply to the following persons:
(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.
(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor in
addition to subdivision (f).
(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.
(h) Who loiters, prowls, or wanders upon the private property of
another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, "loiter" means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.
(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of any
inhabited building or structure, without visible or lawful business
with the owner or occupant.
(j) (1) Any person who looks through a hole or opening, into, or
otherwise views, by means of any instrumentality, including, but not
limited to, a periscope, telescope, binoculars, camera, motion
picture camera, camcorder, or mobile phone, the interior of a
bedroom, bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the intent to
invade the privacy of a person or persons inside. This subdivision
shall not apply to those areas of a private business used to count
currency or other negotiable instruments.
(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person under or through the clothing being worn by that
other person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the consent or
knowledge of that other person, with the intent to arouse, appeal to,
or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in which
the other person has a reasonable expectation of privacy.
(3) (A) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or partial undress,
for the purpose of viewing the body of, or the undergarments worn
by, that other person, without the consent or knowledge of that other
person, in the interior of a bedroom, bathroom, changing room,
fitting room, dressing room, or tanning booth, or the interior of any
other area in which that other person has a reasonable expectation
of privacy, with the intent to invade the privacy of that other
person.
(B) Neither of the following is a defense to the crime specified
in this paragraph:
(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.
(ii) The victim was not in a state of full or partial undress.
(4) (A) Any person who intentionally distributes the image of the
intimate body part or parts of another identifiable person, or an
image of the person depicted engaged in an act of sexual intercourse,
sodomy, oral copulation, sexual penetration, or an image of
masturbation by the person depicted or in which the person depicted
participates, under circumstances in which the persons agree or
understand that the image shall remain private, the person
distributing the image knows or should know that distribution of the
image will cause serious emotional distress, and the person depicted
suffers that distress.
(B) A person intentionally distributes an image described in
subparagraph (A) when he or she personally distributes the image, or
arranges, specifically requests, or intentionally causes another
person to distribute that image.
(C) As used in this paragraph, "intimate body part" means any
portion of the genitals, the anus and in the case of a female, also
includes any portion of the breasts below the top of the areola, that
is either uncovered or clearly visible through clothing.
(D) It shall not be a violation of this paragraph to distribute an
image described in subparagraph (A) if any of the following applies:
(i) The distribution is made in the course of reporting an
unlawful activity.
(ii) The distribution is made in compliance with a subpoena or
other court order for use in a legal proceeding.
(iii) The distribution is made in the course of a lawful public
proceeding.
(5) This subdivision shall not preclude punishment under any
section of law providing for greater punishment.
(k) In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been once previously convicted of a
violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court,
upon a court trial, or is admitted by the defendant, the defendant
shall be imprisoned in a county jail for a period of not less than 45
days and shall is not be
eligible for release upon completion of sentence, on
probation, on parole, on work furlough or work release, or on any
other basis until he or she has served a period of not less than 45
days in a county jail. In all cases in which probation is granted,
the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event
does the The court have the power to
shall not absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.
In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been previously convicted two or more times
of a violation of that subdivision, each of these previous
convictions shall be charged in the accusatory pleading. If two or
more of these previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are
admitted by the defendant, the defendant shall be imprisoned in a
county jail for a period of not less than 90 days and shall
is not be eligible for
release upon completion of sentence, on probation, on parole, on work
furlough or work release, or on any other basis until he or she has
served a period of not less than 90 days in a county jail. In all
cases in which probation is granted, the court shall require as a
condition thereof that the person be confined in a county jail for at
least 90 days. In no event does the The
court shall not have the power to absolve
a person who violates this subdivision from the obligation of
spending at least 90 days in confinement in a county jail.
In addition to any punishment prescribed by this section, a court
may suspend, for not more than 30 days, the privilege of the person
to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle
Code for any violation of subdivision (b) that was committed within
1,000 feet of a private residence and with the use of a vehicle. In
lieu of the suspension, the court may order a person's privilege to
operate a motor vehicle restricted, for not more than six months, to
necessary travel to and from the person's place of employment or
education. If driving a motor vehicle is necessary to perform the
duties of the person's employment, the court may also allow the
person to drive in that person's scope of employment.
( l ) (1) A second or subsequent violation of
subdivision (j) is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not exceeding two thousand dollars
($2,000), or by both that fine and imprisonment.
(2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and imprisonment.
(m) (1) If a crime is
committed in violation of paragraph (1) of subdivision (b)
and the person who was solicited was a minor at the time of the
offense, and if the defendant knew or should have known that the
person who was solicited was a minor at the time of the offense,
or if the person who was solicited was a person posing as
a minor and the person engaged in the solicitation had specific
intent to solicit a minor, the violation is punishable by
imprisonment in a county jail for not less than two
days 72 hours and not more
than one year, or year and by a fine
not less than one thousand dollars ($1,000) and not
exceeding ten thousand dollars ($10,000),
or by both that fine and imprisonment.
($10,000). The fine imposed shall be deposited in the treasury
of the county in which the offense occurred and used by the county to
fund services for victims of human trafficking. Upon a violation of
this subdivision, a person is not eligible for release upon
completion of sentence, on probation, on parole, on work furlough or
work release, or on any other basis until he or she has served a
period of not less than 72 hours in a county jail. In all cases in
which probation is granted, the court shall require as a condition of
probation that the person be confined in a county jail for at least
72 hours. The court shall not absolve a person who is governed by
this subdivision from the obligation of spending at least 72 hours in
confinement in a county jail.
(2) The court may, in unusual cases, when the interests of justice
are best served, reduce or eliminate the mandatory two days of
imprisonment in a county jail required by this subdivision. If the
court reduces or eliminates the mandatory two days' imprisonment, the
court shall specify the reason on the record.
SEC. 2. Section 266m is added to the
Penal Code , to read:
266m. A person who is convicted of a felony violation of Section
236.1, for an offense committed against a minor, or Section 267, if
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.
SEC. 3. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 784.7 of the Penal Code is
amended to read:
784.7. (a) If more than one violation of Section 220, except
assault with intent to commit mayhem, 261, 262, 264.1, 269, 286, 288,
288a, 288.5, or 289 occurs in more than one jurisdictional
territory, the jurisdiction of any of those offenses, and for any
offenses properly joinable with that offense, shall be in any
jurisdiction where at least one of the offenses occurred, subject to
a hearing, pursuant to Section 954, within the jurisdiction of the
proposed trial. At the Section 954 hearing, the prosecution shall
present written evidence that all district attorneys in counties with
jurisdiction of the offenses agree to the venue. Charged offenses
from jurisdictions that do not have a written agreement from the
district attorney shall be returned to that jurisdiction.
(b) If more than one violation of Section 273a, 273.5, or 646.9
occurs in more than one jurisdictional territory, and the defendant
and the victim are the same for all of the offenses, the jurisdiction
of any one of those offenses, and of any offenses properly joinable
with that offense, shall be in any jurisdiction where at least one of
the offenses occurred.
(c) If more than one violation of Section 236.1, 266h, or 266i
occurs in more than one jurisdictional territory, the jurisdiction of
any one of those offenses, and of any offenses properly joinable
with that offense, shall be in any jurisdiction where at least one of
the offenses occurred, subject to a hearing pursuant to Section 954,
within the jurisdiction of the proposed trial. At the Section 954
hearing, the prosecution shall present written evidence that all
district attorneys in counties with jurisdiction of the offenses
agree to the venue. Charged offenses from jurisdictions that do not
have a written agreement from the district attorney shall be returned
to that jurisdiction. In determining whether all counts in the
complaint should be joined in one county for prosecution, the court
shall consider the location and complexity of the likely evidence,
where the majority of the offenses occurred, the rights of the
defendant and the people, and the convenience of, or hardship to, the
victim or victims and witnesses.