BILL NUMBER: AB 1708 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 5, 2016
AMENDED IN ASSEMBLY APRIL 13, 2016
AMENDED IN ASSEMBLY MARCH 15, 2016
INTRODUCED BY Assembly Member Gonzalez
JANUARY 25, 2016
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. 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.
Existing law provides various penalties for human trafficking and
sex trafficking offenses.
This bill would require a person convicted of a human trafficking
offense or a specified sex trafficking offense, when any part of the
violation takes place upon the grounds of, or within 1,000 feet of, a
public or private elementary, 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, an
additional term of one year in state prison.
This bill would recast the provisions regarding prostitution to
distinguish between a person who commits prostitution with intent to
receive compensation, in exchange for providing compensation to a
person who is 18 years of age or older, or in exchange for providing
compensation to a minor. The bill would require a conviction either
upon proof of the intent to receive compensation, money, or anything
of value and with the specific intent to engage in an act of
prostitution, or upon the individual providing compensation, money,
or anything of value to the other person. The bill would require a
person who commits prostitution by providing money or other
consideration to serve at least 72 24
continuous hours in the county jail.
jail, to be served on days other than days of regular employment of
the person, as specified. 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 48
continuous hours in the county jail, to be served on days
other than days of regular employment of the person, as specified,
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. By revising the scope
of a crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 266m is added to the Penal Code, to read:
266m. A person who is convicted of a 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, an additional term
of one year in the state prison.
SEC. 2. Section 647 of the Penal Code is amended to read:
647. Except as provided in subdivision (l), a person who commits
any of the following acts is guilty of disorderly conduct, a
misdemeanor:
(a) An individual 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) An individual who solicits, or who agrees to engage in, or
who engages in, any act of prostitution with the intent to receive
compensation, money, or anything of value, and with the specific
intent to so engage.
(2) An individual who solicits, or who agrees to engage in, or who
engages in, any act of prostitution with another person who is 18
years of age or older in exchange for the individual providing
compensation, money, or anything of value to the other person. An
individual 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 by another person who is 18 years of age or
older to so engage, regardless of whether the offer or solicitation
was made by a person who also possessed the specific intent to engage
in an act of prostitution.
(3) An individual who solicits, or who agrees to engage in, or who
engages in, any act of prostitution with another person who is a
minor in exchange for the individual providing compensation, money,
or anything of value to the minor. An individual 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 by someone
who is a minor to so engage, regardless of whether the offer or
solicitation was made by a minor who also possessed the specific
intent to engage in an act of prostitution.
(4) A manifestation of acceptance of an offer or solicitation to
engage in an act of prostitution shall not constitute a violation of
this subdivision unless some act, in addition to the manifestation of
acceptance, is done within this state in furtherance of the
commission of the act of prostitution by the person manifesting an
acceptance of an offer or solicitation to engage in that act. As used
in this subdivision, "prostitution" includes any lewd act between
persons for money or other consideration.
(5) Except as provided in subdivisions (k) and (m), a violation of
paragraph (2) or (3) is punishable by imprisonment in a county jail
for not less than 72 hours and not more than six months and by a fine
of 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 (2) or (3), 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 24 continuous 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 three days. The court shall not absolve a
person who violates paragraph (2) or (3) from the obligation of
spending at least 72 hours in confinement in a county jail.
The court shall order that a person punished under this
subdivision, who is to be punished by imprisonment in the county
jail, be imprisoned on days other than days of regular employment of
the person, as determined by the court. If the court determines that
24 hours of continuous imprisonment would interfere with the person's
work schedule, the court shall allow the person to serve the
imprisonment whenever the person is normally scheduled for
time off from work. The court may make this determination based upon
a representation from the defendant's attorney or upon an affidavit
or testimony from the defendant.
(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 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 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. The court 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 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 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. 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) If a crime is committed in violation of paragraph (3) of
subdivision (b) 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 a crime is committed in violation of paragraph (2) of
subdivision (b) and 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 72 hours and not more
than one year and by a fine not less than one thousand dollars
($1,000) and not exceeding ten thousand dollars ($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 48 continuous 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. The court shall order that a person punished
under this subdivision, who is to be puni shed by
imprisonment in the county jail, be imprisoned on days other than
days of regular employment of the person, as determined by the court.
If the court determines that 48 hours of continuous imprisonment
would interfere with the person's work schedule, the court shall
allow the person to serve the imprisonment whenever the person is
normally scheduled for time off from work. The court may make this
determination based upon a representation from the defendant's
attorney or upon an affidavit or testimony from the defendant.
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.