Amended in Senate June 28, 2016

Amended in Senate June 15, 2016

Amended in Assembly May 5, 2016

Amended in Assembly April 13, 2016

Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 1708


Introduced by Assembly Member Gonzalez

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(Coauthor: Senator Anderson)

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January 25, 2016


An act to amend Section 647begin delete of, and to add Section 266m to,end deletebegin insert ofend insert 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.

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Existing law provides various penalties for human trafficking and sex trafficking offenses.

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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.

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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 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 24 hours. The bill would expand the scope of prostitutionbegin delete involvingend deletebegin insert byend insert 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 prostitutionbegin delete involvingend deletebegin insert byend insert providing money or other consideration. The bill would require a person who commits prostitutionbegin delete involvingend deletebegin insert byend insert soliciting a minor to serve a period of at least 72 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. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 48 hours. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. The bill would requirebegin delete those finesend deletebegin insert a portion of those fines, as specified,end insert to be used by the county where the offense occurred for services for victims of human trafficking. The bill would clarify that nothing inbegin delete this sectionend deletebegin insert these provisionsend insert shall preclude prosecution under anybegin insert otherend insert provision of law. 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.

The 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:

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SECTION 1.  

Section 266m is added to the Penal Code, to read:

2

266m.  

A person who is convicted of a violation of Section
3236.1 for an offense committed against a minor, or Section 267 if
4the violation takes place on the grounds of, or within 1,000 feet
5of, a public or private elementary, vocational, junior high, or high
6school during hours that the school is open for classes or
7school-related programs or at any time when minors are using the
8facility, shall receive, in addition to any other penalty imposed, an
9additional term of one year in the state prison.

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Section 647 of the Penal Code is amended to read:

12

647.  

Except as provided in subdivision (l), a person who
13commits any of the following acts is guilty of disorderly conduct,
14a misdemeanor:

15(a) An individual who solicits anyone to engage in or who
16engages in lewd or dissolute conduct in any public place or in any
17place open to the public or exposed to public view.

18(b) (1) An individual who solicits, or who agrees to engage in,
19or who engages in, any act of prostitution with the intent to receive
20compensation, money, or anything of value, and with the specific
21intent to so engage.

P4    1(2) An individual who solicits, or who agrees to engage in, or
2who engages in, any act of prostitution with another person who
3is 18 years of age or older in exchange for the individual providing
4compensation, money, or anything of value to the other person.
5An individual agrees to engage in an act of prostitution when, with
6specific intent to so engage, he or she manifests an acceptance of
7an offer or solicitation by another person who is 18 years of age
8or older to so engage, regardless of whether the offer or solicitation
9was made by a person who also possessed the specific intent to
10engage in an act of prostitution.

11(3) An individual who solicits, or who agrees to engage in, or
12who engages in, any act of prostitution with another person who
13is a minor in exchange for the individual providing compensation,
14money, or anything of value to the minor. An individual agrees to
15 engage in an act of prostitution when, with specific intent to so
16engage, he or she manifests an acceptance of an offer or solicitation
17by someone who is a minor to so engage, regardless of whether
18the offer or solicitation was made by a minor who also possessed
19the specific intent to engage in an act of prostitution.

20(4) A manifestation of acceptance of an offer or solicitation to
21engage in an act of prostitution shall not constitute a violation of
22this subdivision unless some act, in addition to the manifestation
23of acceptance, is done within this state in furtherance of the
24commission of the act of prostitution by the person manifesting
25an acceptance of an offer or solicitation to engage in that act. As
26used in this subdivision, “prostitution” includes any lewd act
27between persons for money or other consideration.

28(5) Except as provided inbegin delete subdivisions (k) and (m),end deletebegin insert paragraph
29(6) and subdivision (k),end insert
a violation of paragraph (2) or (3) is
30punishable by imprisonment in a county jail for not less than 72
31hours and not more than six months and by a fine ofbegin delete one thousand
32dollars ($1,000). The fine imposedend delete
begin insert not less than two hundred fifty
33dollars ($250) but not exceeding one thousand dollars ($1,000).
34An amount of two hundred fifty dollars ($250) of the fineend insert
shall be
35deposited in the treasury of the county in which the offense
36occurred and used by the county to fund services for victims of
37human trafficking. Upon a violation of paragraph (2) or (3), a
38person is not eligible for release upon completion of sentence, on
39probation, on parole, on work furlough or work release, or on any
40other basis until he or she has served a period of not less than 24
P5    1continuous hours in a county jail. In all cases in which probation
2is granted, the court shall require as a condition of probation that
3 the person be confined in a county jail for at least 24 hours. The
4court shall order that a person punished under this subdivision,
5who is to be punished by imprisonment in the county jail, be
6imprisoned on days other than days of regular employment of the
7person, as determined by the court. If the court determines that 24
8hours of continuous imprisonment would interfere with the person’s
9work schedule, the court shall allow the person to serve the
10imprisonment whenever the person is normally scheduled for time
11off from work. The court may make this determination based upon
12a representation from the defendant’s attorney or upon an affidavit
13or testimony from the defendant.

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(6) If a defendant violates paragraph (3) and knew or should
15have known that the person who was solicited was a minor at the
16time of the offense, or if a defendant violates paragraph (2) and
17the person who was solicited was a person posing as a minor and
18the defendant had specific intent to solicit a minor, the violation
19is punishable by imprisonment in a county jail for not less than
2072 hours and not more than one year and by a fine not less than
21one thousand dollars ($1,000) but not exceeding ten thousand
22dollars ($10,000). The fine imposed shall be deposited in the
23treasury of the county in which the offense occurred and used by
24the county to fund services for victims of human trafficking. Upon
25a violation of this paragraph, a person is not eligible for release
26upon completion of sentence, on probation, on parole, on work
27furlough or work release, or on any other basis until he or she has
28served a period of not less than 48 continuous hours in a county
29jail. In all cases in which probation is granted, the court shall
30require as a condition of probation that the person be confined in
31a county jail for at least 48 hours. The court shall order that a
32person punished under this paragraph, who is to be punished by
33imprisonment in the county jail, be imprisoned on days other than
34days of regular employment of the person, as determined by the
35court. If the court determines that 48 hours of continuous
36imprisonment would interfere with the person’s work schedule,
37the court shall allow the person to serve the imprisonment
38whenever the person is normally scheduled for time off from work.
39The court may make this determination based upon a
P6    1representation from the defendant’s attorney or upon an affidavit
2or testimony from the defendant.

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3
(7) This subdivision does not prohibit prosecution under any
4other law.

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5(c) Who accosts other persons in any public place or in any
6place open to the public for the purpose of begging or soliciting
7alms.

8(d) Who loiters in or about any toilet open to the public for the
9purpose of engaging in or soliciting any lewd or lascivious or any
10unlawful act.

11(e) Who lodges in any building, structure, vehicle, or place,
12whether public or private, without the permission of the owner or
13person entitled to the possession or in control of it.

14(f) Who is found in any public place under the influence of
15intoxicating liquor, any drug, controlled substance, toluene, or any
16combination of any intoxicating liquor, drug, controlled substance,
17or toluene, in a condition that he or she is unable to exercise care
18for his or her own safety or the safety of others, or by reason of
19his or her being under the influence of intoxicating liquor, any
20drug, controlled substance, toluene, or any combination of any
21intoxicating liquor, drug, or toluene, interferes with or obstructs
22or prevents the free use of any street, sidewalk, or other public
23way.

24(g) When a person has violated subdivision (f), a peace officer,
25if he or she is reasonably able to do so, shall place the person, or
26cause him or her to be placed, in civil protective custody. The
27person shall be taken to a facility, designated pursuant to Section
285170 of the Welfare and Institutions Code, for the 72-hour
29treatment and evaluation of inebriates. A peace officer may place
30a person in civil protective custody with that kind and degree of
31force which would be lawful were he or she effecting an arrest for
32a misdemeanor without a warrant. A person who has been placed
33in civil protective custody shall not thereafter be subject to any
34criminal prosecution or juvenile court proceeding based on the
35facts giving rise to this placement. This subdivision shall not apply
36to the following persons:

37(1) Any person who is under the influence of any drug, or under
38the combined influence of intoxicating liquor and any drug.

P7    1(2) Any person who a peace officer has probable cause to believe
2has committed any felony, or who has committed any misdemeanor
3in addition to subdivision (f).

4(3) Any person who a peace officer in good faith believes will
5attempt escape or will be unreasonably difficult for medical
6personnel to control.

7(h) Who loiters, prowls, or wanders upon the private property
8of another, at any time, without visible or lawful business with the
9owner or occupant. As used in this subdivision, “loiter” means to
10delay or linger without a lawful purpose for being on the property
11and for the purpose of committing a crime as opportunity may be
12discovered.

13(i) Who, while loitering, prowling, or wandering upon the private
14property of another, at any time, peeks in the door or window of
15any inhabited building or structure, without visible or lawful
16business with the owner or occupant.

17(j) (1) Any person who looks through a hole or opening, into,
18or otherwise views, by means of any instrumentality, including,
19but not limited to, a periscope, telescope, binoculars, camera,
20motion picture camera, camcorder, or mobile phone, the interior
21of a bedroom, bathroom, changing room, fitting room, dressing
22room, or tanning booth, or the interior of any other area in which
23the occupant has a reasonable expectation of privacy, with the
24intent to invade the privacy of a person or persons inside. This
25subdivision shall not apply to those areas of a private business
26used to count currency or other negotiable instruments.

27(2) Any person who uses a concealed camcorder, motion picture
28camera, or photographic camera of any type, to secretly videotape,
29film, photograph, or record by electronic means, another,
30identifiable person under or through the clothing being worn by
31that other person, for the purpose of viewing the body of, or the
32undergarments worn by, that other person, without the consent or
33knowledge of that other person, with the intent to arouse, appeal
34to, or gratify the lust, passions, or sexual desires of that person and
35invade the privacy of that other person, under circumstances in
36which the other person has a reasonable expectation of privacy.

37(3) (A) Any person who uses a concealed camcorder, motion
38picture camera, or photographic camera of any type, to secretly
39videotape, film, photograph, or record by electronic means, another,
40identifiable person who may be in a state of full or partial undress,
P8    1for the purpose of viewing the body of, or the undergarments worn
2by, that other person, without the consent or knowledge of that
3other person, in the interior of a bedroom, bathroom, changing
4room, fitting room, dressing room, or tanning booth, or the interior
5of any other area in which that other person has a reasonable
6expectation of privacy, with the intent to invade the privacy of that
7other person.

8(B) Neither of the following is a defense to the crime specified
9in this paragraph:

10(i) The defendant was a cohabitant, landlord, tenant, cotenant,
11employer, employee, or business partner or associate of the victim,
12or an agent of any of these.

13(ii) The victim was not in a state of full or partial undress.

14(4) (A) Any person who intentionally distributes the image of
15the intimate body part or parts of another identifiable person, or
16an image of the person depicted engaged in an act of sexual
17intercourse, sodomy, oral copulation, sexual penetration, or an
18image of masturbation by the person depicted or in which the
19person depicted participates, under circumstances in which the
20persons agree or understand that the image shall remain private,
21the person distributing the image knows or should know that
22distribution of the image will cause serious emotional distress, and
23the person depicted suffers that distress.

24(B) A person intentionally distributes an image described in
25subparagraph (A) when he or she personally distributes the image,
26or arranges, specifically requests, or intentionally causes another
27person to distribute that image.

28(C) As used in this paragraph, “intimate body part” means any
29portion of the genitals, the anus and in the case of a female, also
30includes any portion of the breasts below the top of the areola, that
31is either uncovered or clearly visible through clothing.

32(D) It shall not be a violation of this paragraph to distribute an
33image described in subparagraph (A) if any of the following
34applies:

35(i) The distribution is made in the course of reporting an
36unlawful activity.

37(ii) The distribution is made in compliance with a subpoena or
38other court order for use in a legal proceeding.

39(iii) The distribution is made in the course of a lawful public
40proceeding.

P9    1(5) This subdivision shall not preclude punishment under any
2section of law providing for greater punishment.

3(k) In any accusatory pleading charging a violation of
4subdivision (b), if the defendant has been once previously convicted
5of a violation of that subdivision, the previous conviction shall be
6charged in the accusatory pleading. If the previous conviction is
7found to be true by the jury, upon a jury trial, or by the court, upon
8a court trial, or is admitted by the defendant, the defendant shall
9be imprisoned in a county jail for a period of not less than 45 days
10and is not eligible for release upon completion of sentence, on
11probation, on parole, on work furlough or work release, or on any
12other basis until he or she has served a period of not less than 45
13days in a county jail. In all cases in which probation is granted,
14the court shall require as a condition thereof that the person be
15confined in a county jail for at least 45 days. The court shall not
16absolve a person who violates this subdivision from the obligation
17of spending at least 45 days in confinement in a county jail.

18In any accusatory pleading charging a violation of subdivision
19(b), if the defendant has been previously convicted two or more
20times of a violation of that subdivision, each of these previous
21convictions shall be charged in the accusatory pleading. If two or
22more of these previous convictions are found to be true by the jury,
23upon a jury trial, or by the court, upon a court trial, or are admitted
24by the defendant, the defendant shall be imprisoned in a county
25jail for a period of not less than 90 days and is not eligible for
26release upon completion of sentence, on probation, on parole, on
27work furlough or work release, or on any other basis until he or
28she has served a period of not less than 90 days in a county jail.
29In all cases in which probation is granted, the court shall require
30as a condition thereof that the person be confined in a county jail
31for at least 90 days. The court shall not have the power to absolve
32a person who violates this subdivision from the obligation of
33spending at least 90 days in confinement in a county jail.

34In addition to any punishment prescribed by this section, a court
35may suspend, for not more than 30 days, the privilege of the person
36to operate a motor vehicle pursuant to Section 13201.5 of the
37Vehicle Code for any violation of subdivision (b) that was
38committed within 1,000 feet of a private residence and with the
39use of a vehicle. In lieu of the suspension, the court may order a
40person’s privilege to operate a motor vehicle restricted, for not
P10   1more than six months, to necessary travel to and from the person’s
2place of employment or education. If driving a motor vehicle is
3necessary to perform the duties of the person’s employment, the
4court may also allow the person to drive in that person’s scope of
5employment.

6(l) (1) A second or subsequent violation of subdivision (j) is
7punishable by imprisonment in a county jail not exceeding one
8year, or by a fine not exceeding two thousand dollars ($2,000), or
9by both that fine and imprisonment.

10(2) If the victim of a violation of subdivision (j) was a minor at
11the time of the offense, the violation is punishable by imprisonment
12in a county jail not exceeding one year, or by a fine not exceeding
13two thousand dollars ($2,000), or by both that fine and
14imprisonment.

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15(m) If a crime is committed in violation of paragraph (3) of
16subdivision (b) and if the defendant knew or should have known
17that the person who was solicited was a minor at the time of the
18offense, or if a crime is committed in violation of paragraph (2)
19of subdivision (b) and the person who was solicited was a person
20posing as a minor and the person engaged in the solicitation had
21specific intent to solicit a minor, the violation is punishable by
22imprisonment in a county jail for not less than 72 hours and not
23more than one year and by a fine not less than one thousand dollars
24($1,000) and not exceeding ten thousand dollars ($10,000). The
25fine imposed shall be deposited in the treasury of the county in
26which the offense occurred and used by the county to fund services
27for victims of human trafficking. Upon a violation of this
28subdivision, a person is not eligible for release upon completion
29of sentence, on probation, on parole, on work furlough or work
30release, or on any other basis until he or she has served a period
31of not less than 48 continuous hours in a county jail. In all cases
32in which probation is granted, the court shall require as a condition
33of probation that the person be confined in a county jail for at least
3448 hours. The court shall order that a person punished under this
35subdivision, who is to be punished by imprisonment in the county
36jail, be imprisoned on days other than days of regular employment
37of the person, as determined by the court. If the court determines
38that 48 hours of continuous imprisonment would interfere with
39the person’s work schedule, the court shall allow the person to
40serve the imprisonment whenever the person is normally scheduled
P11   1for time off from work. The court may make this determination
2based upon a representation from the defendant’s attorney or upon
3an affidavit or testimony from the defendant.

4(n) Nothing in this section shall preclude prosecution under any
5other provision of law.

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begin insertSEC. 2.end insert  

No reimbursement is required by this act pursuant to
8Section 6 of Article XIII B of the California Constitution because
9the only costs that may be incurred by a local agency or school
10district will be incurred because this act creates a new crime or
11infraction, eliminates a crime or infraction, or changes the penalty
12for a crime or infraction, within the meaning of Section 17556 of
13the Government Code, or changes the definition of a crime within
14the meaning of Section 6 of Article XIII B of the California
15Constitution.



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