BILL NUMBER: AB 1708 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 15, 2016
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
INTRODUCED BY Assembly Member Gonzalez
(Coauthor: Senator Anderson)
JANUARY 25, 2016
An act to amend Section 647 of 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.
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 prostitution by 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 by providing money or other consideration. The bill
would require a person who commits prostitution by 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 require a portion of those
fines, as specified, to be used by the county where the offense
occurred for services for victims of human trafficking. The bill
would clarify that nothing in these provisions shall preclude
prosecution under any other provision of law. By revising the scope
of a crime, the bill would impose a state-mandated local program.
This bill would recast these provisions to distinguish between the
different individuals who are guilty of disorderly conduct by
soliciting, agreeing to engage in, or engaging in, any act of
prostitution based on whether the person is soliciting or agreeing to
receive compensation, money, or anything of value for an act of
prostitution, as specified, or the person is soliciting or agreeing
to provide compensation, money, or anything of value for an act of
prostitution with a minor or with an adult, as specified. The bill
would provide that committing disorderly conduct by soliciting or
agreeing to provide compensation is punishable by a fine of not less
than $250 but not exceeding $1,000, and imprisonment in a county jail
for not less than 72 hours, or if probation is granted, not less
than 48 hours, as specified, and not exceeding 6 months. The bill
would provide that committing disorderly conduct by soliciting or
agreeing to provide compensation when the defendant knew or should
have known that the person solicited was a minor or the person was
posing as a minor, is punishable by a fine of not less than $1,000
but not exceeding $10,000, and imprisonment in a county jail for not
less than 72 hours, or if probation is granted, not less than 48
hours, as specified, and not exceeding one year. By imposing those
mandatory terms of incarceration, this 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:
SECTION 1. 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. value from 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
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.
(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 paragraph (6) and subdivision (k), 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 not less than two hundred fifty dollars ($250) but
not exceeding one thousand dollars ($1,000). An amount of
two hundred fifty dollars ($250) of the fine 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 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 24 hours. The court shall
order that a person punished under this subdivision,
paragraph, 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.
(6) If a defendant violates paragraph (3) and knew or should have
known that the person who was solicited was a minor at the time of
the offense, or if a defendant violates paragraph (2) and the person
who was solicited was a person posing as a minor and the defendant
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) but 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
paragraph, 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 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
48 hours. The court shall order that a person punished under this
paragraph, 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 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.
(7) This subdivision does not prohibit prosecution under any other
law.
(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.
SEC. 2. 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.