BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    AB 1708


                                                                     Page A


          Date of Hearing:  April 19, 2016
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                      1708 (Gonzalez) - As Amended  April 13, 2016




          SUMMARY:  Imposes mandatory minimum 72 hours in jail for persons  
          convicted of purchasing commercial sex, imposes a one-year  
          sentence enhancement for specified human trafficking offenses,  
          and recasts the crime of prostitution as specified.   
          Specifically, this bill:  


          1)Defines and divides the crime of prostitution into three  
            separate forms:  

             a)   The defendant agreed to receive compensation, received  
               compensation, or solicited compensation in exchange for a  
               lewd act; 

             b)   The defendant provided compensation, agreed to provide  
               compensation, or solicited an adult to accept compensation  
               in exchange for a lewd act; and 

             c)   The defendant provided compensation, or agreed to  
               provide compensation, to a minor in exchange for a lewd  











                                                                    AB 1708


                                                                     Page B


               act, regardless of which party made the initial  
               solicitation.  

          2)Clarifies that a manifestation of acceptance of an offer or  
            solicitation to engage in an act of prostitution shall not  
            constitute a violation 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.


          3)Specifies that purchasers of commercial sex is punishable as  
            follows:  


             a)   A mandatory minimum 72 hours in county jail;  


             b)   Up to 6 months in the county jail; and  


             c)   A fine not exceeding $1,000, which 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.  


          4)Clarifies that solicitation of a minor can be solicitation of  
            a person posing as a minor if the person engaged in the  
            solicitation had the specific intent to solicit a minor.  


          5)Increases mandatory minimum jail time for solicitation of a  
            minor from two days to 72 hours.













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          6)Specifies that the fine for solicitation of a minor 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.  


          7)Removes judicial discretion on imposition of the 72 hour  
            mandatory minimum jail time imposed for solicitation of adults  
            and solicitation of minors.  


             a)   States that 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. 


             b)   Provides that 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.


             c)   States that the court shall not absolve a person from  
               the obligation of spending at least 72 hours in confinement  
               in a county jail.



          8)Provides that persons who are convicted of human trafficking  
            of a minor or abduction of a minor for purposes of  
            prostitution within 1,000 feet of a school shall be subject to  
            a one-year state prison enhancement.  


          EXISTING LAW:  













                                                                    AB 1708


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          1)Defines "unlawful sexual intercourse" as an act of sexual  
            intercourse accomplished with a person under the age of 18  
            years, when no other aggravating elements - such as force or  
            duress - are present.  (Pen. Code, § 261.5, subd. (a).)  

           2)Provides the following penalties for unlawful sexual  
            intercourse:  

              a)   Where the defendant is not more than three years older  
               or three years younger than the minor, the offense is a  
               misdemeanor;  

              b)   Where the defendant is more than three years older than  
               the minor, the offense is an alternate felony-misdemeanor,  
               punishable by a jail term of up to one year, a fine of up  
               to $1,000, or both, or by a prison term of 16 months, two  
               years or three years and a fine of up $10,000; or,
              
              c)   Where the defendant is at least 21 years of age and the  
               minor is under the age of 16, the offense is an alternate  
               felony-misdemeanor, punishable by a jail term of up to one  
               year, a fine of up to $1,000, or both, or by a prison term  
               of 16 months, two years or three years and a fine of up  
               $10,000.  (Pen. Code, § 261.5, subd (b)-(d).)  

           3)Provides that in the absence of aggravating elements each  
            crime of sodomy, oral copulation or penetration with a foreign  
            or unknown object with a minor is punishable as follows:  

              a)   Where the defendant is over 21 and the minor under 16  
               years of age, the offense is a felony, with a prison term  
               of 16 months, two years or three years.  

              b)   In other cases sodomy with a minor is a wobbler, with a  
               felony prison term of 16 months, two years or three years.   
               (Pen. Code, §§ 286, subd. (b), 288a, subd. (b), 289, subd.   
               (h).)  

           4)Provides that where each crime of sodomy, oral copulation or  











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                                                                     Page E


            penetration with a foreign or unknown object with a minor who  
            is under 14 and the perpetrator is more than 10 years older  
            than the minor, the offense is a felony, punishable by a  
            prison term of three, six or eight years.  (Pen. Code, §§ 286,  
            subd. (c)(1), 288a, subd. (c)(1), 289, subd. (j).)  

           5)Provides that any person who engages in lewd conduct - any  
            sexually motivated touching or a defined sex act - with a  
            child under the age of 14 is guilty of a felony, punishable by  
            a prison term of three, six or eight years.  Where the offense  
            involves force or coercion, the prison term is five, eight or  
            10 years.  (Pen. Code, § 288, subd. (b).)  

           6)Provides that where any person who engages in lewd conduct  
            with a child who is 14 or 15 years old, and the person is at  
            least 10 years older than the child, the person is guilty of  
            an alternate felony-misdemeanor, punishable by a jail term of  
            up to one year, a fine of up to $1,000, or both, or by a  
            prison term of 16 months, two years or three years and a fine  
            of up $10,000.  (Pen. Code, § 288, subd. (c)(1).)  

           7)Includes numerous crimes concerning sexual exploitation of  
            minors for commercial purposes.  These crimes include:  

              a)   Pimping:  Deriving income from the earnings of a  
               prostitute, deriving income from a place of prostitution,  
               or receiving compensation for soliciting a prostitute.   
               Where the victim is a minor under the age of 16, the crime  
               is punishable by a prison term of three, six or eight  
               years.  (Pen. Code, § 266h, subds. (a)-(b);
              
              b)   Pandering:  Procuring another for prostitution, inducing  
               another to become a prostitute, procuring another person to  
               be placed in a house of prostitution, persuading a person  
               to remain in a house of prostitution, procuring another for  
               prostitution by fraud, duress or abuse of authority, and  
               commercial exchange for procurement.  (Pen. Code, § 266i,  
               subd. (a).);  












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              c)   Procurement:  Transporting or providing a child under 16  
               to another person for purposes of any lewd or lascivious  
               act.  The crime is punishable by a prison term of three,  
               six, or eight years, and by a fine not to exceed $15,000.   
               (Pen. Code, § 266j.)  

              d)   Taking a minor from her or his parents or guardian for  
               purposes of prostitution.  This is a felony punishable by a  
               prison term of 16 months, two years, or three years and a  
               fine of up to $2,000.  (Pen. Code, § 267.); and,  

           8)Provides that where a person is convicted of pimping or  
            pandering involving a minor the court may order the defendant  
            to pay an additional fine of up to $5,000.  In setting the  
            fine, the court shall consider the seriousness and  
            circumstances of the offense, the illicit gain realized by the  
            defendant and the harm suffered by the victim.  The proceeds  
            of this fine shall be deposited in the Victim-Witness  
            Assistance Fund and made available to fund programs for  
            prevention of child sexual abuse and treatment of victims.   
            (Pen. Code, § 266k, subd. (a).)   

           9)Provides that where a defendant is convicted of taking a minor  
            under the age 16 from his or her parents to provide to others  
            for prostitution (Pen. Code, § 267) or transporting or  
            providing a child under the age of 16 for purposes of any lewd  
            or lascivious act (Pen. Code § 266j), the court may impose an  
            additional fine of up to $20,000.  (Pen. Code, § 266k, subd.  
            (b).)  

           10)Provides that where a defendant is convicted under the Penal  
            Code of taking a minor (under the age of 18) from his or her  
            parents for purposes of prostitution (Pen. Code, § 267), or  
            transporting or providing a child under the age of 16 for  
            purposes of any lewd or lascivious act (266j), the court, if  
            it decides to impose a specified additional fine, the fine  
            must be no less than $5,000, but no more than $20,000.  (Pen.  
            Code, § 266k, subd. (b).)  












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           11)Provides that any person who solicits, agrees to engage in,  
            or engages in an act of prostitution is guilty of a  
            misdemeanor.  The crime does not occur unless the person  
            specifically intends to engage in an act of prostitution and  
            some act is done in furtherance of agreed upon act.   
            Prostitution includes any lewd act between persons for money  
            or other consideration.  (Pen. Code, § 647, subd. (b).)  

           12)Provides that if the defendant agreed to engage in an act of  
            prostitution, the person soliciting the act of prostitution  
            need not specifically intend to engage in an act or  
            prostitution.  (Pen. Code, § 647, subd. (b).)  

           13)Provides that where any person is convicted of a second  
            prostitution offense, the person shall serve a sentence of at  
            least 45 days, no part of which can be suspended or reduced by  
            the court regardless of whether or not the court grants  
            probation.  (Pen. Code, § 647, subd. (k).)  

           14)Provides that where any person is convicted for a third  
            prostitution offense, the person shall serve a sentence of at  
            least 90 days, no part of which can be suspended or reduced by  
            the court regardless of whether or not the court grants  
            probation.  (Pen. Code, § 647, subd. (k).) 
           
           15)Requires the California Department of Justice (DOJ) to  
            collect data from law enforcement agencies about "the amount  
            and types of offenses known to the public authorities."  (Pen.  
            Code, §§ 13000 and 13002.)  DOJ must:

             a)   Prepare and distribute forms and electronic means for  
               reporting crime data.

             b)   Recommend the form and content of records to "ensure the  
               correct reporting of data?" and instruct agencies in the  
               collecting, keeping and reporting of crime data.

             c)   Process, interpret and analyze crime data.












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          16)Requires law enforcement agencies, as specified, district  
            attorneys, the Department of Correction and other entities to  
            do the following:  (Pen. Code, § 13020.)

             a)   Install and maintain records for reporting statistical  
               data.

             b)   Report data to DOJ "in the manner [DOJ] prescribes."  

          17)Provides that any person who deprives or violates the  
            personal liberty of any other with the intent to obtain forced  
            labor or services is guilty of human trafficking and shall be  
            punished in state prison for 5, 8, or 12 years and a fine of  
            not more than $500,000.  (Pen. Code, § 236.1, subd. (a).)

          18)States that any person who deprives or violates the personal  
            liberty of any other with the intent to effect or maintain a  
            violation of specified offenses related to sexual conduct,  
            obscene matter or extortion, is guilty of human trafficking  
            and shall be punished by imprisonment in the state prison for  
            8, 14 or 20 years and a fine of not more than $500,000.  (Pen.  
            Code, § 236.1, subd. (b).)

          19)Specifies the following penalties for any person who causes,  
            induces, or persuades, or attempts to cause, induce, persuade,  
            a person who is minor at the time of commission of the offense  
            to engage in a commercial sex act, as provided:

             a)   Five, 8, or 12 years and a fine of not more than  
               $500,000; or,

             b)   Fifteen years to life and a fine of not more than  
               $500,000 when the offense involves force, fear, fraud,  
               deceit, coercion, violence, duress, menace, or threat of  
               unlawful injury to the victim or to another person.  (Pen.  
               Code, § 236.1, subd. (c).)

          20)Provides that any person who takes away any other person  
            under the age of 18 years from the father, mother, or  











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            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.)

          FISCAL EFFECT:  


          COMMENTS: 


          1)Author's Statement:  According to the author, "Traditionally,  
            law enforcement has tackled prostitution by arresting the  
            women and girls on the street, while "pimps" and "johns" have  
            been the least likely offenders in the commercial sex trade to  
            face jail time. This neglects the fact that many of these  
            criminalized "prostitutes" are actually victims of sex  
            trafficking, punishing the victim with possible jail time and  
            making it more difficult to go back to school or find work,  
            while leaving their exploiters without any incentive to stop  
            their profitable trafficking.


            "In San Diego County, a recent joint study by researchers at  
            University of San Diego and Point Loma Nazarene University  
            found that 42% of first-time prostitution arrests are in fact  
            cases involving sex trafficking, and that the average age of  
            entry into child commercial sexual exploitation was 15 years  
            old. 


            "Recently, strides have been made to recognize these sex  
            trafficking victims as such, particularly in the case of  
            children. However, a strong demand for the industry still  
            exists, contributing to more and more vulnerable youth being  
            exploited. Evidence of this can be seen as recently as the  
            Super Bowl, in which hundreds were arrested for attempting to  













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            purchase sex<1>.


            "There is currently no comprehensive statewide solution to  
            combat commercial sexual exploitation of children and to  
            assist those children. We are having the necessary  
            conversations about the appropriate services these victims  
            need- from mental health services, to job training, to stable  
            housing. However, we also have to recognize that in order to  
            stop this exploitation from happening in the first place, we  
            need to combat the demand for commercial sex which  
            incentivizes trafficking to happen.


            "Commercial sex trafficking remains a lucrative business for  
            many, with a high demand leading to more and more youth being  
            exploited. Furthermore, traffickers continue to prey on  
            children at or near their schools to recruit them and traffic  
            them to purchasers, making these spaces that should be a safe  
            place for youth dangerous with few consequences to themselves.


            "AB 1708 would help tackle the problem of commercial sexual  
            exploitation by taking a hard stance against those  
            contributing to the demand for sex trafficking and those  
            making schools an unsafe place for children by trafficking at  
            or near them. We need to make sure that the negative  
            consequences fall on the true criminals, not the victims."


          2)This Bill Seeks to Focus Prosecution Efforts on The Demand  
            Side of Prostitution: This bill separates prostitution into  
            separately defined and charged offenses, different procedures,  
            penalties and other outcomes and goals can easily be amended  
            into the law.  Additionally, the bill imposes mandatory  
            minimum jail sentences on individuals who are convicted of  
            buying or attempting to buy commercial sex in the form of  


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


          <1>http://www.cookcountysheriff.org/press_page/press_SuperbowlSex 
          TraffickngSting_02_9_2016.html








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            prostitution.  


          3)Removal of Judicial Discretion in the Sentencing of  
            Prostitution Offenders by Mandating 72 Hours in County Jail  
            and a Mandatory Minimum Fine:  Specifically, this bill  
            mandates that upon a conviction of prostitution, "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?from  
            the obligation of spending at least 72 hours in confinement in  
            a county jail."  


            From a policy standpoint, there are no mandatory minimum jail  
            sentences for a variety of offenses that are far more serious  
            than misdemeanor prostitution.  For instance, there is no  
            mandatory jail sentence for first time domestic violence  
            offenses, or a wide range of violent felony offenses.  This  
            bill takes the discretion from a judge to craft an appropriate  
            remedy in a misdemeanor case.  Judges are in the best position  
            to make decisions based on the particular facts and  
            circumstances of a case.  Imposing mandatory jail time on a  
            person convicted of prostitution can result in the loss of  
            employment and create problems for the offender that may lead  
            to further criminal acts.  Courts have found success in  
            fashioning other remedies that have kept offenders employed,  
            outside of county jails at the public expense, and freed up  
            jail space for more dangerous offenders.  


             a)   San Francisco District Attorney's Office First Offender  
               Prostitution Program (FOPP):  FOPP is a court diversion  
               program aimed at reducing the volume and impact of sex  
               buying by targeting those who purchase sex.  The program  











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               was first started in San Francisco in 1995.  The program is  
               based on the belief that education as opposed to punishment  
               was an effective strategy to address the problems created  
               by the sex industry.  



             The program is focused on educating the purchasers of sex,  
               sometimes referred to as "john's."  Purchasers of sex that  
               are dealing with criminal charges for that behavior are  
               predominantly men.  The curriculum of the first offender is  
               designed to help men understand the negative effects of  
               being raised in a culture that promotes a system of male  
               superiority and entitlement toward women.  

             The program has incorporated evidence-based practices into  
               the FOPP programming.  It includes:  Social Learning  
               Theory, Cognitive Behavioral Interventions, Brief  
               Interventions, Harm Reduction, and Peer Reeducation.  As  
               part of the FOPP, the legal consequences for subsequent  
               arrests for solicitation of prostitution are emphasized.   
               Participants in the FOPP, are educated about the impacts of  
               prostitution on the participants in the sex industry, the  
               impact of sexual exploitation, the health risks of engaging  
               in prostitution, and the impact of prostitution on the  
               neighborhoods where it occurs.
             b)   Success of Education Programs for Buyers of Sex:  As of  
               2012, approximately 50 cities and counties in the U.S.  
               including Santa Clara, San Diego, Los Angeles, and Fresno  
               have similar programs. (An Overview of John Schools in the  
               United States, (2012), pp. 3-5.)



          A 2008 study commissioned by the Department of Justice and  
          conducted by Abt Associates found that the First Offender  
          Prostitution Program (FOPP) was successful in substantially  
          reducing recidivism among men arrested for soliciting  
          prostitutes. According to the report, data collected from 10  











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          years prior to implementation and 10 years after implementation  
          (1985 through 2005) showed a sharp drop in re-offense rates  
          (recidivism) in 1995, the first year of implementation. This low  
          level of recidivism was sustained throughout the 10 years  
          studied between 1995 and 2005. The study also found that data  
          from San Diego showed that recidivism rates were cut in half  
          after their education program was implemented.  In summary,  
          "FOPP significantly reduces recidivism" and is highly  
                                                     transferable, having been successfully replicated and adapted in  
          other cities in the U.S.  (Final Report on the Evaluation of the  
          First Offender Prostitution Program (2008), Abt Associate, pp.  
          v-vi and x.)


             c)   Courts General Power to Impose Conditions of Probation:   
               Courts have broad general discretion to fashion and impose  
               additional probation conditions that are particularized to  
               the defendant. (People v. Smith (2007) 152, Cal.App.4th  
               1245, 1249.) Courts may impose any "reasonable conditions"  
               necessary to secure justice, make amends to society and  
               individuals injured by the defendant's unlawful conduct,  
               and assist the "reformation and rehabilitation of the  
               probationer." (Pen. Code, § 1203.1.)  A valid condition  
               must be reasonably related to the offense and aimed at  
               deterring such misconduct in the future. (People v.  
               Carbajal (1995) 10 Cal.4th 1114, 1121.)


             d)   Mandatory Fine is Subject to Penalty Assessments:  The  
               amount spelled out in statute as a fine for violating a  
               criminal offense are base figures, as these amounts are  
               subject to statutorily-imposed penalty assessments, such as  
               fees and surcharges.  This bill seeks to impose a mandatory  
               minimum fine of $1,000 with no judicial discretion to  
               depart from this financial penalty, the following penalty  
               assessments would be imposed pursuant to the Government and  
               Penal codes:













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                ------------------------------------------------------- 
               |Base Fine:                                    |$1,000.0|
               |                                              |       0|
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |                                              |        |
               |----------------------------------------------+--------|
               |Penal Code § 1464 assessment ($10 for every   |$1,000.0|
               |$10):                                         |       0|
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |Penal Code § 1465.7 assessment (20%           | $200.00|
               |surcharge):                                   |        |
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |Penal Code § 1465.8 assessment ($40 per       |  $40.00|
               |criminal offense):                            |        |
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |Government Code § 70372 assessment ($5 for    | $500.00|
               |every $10):                                   |        |
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |Government Code § 70373 assessment ($30 for   |  $30.00|
               |felony or misdemeanor offense):               |        |
               |                                              |        |
               |                                              |        |











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               |----------------------------------------------+--------|
               |Government Code § 76000 assessment ($7 for    | $700.00|
               |every $10):                                   |        |
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |Government Code § 76000.5 assessment ($2 for  | $200.00|
               |every $10):                                   |        |
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |Government Code § 76104.6 assessment ($1 for  | $100.00|
               |every $10):                                   |        |
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |Government Code § 76104.7 assessment ($4 for  | $400.00|
               |every $10):                                   |        |
               |                                              |        |
               |                                              |        |
               |----------------------------------------------+--------|
               |                                              |        |
               |----------------------------------------------+--------|
               |Fine with Assessments:                        |        |
               |                                              |$4,170.00*|
               |                                              |        |
               |                                              |        |
                ------------------------------------------------------- 
            


               *In addition to the assessments detailed in the chart, the  
               defendant could be subject to pay "actual administrative  
               costs" related to his or her arrest and booking (Gov. Code,  
               § 29550 et seq.) and victim restitution for damages impose  
               by the court.


             e)   Abnormally High Criminal Penalties and Assessments in  











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               California:  In a January 2016 report, the LAO found that  
               California has abnormally high criminal penalties and  
               assessments.  <2>  According to the report, "[c]urrently,  
               comprehensive information is not available on the criminal  
               fine and fee levels of other states.  However, in order to  
               compare California's fine and fee levels to the rest  of  
               the nation, we surveyed other states.  Specifically, we  
               surveyed one large jurisdiction in each of 33 states  
               (including many states similar to California) for the fines  
               and fees associated with two offenses:  a stop sign  
               violation and speeding at 20 miles per hour over the limit.  
                We found that California's fines and fees associated with  
               these common traffic offenses are relatively high.  For  
               example, the total fines and fees for a stop sign violation  
               in California is $238, which was higher than 28 of the [33]  
               surveyed states (about 85 percent).  The total in other  
               surveyed states ranged from $58 to $277, and averaged $157.  
                The total fines and fees for speeding at 20 miles per hour  
               over the limit in California was $367, which was higher  
               than all of the states we surveyed.  The total in other  
               surveyed states ranges from $73 to $350, and averaged $203.  
                


               The LAO made a number of recommendations to improve the  
               state's fine and fee system. "First, we recommend that the  
               Legislature reevaluate the overall structure of the fine  
               and fee system to ensure the system is consistent with its  
               goals. As part of this process, the Legislature will want  
               to determine the specific goals of the system, whether  
               ability to pay should be incorporated into the system, what  
               should be the consequences for failing to pay, and whether  
               fines and fees should be regularly adjusted. Second, we  
               recommend increasing legislative control over the use of  
               criminal fine and fee revenue to ensure that its uses are  
               in line with legislative priorities by (1) requiring that  

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


          <2> Improving California's Criminal Fine and Fee System.   
           http://www.lao.ca.gov/Publications/Report/3322  









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               most criminal fine and fee revenue be deposited in the  
               state General Fund, (2) consolidating most fines and fees  
               into a single, statewide charge, (3) evaluating the  
               existing programs supported by fine and fee revenues, and  
               (4) mitigating the impacts of potential changes to the fine  
               and fee system on local governments."


          4)Sexual Acts with Minors Regardless of the Payment of  
            Compensation Constitutes a Sex Crime:  This bill would  
            separately define prostitution in which the person who  
            provides, agreed to provide, sexual services is a minor.   
            Sexual conduct with a minor constitutes a felony in most  
            instances, regardless of whether anything of value was offered  
            or exchanged for the sexual acts.  If the minor involved in  
            commercial sex of was under the age of 14, the defendant has  
            committed the felony of lewd conduct, with a prison term of  
            three, six or eight years, or five, eight or 10 years if  
            coercion is involved (Pen. Code § 288, subds. (a) & (b).)   
            Soliciting an act of prostitution from a minor under the age  
            of 14 could likely be prosecuted as attempted lewd conduct.   
            The prison or jail term for an attempt is generally one-half  
            the punishment for the completed crime.  Where the defendant  
            solicited or employed a minor who was 14 or 15 years old, and  
            the defendant was at least 10 years older than the minor, the  
            defendant has committed an alternate felony-misdemeanor.

            Any defined sex act - sodomy, sexual penetration, oral  
            copulation or sexual intercourse - with a minor is a crime.   
            The penalties depend on the relative ages of the defendant and  
            the minor and whether the crime involved some form of force,  
            coercion or improper advantage.  A defendant charged with a  
            prostitution-related offense involving a minor could also be  
            charged and convicted of a sex crime in the same case.   
            Generally, because the defined sex crime and the sexual  
            commerce offense would involve a single transaction or act,  
            the defendant could only be punished for one offense - the  
            offense carrying the greatest penalty.  (Pen. Code § 654.)  












                                                                    AB 1708


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          5)Accurate and Full Data Collection on Individually Defined  
            Forms of Prosecution:  One of the purposes of this bill is to  
            collect data to determine how many adults are arrested for and  
            convicted of paying for sexual acts, how many adults are  
            arrested for and convicted of selling sexual acts and how many  
            adults are arrested for and convicted of paying for sexual  
            services from minors.  The bill divides the prosecution  
            statute - Penal Code Section 647, subdivision (b) - into three  
            paragraphs reflecting each form of the crime.  In order for  
            the data to be valuable and accurate, reporting agencies will  
            need to specifically note the paragraph under which a  
            defendant was arrested and convicted.  Representatives from  
            DOJ explained: "The way [crime reports] appears in the system  
            is entirely dependent on the law enforcement agency or court  
            that enters the offense into the system.  One agency may enter  
            PC 647(b)(2) while another may only enter PC 647(b)."
            
            Prosecutors will likely record the specific paragraph under  
            which the defendant is convicted - PC 647 (b)(2) for example.   
            However, police officers and sheriff's deputies might not  
            specifically record the paragraph of arrest unless instructed  
            to do so.  Further, it may not be apparent to officers and  
            deputies what specific form of prostitution would be charged  
            by the prosecutor in any particular case.  That could cause  
            some confusion and inaccuracy in the data.

            Another impediment to full and accurate data collection is the  
            fact that sex with a minor is a crime.  If a minor and an  
            adult are involved in a prostitution incident, numerous  
            outcomes involving sex crimes and prostitution could occur.   
            For example, the police could arrest both parties for  
            prostitution, but the prosecutor could charge the adult with a  
            sex crime, or prostitution, or both.  The prosecutor could  
            charge the minor with no crime, or file a prostitution charge.  
             The adult could be initially charged with a sex crime but  
            plead guilty to a prostitution offense, perhaps if the minor  
            appeared to be an adult.  In sum, it may be difficult to  
            determine the extent of prostitution involving minors from  
            arrest and conviction data.  If committee members approve the  











                                                                    AB 1708


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            bill, they may wish to inquire as to whether DOJ should be  
            directed to instruct agencies on the reporting of prostitution  
            offenses.  Committee members may also wish to inquire whether  
            it could be assured that prostitution involving minors could  
            be accurately reported and tracked.  

          6)Prostitution and Human Trafficking, Though Related, are not  
            Always the Same Thing:  A growing number of policy discussions  
            are equating prostitution offenses with human trafficking  
            offenses.  There is no doubt that the crimes are related,  
            however, they are not the same crime.  A number of proposals  
            seek to treat all prostitution offenses more severely because  
            of the grave threat and nature of human trafficking.  Human  
            trafficking is a very serious crime, involving forced  
            servitude, with very serious penalties.  Most prostitution  
            offenses between a person who is soliciting a prostitute and  
            the prostitute themselves are misdemeanor crimes.   
            Additionally, pimps and panderers generally are treated more  
            severely by the law, with much more serious consequences than  
            the prostitute or the "john."  Unlike the crimes of pimping  
            and pandering, human trafficking is a crime that generally  
            involves some form of force or coercion.  Prostitution, by  
            definition, does not require any form of force or coercion.  



          California has existing strict laws for the treatment of pimps  
            and panderers, as well as human traffickers.  However, those  
            crimes are not the same and should not be treated the same.   
            Furthermore, not every person who solicits a prostitute is  
            engaged in the crime of human trafficking.  Categorizing all  
            "johns" as human traffickers, or all pimps and panderers as  
            human traffickers, is unproductive in setting criminal justice  
            policy.  Distinctions between these crimes must be maintained  
            so that proper resources can be allocated to combat and deal  
            with the crimes based on their relative severity.   Blurring  
            the lines between the less severe crimes related to  
            prostitution, and the more severe crimes related to human  
            trafficking, weakens the severity of human trafficking  











                                                                    AB 1708


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            offenses.  For instance, this committee has approved bills to  
            add human trafficking to the list of serious felonies.   
            However, if we continue to expand the definition of human  
            trafficking to include more minor prostitution-related  
            offenses the committee would have to re-evaluate in the future  
            whether it would still consider human trafficking a serious  
            felony.  
            According to the Polaris Project, "Human trafficking is a form  
            of modern-day slavery where people profit from the control and  
            exploitation of others.  As defined under U.S. federal law,  
            victims of human trafficking include children involved in the  
            sex trade, adults age 18 or over who are coerced or deceived  
            into commercial sex acts, and anyone forced into different  
            forms of 'labor or services,' such as domestic workers held in  
            a home, or farm-workers forced to labor against their will.   
            The factors that each of these situations have in common are  
            elements of force, fraud, or coercion that are used to control  
            people."   
            (<  http://www.polarisproject.org/human-trafficking/overview  >.)   




            Pimping under California law means receiving compensation from  
            the solicitation of a known prostitute.  (Pen. Code, § 266h.)   
            Whereas pandering means procuring another person for the  
            purpose of prostitution by intentionally encouraging or  
            persuading that person to become or continue being a  
            prostitute.  (Pen. Code, § 266i.)  Oftentimes, pimps use  
            mental, emotional, and physical abuse to keep their  
            prostitutes generating money.  Consequently, there has been a  
            paradigm shift where pimping and pandering is now viewed as  
            possible human trafficking.

            This new approach has been criticized by some because it blurs  
            the line between human trafficking and prostitution.  Sex  
            workers say it discounts their ability to willingly work in  
            the sex industry.  (See Nevada Movement Draws the Line on  
            Human Trafficking by Tom Ragan, Las Vegas Review Journal, May  











                                                                    AB 1708


                                                                     Page U


            26, 2013, <  
             http://www.reviewjournal.com/news/las-vegas/nevada-movement-dra 
            ws-line-human-trafficking  >.)  
             a)   Prostitution Generally:  The basic crime of prostitution  
               is a misdemeanor offense.  (Pen. Code § 647(b).)   
               Prostitution can be generally defined as "soliciting or  
               agreeing to engage in a lewd act between persons for money  
               or other consideration."  Lewd acts include touching the  
               genitals, buttocks, or female breast of either the  
               prostitute or customer with some part of the other person's  
               body for the purpose of sexual arousal or gratification of  
               either person.  

               To implicate a person for prostitution themselves, the  
               prosecutor must prove that the defendant "solicited" or  
               "agreed" to "engage" in prostitution.  A person agrees to  
               engage in prostitution when the person accepts an offer to  
               commit prostitution with specific intent to accept the  
               offer, whether or not the offerer has the same intent.


               For the crime of "soliciting a prostitute" the prosecutors  
               must prove that the defendant requested that another person  
               engage in an act of prostitution, and that the defendant  
               intended to engage in an act of prostitution with the other  
               person, and the other person received the communication  
               containing the request.  The defendant must do something  
               more than just agree to engage in prostitution.  The  
               defendant must do some act in furtherance of the agreement  
               to be convicted.  Words alone may be sufficient to prove  
               the act in furtherance of the agreement to commit  
               prostitution 


               Violation of  Pen.  Code § 647(b) is a misdemeanor.  For a  
               first offense conviction of prostitution the defendant  
               faces up to 180 days in jail.  If a defendant has one prior  
               conviction of prostitution he or she must receive a county  
               jail sentence of not less than 45 days.  If the defendant  











                                                                    AB 1708


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               has two or more prior convictions, the minimum sentence is  
               90 days in the county jail. 


               In addition to the punishment described above, if the  
               defendant has a conviction of prostitution, he or she faces  
               fines, probation, possible professional licensing  
               restrictions or revocations, possible immigration  
               consequences, possible asset forfeiture, and possible  
               driving license restrictions.  


               Closely associated crimes to prostitution include:   
               abduction of a minor for prostitution (Pen. Code 267);  
               seduction for prostitution (Pen. Code 266); keeping a house  
               of prostitution (Pen. Code 315); leasing a house for  
               prostitution (Pen. Code 318); sending a minor to a house of  
               prostitution (Pen. Code 273e); taking a person against that  
               person's will for prostitution (Pen. Code 266a); compelling  
               a person to live in an illicit relationship (Pen. Code  
               266b); placing or leaving one's wife in a house of  
               prostitution (Pen. Code 266g);  loitering for prostitution   
               (  Pen. Code 653.22 subd. (a)  );  pimping   ( Pen. Code 266h)  ;  
               or, pandering   ( Pen. Code 266i)  .  Most of these crimes are  
               punished much more severely than the underlying  
               prostitution offense, particularly the crimes of pimping,  
               pandering, and procurement.  


             b)   Human Trafficking Generally:  Human trafficking involves  
               the recruitment, transportation or sale of people for  
               forced labor.  Through violence, threats and coercion,  
               victims are forced to work in, among other things, the sex  
               trade, domestic labor, factories, hotels and agriculture.   
               According to the January 2005 United States Department of  
               State's Human Smuggling and Trafficking Center report,  
               "Fact Sheet:  Distinctions Between Human Smuggling and  
               Human Trafficking", there is an estimated 600,000 to  
               800,000 men, women and children trafficked across  











                                                                    AB 1708


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               international borders each year.  Of these, approximately  
               80% are women and girls and up to 50% are minors.  A recent  
               report by the Human Rights Center at the University of  
               California, Berkeley cited 57 cases of forced labor in  
               California between 1998 and 2003, with over 500 victims.   
               The report, "Freedom Denied", notes most of the victims in  
               California were from Thailand, Mexico, and Russia and had  
               been forced to work as prostitutes, domestic slaves, farm  
               laborers or sweatshop employees.  [University of  
               California, Berkeley Human Rights Center, "Freedom Denied:   
               Forced Labor in California" (February, 2005).]  According  
               to the author: 

             "While the clandestine nature of human trafficking makes it  
               enormously difficult to accurately track how many people  
               are affected, the United States government estimates that  
                                     about 17,000 to 20,000 women, men and children are  
               trafficked into the United States each year, meaning there  
               may be as many as 100,000 to 200,000 people in the United  
               States working as modern slaves in homes, sweatshops,  
               brothels, agricultural fields, construction projects and  
               restaurants."

               In 2012, Californians voted to pass Proposition 35, which  
               modified many provisions of California's already tough  
               human trafficking laws.  The proposition increased criminal  
               penalties for human trafficking, including prison sentences  
               up to 15-years-to-life and fines up to $1,500,000.   
               Additionally, the proposition specified that the fines  
               collected are to be used for victim services and law  
               enforcement.  Proposition 35 requires persons convicted of  
               trafficking to register as sex offenders.  Proposition 35  
               prohibits evidence that victim engaged in sexual conduct  
               from being used against victims in court proceedings.   
               Additionally, the proposition lowered the evidential  
               requirements for showing of force in cases of minors.  


               i)     Trafficking Victims Protection Act of 2000 (22 USC  











                                                                    AB 1708


                                                                     Page X


                 Sections 7101 et seq.):  In October 2000, the Trafficking  
                 Victims Protection Act of 2000 (TVPA) was enacted and is  
                 comprehensive, addressing the various ways of combating  
                 trafficking, including prevention, protection and  
                 prosecution.  The prevention measures include the  
                 authorization of educational and public awareness  
                 programs.  Protection and assistance for victims of  
                 trafficking include making housing, educational,  
                 health-care, job training and other federally funded  
                 social service programs available to assist victims in  
                 rebuilding their lives.  Finally, the TVPA provides law  
                 enforcement with tools to strengthen the prosecution and  
                 punishment of traffickers, making human trafficking a  
                 federal crime.

               ii)    Proposition 35 Update to Human Trafficking Laws:  In  
                 2012, Californians voted to pass Proposition 35, which  
                 modified many provisions of California's already tough  
                 human trafficking laws.  Specifically, Proposition 35  
                 increased criminal penalties for human trafficking  
                 offenses, including prison sentences up to  
                 15-years-to-life and fines up to $1.5 million.  The  
                 proposition specified that the fines collected are to be  
                 used for victim services and law enforcement.  In  
                 criminal trials, the proposition prohibits the use of  
                 evidence that a person was involved in criminal sexual  
                 conduct (such as prostitution) to prosecute that person  
                 for that crime if the conduct was a result of being a  
                 victim of human trafficking, and makes evidence of sexual  
                 conduct by a victim of human trafficking inadmissible for  
                 the purposes of attacking the victim's credibility or  
                 character in court.  The proposition lowered the  
                 evidentiary requirements for showing of force in cases of  
                 minors. 

               Proposition 35 also requires persons convicted of human  
                 trafficking to register as sex offenders and expanded  
                 registration requirements by requiring registered sex  
                 offenders to provide the names of their internet  











                                                                    AB 1708


                                                                     Page Y


                 providers and identifiers, such as e-mail addresses, user  
                 names, and screen names, to local police or sheriff's  
                 departments.  After passage of Proposition 35, plaintiffs  
                 American Civil Liberties Union and Electronic Frontier  
                 Foundation filed a law suit claiming that these  
                 provisions unconstitutionally restricts the First  
                 Amendment rights of registered sex offenders in the  
                 states.  A United States District Court judge granted a  
                 preliminary injunction prohibiting the implementation or  
                 enforcement of Proposition 35's provisions that require  
                 registered sex offenders to provide certain information  
                 concerning their Internet use to law enforcement.  [Doe  
                 v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013  
                 LEXIS 5428.]  
                
               iii)California Attorney General's Report on Human  
                 Trafficking:  The California Attorney General's Human  
                 Trafficking in California 2012 report stated that human  
                 trafficking investigations and prosecutions have become  
                 more comprehensive and organized.  There are nine human  
                 trafficking task forces in California, composed of local,  
                 state and federal law enforcement and prosecutors.

                 Data on human trafficking has improved, although the data  
                 still does not reflect the actual extent and range of  
                 human trafficking.  Data from 2010 through 2012 collected  
                 by the California task forces are set out in the  
                 following chart:


                    California Human Trafficking Task Forces Data  
          2010-2012


                  --------------------------------------------------------- 
                 |Investigations                  |2,552                   |
                 |                                |                        |
                 |                                |                        |
                 |--------------------------------+------------------------|











                                                                    AB 1708


                                                                     Page Z


                 |Victims Identified              |1,277                   |
                 |                                |                        |
                 |                                |                        |
                 |--------------------------------+------------------------|
                 |Arrests Made                    |1,798                   |
                 |                                |                        |
                 |                                |                        |
                  --------------------------------------------------------- 



                   Trafficking by Category


                 ---------------------------------------------------------- 
                |Sex Trafficking                 |56%                      |
                |                                |                         |
                |                                |                         |
                |--------------------------------+-------------------------|
                |Labor Trafficking               |23%                      |
                |                                |                         |
                |                                |                         |
                |--------------------------------+-------------------------|
                |Unclassified or Insufficient    |21%                      |
                |Information                     |                         |
                |                                |                         |
                |                                |                         |
                |                                |                         |
                |                                |                         |
                 ---------------------------------------------------------- 



          7)Current Penalties for Human Trafficking:  In 2012, California  
            voters enacted Proposition 35, which modified many provisions  
            of California's already tough human trafficking laws.   
            Specifically, Proposition 35 expanded the definition of human  
            trafficking and increased criminal penalties and fines for  
            human trafficking offenses.  The proposition specified that  











                                                                    AB 1708


                                                                     Page A


            the fines collected are to be used for victim services and law  
            enforcement.  In criminal trials, the proposition makes  
            evidence of sexual conduct by a victim of human trafficking  
            inadmissible for the purposes of attacking the victim's  
            credibility or character in court.  The proposition also  
            lowered the evidentiary requirements for showing of force in  
            cases of minors. (See Proposition 35 voter guide available at  
            Secretary of State's website,  
            <  http://www.voterguide.sos.ca.gov/past/2012/general/proposition 
            s/35/analysis.htm  > (as of Apr. 22, 2015.)


            The current penalties for human trafficking are very severe.   
            Human trafficking for the purpose of obtaining forced labor or  
            services is punishable by imprisonment in state prison for up  
            to 12 years. If the offense involves human trafficking for the  
            purpose of specified sexual conduct, obscene matter or  
            extortion, the punishment proscribed is up to 20 years  
            imprisonment in state prison.  If the offense involves causing  
            a minor to engage in a commercial sex act, the penalty imposed  
            may be 15-years to life. (Pen. Code, § 236.1.) The court may  
            also impose up to a $1.5 million fine on a person convicted of  
            human trafficking. (Pen. Code §§ 236.1 and 236.4.)


          8)State Prison Overcrowding Considerations: In January 2010, a  
            three-judge panel issued a ruling ordering the State of  
            California to reduce its prison population to 137.5% of design  
            capacity because overcrowding was the primary reason that CDCR  
            was unable to provide inmates with constitutionally adequate  
            healthcare.  (Coleman/Plata vs. Schwarzenegger (2010) No. Civ  
            S-90-0520 LKK JFM P/NO. C01-1351 THE.)  The United State  
            Supreme Court upheld the decision, declaring that "without a  
            reduction in overcrowding, there will be no efficacious remedy  
            for the unconstitutional care of the sick and mentally ill"  
            inmates in California's prisons.  (Brown v. Plata (2011) 131  
            S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)  













                                                                    AB 1708


                                                                     Page B


            After continued litigation, 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 its most recent status report to the court (February 2015),  
            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).

            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).)  



            Moreover, there are still approximately 10,500 prisoners being  
            housed in out of state and in private prisons.  (See latest  
            CDCR monthly population report, as of March 31, 2015:  
            <  http://www.cdcr.ca.gov/Reports_Research/Offender_Information_S 
            ervices_Branch/Monthly/TPOP1A/TPOP1Ad1503.pdf  >.) 

            This bill creates a new enhancement of one year when the  
            defendant is convicted of a human trafficking offense, where  
            the offense was committed against a minor, or convicted of  











                                                                    AB 1708


                                                                     Page C


            abducting a minor for the purpose of prostitution, where the  
            offense was committed on the grounds of, or within 1,000 feet  
            of a school.  Although the state is currently in compliance  
            with the court-ordered population cap, creating new  
            enhancements that increase the length of time that an inmate  
            must serve in prison will reverse the progress made in  
            reducing the state prison population. This is contrary to the  
            court's order for a durable solution to prison overcrowding.
          9)Argument in Support:  According to the Alameda County District  
            Attorney's Office, "In order to fully combat the problem of  
            commercial sex trafficking, it is important to combat the  
            demand for these services, and recognize that purchasers of  
            sex are driving this exploitative and dangerous industry of  
            slavery.  This bill would require a person who sought to  
            procure or did procure sexual services to spend at least 3  
            days in jail in addition to paying a minimum fine of $1,000 to  
            fund victim services.  This bill would also add an additional  
            one year in state prison to a felony conviction of trafficking  
            if the victim was a minor and the activities took place near a  
            school.  


            "As long as there is demand, there will be an exploiter to  
            fill it.  Unfortunately it is at the expense of the life,  
            well-being and psychological impact of the child.  Individuals  
            who purchase human beings for sex fuel the market the  
            traffickers supply with victims.  Until we eliminate the  
            demand, the sex exploitation of our society's most vulnerable  
            girls, women and men, and boys, will continue."  


          10)Argument in Opposition:  According to the American Civil  
            Liberties Union, "We believe that the new sentencing  
            enhancement proposed is unnecessary in light of existing  
            penalties, and that the mandatory 72 hours of confinement for  
            solicitation unnecessarily infringes on judicial discretion.  
            In addition, we believe it is inappropriate to expand the  
            punishment for the offense of soliciting a minor to include  
            soliciting someone 'posing as a minor.' 











                                                                    AB 1708


                                                                     Page D




             "AB 1708 makes six changes to California's criminal laws as  
           follows:

              1)    Divides the offense of prostitution into two separate  
                sections, one for the person receiving compensation and one  
                for the person offering compensation. 

              2)    Imposes a mandatory 72 hour period of confinement on any  
                individual convicted of offering to provide compensation for  
                an act of prostitution, removing the judge's discretion to  
                allow a person to serve this sentence through community  
                service, work furlough or another non-custodial form of  
                punishment. 

              3)    Expands the punishment for soliciting an act of  
                prostitution with a minor to include a person 'posing as a  
                minor.'

              4)    Adds a new sentencing enhancement for committing the  
                crime of human trafficking "against a minor" on the grounds  
                of or within 1,000 feet of a school. 

           "First, imposing a mandatory 72 hour period of incarceration for  
           the offense of solicitation unnecessarily reduces judicial  
           discretion in sentencing. Current law provides for a mandatory  
           two day jail sentence for soliciting an act of prostitution if  
           the person solicited was a minor. (Pen. Code sec. 647(m)(1).)  
           Current law also provides that the judge 'may, in unusual cases,  
           when the interests of justice are best served, reduce or  
           eliminate the mandatory two days of imprisonment.' (Pen. Code  
           sec. 647(m)(2).) 

           "AB 1708 would eliminate this narrow safety-valve of judicial  
           discretion, would increase the mandatory jail period from 48 to  
           72 hours, and would apply the mandatory jail period to all  
           solicitation offenses, including offenses where the person  
           solicited was an adult. We believe these increases in criminal  











                                                                    AB 1708


                                                                     Page E


           sanctions will not reduce the instances of human trafficking but  
           will exacerbate jail overcrowding and prevent judges from  
           imposing appropriate sentences based on the unique facts of the  
           case before them. Current law sufficiently punishes offenders  
           while also preserving judicial discretion in unusual cases, when  
           the interests of justice would best be served by not imposing the  
           jail sentence. This is a very restricted but wise safeguard that  
           allows judge to exercise their discretion when the specific  
           circumstances of the case call for another approach. Mandating  
           jail time, without any judicial discretion to pursue  
           alternatives, for low-level, nonviolent conduct that involves no  
           actual sexual activity is counter-productive to the goals of  
           rehabilitation and limits the ability to use scarce jail space  
           for serious offenders. 

           "Second, punishing a person for soliciting a minor for an act of  
           prostitution, when the person solicited was not actually a minor  
           but instead a person 'posing as a minor,' would significantly  
           expand the punishment provided under current law. Current law  
           doubles the maximum possible punishment for solicitation 'if the  
           defendant knew or should have known that the person who was  
           solicited was a minor at the time of the offense.' (Pen. Code  
           sec. 647(b)(m).) This double punishment takes into account the  
           harm caused to the minor who was solicited. 

           "AB 1708 would apply this longer maximum punishment '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.' This appears intended to facilitate undercover sting  
           operations in which law enforcement pose as minors, typically in  
           online forums. But in these circumstances, no minor has actually  
           been harmed. The additional punishment is thus unwarranted. 

           "Third and finally, we believe AB 1708's new proposed sentencing  
           enhancement for human trafficking committed "against a minor" on  
           the grounds of or within 1,000 feet of a school is unnecessary  
           and counter-productive. Research has shown that more severe  













                                                                    AB 1708


                                                                     Page F


           sentences do not actually enhance public safety.<3> Studies have  
           concluded that the severity of punishment does not generally have  
           an increased effect on deterrence.<4> Rather, researchers have  
           found that certainty of punishment - that someone will be  
           punished for a particular crime - has a greater deterrent effect  
           than the severity of the punishment itself.<5>  

           "California law already provides significant punishments for  
           human trafficking involving a minor. Under existing Penal Code  
           section 236.1, the lowest penalty possible for human trafficking  
           is five years in state prison. (Pen. Code sec. 2361.(a).) The  
           highest penalty is life imprisonment. (Pen. Code sec.  
           236.1(c)(2).) These punishments can be further enhanced by a  
           myriad of existing sentence enhancements. 

           "Governor Brown has criticized our state's criminal laws,  
           particularly the number of sentencing enhancements, observing,  
           '[t]here are now 400 separate enhancements that can add up to 25  
           years, each one of them, and now you have over 5,000 separate  
           criminal provisions.'<6> As the Governor stated in his veto  
           message of several bills last fall, '[t]his multiplication and  
           particularization of criminal behavior creates increasing  
           ----------------------------
          <3> Valerie Wright, Deterrence in Criminal Justice: Evaluating  
          Certainty vs. Severity of Punishment (Sentencing Project 2010)  
          available at  
          http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf 

          <4> Id. 
          <5> Id.
          <6> Scott Shafer, Prosecutors Cry Foul Over Jerry Brown's Ballot  
          Measure, KQED, Feb. 12, 2016, available at  
           http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jer 
          ry-browns-ballot-measure  
















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           complexity without commensurate benefit.'<7>

           "While protecting minors from victimization is an extremely  
           important objective, we believe that lengthening sentences for  
           the offenses referenced in this bill and decreasing judicial  
           discretion in sentencing will not accomplish that goal. For these  
           reasons, we must oppose AB 1708 unless amended. Please do not  
           hesitate to contact us should you have any questions." 


          1)Related Legislation:  


             a)   AB 1051 (Maienschein), of this legislative session,  
               changed the definition of "pattern of criminal gang  
               activity" to add the crime of human trafficking and creates  
               a new one-year state prison enhancement for specified  
               crimes committed against a minor on the grounds of, or  
               within 1,000 feet of a school.  AB 1051 was held in the  
               Senate Appropriations Committee. 


             b)   SB 420 (Huff), recasts the prostitution section using  
               the exact same language as this bill, dividing buyers,  
               sellers, and buyers of sexual services from minors.  SB 420  
               was held for interim study by this committee.  


          REGISTERED SUPPORT / OPPOSITION:




          Support
          ---------------------------


          <7>Patrick McGreevy, With Strong Message Against Creating New  
          Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015,  
          available at  
           http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-r 
          estricting-hobbyist-drones-at-fires-schools-prisons-20151003-stor 
          y.html  








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          Alameda County District Attorney's Office 


          California District Attorneys Association 


          County of San Diego 


          Peace Officers Research Association of California


          San Diego District Attorney's Office 


          State Coalition of Probation Organizations 




          Opposition


          American Civil Liberties Union  


          California Public Defenders Association 


          California State Sheriffs' Association 
            
          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744















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