BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
AB 1708 (Gonzalez) - Disorderly conduct: prostitution
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|Version: June 28, 2016 |Policy Vote: PUB. S. 7 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: August 1, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: AB 1708 would impose minimum fines and mandatory
minimum county jail terms for persons convicted of purchasing
commercial sex, and would recast the provisions of the crime of
prostitution, as specified.
Fiscal
Impact:
County jails : Ongoing increase in local incarceration costs,
potentially in the hundreds of thousands of dollars (Local
Funds/General Fund*) annually due to the imposition of
mandatory minimum jail terms. DOJ statistics indicate over
2,000 convictions annually under this specified provision of
law. Although the proportion of convictions that would be
subject to a mandatory minimum jail term is unknown, for every
25 percent of convictions subject to a 72-hour jail term could
cost over $180,000.
County fine revenues : Potential increase in overall fine
revenues (Local Funds) due to the mandatory minimum amounts
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specified, however, the requirement to utilize a portion of
fine revenues to fund services for victims of human
trafficking may reduce the net level of county funding
available for existing programs and services currently being
supported by these revenues.
State penalty assessment revenues : Potential minor increase
in state penalty and assessment revenues (General Fund) to the
extent imposing minimum fines results in increased state
penalty assessment and state surcharge revenues.
Proposition 30* : Under 2011 Realignment Legislation, the
state provided funding to the counties to place offenders in
county jail for specified felonies that previously would have
required a state prison sentence. Pursuant to Proposition 30
(2012), legislation enacted after September 30, 2012, that has
an overall effect of increasing the costs already borne by a
local agency for programs or levels of service mandated by the
2011 Realignment Legislation apply to local agencies only to
the extent that the state provides annual funding for the cost
increase. While Proposition 30 specifies that legislation
defining a new crime or changing the definition of an existing
crime is not subject to this provision, changing the penalty
for a crime is not specifically exempted and could potentially
require a subvention of funds from the state.
Background: Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty of a
misdemeanor, punishable by up to six months in county jail, a
fine of up to $1,000, or both. (Penal Code (PC) § 647(b).)
For second and third (or subsequent) prostitution offenses,
existing law provides for minimum county jail sentences of 45
days and 90 days, respectively, no part of which can be
suspended or reduced by the court regardless of whether or not
the court grants probation. (PC § 647(k).)
Under existing law, solicitation of a minor for an act of
prostitution is punishable by a mandatory minimum sentence of
two days and up to one year in county jail, a fine of up to
$10,000, or by both that fine and imprisonment. Under existing
law, a court may reduce or eliminate the mandatory minimum
two-day sentence when the interests of justice are best served.
(PC § 647(m).)
AB 1708 (Gonzalez) Page 2 of
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Existing law further provides that where a defendant is
convicted of a prostitution offense in which the defendant
sought to procure or procured the sexual services of a
prostitute who was a minor, the defendant shall be ordered to
pay, in addition to any other fine or penalty, up to $25,000.
The proceeds of such funds are to be available, upon legislative
appropriation, to fund programs and services for sexually
exploited minors in the counties where the underlying offenses
were committed. (PC § 261.9.)
Proposed Law:
This bill would impose minimum fines and mandatory minimum
county jail terms for persons convicted of purchasing commercial
sex, and would recast the provisions of the crime of
prostitution as specified. Specifically, this bill:
Defines and divides the crime of prostitution into three
separate forms:
o The defendant agreed to receive compensation,
received compensation, or solicited compensation in
exchange for a lewd act;
o The defendant provided compensation, agreed to
provide compensation, or solicited an adult to accept
compensation in exchange for a lewd act, regardless of
which party made the initial solicitation;
o The defendant provided compensation, agreed to
provide compensation, or solicited a minor to accept
compensation in exchange for a lewd act, regardless of
which party made the initial solicitation.
Clarifies that a manifestation of acceptance of an offer
or solicitation for prostitution is not a violation unless
some act, in addition to 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.
Specifies that purchase of commercial sex is punishable
as follows:
o A minimum of 72 hours and up to six months in
county jail; and
o A minimum fine of $250 but not exceeding
$1,000, $250 of which shall be deposited in the
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treasury of the county in which the offense occurred
and used by the county to fund services for victims of
human trafficking.
o Specifies 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 at least
24 continuous hours in a county jail.
o In cases in which probation is granted, the
court shall require as a condition of probation that
the person be confined in county jail for at least 24
hours that may be served on days other than days of
regular employment of the person, as determined by the
court, as specified.
Specifies that purchase of commercial sex, in the case
where the defendant knew or should have known that the
person was a minor, or the person who was solicited was
posing as a minor and the person engaged in the
solicitation had the specific intent to solicit a minor, is
punishable as follows:
o A minimum of 72 hours and up to one year in
county jail; and
o A minimum fine of $1,000 but not exceeding
$10,000. Specifies that 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.
o Specifies 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 at least
48 continuous hours in a county jail.
o In cases in which probation is granted, the
court shall require as a condition of probation that
the person be confined in county jail for at least 48
hours. Requires the court to order the person be
imprisoned on days other than regular days of regular
employment of the person, as determined by the court,
as specified.
Provides that these provisions do not prohibit
prosecution under any other law.
Related
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Legislation: SB 776 (Block) 2015 would have specified a minimum
fine upon offenders who engage in prostitution and directed that
money to be spent on services for commercially exploited persons
in the county in which the fines were collected. This bill was
held in the Assembly Committee on Public Safety for interim
study.
SB 420 (Huff) 2015 would divide the crime of prostitution into
three specific crimes based on whether the alleged offender is
agreeing to receive compensation for a lewd act, or whether the
alleged offender is agreeing to provide compensation for a lewd
act. This bill recently passed the Assembly on June 27, 2016,
and was enrolled on June 29, 2016.
Prior Legislation: SB 982 (Huff) 2014 would have provided that
soliciting an act of prostitution from a minor, or engaging in
an act of prostitution with a minor, as specified, is an
alternate felony-misdemeanor for a first conviction, and a
straight felony for a repeated conviction. This bill was held on
the Suspense File of this Committee.
SB 1388 (Lieu) Chapter 714/2014 increased the fines related to
the solicitation of an act of prostitution, as specified.
AB 12 (Swanson) Chapter 75/2011 established the "Abolition of
Child Commerce, Exploitation, and Sexual Slavery Act of 2011,"
or ACCESS Act of 2011. AB 12 requires the court to impose a
special fine of up to $25,000 in a case where a defendant is
convicted of prostitution involving a minor and provides that
the proceeds of such funds be available, upon legislative
appropriation, to fund programs and services for sexually
exploited minors in the county of conviction.
Staff
Comments: By imposing mandatory minimum jail terms and fines
against persons who solicit or agree to engage in any act of
prostitution, as specified, this bill could result in an
increase in incarceration costs to local jails and varying
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impacts on county general fund revenues available for specified
use.
Staff notes that because the crime of disorderly conduct (PC §
647(b)) under existing law is a misdemeanor, no costs were
provided to local agencies under 2011 Realignment Legislation
for this offense. Pursuant to Proposition 30 (2012), legislation
enacted after September 30, 2012, that has an overall effect of
increasing the costs already borne by a local agency for
programs or levels of service mandated by the 2011 Realignment
Legislation apply to local agencies only to the extent that the
state provides annual funding for the cost increase. Although
Proposition 30 specifies that legislation defining a new crime
or changing the definition of an existing crime is not subject
to this provision, changing the penalty for a crime is not
specifically exempted and could potentially require a subvention
of funds from the state.
DOJ statistics indicate on average over 2,000 convictions
annually for PC § 647(b) for the last two years. While it is
unknown what percentage of convictions would be subject to a
mandatory minimum jail term, for every 25 percent of convictions
that are subject to a mandatory minimum 72-hour jail term, costs
are estimated in excess of $180,000.
Recommended
Amendments:
(1) This bill appears to intend to provide defendants to
serve mandatory jail stays of 24-72 hours on days other
than regular employment, however, as drafted, it appears
the court could be required to provide this flexibility for
misdemeanor convictions requiring county jail sentences of
six months to one year. Staff recommends the following
technical amendments:
On page 5, in line 4, strike "subdivision" and insert
"paragraph".
(2) This bill specifies $250 of a fine ranging from $250 to
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$1,000 to be set aside to fund services for victims of
human trafficking. For consistency, for violations of
involving minors, staff recommends the following technical
amendments to the proposed fine structure ranging from
$1,000 to $10,000:
On page 5, in line 22, after the period strike "The fine
imposed" and insert, "An amount of $1,000 of the fine"
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