BILL ANALYSIS Ó AB 1708 Page A GOVERNOR'S VETO AB 1708 (Gonzalez) As Enrolled September 8, 2016 2/3 vote -------------------------------------------------------------------- |ASSEMBLY: |75-1 |(May 19, 2016) |SENATE: |39-0 |(August 23, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- -------------------------------------------------------------------- |ASSEMBLY: |80-0 |(August 30, | | | | | | |2016) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: PUB. S. SUMMARY: Imposes mandatory minimum 72 hours in custody for persons convicted of purchasing commercial sex with specified times servable as work furlough and recasts the crime of prostitution as specified. AB 1708 Page B The Senate amendments: 1)Clarify that the mandatory minimum sentences imposed by this bill shall apply to persons placed on probation. 2)Eliminate the one year sentence enhancement for specified human traffic offenses. 3)Conform intent language of provisions related to prostitution, as they have been recast by this bill, with existing law. 4)Eliminate the funding of human trafficking programs from the fines imposed by this bill. 5)Double join this bill with SB 1129 (Monning), Chapter 724, Statutes of 2016 and SB 1322 (Mitchell), Chapter 654, Statutes of 2016 to prevent chaptering issues. EXISTING LAW: 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. 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 AB 1708 Page C 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. 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. 4)Provides that where each crime of sodomy, oral copulation or 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. 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. AB 1708 Page D 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. AS PASSED BY THE ASSEMBLY, this bill: 1)Defined and divided 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 act, regardless of which party made the initial solicitation. 2)Clarified 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 AB 1708 Page E solicitation to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration. 3)Specified that purchasers of commercial sex is punishable as follows: a) A mandatory minimum 72 hours in custody (with specified times servable as work furlough); b) Up to six 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)Clarified 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)Increased mandatory minimum jail time for solicitation of a minor from two days to 72 hours. 6)Specified 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)Removed judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults AB 1708 Page F and solicitation of minors, as specified. 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 24 hours in a county jail for purchasing commercial sex, and 48 hours for solicitation of a minor. 8)Provided 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. FISCAL EFFECT: According to the Senate Appropriations Committee: 1)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. Department of Justice 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% of convictions subject to a 72-hour jail term could cost over $180,000. 2)County fine revenues: Potential increase in overall fine revenues (Local Funds) due to the mandatory minimum amounts 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. AB 1708 Page G 3)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. 4)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. COMMENTS: 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. AB 1708 Page H "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 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." --------------------------- <1>http://www.cookcountysheriff.org/press_page/press_SuperbowlSex TraffickngSting_02_9_2016.html AB 1708 Page I Please see the policy committee analysis for a full discussion of this bill. GOVERNOR'S VETO MESSAGE: I am returning Assembly Bill 1708 without my signature. This bill separates the crime of prostitution into three distinct offenses, increases monetary penalties and requires mandatory jail time for solicitation. I signed SB 420 (Huff), which creates the same distinctions between acts of prostitution as this bill seeks to do. However, this bill goes further by adding a minimum period of confinement in county jail for solicitation. I believe that existing law provides sufficient flexibility in punishing these crimes appropriately based on circumstance. Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0005139