BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                    AB 1708


                                                                     Page A


          GOVERNOR'S VETO


          AB  
          1708 (Gonzalez)


          As Enrolled  September 8, 2016


          2/3 vote


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          |ASSEMBLY:  |75-1  |(May 19, 2016) |SENATE: |39-0  |(August 23,      |
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          |ASSEMBLY:  |80-0  |(August 30,    |        |      |                 |
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          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


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          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