BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1761


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          Date of Hearing:  April 5, 2016
          Counsel:               Sandra Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                      Reginald Byron Jones-Sawyer, Sr.,  Chair





          AB  
                        1761 (Weber) - As Amended  March 28, 2016




          SUMMARY:  Creates a human trafficking affirmative defense  
          applicable to non-violent crimes, and immunity from prosecution  
          for crimes constituting or arising from a commercial sex  
          committed by minors.  Specifically, this bill:  

          1)States that it is defense to a charge of a non-violent crime  
            that the defendant or minor committed the crime as a direct  
            result of being a victim of human trafficking.

          2)Establishes the standard of proof for the human trafficking  
            affirmative defense as the preponderance of evidence standard.

          3)Provides that a minor charged with a crime which constitutes,  
            or arises from, a commercial sex act shall be conclusively  
            presumed to have committed the crime as a direct result of  
            being a victim of human trafficking.

          4)Requires the court to independently determine whether a minor  
            was charged with a crime which constitutes, or arises from, a  
            commercial sex act, and if so, to conclude that the defense  
            applies and to dismiss the case.  The court must make this  
            determination regardless of whether the minor asserts the  
            defense.








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          5)States that certifying records from federal, state, tribal, or  
            local court or government certifying agencies for documents  
            such as U or T visas, create a rebuttable presumption the  
            defendant committed an offense as a direct result of being a  
            human trafficking victim.

          6)Provides that the human trafficking affirmative defense can be  
            asserted at any time before entry of plea or before the end of  
            a trial.  The defense can also be determined at the  
            preliminary hearing.

          7)Entitles a person who successfully raises the human  
            trafficking affirmative defense to the following relief:

             a)   Sealing of all court records in the case;

             b)   Release from all penalties and disabilities resulting  
               from the charge, and all actions that led to the charge  
               shall be deemed not to have occurred; and

             c)   Permission to attest in all circumstances that he or she  
               has never been arrested for, or charged with the subject  
               crime, including in financial aid, housing, employment, and  
               loan applications.

          8)States that, in any juvenile delinquency proceeding, if the  
            court finds that the alleged offense was committed as a direct  
            result of being a victim of human trafficking then it shall  
            dismiss the case and automatically seal the case records.

          9)Defines human trafficking victim as specified.  

          10)Defines "nonviolent crime" as "any crime or offense other  
            than murder, attempted murder, voluntary manslaughter, mayhem,  
            kidnapping, rape, robbery, arson, carjacking, or any other  
            violent felony as defined in Penal Code section 667.5,  
            subdivision (c)."

          11)Provides that in a criminal action expert testimony is  
            admissible by either the prosecution or defense regarding the  
            effects of human trafficking on its victims, including, but  








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            not limited to the nature and effect of physical, emotional,  
            or mental abuse on the beliefs, perceptions, or behavior of  
            human trafficking victims.

          12)States that the requisite foundation for the introduction of  
            this expert testimony will be established if the proponent of  
            the evidence shows its relevance and the proper qualifications  
            of the expert witness.

          13)Prohibits expert testimony on the effects of human  
            trafficking from being considered a new scientific technique  
            whose reliability is unproven.

          14)Provides that state summary criminal information compiled and  
            disseminated by the Attorney General shall exclude any human  
            trafficking charge or conviction for which relief has been  
            granted based on the affirmative defense of human trafficking.

          EXISTING LAW:

          1)Guarantees a defendant a meaningful opportunity to present a  
            defense.  (U.S. Const., VI Amend., Cal. Const. art. I, §. 15.)  
             

          2)Provides that all persons are capable of committing crimes  
            except those belonging to specified classes, including person  
            who committed the act or made the omission charged under  
            threats or menaces sufficient to show that they had reasonable  
            cause to and did believe their lives would be endangered if  
            they refused.  (Pen. Code, § 26.)  

          3)States that all relevant evidence is admissible unless it is  
            made inadmissible by some statutory or constitutional  
            provision.  (Cal. Const., art. I, § 28(f)(2), Evid. Code, §  
            351.)

          4)Provides that the court in its discretion may exclude evidence  
            if its probative value is substantially outweighed by the  
            probability that its admission will necessitate undue  
            consumption of time or create substantial danger of undue  
            prejudice, of confusing the issues, or of misleading the jury.  
             (Evid. Code, § 352.)








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          5)States that a person is qualified to testify as an expert if  
            he or she has special knowledge, skill, experience, training,  
            or education sufficient for the court to deem the person  
            qualified on a subject about which he or she is asked to  
            express an opinion.  (Evid. Code, § 720.)

          6)Limits expert testimony to a subject that is sufficiently  
            beyond common experience that the opinion of that expert would  
            assist the trier of fact to understand the evidence or  
            determine a fact in issue.  (Evid. Code, § 801, subd. (a).)

          7)Authorizes expert testimony in criminal cases by either the  
            prosecution or defense regarding intimate partner battering  
            and its effects, including the nature and effect of physical,  
            emotional, or mental abuse on the beliefs, perceptions, or  
            behavior of victims of domestic violence, except when offered  
            against a defendant to prove the occurrence of the act or acts  
            of abuse which form the basis of a criminal charge.  (Evid.  
            Code, § 1107, subd. (a).)

          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "Too often our  
            survivors of human trafficking are forced to commit crimes  
            under threat (directly and indirectly) from their traffickers.  
             The trauma of being a victim of human trafficking is untold.   
            In addition to sexual, emotional, and physical abuse, human  
            trafficking victims are arrested and convicted for crimes they  
            were forced to take part in by their traffickers.  For too  
            long, we have compounded this trauma by arresting and charging  
            victims of human trafficking for crimes they committed  
            directly related to their time spent as a trafficking victim.   
            These victims are charged with crimes, while their traffickers  
            are shielded.  This bill seeks to remedy this situation and  
            create avenues for victims to be identified and the  
            traffickers prosecuted."

          2)Affirmative Defense:  A victim of trafficking who is charged  
            with a crime may be able to raise the defense of duress.   








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            Duress is said to excuse criminal conduct where the actor was  
            under an unlawful threat of imminent death or serious bodily  
            injury, which threat caused the actor to engage in conduct  
            violating the literal terms of the criminal law.  'if there  
            was a reasonable, legal alternative to violating the law, 'a  
            chance both to refuse to do the criminal act and also to avoid  
            the threatened harm,' the defenses will fail.'  (People v.  
            Heath (1989) 207 Cal.App.3d 892, 899-900, citations omitted.)   
            "Persons (unless the crime is punishable with death) who  
            commits the act or made the omission charged under threats or  
            menace suffices to show that they had reasonable cause to and  
            did believe their lives would be endangered if they refused"  
            are not guilty of the crime.  (Pen. Code, § 26.)  A court has  
            a duty to give a duress instruction on its own motion if it is  
            supported by substantial evidence and is not inconsistent with  
            the defense theory.  (People v. Wilson (2005) 36 Cal.4th 309,  
            331.)

          The defendant acted under duress if, because of threat or  
            menace, he or she believed that his or her or someone else's  
            life would be in immediate danger if he or she refused a  
            demand or request to commit the crime. The demand or request  
            may have been expressed or implied.  The defendant's belief  
            must have been reasonable. When deciding whether the  
            defendant's belief was reasonable, consider all the  
            circumstances as they were known to and appeared to the  
            defendant and consider what a reasonable person in the same  
            position as the defendant would have believed. CALCRIM 3402.

            Duress applies if the defendant has been threatened with  
            imminent great bodily harm.  (See People v. Otis (1959) 174  
            Cal.App.2d 119, 124; United States v. Bailey (1980) 444 U.S.  
            394, 409.)  Also, although this is not reflected in the  
            instruction, duress probably applies if the instigator  
            threatens harm to another person.  (See Heath, supra, at p.  
            898, discussing People v. Pena (1983) 149 Cal.App.3d Supp. 14,  
            21-25 [a necessity defense due to threats to a third party].)

            The sponsors of this bill believe the duress defense is  
            inadequate for trafficking victims because a victim may not be  
            able to show his or her life was in immediate danger.  So,  
            this bill creates a separate human trafficking affirmative  








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            defense.  Additionally, this bill creates a conclusive  
            presumption that if a minor is charged with a commercial sex  
            act or a crime arising from a commercial sex act, that the  
            offense was committed because the minor was a victim of human  
            trafficking. 

            As drafted, this affirmative defense appears to allow a person  
            to commit a non-violent crime for personal gain and escape  
            liability by reason of being a victim of human trafficking  
            even if there was no coercion by the trafficker to commit the  
            crime.  Moreover, the immunity for minors may result in  
            unintended consequences of having traffickers get minors to  
            commit additional crimes on their behalf because of that  
            immunity. 

          3)Expert Testimony:  Evidence Code section 1107 generally makes  
            admissible in a criminal action expert testimony regarding  
            "intimate partner battering and its effects, including the  
            physical, emotional, or mental effects upon the beliefs,  
            perceptions, or behavior of victims of domestic violence . . .  
            ."  As explained by the California Supreme Court:
              
               Battered women's syndrome "has been defined as 'a series  
               of common characteristics that appear in women who are  
               abused physically and psychologically over an extended    
               period of time by the dominant male figure in their   
               lives.'  (State v. Kelly (1984) 97 N.J. 178, 193 [478  
               A.2d 364, 371]; see also People v. Aris (1989) 215  
               Cal.App.3d 1178, 1194 [264 Cal. Rptr. 167] [' "a pattern  
               of psychological symptoms that develop after somebody has  
                lived in a battering relationship" ']; Note, Battered   
               Women Who Kill Their Abusers (1993) 106  Harv.L.Rev.   
               1574, 1578 ['a "pattern of responses and perceptions     
               presumed to be characteristic of women who have been  
               subjected to continuous physical abuse by their mate[s] "  
               ' ].)" (People v. Romero (1994) 8 Cal.4th 728, 735, fn.  
               1; see also People v. Humphrey (1996) 13 Cal.4th 1073,  
               1083-84.)

            This bill applies the same principles to expert testimony  
            regarding the effects of human trafficking to its victims. 









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            A person is qualified to testify as an expert if he or she has  
            special knowledge, skill, experience, training, or education  
            sufficient to qualify him or her as an expert on the subject  
            to which his or her testimony relates. Against the objection  
            of a party, such special knowledge, skill, experience,  
            training, or education must be shown before the witness may  
            testify as an expert.  

            This bill, however, presumes the reliability of the expert  
            testimony because it prohibits the testimony from being  
            considered a new scientific technique whose reliability is  
            unproven.

          4)Argument in Support:  According to the Coalition to Abolish  
            Slavery and Trafficking (CAST), the sponsor of this bill,  
            "1761 creates important protections for trafficking survivors  
            to deal with the unique nature of the trafficking crime.  In  
            CAST's experience as a service provider working with hundreds  
            of trafficking survivors in California, an affirmative defense  
            will create an additional pathway for trafficking victims to  
            be identified as the victims they are so that the real  
            perpetrators can be prosecuted.  It also ensures that the  
            complexities of trafficking crimes can be appropriately  
            described to judges and juries.?

          "Usually a leader in creative approaches to protect trafficking  
            victims, California is far behind other states in offering an  
            affirmative defense for trafficking victims.  So, far 34  
            states have passed this legislation to better protect  
            trafficking victims.  It is costly not just to the victims,  
            but also to the state of California to convict trafficking  
            victims for crimes their traffickers force them to commit.   
            These funds could be better spent prosecuting traffickers.

          "AB 1761 creates an affirmative defense against a charge of a  
            non-violent crime that was committed as a direct result of  
            being a human trafficking victim.  ? As a special protection  
            for minor sex trafficking victims, AB 1761 requires the court  
            to dismiss any charges arising from a commercial sex  
            trafficking act against a person who was under 18 years of  
            age, whether or not the defendant asserts the affirmative  
            defense.  Finally, AB 1761 grants trafficking victims who  








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            prevail on the affirmative defense the right to have all  
            records in the case sealed and ensures they do not suffer  
            long-term consequences from their arrest.  

          "In recognition of the complex dynamics of trafficking crimes,  
            AB 1761 also creates a presumption that expert testimony is  
            admissible by either the prosecution or the defense regarding  
            the effects of human trafficking on human trafficking  
            victims."     

          5)Arguments in Opposition:  

             a)   The California District Attorneys Association writes,  
               "[w]e do not need a new rule of evidence to allow parties  
               to call an expert witness to educate the trier of fact on  
               issues relating to human trafficking.  California law has  
               long provided that 'any person who has special knowledge,  
               skill or experience in any occupation, trade or craft may  
               be qualified as an expert in his field.'  (People v. King  
               (1968) 266 Cal.App.2d 437, 445.)  California courts allow  
               experts to help explain a wide variety of human behaviors  
               and to explain why people respond in strange ways to  
               traumatic events such as rape trauma, child abuse  
               accommodation syndrome, post-traumatic stress, gang  
               culture, domestic violence, and battered women's syndrome,  
               just to name a few."

             b)   The Alameda County District Attorney states, "As  
               written, this bill is too broad.  In Section 236.32(c)  
               would create a 'conclusive presumption' that a person under  
               18 who is charged with 647(b) or 653.22 is a victim of  
               human trafficking.  But not every minor arrested for these  
               crimes is a victim of human trafficking.  Those who are  
               victims of human trafficking are enslaved, offend (sic)  
               tortured and forced, coerced or manipulated, resulting in a  
               lost childhood.  

             "We also feel that creating a system where minors who commit  
               crimes have immunity from prosecution for committing those  
               crimes is bad public policy.  There is an Affirmative  
               Defense of Duress that is available for victims of crime  
               who engage in criminal conduct under the treat (sic) of  








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               another.  If adults know that a minor will not be  
               prosecuted for crimes they commit, those adults will  
               recruit, involve, and further exploit minors believing  
               there will be no criminal consequence.

             "We have seen this tragic outcome occur over and over again  
               in other arenas.  When the punishment of adults increased  
               for selling drugs, across this State, drug dealers were  
               pulling children as young as 10-11-12 years old into the  
               drug trafficking criminal enterprise.  We still see  
               transnational criminals using children to commit crimes  
               between Mexico and California.  We see minors being used in  
               Identity Theft and crimes committed against others,  
               including being used as recruiters for traffickers.  It is  
               a very unfortunate and horrific dynamic and one which we  
               work very hard at breaking the psychological bonds  
               traffickers and exploiters have over minors, but some  
               minors engage in criminal behavior to garner favoritism or  
               status with the trafficker."

          6)Related Legislation:  

             a)   AB 1675 (Stone) provides that a minor who commits the  
               crimes of solicitation, prostitution, or loitering with the  
               intent to commit prostitution, is subject to the  
               jurisdiction of the juvenile dependency court rather than  
               delinquency court.  AB 1675 will be heard in this Committee  
               today.

             b)   AB 1760 (Santiago) immunizes from prosecution a minor  
               who has engaged in a commercial sex act or who committed a  
               nonviolent crime as a human trafficking victim and instead  
               allows the minor to be adjudged to be a dependent subject  
               to the jurisdiction of the juvenile court.  AB 1760 will be  
               heard in this Committee today.

             c)   AB 1762 (Campos) allows a person convicted of a  
               nonviolent crime while he or she was human trafficking  
               victim to apply to vacate the conviction at any time after  
               it was entered.  AB 1762 will be heard in this Committee  
               today.









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          7)Prior Legislation:  

             a)    AB 1585 (Alejo), Chapter 708, Statutes of 2014,  
               provides that a defendant who has been convicted of  
               solicitation or prostitution, as specified, may petition  
               the court to set aside the conviction, and allows the court  
               to set it aside if the defendant can show that the  
               conviction was the result of his/her status as a victim of  
               human trafficking.
             b)   AB 694 (Bloom), Chapter 126, Statutes of 2013, clarified  
               that evidence that a victim of human trafficking has  
               engaged in a commercial sex act cannot be used to prosecute  
               that victim for the commercial sex act.

             c)   SB 327 (Yee), of the 2013-2014 Legislative Session,  
               would have allowed a writ of habeas corpus to be prosecuted  
               when competent and substantial expert testimony relating to  
               human trafficking was not presented at trial for a crime in  
               which the defendant was a victim of human trafficking.  SB  
               327 was held on the Assembly Appropriations Committee  
               Suspense File.

             d)   AB 785 (Eaves), Chapter 812, Statutes of 1991, made  
               expert testimony regarding battered women's syndrome  
               admissible in court under specified conditions.




          REGISTERED SUPPORT / OPPOSITION:
          
          Support

          Coalition to Abolish Slavery and Trafficking (Co-sponsor)
          National Council of Jewish Women- California (Co-sponsor)
          Act for Women and Girls
          American Academy of Pediatrics
          American Civil Liberties Union
          California Council of Churches Impact
          California Partnership to End Domestic Violence
          California Public Defenders Association
          California Women's Law Center








                                                                    AB 1761


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          Clergy and Laity United for Economic Justice
          Coalition to Abolish Slavery and Trafficking Survivor Advisory  
          Council
          Housing California
          Legal Services for Prisoners with Children
          Opening Doors
          Religious Action Center of Reform Judaism

          Opposition
          
          Alameda County District Attorney
          California District Attorneys Association
          California State Sheriffs' Association
          Sacramento County District Attorney
          
          Analysis Prepared  
          by:              Sandy Uribe / PUB. S. / (916) 319-3744