BILL ANALYSIS Ó
AB 1771
Page 1
Date of Hearing: March 15, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1771 (O'Donnell) - As Introduced February 3, 2016
SUMMARY: Increases the punishment for supervising or aiding a
prostitute from up to 6 months in the county jail to up to a
year in the county jail, and adds additional circumstances that
can be considered in determining whether someone is guilty of a
violation of supervising or aiding a prostitute. Specifically,
this bill:
1)Increases the penalty for soliciting or aiding a prostitute
from a maximum sentence of 6 months in the county jail to a
maximum of one year in the county jail.
2)Specifies that if someone is repeatedly speaking to or
communicating with a person who is soliciting sex for money or
a person who is offering sexual services for compensation,
they may be guilty of the crime of supervising or aiding a
prostitute.
3)Specifies that if someone repeatedly or continuously monitors
or watches another person who is soliciting sex for money or a
person who is offering sexual services for compensation, they
may be guilty of the crime of supervising or aiding a
prostitute.
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4)Specifies that if someone receives or appears to receive money
from another person who is soliciting sex for money or a
person who is offering sexual services for compensation, they
may be guilty of the crime of supervising or aiding a
prostitute.
5)Permits prior human trafficking convictions to be considered
in determining whether a person may be guilty of the crime of
supervising or aiding a prostitute.
6)Specifies that being an active participant in a criminal
street gang and the commission of any gang offense under the
California Street Terrorism Enforcement and Prevention Act may
be considered in determining whether a person has committed
the crime of supervising or aiding a prostitute.
EXISTING LAW:
1)Provides that a person may not direct, supervise, recruit, or
otherwise aid another person in the commission of a violation
of specified prostitution offenses. Additionally, a person
may not collect or receive all or part of the proceeds earned
from an act or acts of prostitution committed by another
person. Violation of these provisions is a misdemeanor
punishable by up to six months in the county jail. (Pen. Code
§ 653.23, subds. (a) & (b); Pen. Code § 653.26.)
2)Provides that in determining whether a person is guilty of
directing or supervising a prostitute, the following
circumstances may be considered:
a) The offender repeatedly speaks or communicates with
another person who is acting in violation of loitering for
the purpose of engaging in prostitution.
b) The offender repeatedly or continuously monitors or
watches another person who is acting in violation of
loitering for the purpose of engaging in prostitution.
c) The offender repeatedly engages or attempts to engage in
conversation with pedestrians or motorists to solicit,
arrange, or facilitate an act of prostitution between the
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pedestrians or motorists and another person who is acting
in violation of loitering for the purpose of engaging in
prostitution.
d) The offender repeatedly stops or attempts to stop
pedestrians or motorists to solicit, arrange, or facilitate
an act of prostitution between pedestrians or motorists and
another person who is acting in violation of loitering for
the purpose of engaging in prostitution.
e) The offender circles an area in a motor vehicle and
repeatedly beckons to, contacts, or attempts to contact or
stop pedestrians or other motorists to solicit, arrange, or
facilitate an act of prostitution between the pedestrians
or motorists and another person who is acting in violation
of loitering for the purpose of engaging in prostitution.
f) The offender receives or appears to receive money from
another person who is acting in violation of loitering for
the purpose of engaging in prostitution.
g) The offender engages in any of the behavior described
above, inclusive, in regard to, or on behalf of two or
more persons who are in violation of loitering for the
purpose of engaging in prostitution.
h) The offender has been convicted of violating specified
prostitution related offenses.
i) The offender has engaged, within six months prior to the
arrest in any behavior described in this subdivision, or in
any other behavior indicative of prostitution activity.
3)Provides that any person who is convicted of a public offense
punishable as a felony or a misdemeanor, which is committed
for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang
members, shall be punished by imprisonment in a county jail
not to exceed one year, or by imprisonment in a state prison
for one, two, or three years, provided that any person
sentenced to imprisonment in the county jail shall be
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imprisoned for a period not to exceed one year, but not less
than 180 days, and shall not be eligible for release upon
completion of sentence, parole, or any other basis, until he
or she has served 180 days. If the court grants probation or
suspends the execution of sentence imposed upon the defendant,
it shall require as a condition thereof that the defendant
serve 180 days in a county jail. (Pen. Code, § 186.22, subd.
(d).)
4)Enacts the California Street Terrorism Enforcement and
Prevention (STEP) Act which seeks the eradication of criminal
activity by street gangs by focusing upon patterns of criminal
gang activity and upon the organized nature of street gangs,
which together, are the chief source of terror created by
street gangs. (Pen. Code, §§ 186.20 & 186.21.)
5)States that any person who actively participates in any
criminal street gang with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity, and
who willfully promotes, furthers, or assists in any felonious
criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one
year, or by imprisonment in the state prison for 16 months, or
two or three years. (Pen. Code, § 186.22, subd. (a).)
6)Adds an additional and consecutive term of confinement to the
base term when a person is convicted of a felony committed for
the benefit of, at the direction of, or an association with
any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members.
(Pen. Code § 186.22(b).)
7)Defines a "criminal street gang" as "any ongoing organization,
association, or group of three or more persons, whether formal
or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in
existing law having a common name or common identifying sign
or symbol, and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang
activity." (Pen. Code § 186.22, subd. (f).)
8)Contains provisions for punishing gang-related activity as a
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conspiracy. (Pen. Code., § 182.5.)
9)Criminalizes gang recruitment or solicitation to actively
participate in a gang. (Pen. Code, § 186.26.)
10)Requires convicted criminal gang offenders to register with
the local chief of police or sheriff within 10 days of release
from custody, as specified. (Pen. Code, §§ 186.30 & 186.32.)
11)Provides that a violation of the registration requirements is
a crime. (Pen. Code, § 186.33.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Criminal street
gangs have been continually evolving new methods to fund gang
activities for decades. In recent years, they have
increasingly migrated to commercial sexual exploitation as a
new source of illicit income. These criminals view human
trafficking as a more profitable and lower risk enterprise
than drug or weapons trafficking. While a trafficker must
invest additional resources each time he wants to sell a gun
or drugs, he can sell a single person over and over again.
"AB 1771 gives discretion to judges to impose a longer
sentence when justified. The bill also makes admissible
evidence that can help judges and juries determine when a
suspect is an integral piece of gang operations. This will
allow us to deal significant damage to the human trafficking
operations of these gangs and help protect the victims of this
horrible underground sexual abuse."
2)Existing Law Permits Additional Relevant Evidence: Under
existing law, the list of circumstances set forth as
circumstances that can be considered as evidence that a person
is supervising or aiding a prostitute is not an exclusive
list. (Pen. Code § 653.23, subd. (c).) In fact, the code
specifies that "any other relevant circumstance may be
considered?[m]oreover, no one circumstance or combination of
circumstances is in itself determinative. A violation shall
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be determined based on an evaluation of the particular
circumstances of each case." (Pen. Code § 653.23, subd.
(c).)
a) Relevant Evidence: Under these provisions, prosecutors
can already introduce evidence that an alleged offender is
a member of a gang if that information is relevant as to
whether the offender is guilty of aiding or supervising a
prostitute. Under California law, "relevant evidence"
means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any
tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action."
(Cal. Evid. Code § 210.) The standard of relevance is a
rather low standard. Since the passage of Proposition 8 in
1982, California criminal law has operated under a legal
concept known as "Truth in Evidence." Following the
passage of Proposition 8, Section 28 of Article I of the
California Constitution was amended to include a "right to
truth in evidence." Under this provision state courts
cannot exclude any "relevant evidence" even if gathered in
a manner that violates the rights of the accused. The U.S.
Constitution takes priority over the California
constitution so courts may still be obliged to exclude
evidence under the federal Bill of Rights. In practice the
law prevented the California courts from interpreting the
state constitution so as to impose an exclusionary rule
more strict than that required by the federal constitution.
Exceptions may be made to the "truth in evidence" rule by a
two-thirds vote of both houses of the California
Legislature.
b) Evidence of Prior Offenses: Prior convictions can be
used to enhance a sentence, establish a mandatory minimum
sentence, restrict a defendant's license to drive, prohibit
the possession of firearms, make otherwise innocent conduct
criminal, elevate a misdemeanor to a felony, and eliminate
probation as a sentencing choice. Priors can also be used
as evidence to prove identity or an element of the crime,
such as intent, or to impeach the defendant if he or she
testifies. There are a wide variety of methods and reasons
to challenge the admission of prior convictions by
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prosecutors on constitutional grounds. This bill would
statutorily authorize the use of prior incidents of gang
activity regardless of the existing rules on the
admissibility of prior bad acts of the offender.
This bill would permit the introduction of gang membership
even if the evidence does not meet the liberal California
standard of relevancy, and the standard of admitting prior bad
acts of the alleged offender. This evidence would go before a
jury and they would be able to consider it in determining
whether or not a person is guilty of supervising or aiding a
prostitute.
3)Differences between Supervising or Aiding a Prostitute and
Pimping or Pandering: A person may be guilty of both
supervising or aiding a prostitute as well as pimping and
pandering. However, the crimes are certainly distinct from
one another.
a) Pimping: Pimping is a felony and may be punished by
three, four, or six years in state prison (or three, six,
or eight years if the prostitute was under 16). Aiding a
prostitute is only a misdemeanor and may be punished by six
months in the county jail, a fine of no more than one
thousand dollars ($1,000), or both. Pimping is defined as
either soliciting prostitution by finding a john for a
prostitute and collecting a fee from the john or some of
the prostitute's pay, or collecting some or all of a
prostitute's pay even if you played no part in finding the
john.
To be convicted of pimping, you have to have helped find
customers for a prostitute and received some money for your
role in the transaction. But you can be convicted of
aiding a prostitute even if you did not find the john or
arrange the transaction, and even if you receive no money
for your role. To be convicted of pimping because you
received money from a prostitute, you have to be living off
of that person's prostitution earnings. You also need to
know that they are a prostitute. In contrast, you can be
convicted of aiding a prostitute if you receive any money
that was earned from prostitution, for any reason. You
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can't be convicted of pimping unless a prostitution
transaction actually takes place. But you can be convicted
of aiding a prostitute even if you only helped someone
loiter with the intent to commit prostitution-even if they
didn't find any customers.
b) Pandering: Pandering is similar to pimping. A person
can violate California's law against pandering when you
encourage or persuade someone to engage in prostitution,
and make that person available for the purpose of
prostitution. Like pimping, pandering is a felony and may
be punished by three, four, or six years in state prison
(or three, six, or eight years if the prostitute was under
16). The crime of supervising or aiding a prostitute
includes "recruiting" someone to engage in an act of
prostitution or to loiter for the purpose of prostitution.
But the California 6th District Court of Appeal has held
that you only violate Penal Code 653.23 PC when you recruit
"customers for prostitutes or prostitutes for customers,"
not when you recruit someone to become a prostitute. In
other words, a person is guilty of supervising or otherwise
aiding a prostitute only if the person who was recruited
actually starts working as a prostitute or loitering for
prostitution.
4)Gang Statutes: Penal Code Section 186.22 has three separate
charging provisions. First, subdivision (a) of the statute
contains the criminal offense of gang participation. It
prohibits actively participating in a criminal street gang
combined with willfully promoting, furthering, or assisting in
any felonious conduct by members of that gang. The gravamen
of the offense is the "participation in the gang itself."
(People v. Herrera (1999) 70 Cal.App.4th 1456, 1467, fns.
omitted.) The second provision is an enhancement allegation
contained in subdivision (b)(1). If plead and proven, it
increases the sentence for an underlying felony. The
allegation is applicable to any felony "committed for the
benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members."
The third, subdivision (d) of the statute, is an alternate
penalty allegation which technically applies to all felonies
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and misdemeanors "committed for the benefit of, at the
direction of, or in association with any criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members," but whose practical
application is to raise the sentences only for gang-related
misdemeanors.
5)People v. Rodriguez (2012) 55 Cal.4th 1125: In Rodriguez, the
California Supreme Court resolved conflicting Court of Appeal
interpretations of Penal Code Section 186.22(a), the
substantive crime of active participation in a criminal street
gang. That subdivision provides in full: "Any person who
actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a
pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by
members of that gang, shall be punished by imprisonment in a
county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, or two or
three years." (Penal Code Section 186.22(a).) The lower
courts had split on whether the phrase "criminal conduct by
members of that gang" required participation by more than a
single gang member.
In Rodriguez, the defendant, a Norteno gang member, acted
alone in committing an attempted robbery. Among other
offenses, he was convicted of the criminal street gang
offense. (People v. Rodriguez, supra, 55 Cal.4th at pp.
1128-1129.) He appealed that conviction. Interpreting the
phrase "criminal conduct by members of that gang," the Court
held that the plain meaning of the statute requires that the
conduct in question be committed by at least two gang members,
one of whom may be the defendant if he is a gang member. (Id.
at p. 1132.) The Court noted that "members" is a plural noun.
(Ibid.) Thus, if the defendant acts alone, he cannot be
guilty of violating subdivision (a). The statute requires at
least two perpetrators whose felonious conduct benefits the
gang. This Court noted that requiring that a defendant commit
the underlying felony with at least one other gang member
reflects the Legislature's attempt to avoid "any potential due
process concerns that might be raised by punishing mere gang
membership." [Id. at p. 1133, citing Scales v. United States
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(1961) 367 U.S. 203.] Penal Code Section 186.22(a) imposes
criminal liability not for lawful association, but only when a
defendant actively participates in a criminal street gang
while also acting with guilty knowledge and intent.
By requiring that a defendant commit an underlying felony with
at least one other gang member, the Legislature avoided
punishing mere gang membership. (Id. at p. 1134.) Use of the
plural word "members" reflects the Legislature's attempt to
provide a nexus between the felonious conduct and the gang
activity to satisfy due process. (Id. at p. 1135.) The Court
also relied heavily on its earlier opinion in People v.
Albillar (2010) 51 Cal.4th 47, which interpreted the gang
enhancement in subdivision (b) to distinguish the two
provisions. The substantive offense, unlike the enhancement,
does not require a specific intent to promote the gang, but
rather only knowledge of the gang's pattern of criminal
activity. And the enhancement, unlike the substantive
offense, requires that the underlying felony be gang related.
(Id. at pp. 1134-1135.) The court emphasized the two
provisions "strike at different things." (Id. at p. 1138.)
The enhancement punishes gang-related conduct, i.e. felonies
committed with the specific intent to benefit, further, or
promote the gang; whereas the substantive offense punishes
gang members who act in concert with other gang members in
committing a felony, regardless of whether the felony is gang
related. (Ibid.) The Supreme Court noted that a gang member
who commits a felony by himself or herself will not go
unpunished. Not only will that person be convicted of the
underlying felony, but he or she may also be eligible for
punishment under the gang enhancement, which carries a longer
term of incarceration than the substantive gang crime. (Id.
at pp. 1138-1139.)
6)Gang Members vs. Active Participants: Under the current
language of the statute, in order to prove the elements of the
substantive offense, the prosecution must prove that
defendant: (a) is an active participant of a criminal street
gang, (b) that he or she had knowledge that its members engage
in or have engaged in a pattern of criminal gang activity, and
(c) he or she willfully promoted, furthered, or assisted in ?
felonious criminal conduct by members of that gang. [People
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v. Lamas (2007) 42 Cal.4th 516, 524, italics added.] Thus,
the statute distinguishes between gang members and active
participants. As to the active participation requirement,
that statute says it is not necessary to prove that the
defendant is a member of the criminal street gang. (Penal
Code Section 186.22(i); see also In re Jose P. (2003) 106
Cal.App.4th 458, 466.) The California Supreme Court has
previously construed the phrase "active participation" in
Penal Code Section 186.22(a) as being "some enterprise or
activity" in which the defendant's participation is more than
"nominal or passive." (People v. Castaneda (2000) 23 Cal.4th
743, 747, 749-750; see also In re Jose P. (2003) 106
Cal.App.4th 458, 466.) California jury instructions also echo
this definition of "active participant." Relevant portions
instruct the jury that "[a]ctive participation means
involvement with a criminal street gang in a way that is more
than passive or in name only. (See CALCRIM No. 1400.)
7)Constitutional Considerations: Gang membership is
constitutionally protected activity under the First Amendment.
(Dawson v. Delaware (1992) 503 U.S. 159, 163-164.) The
United States Supreme Court has held that mere association
with a group cannot be punished unless there is proof that the
defendant knows of and intends to further its illegal aims.
(Scales v. United States, supra, 367 U.S. 203, 229.)
As the Supreme Court noted in Rodriguez, supra, 55 Cal. 4th
1125, requiring that the defendant commit the underlying
offense together with another gang member provides a nexus to
the gang which avoids punishing mere gang membership. (Id. at
pp. 1133-1134.)
This bill seeks to use the mere fact that a person is a member
of a gang as evidence that they are supervising a prostitute.
The crime in question does not have to meet the statutorily
required elements that the conduct be committed at the
direction or for the benefit of a criminal street gang.
8)Argument in Support: According to the Long Beach City
Prosecutor, "In 2010, prostitution was reportedly the second
largest source of income for gangs in San Diego, California.
There is every reason to believe this trend exists in other
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parts of our state. Although gang members are increasingly
becoming involved in prostitution and sex trafficking it is
not always possible to prosecute them with felony charges.
"Unfortunately, in many cases the victim (who is detained for
suspicion of prostitution) will not cooperate with law
enforcement due to fear of her pimp, leaving misdemeanor
'supervising a prostitute' [PC 653.23] as the only viable
charging option for prosecutors. Incredibly, violation of
this section is only a misdemeanor with a cap of six months in
the county jail.
"AB 1771 fixes the current law to provide for up to twelve
months in jail for those convicted of 'supervising a
prostitute.' AB 1771 does not require any specific sentence,
and judges would still have the discretion to impose lesser
sentences, such as probation or a fine. If approved, AB 1771
will also permit the admission of gang-related convictions at
trial or sentencing."
9)Argument in Opposition: According to the California Public
Defenders Association, "AB 1771 proposes to amend Penal Code
Section 653.23 which states that it is unlawful to supervise,
direct or assist an individual who is soliciting an act of
prostitution. AB 1771 would add to the list of circumstances
that may be considered in determining if someone is
supervising, directing or supervising a prostitute repeatedly
speaking or communicating with the working prostitute or
watching the working prostitute. The bill also adds a section
explicitly bringing the crime into the ambit of Penal Code
section 186.22(d) enhanced punishment for activities done for
the benefit of, at the direction of, or in association with a
street gang.
"Our objection to AB 1771 is that it is overbroad and would
further criminalize street prostitutes, many of whom are
vulnerable runaways, victims of domestic violence or substance
abusers. We suggest that the bill be amended to delete the
references to Penal Code Section 647(b) in Penal Code section
653.23 (b)(1) and (b)(2).
"What constitutes repeatedly speaking or communicating? Are
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individuals exercising their First Amendment right to speech
at risk of being arrested for a violation of Penal Code
section 653.23? Is talking to someone on a street corner for
five minutes okay, but criminal if the conversation lasts 30
minutes?
"What constitutes assisting by watching a working prostitute?
Is a sociologist gathering data assisting by watching? What
if the prostitute's mother, sister, daughter is watching to
make sure that the prostitute is safe? Is that assisting?
"Prostitutes who congregate together to avoid abduction or
worse, under this proposed legislation would be swept up by
the enhanced punishments provided for under this bill. For
instance, a more street wise prostitute might be able to warn
a younger or less experienced prostitute against a known
violent customer. If unable to persuade the younger or more
desperate woman, the other woman might be able to deter the
customer who plans to harm the prostitute by merely witnessing
the other woman going with the customer. If nothing else, the
more experienced woman could alert the police to the other
woman's plight or serve as a witness after the fact. This
proposed legislation would further endanger those whom it
seeks to protect.
"We also object to increasing the punishment from 6 months to
one year for Penal Code section 653.26. Repeatedly increasing
punishment for crimes is not an evidence based practice. It
wastes scarce public resources by incarcerating more people
for ever longer periods of time."
10)Related Legislation: AB 1491 (O'Donnell), sought to make the
crime of "supervising a prostitute" punishable as a felony
when the defendant is a member of a criminal street gang. The
bill was referred and never had a hearing in Assembly Public
Safety.
REGISTERED SUPPORT / OPPOSITION:
Support
Long Beach City Prosecutor (Co-Sponsor)
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Long Beach Human Trafficking Taskforce (Co-Sponsor)
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744