BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1771 Hearing Date: June 28, 2016
-----------------------------------------------------------------
|Author: |O'Donnell |
|-----------+-----------------------------------------------------|
|Version: |May 19, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|JM |
| | |
-----------------------------------------------------------------
Subject: Prostitution
HISTORY
Source: Long Beach City Prosecutor
Prior Legislation:AB 1695 (Knox) Ch. 981, Stats. 1998
Support: California District Attorneys Association; California
Statewide Law Enforcement Association; City of Long
Beach; Junior Leagues of California State Public
Affairs Committee; Long Beach Human Trafficking Task
Force; Los Angeles County Board of Supervisors;
National Council of Jewish Women Long Beach
Opposition: American Civil Liberties Union; California Attorneys
for Criminal Justice; California Public Defenders
Association; Legal Services for Prisoners with
Children
Assembly Floor Vote: 79 - 1
AB 1771 (O'Donnell ) Page
2 of ?
PURPOSE
The purpose of this bill is to: 1) increase the penalty for the
misdemeanor of aiding or supervising a prostitute from six
months to one year in jail; 2) provide that repeatedly speaking,
watching or monitoring a person soliciting for prostitution, as
defined, is evidence of the crime of aiding or supervising a
prostitute; 3) provide that receiving money from a person
soliciting for prostitution, as defined, is evidence of aiding
or supervising a prostitute; and 4) specifically authorize a
juvenile court judge to dismiss a petition for aiding or
supervising a prostitute where the minor committed the offense
through duress or coercion.
Existing law provides that any person who lives or derives
support or maintenance in whole or in part from the earnings or
proceeds from another person's prostitution is guilty of a
felony, with a sentence of 3, 4, or 6 years in state prison. If
the prostitute is under the age of 16, the penalty is 3, 6, or 8
years. (Pen. Code § 266h.)
Existing law provides that any person who procures, encourages,
persuades or induces another person to become a prostitute is
guilty of a felony, with a sentence of 3, 4, or 6 years in state
prison. If the prostitute is under the age of 16, the penalty
is 3, 6, or 8 years. (Penal Code § 266i.)
Existing law provides that it is unlawful for a person to
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.)
Existing law provides that in determining whether a person is
guilty of directing or supervising a prostitute - defined as a
person loitering for the purposes of prostitution - the
following circumstances may be considered:
a) The offender repeatedly speaks or communicates with
another person who is acting in violation of loitering for
AB 1771 (O'Donnell ) Page
3 of ?
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
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.
Existing law provides that where an act is declared to be a
public offenses and no penalty is specified, the offense is a
AB 1771 (O'Donnell ) Page
4 of ?
misdemeanor. (Pen. Code § 19.4)
Existing law provides, in the absence of any more specific
penalty, that a misdemeanor is punishable by imprisonment in a
county jail for up to six months, a fine of up to $1,000, or
both. (Pen. Code § 19.)
This bill 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.
This bill 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 - as
prohibited by Penal Code Section 647, subdivision (b) - the
person speaking to or communicating with the other party may be
guilty of the crime of supervising or aiding a prostitute.
This bill 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 - as prohibited by Penal Code Section 647,
subdivision (b) - the person speaking to or communicating with
the other party may be guilty of the crime of supervising or
aiding a prostitute.
This bill 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 - as prohibited by Penal Code Section 647,
subdivision (b) - they may be guilty of the crime of supervising
or aiding a prostitute.
This bill 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.
This bill permits a juvenile court, on grounds that the minor
was coerced or subject to duress, to dismiss a petition alleging
that a minor directed of supervised a prostitute.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
AB 1771 (O'Donnell ) Page
5 of ?
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
AB 1771 (O'Donnell ) Page
6 of ?
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for This Bill
According to the author:
While law enforcement has had some success curtailing
this activity, the nature of human trafficking creates
obstacles for prosecutors trying to keep offenders
behind bars. While pimping and human trafficking are
subject to felony prosecution, this charge is only
applied on relatively few occasions because sex
trafficking victims often do not cooperate with law
enforcement. This is especially true in cases where
the victim fears retaliation from her pimp or
trafficker. In cases where victims do not provide
statements against the pimp or trafficker, only the
misdemeanor charge of "supervising a prostitute" can
be filed.
On October 4, 2014 an undercover police officer
arrested Jerome Hubbard during a bust of an "escort
service" acting as a front for prostitution. Despite
phone messages on Hubbard's phone indicating he
oversaw multiple acts of prostitution, without the
testimony of the victim, Hubbard could only be charged
with "supervising a prostitute" and not pimping or
AB 1771 (O'Donnell ) Page
7 of ?
human trafficking. Hubbard faced a maximum six-month
jail sentence (the same as the "prostitute") for this
misdemeanor charge. Due to the limitations in
sentencing options, criminals like Hubbard can be
released and free to resume their criminal activity in
a matter of months.
The Hubbard case highlights a problem with our ability
to keep offenders behind bars when they facilitate the
illicit activities of these gangs. Obtaining evidence
of the boasts of committing the crime and catching
them in the act are not enough to keep these
individuals behind bars for a reasonable period of
time. The six-month maximum sentence on the
misdemeanor of "supervising a prostitute" does not
recognize the role this crime plays in human
trafficking operations.
2.Differences Between Supervising or Aiding a Prostitute and
Pimping and Pandering
Supervising or aiding a prostitute and pimping or pandering are
related crimes, but they have distinct elements.
a) Pimping in Contrast with Aiding a Prostitute
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 years of age. Aiding a prostitute
is 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 customer - "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.
Pimping includes an element that the defendant helped find
customers for a prostitute and received some money for his or
her role in the transaction. But one can be convicted of
aiding a prostitute even if he or she did not find the john or
arrange the transaction, and even if he or she received no
money for your role. To be convict a defendant of pimping,
the prosecutor must show that the defendant lived off of the
AB 1771 (O'Donnell ) Page
8 of ?
earnings of a prostitute and knew that the other person was a
prostitute. In contrast, a person can be convicted of aiding
a prostitute if he or she received any money that was earned
from prostitution, for any reason. One cannot be convicted of
pimping unless a prostitution transaction actually occurred.
But one can be convicted of aiding a prostitute by simply
helping another person loiter with the intent to commit
prostitution-even without proof that a prostitution offense
occurred.
b) Pandering in Contrast That With Aiding a Prostitute
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 the age of 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. Appellate decisions have
reversed convictions on the basis that a defendant only
violates Penal Code 653.23 PC by recruiting "customers for
prostitutes or prostitutes for customers," not by recruiting
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.
SHOULD THIS BILL INCLUDE A PROVISION THAT A PROSECUTION FOR
SUPERVISING A PROSTITUTE DOES NOT LIMIT PROSECUTION UNDER ANY
OTHER PROVISION OF LAW?
3.Dismissal of Juvenile Court Delinquency Petitions for Aiding
Prostitution Where the Offense was Committed Under Duress or
Coercion
Human trafficking generally includes an element or inherent
character of control over the victim. It has been noted that
many victims of human trafficking and other exploited minors are
coerced into committing crimes to benefit the trafficker or
controlling person. Numerous bills have considered authority
AB 1771 (O'Donnell ) Page
9 of ?
for courts to clear the records of those who committed offenses
under duress. (See, AB 1585 (Alejo) Ch. 708, Stats. 2014.)
This bill would take the more direct step of specifically
authorizing the juvenile court to dismiss a delinquency petition
of the minor committed the crime because of duress or coercion.
-- END -