BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1771| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 1771 Author: O'Donnell (D) Amended: 8/16/16 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16 AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16 AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen ASSEMBLY FLOOR: 79-1, 5/31/16 - See last page for vote SUBJECT: Prostitution SOURCE: Long Beach City Prosecutor DIGEST: This bill 1) provides that repeatedly speaking, watching or monitoring a person soliciting for prostitution, as defined, is evidence of the crime of aiding or supervising a prostitute; 2) provides that receiving money from a person soliciting for prostitution, as defined, is evidence of aiding or supervising a prostitute; and 3) specifically authorizes a juvenile court judge to dismiss a petition for aiding or supervising a prostitute, or for engaging in prostitution, where the minor committed the offense through duress or coercion. ANALYSIS: Existing law: AB 1771 Page 2 1)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 three, four, or six years in state prison. If the prostitute is under the age of 16, the penalty is three, six, or eight years. (Pen. Code § 266h.) 2)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 three, four, or six years in state prison. If the prostitute is under the age of 16, the penalty is three, six, or eight years. (Pen. Code § 266i.) 3)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.) 4)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 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. AB 1771 Page 3 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. AB 1771 Page 4 This bill: 1)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. 2)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. 3)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. 4)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. 5)Permits a juvenile court, on grounds that the minor was coerced or subject to duress, to dismiss a petition alleging that a minor committed prostitution, or directed or supervised a prostitute. Background AB 1771 Page 5 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 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. AB 1771 Page 6 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 $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 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. 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 Section 653.23 by recruiting "customers for prostitutes or prostitutes for customers," not by recruiting someone to become a AB 1771 Page 7 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. 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 for courts to clear the records of those who committed offenses under duress. (See, AB 1585, Alejo, Chapter 708, Statutes of 2014.) This bill takes 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No According to the Senate Appropriations Committee: Local jails : Potential increase in local incarceration costs for new misdemeanor convictions to county jail under the expanded scope of the offense. The DOJ indicates an average of 236 arrests for this offense in each of the past two years. For every 10 percent of cases that are potentially impacted by this measure, local incarceration costs could increase in the hundreds of thousands of dollars (Local Funds) annually. SUPPORT: (Verified8/12/16) Long Beach City Prosecutor (source) California District Attorneys Association California Statewide Law Enforcement Association City of Long Beach Junior Leagues of California State Public Affairs Committee Long Beach City Prosecutor AB 1771 Page 8 Long Beach Human Trafficking Task Force Los Angeles County Board of Supervisors National Council of Jewish Women Long Beach OPPOSITION: (Verified8/12/16) American Civil Liberties Union California Attorneys for Criminal Justice California Public Defenders Association Legal Services for Prisoners with Children ASSEMBLY FLOOR: 79-1, 5/31/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NOES: Quirk Prepared by:Jerome McGuire / PUB. S. / 8/16/16 18:07:16 **** END ****