BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1771|
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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:
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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.
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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.
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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
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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.
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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
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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
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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
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