BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  April 12, 2016
          Counsel:               David Billingsley


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                   2221 (Cristina Garcia) - As Amended  April 6, 2016




          SUMMARY:  Increases authority for law enforcement to make  
          arrests when they have probable cause to believe that  
          solicitation of a minor has occurred and requires minor victims  
          of human trafficking to be provided with victim witness  
          assistance prior to testifying.  Specifically, this bill:
          1)Authorizes a peace officer to arrest a person without a  
            warrant if the officer has probable cause to believe that the  
            person has committed the misdemeanor offense of soliciting a  
            minor for prostitution.  

          2)Specifies that prior to being subpoenaed as a witness in a  
            human trafficking case, a minor who is a victim of human  
            trafficking must be provided with assistance from the local  
            county Victim Witness Assistance Center.  

          EXISTING LAW:  

          1)States that a peace officer may arrest a person in obedience  
            to a warrant, or without a warrant, may arrest a person  
            whenever any of the following circumstances occur:

             a)   The officer has probable cause to believe that the  
               person to be arrested has committed a public offense in the  








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               officer's presence; (Pen. Code,  836, subd. (a)(1).)

             b)   The person arrested has committed a felony, although not  
               in the officer's presence.; or (Pen. Code,  836, subd.  
               (a)(2).)

             c)   The officer has probable cause to believe that the  
               person to be arrested has committed a felony, whether or  
               not a felony, in fact, has been committed. (Pen. Code,   
               836, subd. (a)(3).)

          2)Specifies that any time a peace officer is called out on a  
            domestic violence call, it shall be mandatory that the officer  
            make a good faith effort to inform the victim of his or her  
            right to make a citizen's arrest, unless the peace officer  
            makes an arrest for specified domestic violence offenses.  
            (Pen. Code,  836, subd. (b).)

          3)Provides that when a peace officer is responding to a call  
            alleging a violation of a domestic violence protective or  
            restraining order issued as specified, and the peace officer  
            has probable cause to believe that the person against whom the  
            order is issued has notice of the order and has committed an  
            act in violation of the order, the officer shall make a lawful  
            arrest of the person without a warrant and take that person  
            into custody whether or not the violation occurred in the  
            presence of the arresting officer. (Pen. Code,  836, subd.  
            (c)(1).)

          4)Specifies that in situations where mutual protective orders  
            have been issued as specified, liability for arrest applies  
            only to those persons who are reasonably believed to have been  
            the dominant aggressor. (Pen. Code,  836, subd. (c)(3).)

          5)States that the dominant aggressor is the person determined to  
            be the most significant, rather than the first, aggressor. In  
            identifying the dominant aggressor, an officer shall consider  
            (A) the intent of the law to protect victims of domestic  
            violence from continuing abuse, (B) the threats creating fear  
            of physical injury, (C) the history of domestic violence  
            between the persons involved, and (D) whether either person  
            involved acted in self-defense. (Pen. Code,  836, subd.  








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            (c)(3).)


          6)Provides that  if a suspect commits an assault or battery upon  
            a current or former spouse, fiance, fiancee, a current or  
            former cohabitant, a person with whom the suspect currently is  
            having or has previously had an engagement or dating  
            relationship, a person with whom the suspect has parented a  
            child, or other specified individuals, a peace officer may  
            arrest the suspect without a warrant where both of the  
            following circumstances apply:


             a)   The peace officer has probable cause to believe that the  
               person to be arrested has committed the assault or battery,  
               whether or not it has in fact been committed; and (Pen.  
               Code,  836, subd. (d)(1).)


             b)   The peace officer makes the arrest as soon as probable  
               cause arises to believe that the person to be arrested has  
               committed the assault or battery, whether or not it has in  
               fact been committed. (Pen. Code,  836, subd. (d)(2).)


          7)States that a peace officer may, without a warrant, arrest a  
            person for a violation of carrying a concealed firearm when  
            all of the following apply:


             a)   The officer has reasonable cause to believe that the  
               person to be arrested has committed the violation of  
               carrying a concealed firearm; (Pen. Code,  836, subd.  
               (e)(1).)


             b)   The violation of carrying a concealed firearm occurred  
               within an airport, in an area to which access is controlled  
               by the inspection of persons and property; and (Pen. Code,  
                836, subd. (e)(2).)










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             c)   The peace officer makes the arrest as soon as reasonable  
               cause arises to believe that the person to be arrested has  
               committed the violation of carrying a concealed firearm.  
               (Pen. Code,  836, subd. (e)(3).)


          8)Provides that a private person may arrest another:


             a)   For a public offense committed or attempted in his  
               presence; and (Pen. Code,  837.)


             b)   When the person arrested has committed a felony,  
               although not in his presence. (Pen. Code,  837.)


             c)   When a felony has been in fact committed, and he has  
               reasonable cause for believing the person arrested to have  
               committed it. (Pen. Code,  837.)


          9)States that any person making an arrest may orally summon as  
            many persons as he deems necessary to aid him therein. (Pen.  
            Code,  839.)


          10)    Specifies that a private person who has arrested another  
            for the commission of a public offense must, without  
            unnecessary delay, take the person arrested before a  
            magistrate, or deliver him or her to a peace officer. (Pen.  
            Code,  847.)


          11)    Specifies that a prosecuting witness in a case involving  
            a violation or attempted violation of specified offenses,  
            including human trafficking, shall be entitled, for support,  
            to the attendance of up to two persons of his or her own  
            choosing, one of whom may be a witness, at the preliminary  
            hearing and at the trial, or at a juvenile court proceeding,  
            during the testimony of the prosecuting witness. (Pen. Code,   
            868.5.)








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          12)    States that only one of those support persons may  
            accompany the witness to the witness stand, although the other  
            may remain in the courtroom during the witness' testimony.  
            (Pen. Code,  868.5.)
          FISCAL EFFECT:  Unknown

          COMMENTS:  

          1)Author's Statement:  According to the author, "AB 2221 would  
            allow law enforcement the authority to arrest any adult when  
            there is probable cause to believe they solicited sex from a  
            minor. Currently, law enforcement officials can only arrest an  
            adult for soliciting sex from a minor if they witness the  
            solicitation. If police come upon a situation where there is  
            probable cause to believe an adult has solicited a minor for  
            sex, an officer can only issue a ticket, because this is a  
            misdemeanor crime."

          2)Individuals Can Be Prosecuted for the Crime of Solicitation  
            Whether or Not an Arrest is Made:  If there is sufficient  
            evidence to establish that the crime of solicitation of a  
            minor for prostitution has occurred, the adult responsible for  
            the crime can be charged in court.    Assuming sufficient  
            evidence, the individual would be convicted in court and  
            receive punishment appropriate to their criminal conduct.  To  
            the extent an arrest can provide a deterrent effect to  
            individuals soliciting prostitutes, that deterrent effect can  
            be achieved through prosecution and punishment through the  
            court process.   Needless to say, the process of arrest should  
            not be used as punishment itself, or as a pretext to obtain  
            further evidence.  A court proceeding provides a full  
            opportunity to present evidence and administer punishment in a  
            forum that ensures due process.

          3)Citizen's Arrest:  If a misdemeanor offense occurs outside an  
            officers presence, current law allows citizen's to make  
            arrest.  In order for a citizen to make an arrest for a  
            misdemeanor, the crime must committed in the citizen's  
            presence. (Pen. Code,  837.)  If the citizen makes the arrest  
            law enforcement can take custody of the individual at that  








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            point. The Alameda County District Attorney's Office has  
            published materials providing guidelines for police officers  
            when taking custody of an individual placed under citizen's  
            arrest.  
          
               "If the suspect is present when officers initially meet  
               with the citizen, and if the citizen arrests him or has  
               already done so, officers must 'receive' him, meaning they  
               must take custody of him.  The purpose of this requirement  
               is to 'minimize the potential for violence when a private  
               person restrains another by a citizen's arrest by requiring  
               that a peace officer (who is better equipped by training  
               and experience) accept custody of the person arrested from  
               the person who made the arrest.'"  
               (  http://le.alcoda.org/publications/files/CITIZENSARREST.pdf. 
               )  

            The mechanism of citizen's arrest provides an avenue to  
            apprehend a suspect that has committed a misdemeanor, even if  
            the offense has not been committed in an officer's presence.

          4)Peace Officers are Mandated Reporters of Child Abuse or  
            Neglect:  The California Child Abuse Neglect Reporting Act  
            (CANRA) requires mandatory reporting when certain individuals  
            suspect that a child has been abused or neglected.  Law  
            enforcement officers are one of the groups which have  
            mandatory reporting responsibilities.

          A mandated reporter must make a report whenever, in his/her  
            professional capacity or within the scope of his/her  
            employment, he/she has knowledge of, or observes a child (a  
            person under 18) whom the mandated reporter knows or  
            reasonably suspects has been the victim of child abuse or  
            neglect.  Abuse includes the sexual exploitation of a child.

          When law enforcement suspects abuse or neglect they inform child  
            protective services and the district attorney's office of the  
            suspected abuse.  

          Those responsibilities are triggered whether or not an arrest is  
            made of an individual suspected committing sexual  
            exploitation.








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          5)Victim Witness Assistance Programs:  Victims of crime may  
            suffer physical, emotional, or financial harm. Victims and  
            witnesses to a crime may face retaliation or intimidation in  
            connection with their potential participation in the criminal  
            justice system.  Victims and witness can also be confused by a  
            criminal justice system that is not familiar to them.  Victim  
            Witness Assistance Programs can provide assistance with these  
            issues.  These programs are frequently connected to the county  
            district attorney's office.  Victim Witness Assistance  
            Programs generally have trained and experienced advocates  
            provide services for victims and witnesses interacting with  
            the criminal justice system.  Services can include crisis  
            counseling, orientation to the criminal justice system,  
            community referrals, assistance with applying for victim  
            compensation, a support group for family members of homicide  
            victims, and many other services. 
          
          6)Argument in Support:  According to The Bakersfield Police  
            Department, "Human Trafficking is a growing problem in Kern  
            County and the City of Bakersfield is not immune. Kern County  
            has three major state highways that dissect the County. This  
            facilitates the smuggling and transport of human victims.  
            Runaway juveniles are forced into prostitution by "Pimps", who  
            lure the juveniles in with promises of money, clothes, and  
            other material things they would not normally be able to  
            afford. These pimps then force the juveniles to perform sex  
            acts with strange men and women, and give them nothing in  
            return. They often beat these juveniles into submission and  
            prevent them, by means of force or fear, from leaving. These  
            are the vulnerable victims that are sought out by men seeking  
            sex with underage juveniles. The deterrent effect of this bill  
            will be instrumental in dissuading not only "Johns" from  
            pursuing these girls but "Pimps" from trafficking them.

          "In 2013, the Bakersfield Police Department investigated the  
            first known human trafficking case in Kern County, wherein a  
            15 year old female juvenile was kidnapped in Bakersfield and  
            taken to Reno, Nevada. Once in Reno, she was forced to pose  
            nude for photographs that were uploaded onto a prostitution  
            website. The juvenile was forced to perform sex acts with at  
            least 15 men before Officers were able to locate her. Officers  








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            were able to glean vital information from her regarding the  
            prevalence of human trafficking in Bakersfield and Kern  
            County.Again in 2013, a 14  year old female was lured out of a  
            continuation school by an adult male who subsequently forced  
            her into multiple sex acts with adult males who sought her out  
            because of her young age. In both cases the traffickers were  
            convicted and sentenced to multiple years in prison.

          "Data was analyzed over a three year period (2013-2015) and the  
            Bakersfield Police Department received 27 calls for service  
            regarding Human Trafficking, which resulted in 19 arrests. In  
            that same time period, 1,861 people were arrested for  
            prostitution. Based on these numbers, it is clear that we have  
            a problem.

          "The Bakersfield Police Department is committed to impacting and  
            eliminating sex trafficking in our city.  It is our intent to  
            expose the human trafficking problem.  We will also focus  
            efforts on educating the public on the severity of the problem  
            in Kern County and ways that they can assist law enforcement  
            in combating the problem.  We will help the victims through  
            the entire justice process and provide them the services  
            necessary to return them to a normal life.  It is our belief  
            that there exists a need for stiffer penalties on offenders  
            who solicit sex from girls who are minors as they are not  
            legally allowed to give consent to participate in sex acts.   
            This too would have a deterrent effect as it would be known  
            that severe punishment will be handed down."

          7)Argument in Opposition:  According to The American Civil  
            Liberties Union of California, "AB 2221 seeks to expand the  
            power of an officer to arrest a person to include "if the  
            officer has probable cause to believe that the person to be  
            arrested has violated subdivision (m) of Section 647. . . ."  
            Penal Code section 647(m), in turn, proscribes a higher  
            punishment for the offense of soliciting a person to commit an  
            act of prostitution if "the person who was solicited was a  
            minor at the time of the offense, and if the defendant knew or  
            should have known that the person who was solicited was a  
            minor at the time of the offense."

          "In order for an officer to arrest someone under the proposed  








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            language of AB 2221, the officer would have to have probable  
            cause to believe that:

                 1) The suspected solicited an act of prostitution; 
                 2) The person solicited was in fact a minor; and 
                 3) The person solicited knew or reasonable should have  
            known that the person solicited                                 
                                                      was a minor.

          "It is difficult to imagine how an officer would have probable  
            cause to believe all of these elements have been established  
            unless a) the offense is committed in the officer's presence  
            or b) a witness informs the officer that he or she witnessed  
            the behavior. In the latter case-when the offense was not  
            committed in the officer's presence-the civilian witness can  
            effectuate a citizen's arrest and the officer can assume  
            custody. In addition, case law has made clear that "presence"  
            does not require visual observation by the officer of the  
            entire crime. Rather, presence includes detection of the crime  
            through any senses, including hearing and includes observing  
            sufficient circumstantial factors to establish that the crime  
            was committed. AB 2221 thus appears unnecessary given the  
            current power of law enforcement to effectuate an arrest. 

          "The letter of support from the Bakersfield Police Department  
            further demonstrates this point. The Department states that  
            between 2013 and 2015, they arrested 1,861 people for  
            prostitution. The Department, by its own reporting, is quite  
            effective at arresting people for prostitution. 

          "The ability to stop, arrest and search an individual is an  
            enormous power that we give police. Lowering the threshold to  
            allow an officer to arrest someone for a misdemeanor raises  
            serious concerns about likely abuse of that power. An officer  
            may be tempted to arrest someone as a pre-text, in order to  
            question the suspect or conduct a search for additional  
            evidence. Pre-text arrests are akin to stop-and-frisk programs  
            and frequently associated with racial profiling and other  
            abuses of power. A recent poll found that most voters in  
            California believe that police discriminate against people of  
            color.  71% of California voters believe police are most  
            likely to discriminate against young black men.  Similarly,  








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            voters view Latinos (58%) and young Latino men (61%) as groups  
            that are more likely to be discriminated against. Making it  
            easier for police to arrest people for low-level offenses will  
            only make these problems worse.

          "AB 2221 also requires the prosecution to provide a witness in a  
            human trafficking case with victim assistance prior to  
            testifying. We have no objection to this portion of the bill."

          8)Related Legislation:  AB 1276 (Santiago), would authorize,  
            under specified conditions, a minor 17 years of age or younger  
            to testify by contemporaneous examination and  
            cross-examination in another place and out of the presence of  
            the judge, jury, defendant or defendants, and attorneys if the  
            testimony will involve the recitation of the facts of an  
            alleged offense of human trafficking.  SB 1276 is awaiting  
            hearing in the Senate Public Safety Committee.

          9)Prior Legislation:  SB 1091 (Pavley), Chapter 148, Statutes of  
            2012, expanded the list of cases in which a prosecuting  
            witness may have support persons to include, among others,  
            cases involving human trafficking, prostitution, child  
            exploitation, and obscenity, as specified.

          REGISTERED SUPPORT / OPPOSITION:

          Support

          Bakersfield Police Department
          California Police Chiefs Association
          Peace Officers Research Association of California


          Opposition
          
          American Civil Liberties Union of California
          California Public Defenders Association
          Legal Services for Prisoners with Children  

          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744









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