BILL ANALYSIS Ó
AB 2221
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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
AB 2221
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