BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2327       Hearing Date:    June 28, 2016    
          
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          |Author:    |Cooley                                               |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                 Subject:  Contacting or Communicating With a Minor



          HISTORY

          Source:   Alameda County District Attorney's Office

          Prior Legislation:Proposition 83, November 2006 General Election

          Support:  Association for Los Angeles Deputy Sheriffs;  
                    California Association of Code Enforcement Officers;  
                    California Narcotic Officers Association; California  
                    District Attorneys Association; California State  
                    Sheriffs' Association; Los Angeles Police Protective  
                    League; Los Angeles Professional Peace Officers  
                    Association; Peace Officers Research Association of  
                    California; Riverside Sheriffs Association

          Opposition:American Civil Liberties Union; California Attorneys  
                    for Criminal Justice  



          Assembly Floor Vote:                 80 - 0


          PURPOSE








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          This bill adds human trafficking to the list of target crimes in  
          the offense of contacting or communicating with a minor for the  
          purposes of committing a further, specified crime.  

          Existing law specifies that every person who contacts or  
          communicates with a minor, or attempts to contact or communicate  
          with a minor, who knows or reasonably should know that the  
          person is a minor, with intent to commit any of the following  
          offenses involving the minor shall be punished by imprisonment  
          in the state prison for the term prescribed for an attempt to  
          commit the intended offense.  The offenses included in this  
          section are listed as follows:  (Pen. Code §, 288.3, subd. (a).)  
           

             a)   Kidnapping; 
             b)   Kidnapping for ransom, reward, extortion, robbery, or  
               rape; 
             c)   Rape; 
             d)   Sexual penetration other than rape or sodomy; 
             e)   Willful harm or injury to a child;
             f)   Sodomy;
             g)   Lewd and lascivious acts with a minor; 
             h)   Oral copulation; 
             i)   Harmful matter sent to minor; 
             j)   Forcible sexual penetration; and
             aa)  Child pornography. 

          Existing law provides that the punishment for the offense of  
          contacting or communicating with a minor is the same as an  
          attempt to commit the crime.  (Pen. Code §, 288.3, subd. (a).)   
          California criminal law dictates that the punishment for attempt  
          is generally one half the sentence of the completed crime.   
          (Pen. Code § 664.)  

          Existing law specifies that "contacts or communicates with"  
          shall include direct and indirect contact or communication that  
          may be achieved personally or by use of an agent or agency, any  
          print medium, any postal service, a common carrier or  
          communication common carrier, any electronic communications  
          system, or any telecommunications, wire, computer, or radio  
          communications device or system.  (Pen. Code §, 288.3, subd.  
          (b).) 

          Existing law provides that a person convicted of a violation of  








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          contacting or communicating with a minor who has previously been  
          convicted of a violation the same offense shall be punished by  
          an additional and consecutive term of imprisonment in the state  
          prison for five years.  (Pen. Code §, 288.3, subd. (c).)

          This bill expands the crime of communicating with a minor with  
          the intent to commit specified sexual offenses with the minor to  
          include attempting to contact or communicating with a minor with  
          the intent to commit human trafficking.  


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          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,  








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          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  
          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:

               Human trafficking is a profitable criminal industry.  
               Unlike selling drugs, buying and selling human beings  
               is a crime that can repeat itself multiple times. It  
               is estimated that every year approximately 500,000  
               American youth are at-risk for being sold for sex in  
               the United States. Traffickers and exploiters who prey  
               on children know no boundaries; they are near schools,  








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               shopping malls, parks, foster homes, and online. Child  
               trafficking criminals are making use of online  
               resources, using technology to target their audience  
               more efficiently. AB 2327 helps law enforcement target  
               traffickers and 'Johns' more efficiently for their  
               participation in this industry.

          2.Rejections of Challenges to Penal Code Section 288.3 -  
            Communicating with a Minor with the Intent to Commit a Sex  
            Crime - in the Courts

          There are few published appellate decisions considering the  
          crime amended by this bill, although there have been a number of  
          unpublished opinions.  The unpublished opinions generally upheld  
          convictions, but unpublished cases cannot be cited as authority  
          on appeal or in a trial court in other cases.

          In one published case, the Court of Appeal rejected arguments  
          that the court should have instructed the jury on an allegedly  
          lesser-included offense, that the statute violated the  
          constitutional right to travel, was vague and denied equal  
          protection of the law.  Finally, the court rejected an argument  
          that the initiative in which the statute was defined violated  
          the California single subject rule. (People v. Keister (2011)  
          198 Cal.App.4th 442.) 

          Another case -- People v. Shapiro, previously at 228 Cal.App.4th  
          157 - was granted review by the California Supreme Court, but  
          review was later dismissed and the appellate opinion  
          depublished.  His petition for certiorari in the United States  
          Supreme Court was denied.  The defendant in Shapiro had  
          communicated over the Internet with a 16-year-old girl in  
          Indiana.  The defendant pretended to be only a few years older  
          than the victim.  He eventually convinced her to engage in  
          explicit activity during their Internet conversation.  The  
          defendant argued that he could not be convicted because the  
          victim was not a minor under Indiana law, where the age of  
          consent is 16.  He also argued that he could not have actually  
          induced or caused her to engage in sexual penetration from  
          thousands of miles away in Southern California.  Shapiro's  
          convictions have thus been allowed to stand. 

          3.California Human Trafficking Laws Generally









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          The basic human trafficking law was enacted by AB 22 (Lieber)  
          Ch. 240, Stats. 2005.  AB 22 provided that the essence of human  
          trafficking is the deprivation of the victim's liberty in order  
          to place the person in sexual commerce or obtain labor.  The  
          human trafficking law was amended by Proposition 35 in 2012.   
          The initiative greatly increased penalties, set special  
          procedures and rules of evidence and eliminated the element of  
          deprivation of liberty if the victim is a minor.  The penalties  
          established by the initiative are especially comprehensive and  
          arguably cover the full range of circumstances in human  
          trafficking.  Human trafficking of minors can be done through  
          inducements, persuasion and the like.  The use of coercion,  
          fraud, force or duress against a minor does, however, subjects  
          as defendant to especially severe penalties, including life  
          terms.  

          Proposition 35 provided for prison sentences up to  
          15-years-to-life and fines up to $1.5 million for human  
          trafficking involving minors. The proposition specified that the  
          fines collected are to be used for victim services and law  
          enforcement.  In criminal trials, the proposition prohibits the  
          use of evidence that a person was involved in criminal sexual  
          conduct (such as prostitution) to prosecute that person for that  
          crime if the conduct was a result of being a victim of human  
          trafficking, and makes evidence of sexual conduct by a victim of  
          human trafficking inadmissible for the purposes of attacking the  
          victim's credibility or character in court.  The proposition  
          lowered the evidentiary requirements for showing of force in  
          cases of minors. 

          Proposition 35 also requires persons convicted of human  
          trafficking to register as sex offenders and expanded  
          registration requirements by requiring registered sex offenders  
          to provide the names of their internet providers and  
          identifiers, such as e-mail addresses, user names, and screen  
          names, to local police or sheriff's departments.

          After passage of Proposition 35, plaintiffs American Civil  
          Liberties Union and Electronic Frontier Foundation filed a law  
          suit claiming that these provisions unconstitutionally restrict  
          the First Amendment rights of registered sex offenders in the  
          states.  A United States District Court judge granted a  
          preliminary injunction prohibiting the implementation or  
          enforcement of Proposition 35's provisions that require  








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          registered sex offenders to provide certain information  
          concerning their Internet use to law enforcement.  (Doe v.  
          Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS  
          5428.)  A bill to address the decisions of the federal courts -  
          SB 448 (Hueso) is pending in Assembly Public Safety. 

          4.Federal Law - Trafficking Victims Protection Act of 2000 

          In October 2000, the Trafficking Victims Protection Act of 2000  
          (TVPA) was enacted and is comprehensive, addressing the various  
          ways of combating trafficking, including prevention, protection  
          and prosecution.  (22 USC Sections 7101 et seq.)

          The prevention measures include the authorization of educational  
          and public awareness programs.  Protection and assistance for  
          victims of trafficking include making housing, educational,  
          health-care, job training and other federally funded social  
          service programs available to assist victims in rebuilding their  
          lives.  Finally, the TVPA provides law enforcement with tools to  
          strengthen the prosecution and punishment of traffickers, making  
          human trafficking a federal crime.



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