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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