Amended in Assembly April 25, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2513

Introduced by Assembly Member Williams

February 19, 2016

An act to amend Sections 236.1, 236.7, 236.8, 236.10, and 236.11 of the Penal Code, relating to human trafficking.

LEGISLATIVE COUNSEL’S DIGEST

AB 2513, as amended, Williams. Human trafficking: aggravating factors.

Existing law, as amended by the Californians Against Sexual Exploitation (CASE) Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election, proscribes the crime of human trafficking. A person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, or to effect or maintain a violation of various felony or misdemeanor offenses, including offenses relating to prostitution, child pornography, as specified, or extortion, as defined, is guilty of human trafficking. A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of various felony or misdemeanor offenses, is also guilty of human trafficking.

This bill would authorize the court to consider and take into begin delete account end delete begin insert account, in certain circumstances, end insert as an aggravating factor for purposes of determining the sentence to be imposed the fact that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. The bill would also make technical and nonsubstantive conforming changes.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 236.1 of the Penal Code is amended to
read:

236.1.  

(a) A person who deprives or violates the personal
liberty of another with the intent to obtain forced labor or services,
is guilty of human trafficking and shall be punished by
imprisonment in the state prison for 5, 8, or 12 years and a fine of
not more than five hundred thousand dollars ($500,000).

(b) A person who deprives or violates the personal liberty of
another with the intent to effect or maintain a violation of Section
266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5,
311.6, or 518 is guilty of human trafficking and shall be punished
by imprisonment in the state prison for 8, 14, or 20 years and a
fine of not more than five hundred thousand dollars ($500,000).

(c) A person who causes, induces, or persuades, or attempts to
cause, induce, or persuade, a person who is a minor at the time of
commission of the offense to engage in a commercial sex act, with
the intent to effect or maintain a violation of Section 266, 266h,
266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518
is guilty of human trafficking. A violation of this subdivision is
punishable by imprisonment in the state prison as follows:

(1) Five, 8, or 12 years and a fine of not more than five hundred
thousand dollars ($500,000).

(2) Fifteen years to life and a fine of not more than five hundred
thousand dollars ($500,000) when the offense involves force, fear,
fraud, deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person.

(d) In determining whether a minor was caused, induced, or
persuaded to engage in a commercial sex act, the totality of the
circumstances, including the age of the victim, his or her
relationship to the trafficker or agents of the trafficker, and any
handicap or disability of the victim, shall be considered.

(e) Consent by a victim of human trafficking who is a minor at
the time of the commission of the offense is not a defense to a
criminal prosecution under this section.

(f) Mistake of fact as to the age of a victim of human trafficking
who is a minor at the time of the commission of the offense is not
a defense to a criminal prosecution under this section.

(g) The Legislature finds that the definition of human trafficking
in this section is equivalent to the federal definition of a severe
form of trafficking found in Section 7102 of Title 22 of the United
States Code.

(h) The court may consider and take into account as an
aggravating factor, for purposes of determining the sentence to be
imposed, the fact that the defendant recruited, enticed, or obtained
the victim from a shelter or placement that is designed to serve
runaway youth, foster children, homeless persons, or victims of
human trafficking or domestic violence. begin insert The aggravating factor
provided for in this subdivision shall only be considered if it is
admitted by the defendant or found to be true by the trier of fact. end insert

(i) For purposes of this chapter, the following definitions apply:

(1) “Coercion” includes any scheme, plan, or pattern intended
to cause a person to believe that failure to perform an act would
result in serious harm to or physical restraint against any person;
the abuse or threatened abuse of the legal process; debt bondage;
or providing and facilitating the possession of any controlled
substance to a person with the intent to impair the person’s
judgment.

(2) “Commercial sex act” means sexual conduct on account of
which anything of value is given or received by any person.

(3) “Deprivation or violation of the personal liberty of another”
includes substantial and sustained restriction of another’s liberty
accomplished through force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim or to
another person, under circumstances where the person receiving
or apprehending the threat reasonably believes that it is likely that
the person making the threat would carry it out.

(4) “Duress” includes a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to cause a
reasonable person to acquiesce in or perform an act which he or
she would otherwise not have submitted to or performed; a direct
or implied threat to destroy, conceal, remove, confiscate, or possess
any actual or purported passport or immigration document of the
victim; or knowingly destroying, concealing, removing,
confiscating, or possessing any actual or purported passport or
immigration document of the victim.

(5) “Forced labor or services” means labor or services that are
performed or provided by a person and are obtained or maintained
through force, fraud, duress, or coercion, or equivalent conduct
that would reasonably overbear the will of the person.

(6) “Great bodily injury” means a significant or substantial
physical injury.

(7) “Minor” means a person less than 18 years of age.

(8) “Serious harm” includes any harm, whether physical or
nonphysical, including psychological, financial, or reputational
harm, that is sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the same
background and in the same circumstances to perform or to
continue performing labor, services, or commercial sexual acts in
order to avoid incurring that harm.

(j) The total circumstances, including the age of the victim, the
relationship between the victim and the trafficker or agents of the
trafficker, and any handicap or disability of the victim, shall be
factors to consider in determining the presence of “deprivation or
violation of the personal liberty of another,” “duress,” and
“coercion” as described in this section.

SEC. 2.  

Section 236.7 of the Penal Code is amended to read:

236.7.  

(a) An interest in a vehicle, boat, airplane, money,
negotiable instruments, securities, real property, or other thing of
value that was put to substantial use for the purpose of facilitating
the crime of human trafficking that involves a commercial sex act,
as defined in paragraph (2) of subdivision (i) of Section 236.1, in
which the victim was less than 18 years of age at the time of the
commission of the crime, may be seized and ordered forfeited by
the court upon the conviction of a person guilty of human
trafficking that involves a commercial sex act in which the victim
is an individual under 18 years of age, pursuant to Section 236.1.

(b) In any case in which a defendant is convicted of human
trafficking pursuant to Section 236.1 and an allegation is found to
be true that the victim was a person under 18 years of age and the
crime involved a commercial sex act, as defined in paragraph (2)
of subdivision (i) of Section 236.1, the following assets shall be
subject to forfeiture upon proof of the provisions of subdivision
(d) of Section 236.9:

(1) A property interest, whether tangible or intangible, acquired
through human trafficking that involves a commercial sex act in
which the victim was less than 18 years of age at the time of the
commission of the crime.

(2) All proceeds from human trafficking that involves a
commercial sex act where the victim was less than 18 years of age
at the time of the commission of the crime, which property shall
include all things of value that may have been received in exchange
for the proceeds immediately derived from the act.

(c) If a prosecuting agency petitions for forfeiture of an interest
under subdivision (a) or (b), the process prescribed in Sections
236.8 to 236.12, inclusive, shall apply, but no local or state
prosecuting agency shall be required to petition for forfeiture in
any case.

(d) Real property that is used as a family residence or for other
lawful purposes, or that is owned by two or more persons, one of
whom had no knowledge of its unlawful use, shall not be subject
to forfeiture.

(e) An interest in a vehicle that may be lawfully driven with a
class C, class M1, or class M2 license, as prescribed in Section
12804.9 of the Vehicle Code, may not be forfeited under this
section if there is a community property interest in the vehicle by
a person other than the defendant and the vehicle is the sole vehicle
of this type available to the defendant’s immediate family.

(f) Real property subject to forfeiture may not be seized, absent
exigent circumstances, without notice to the interested parties and
a hearing to determine that seizure is necessary to preserve the
property pending the outcome of the proceedings. At the hearing,
the prosecution shall bear the burden of establishing that probable
cause exists for the forfeiture of the property and that seizure is
necessary to preserve the property pending the outcome of the
forfeiture proceedings. The court may issue a seizure order pursuant
to this section if it finds that seizure is warranted or a pendente lite
order pursuant to Section 236.10 if it finds that the status quo or
value of the property can be preserved without seizure.

(g) For purposes of this section, no allegation or proof of a
pattern of criminal profiteering activity is required.

SEC. 3.  

Section 236.8 of the Penal Code is amended to read:

236.8.  

(a) If the prosecuting agency, in conjunction with the
criminal proceeding, files a petition of forfeiture with the superior
court of the county in which the defendant has been charged with
human trafficking that involves a commercial sex act, as defined
in paragraph (2) of subdivision (i) of Section 236.1, where the
victim was less than 18 years of age at the time of the commission
of the crime, the prosecuting agency shall make service of process
of a notice regarding that petition upon every individual who may
have a property interest in the alleged proceeds or instruments.
The notice shall state that any interested party may file a verified
claim with the superior court stating the amount of their claimed
interest and an affirmation or denial of the prosecuting agency’s
allegation. If the notice cannot be given by registered mail or
personal delivery, the notice shall be published for at least three
successive weeks in a newspaper of general circulation in the
county where the property is located. If the property alleged to be
subject to forfeiture is real property, the prosecuting agency shall,
at the time of filing the petition of forfeiture, record a lis pendens
with the county recorder in each county in which the real property
is situated that specifically identifies the real property alleged to
be subject to forfeiture. The judgment of forfeiture shall not affect
the interest in real property of a third party that was acquired prior
to the recording of the lis pendens.

(b) All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed pursuant to
Section 236.9.

SEC. 4.  

Section 236.10 of the Penal Code is amended to read:

236.10.  

(a) Concurrent with or subsequent to the filing of the
petition, the prosecuting agency may move the superior court for,
and the superior court may issue, the following pendente lite orders
to preserve the status quo of the property alleged in the petition:

(1) An injunction to restrain anyone from transferring,
encumbering, hypothecating, or otherwise disposing of the
property.

(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved. The court may order that a
receiver appointed pursuant to this section be compensated for all
reasonable expenditures made or incurred by him or her in
connection with the possession, care, management, and operation
of property or assets that are subject to the provisions of this
section.

(b) A preliminary injunction may not be granted or receiver
appointed without notice to the interested parties and a hearing to
determine that an order is necessary to preserve the property,
pending the outcome of the criminal proceedings, and that there
is probable cause to believe that the property alleged in the
forfeiture proceedings are proceeds, instruments, or property
interests forfeitable under the provisions of Section 236.7.
However, a temporary restraining order may issue pending that
hearing pursuant to the provisions of Section 527 of the Code of
Civil Procedure.

(c) Notwithstanding any other law, the court in granting these
motions may order a surety bond or undertaking to preserve the
property interests of the interested parties.

(d) The court shall, in making its orders, seek to protect the
interests of those who may be involved in the same enterprise as
the defendant, but who were not involved in human trafficking
that involves a commercial sex act, as defined in paragraph (2) of
subdivision (i) of Section 236.1, in which the victim was less than
18 years of age at the time of the commission of the crime.

SEC. 5.  

Section 236.11 of the Penal Code is amended to read:

236.11.  

(a) If the trier of fact at the forfeiture hearing finds
that the alleged property, instruments, or proceeds are forfeitable
pursuant to Section 236.7 and the defendant was engaged in human
trafficking that involves a commercial sex act, as defined in
paragraph (2) of subdivision (i) of Section 236.1, if the victim was
less than 18 years of age at the time of the commission of the crime,
the court shall declare that property or proceeds forfeited to the
state or local governmental entity, subject to distribution as
provided in Section 236.12. Property that is solely owned by a
bona fide purchaser for value shall not be subject to forfeiture.

(b) If the trier of fact at the forfeiture hearing finds that the
alleged property is forfeitable pursuant to Section 236.7 but does
not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired that
interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount
due to that person is less than the appraised value of the property,
that person may pay to the state or the local governmental entity
that initiated the forfeiture proceeding the amount of the registered
owner’s equity, which shall be deemed to be the difference between
the appraised value and the amount of the lien, mortgage, security
interest, or interest under a conditional sales contract. Upon
payment, the state or local governmental entity shall relinquish all
claims to the property. If the holder of the interest elects not to pay
the state or local governmental entity, the property shall be deemed
forfeited to the state or local governmental entity and the ownership
certificate shall be forwarded. The appraised value shall be
determined as of the date judgment is entered either by agreement
between the legal owner and the governmental entity involved, or,
if they cannot agree, by a court-appointed appraiser for the county
in which the action is brought. A person holding a valid lien,
mortgage, security interest, or interest under a conditional sales
contract shall be paid the appraised value of his or her interest.

(c) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to
make payment to the governmental entity, the property shall be
sold at public auction by the Department of General Services or
by the local governmental entity. The seller shall provide notice
of the sale by one publication in a newspaper published and
circulated in the city, community, or locality where the sale is to
take place.

(d) Notwithstanding subdivision (c), a county may dispose of
real property forfeited to the county pursuant to this chapter by
the process prescribed in Section 25538.5 of the Government Code.