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 wouldbegin delete authorize the court to consider and take into account, in certain circumstances, 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.end deletebegin insert make a person who is convicted of a violation of that prohibition subject to a penalty enhancement of one additional year in the state prison, to be served consecutive to any other term imposed by the court, if it is found that he or she 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.end insert The bill would also make technical and nonsubstantive conforming changes.begin insert By increasing the penalty for an existing crime, the bill would impose a state-mandated local program.end insert
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
end insertbegin insertThis bill would provide that no reimbursement is required by this act for a specified reason.
end insertVote: majority.
Appropriation: no.
Fiscal committee: begin deleteno end deletebegin insertyesend insert.
State-mandated local program: begin deleteno end deletebegin insertyesend insert.
The people of the State of California do enact as follows:
Section 236.1 of the Penal Code is amended to
2read:
(a) A person who deprives or violates the personal
4liberty of another with the intent to obtain forced labor or services,
5is guilty of human trafficking and shall be punished by
6imprisonment in the state prison for 5, 8, or 12 years and a fine of
7not more than five hundred thousand dollars ($500,000).
8(b) A person who deprives or violates the personal liberty of
9another with the intent to effect or maintain a violation of Section
10266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5,
11311.6, or 518 is guilty of human trafficking and shall be punished
12by imprisonment in the state prison for 8, 14, or 20 years and a
13fine of not more than five hundred thousand dollars ($500,000).
14(c) A person who causes, induces, or persuades, or attempts to
15cause, induce, or persuade, a person who is a minor at the time of
16commission of the offense to engage in a commercial sex act, with
17the intent to effect or maintain a violation of Section 266, 266h,
P3 1266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518
2is guilty of human trafficking. A violation of this subdivision is
3punishable by imprisonment in the state prison as follows:
4(1) Five, 8, or 12 years and a fine of not more than five hundred
5thousand dollars ($500,000).
6(2) Fifteen years to life and a fine of not more than five hundred
7thousand dollars ($500,000) when the offense involves force, fear,
8fraud, deceit, coercion, violence, duress, menace,
or threat of
9unlawful injury to the victim or to another person.
10(d) In determining whether a minor was caused, induced, or
11persuaded to engage in a commercial sex act, the totality of the
12circumstances, including the age of the victim, his or her
13relationship to the trafficker or agents of the trafficker, and any
14handicap or disability of the victim, shall be considered.
15(e) Consent by a victim of human trafficking who is a minor at
16the time of the commission of the offense is not a defense to a
17criminal prosecution under this section.
18(f) Mistake of fact as to the age of a victim of human trafficking
19who is a minor at the time of the commission of the offense is not
20a defense to a criminal prosecution under this
section.
21(g) The Legislature finds that the definition of human trafficking
22in this section is equivalent to the federal definition of a severe
23form of trafficking found in Section 7102 of Title 22 of the United
24States Code.
25(h) The court may consider and take into account as an
26aggravating factor, for purposes of determining the sentence to be
27imposed, the fact that the defendant recruited, enticed, or obtained
28the victim from a shelter or placement that is designed to serve
29runaway youth, foster children, homeless persons, or victims of
30human trafficking or domestic violence. The aggravating factor
31provided for in this subdivision shall only be considered if it is
32admitted by the defendant or found to be true by the trier
of fact.
33
(h) A person who is convicted of a violation of this section shall
34be subject to a penalty enhancement of one additional year in the
35state prison, which shall be served consecutive to any other term
36imposed by the court, if it is found that he or she recruited, enticed,
37or obtained the victim from a shelter or placement that is designed
38to serve runaway youth, foster children, homeless persons, or
39victims of human trafficking or domestic violence. The
40enhancement provided for in this subdivision shall only be imposed
P4 1if it is admitted by the defendant or found to be true by the trier of
2fact.
3(i) For purposes of this chapter, the following definitions apply:
4(1) “Coercion” includes any scheme, plan, or pattern intended
5to cause a person to believe that failure to perform an act would
6result in serious harm to or physical restraint against any person;
7the abuse or threatened abuse of the legal process; debt bondage;
8or providing and facilitating the possession of any controlled
9substance to a person with the intent to impair the person’s
10judgment.
11(2) “Commercial sex act” means sexual conduct on account of
12which anything of value is given or received by any person.
13(3) “Deprivation or violation of the personal liberty of another”
14includes substantial and sustained restriction of another’s liberty
15accomplished through force, fear, fraud, deceit, coercion, violence,
16duress, menace, or threat of unlawful injury to the victim or to
17another
person, under circumstances where the person receiving
18or apprehending the threat reasonably believes that it is likely that
19the person making the threat would carry it out.
20(4) “Duress” includes a direct or implied threat of force,
21violence, danger, hardship, or retribution sufficient to cause a
22reasonable person to acquiesce in or perform an act which he or
23she would otherwise not have submitted to or performed; a direct
24or implied threat to destroy, conceal, remove, confiscate, or possess
25any actual or purported passport or immigration document of the
26victim; or knowingly destroying, concealing, removing,
27confiscating, or possessing any actual or purported passport or
28immigration document of the victim.
29(5) “Forced labor or services” means labor or services that are
30performed
or provided by a person and are obtained or maintained
31through force, fraud, duress, or coercion, or equivalent conduct
32that would reasonably overbear the will of the person.
33(6) “Great bodily injury” means a significant or substantial
34physical injury.
35(7) “Minor” means a person less than 18 years of age.
36(8) “Serious harm” includes any harm, whether physical or
37nonphysical, including psychological, financial, or reputational
38harm, that is sufficiently serious, under all the surrounding
39circumstances, to compel a reasonable person of the same
40background and in the same circumstances to perform or to
P5 1continue performing labor, services, or commercial sexual acts in
2order to avoid incurring that harm.
3(j) The total circumstances, including the age of the victim, the
4relationship between the victim and the trafficker or agents of the
5trafficker, and any handicap or disability of the victim, shall be
6
factors to consider in determining the presence of “deprivation or
7violation of the personal liberty of another,” “duress,” and
8“coercion” as described in this section.
Section 236.7 of the Penal Code is amended to read:
(a) An interest in a vehicle, boat, airplane, money,
11negotiable instruments, securities, real property, or other thing of
12value that was put to substantial use for the purpose of facilitating
13the crime of human trafficking that involves a commercial sex act,
14as defined in paragraph (2) of subdivision (i) of Section 236.1, in
15which the victim was less than 18 years of age at the time of the
16commission of the crime, may be seized and ordered forfeited by
17the court upon the conviction of a person guilty of human
18trafficking that involves a commercial sex act in which the victim
19is an individual under 18 years of age, pursuant to Section 236.1.
20(b) In any case in which a defendant is convicted
of human
21trafficking pursuant to Section 236.1 and an allegation is found to
22be true that the victim was a person under 18 years of age and the
23crime involved a commercial sex act, as defined in paragraph (2)
24of subdivision (i) of Section 236.1, the following assets shall be
25subject to forfeiture upon proof of the provisions of subdivision
26(d) of Section 236.9:
27(1) A property interest, whether tangible or intangible, acquired
28through human trafficking that involves a commercial sex act in
29which the victim was less than 18 years of age at the time of the
30commission of the crime.
31(2) All proceeds from human trafficking that involves a
32commercial sex act where the victim was less than 18 years of age
33at the time of the commission of the crime, which property shall
34include all
things of value that may have been received in exchange
35for the proceeds immediately derived from the act.
36(c) If a prosecuting agency petitions for forfeiture of an interest
37under subdivision (a) or (b), the process prescribed in Sections
38236.8 to 236.12, inclusive, shall apply, but no local or state
39prosecuting agency shall be required to petition for forfeiture in
40any case.
P6 1(d) Real property that is used as a family residence or for other
2lawful purposes, or that is owned by two or more persons, one of
3whom had no knowledge of its unlawful use, shall not be subject
4to forfeiture.
5(e) An interest in a vehicle that may be lawfully driven with a
6class C, class M1, or class M2 license, as prescribed in Section
712804.9
of the Vehicle Code, may not be forfeited under this
8section if there is a community property interest in the vehicle by
9a person other than the defendant and the vehicle is the sole vehicle
10of this type available to the defendant’s immediate family.
11(f) Real property subject to forfeiture may not be seized, absent
12exigent circumstances, without notice to the interested parties and
13a hearing to determine that seizure is necessary to preserve the
14property pending the outcome of the proceedings. At the hearing,
15the prosecution shall bear the burden of establishing that probable
16cause exists for the forfeiture of the property and that seizure is
17necessary to preserve the property pending the outcome of the
18forfeiture proceedings. The court may issue a seizure order pursuant
19to this section if it finds that seizure is warranted or a pendente lite
20order
pursuant to Section 236.10 if it finds that the status quo or
21value of the property can be preserved without seizure.
22(g) For purposes of this section, no allegation or proof of a
23pattern of criminal profiteering activity is required.
Section 236.8 of the Penal Code is amended to read:
(a) If the prosecuting agency, in conjunction with the
26criminal proceeding, files a petition of forfeiture with the superior
27court of the county in which the defendant has been charged with
28human trafficking that involves a commercial sex act, as defined
29in paragraph (2) of subdivision (i) of Section 236.1, where the
30victim was less than 18 years of age at the time of the commission
31of the crime, the prosecuting agency shall make service of process
32of a notice regarding that petition upon every individual who may
33have a property interest in the alleged proceeds or instruments.
34The notice shall state that any interested party may file a verified
35claim with the superior court stating the amount of their claimed
36interest and an affirmation or denial
of the prosecuting agency’s
37allegation. If the notice cannot be given by registered mail or
38personal delivery, the notice shall be published for at least three
39successive weeks in a newspaper of general circulation in the
40county where the property is located. If the property alleged to be
P7 1subject to forfeiture is real property, the prosecuting agency shall,
2at the time of filing the petition of forfeiture, record a lis pendens
3with the county recorder in each county in which the real property
4is situated that specifically identifies the real property alleged to
5be subject to forfeiture. The judgment of forfeiture shall not affect
6the interest in real property of a third party that was acquired prior
7to the recording of the lis pendens.
8(b) All notices shall set forth the time within which a claim of
9interest in the property seized is required
to be filed pursuant to
10Section 236.9.
Section 236.10 of the Penal Code is amended to read:
(a) Concurrent with or subsequent to the filing of the
13petition, the prosecuting agency may move the superior court for,
14and the superior court may issue, the following pendente lite orders
15to preserve the status quo of the property alleged in the petition:
16(1) An injunction to restrain anyone from transferring,
17encumbering, hypothecating, or otherwise disposing of the
18property.
19(2) Appointment of a receiver to take possession of, care for,
20manage, and operate the assets and properties so that the property
21may be maintained and preserved. The court may order that a
22receiver appointed pursuant to this section be compensated
for all
23reasonable expenditures made or incurred by him or her in
24connection with the possession, care, management, and operation
25of property or assets that are subject to the provisions of this
26section.
27(b) A preliminary injunction may not be granted or receiver
28appointed without notice to the interested parties and a hearing to
29determine that an order is necessary to preserve the property,
30pending the outcome of the criminal proceedings, and that there
31is probable cause to believe that the property alleged in the
32forfeiture proceedings are proceeds, instruments, or property
33interests forfeitable under the provisions of Section 236.7.
34However, a temporary restraining order may issue pending that
35hearing pursuant to the provisions of Section 527 of the Code of
36Civil Procedure.
37(c) Notwithstanding any other law, the court in granting these
38motions may order a surety bond or undertaking to preserve the
39property interests of the interested parties.
P8 1(d) The court shall, in making its orders, seek to protect the
2interests of those who may be involved in the same enterprise as
3the defendant, but who were not involved in human trafficking
4that involves a commercial sex act, as defined in paragraph (2) of
5subdivision (i) of Section 236.1, in which the victim was less than
618 years of age at the time of the commission of the crime.
Section 236.11 of the Penal Code is amended to read:
(a) If the trier of fact at the forfeiture hearing finds
9that the alleged property, instruments, or proceeds are forfeitable
10pursuant to Section 236.7 and the defendant was engaged in human
11trafficking that involves a commercial sex act, as defined in
12paragraph (2) of subdivision (i) of Section 236.1, if the victim was
13less than 18 years of age at the time of the commission of the crime,
14the court shall declare that property or proceeds forfeited to the
15state or local governmental entity, subject to distribution as
16provided in Section 236.12. Property that is solely owned by a
17bona fide purchaser for value shall not be subject to forfeiture.
18(b) If the trier of fact at the forfeiture
hearing finds that the
19alleged property is forfeitable pursuant to Section 236.7 but does
20not find that a person holding a valid lien, mortgage, security
21interest, or interest under a conditional sales contract acquired that
22interest with actual knowledge that the property was to be used
23for a purpose for which forfeiture is permitted, and the amount
24due to that person is less than the appraised value of the property,
25that person may pay to the state or the local governmental entity
26that initiated the forfeiture proceeding the amount of the registered
27owner’s equity, which shall be deemed to be the difference between
28the appraised value and the amount of the lien, mortgage, security
29interest, or interest under a conditional sales contract. Upon
30payment, the state or local governmental entity shall relinquish all
31claims to the property. If the holder of the interest elects not to pay
32the state or
local governmental entity, the property shall be deemed
33forfeited to the state or local governmental entity and the ownership
34certificate shall be forwarded. The appraised value shall be
35determined as of the date judgment is entered either by agreement
36between the legal owner and the governmental entity involved, or,
37if they cannot agree, by a court-appointed appraiser for the county
38in which the action is brought. A person holding a valid lien,
39mortgage, security interest, or interest under a conditional sales
40contract shall be paid the appraised value of his or her interest.
P9 1(c) If the amount due to a person holding a valid lien, mortgage,
2security interest, or interest under a conditional sales contract is
3less than the value of the property and the person elects not to
4make payment to the governmental entity, the property shall be
5sold at
public auction by the Department of General Services or
6by the local governmental entity. The seller shall provide notice
7of the sale by one publication in a newspaper published and
8circulated in the city, community, or locality where the sale is to
9take place.
10(d) Notwithstanding subdivision (c), a county may dispose of
11real property forfeited to the county pursuant to this chapter by
12the process prescribed in Section 25538.5 of the Government Code.
No reimbursement is required by this act pursuant to
14Section 6 of Article XIII B of the California Constitution because
15the only costs that may be incurred by a local agency or school
16district will be incurred because this act creates a new crime or
17infraction, eliminates a crime or infraction, or changes the penalty
18for a crime or infraction, within the meaning of Section 17556 of
19the Government Code, or changes the definition of a crime within
20the meaning of Section 6 of Article XIII B of the California
21Constitution.
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