BILL ANALYSIS Ó
AB 2513
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Date of Hearing: April 19, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2513 (Williams) - As Introduced February 19, 2016
As Proposed to be Amended in Committee
SUMMARY: Allows the court to consider for purposes of
determining the sentence on a human trafficking conviction that
the defendant recruited or enticed the victim from a shelter or
foster placement. Specifically, this bill:
1)States that the court may consider as an aggravating factor in
sentencing on a human trafficking offense 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.
2)Prohibits the aggravating factor from being considered unless
it is admitted by the defendant or found to be true by the
trier of fact.
3)Makes technical, non-substantive, and conforming changes.
EXISTING LAW:
1)Provides that when a judgment of imprisonment is to be imposed
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and the statute specifies three possible terms, the choice of
the appropriate term shall rest within the sound discretion of
the court. (Pen.Code, § 1170, subd. (b).)
2)Provides that when a sentencing enhancement specifies three
possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. (Pen. Code, §
1170.1, subd. (d).)
3)Provides that sentencing choices requiring a statement of a
reason include "[s]electing one of the three authorized prison
terms referred to in section 1170(b) for either an offense or
an enhancement." (Cal. Rules of Court, Rule 4.406(b)(4).)
4)Requires the sentencing judge to consider relevant criteria
enumerated in the Rules of Court. (Pen. Code, § 1170, subd.
(a)(3), Cal. Rules of Court, Rule 4.409.)
5)Provides that, in exercising discretion to select one of the
three authorized prison terms referred to in section 1170,
subdivision (b), "the sentencing judge may consider
circumstances in aggravation or mitigation, and any other
factor reasonably related to the sentencing decision. The
relevant circumstances may be obtained from the case record,
the probation officer's report, other reports and statements
properly received, statements in aggravation or mitigation,
and any evidence introduced at the sentencing hearing." (Cal.
Rules of Court, Rule 4.420(b), Pen.Code, § 1170, subd. (b.)
6)Prohibits the sentencing court from using a fact charged and
found as an enhancement as a reason for imposing the upper
term unless the court exercises its discretion to strike the
punishment for the enhancement. (Pen. Code, § 1170, subd.
(b), Cal. Rules of Court, Rule 4.420(c).)
7)Prohibits the sentencing court from using a fact that is an
element of the crime to impose a greater term. (Cal. Rules of
Court, Rule 4.420(d).)
8)Enumerates circumstances in aggravation, relating both to the
crime and to the defendant, as specified. (Cal. Rules of
Court, Rule 4.421.)
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9)Enumerates circumstances in mitigation, relating both to the
crime and to the defendant, as specified. (Cal. Rules of
Court, Rule 4.423.)
10)Provides that a person who deprives or violates the personal
liberties of another with the intent to obtain forced labor or
services is guilty of human trafficking and shall be punished
by a state prison term of 5, 8, or 12 years. (Pen. Code, §
236.1, subd. (a).)
11)Provides that any person who deprives or violates the
personal liberties of another with the intent to effect or
maintain a violation of specified sex offenses, is guilty of
human trafficking and shall be punished by a state prison term
of 8, 14, or 20 years. (Pen. Code, § 236.1, subd. (b).)
12)Provides that any person who causes or persuades, or attempts
to cause or persuade, a minor to engage in a commercial sex
act, with the intent to effect a violation of specified sex
offenses is guilty of human trafficking and shall be punished
by a state prison term of 5, 8, or 12 years, unless the
offense involves force, fear, fraud, deceit, coercion,
violence, duress, menace, or threat of unlawful injury to the
victim or to another person, in which case the punishment is
15 years to life in state prison. (Pen. Code § 236.1, subd.
(c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 2513 amends
Proposition 35, the Californians Against Sexual Exploitation
(CASE) Act initiative, to specify that when sentencing a
criminal defendant convicted of human trafficking, California
judges have the discretion to consider as an aggravating
factor 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.
It is our responsibility as a society to care for those who
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are defenseless and in need of community support. Discouraging
offenders from preying on the easiest targets in our community
is critical to protecting these individuals from trafficking.
Empowering our judges is one way to discourage criminals from
participating in acts of human trafficking."
2)Sixth Amendment Implications: This bill allows the court to
consider and take into account as an aggravating factor for
purposes of sentencing on a human trafficking conviction that
the defendant lured or obtained the victim in a shelter that
houses runaways, the homeless, domestic violence or human
trafficking victims, or from a foster placement.
The Sixth Amendment right to a jury applies to any factual
finding, other than that of a prior conviction, necessary to
warrant any sentence beyond the presumptive maximum.
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely v.
Washington (2004) 524 U.S. 296, 301, 303-04.)
In Cunningham v. California (2007) 549 U.S. 270, the United
States Supreme Court held California's Determinate Sentencing
Law (DSL) violated a defendant's right to trial by jury by
placing sentence-elevating fact finding within the judge's
province. (Id. at p. 274.) The DSL authorized the court to
increase the defendant's sentence by finding facts not
reflected in the jury verdict. Specifically, the trial judge
could find factors in aggravation by a preponderance of
evidence to increase the offender's sentence from the
presumptive middle term to the upper term and, as such, was
constitutionally flawed. The Court stated, "Because the DSL
authorizes the judge, not the jury, to find the facts
permitting an upper term sentence, the sentence cannot
withstand measurement against our Sixth Amendment precedent."
(Id. at p. 293.)
Following Cunningham, the Legislature amended the DSL,
specifically Penal Code sections 1170 and 1170.2, to make
the choice of lower, middle, or upper prison term one
within the sound discretion of the court. (See SB 40
(Romero) - Chapter 3, Statutes of 2007.) This approach was
embraced by the California Supreme Court in People v.
Sandoval (2007) 41 Cal.4th 825, 843-852. The new procedure
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removes the mandatory middle term and the requirement of
weighing aggravation against mitigation before imposition of
the upper term. Now, the sentencing court is permitted to
impose any of the three terms in its discretion, and need
only state reasons for the decision so that it will be
subject to appellate review for abuse of discretion. (Id.
at pp. 843, 847.)
Under this bill, the judge can increase the sentence based
on the fact that the defendant enticed or took the human
trafficking victim from a shelter or a placement. However,
consistent with the holdings in Apprendi, Blakely, and
Cunningham, supra, the factual finding must be admitted by
the defendant, or found to be true by the trier of fact,
before the court can consider it as an aggravating factor.
3)Argument in Support: According to the California State
Sheriffs' Association, "It goes without saying that
trafficking offenses committed against children are
reprehensible and offenses that are facilitated by the fact
that the minor is a foster child or homeless are especially
pernicious. AB 2513 is a modest alteration to existing law
that allows a court to appropriately recognize that evil that
is inherent in the child trafficking crimes."
4)Related Legislation:
a) AB 1771 (O'Donnell) increases the punishment for
supervising or aiding a prostitute from up to six months in
the county jail to up to a year in the county jail, and
adds additional circumstances that can be considered in
determining whether someone is guilty of a violation of
supervising or aiding a prostitute. AB 1771 is pending in
the Assembly Appropriations Committee.
b) SB 1202 (Leno) prohibits the court from imposing an
upper term based upon aggravating facts unless those facts
are presented to and found to be true by the trier of fact.
SB 1202 is pending hearing in the Senate Public Safety
Committee.
5)Prior Legislation:
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a) Proposition 35, of the November 2012 election, increased
the punishment for human-trafficking offenses; imposed new
fines to fund services for human-trafficking victims;
changed how evidence can be used against human-trafficking
victims; and, required additional law enforcement training
on handling human-trafficking cases.
b) SB 40 (Romero), Chapter 3, Statutes of 2007, amended
California's DSL to eliminate the presumption for the
middle term and to state that where a court may impose a
lower, middle or upper term in sentencing a defendant, the
choice of appropriate term shall be left to the discretion
of the court.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association
California State Sheriffs' Association
Peace Officers Research Association of California
Opposition
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744
AB 2513
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