BILL ANALYSIS Ó AB 2513 Page 1 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 AB 2513 Page 2 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.) AB 2513 Page 3 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 AB 2513 Page 4 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 AB 2513 Page 5 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: AB 2513 Page 6 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 Page 7