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



















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