BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2513 Hearing Date: June 14, 2016
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|Author: |Williams |
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|Version: |April 25, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Human Trafficking: Aggravating Factors
HISTORY
Source: Author
Prior Legislation:Proposition 35, of the November 2012 election
SB 40 (Romero) - Chapter 3, Stats. of 2007
Support: California State Sheriffs' Association; Peace Officers
Research Association of California
Opposition:Legal Services for Prisoners with Children; San Diego
County District Attorney
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to allow 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.
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Existing law generally provides that a court must, on the
record, state a reason for each sentencing choice. (Pen. Code §
1170, subds. (b), (c) and (d)(2)(I).
Existing law provides that when a judgment of imprisonment is to
be imposed 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).)
Existing law 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).)
Existing law 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).)
Existing law 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.
Existing law 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.)
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Existing law 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).)
Existing law prohibits the sentencing court from using a fact
that is an element of the crime to impose a greater term. (Pen.
Code § 1170, subds. (b), (c) and (d)(2)(I); Cal. Rules of Court,
Rule 4.420(d).)
Existing law enumerates circumstances in aggravation, relating
both to the crime and to the defendant, as specified. (Cal.
Rules of Court, Rule 4.421.)
Existing law enumerates circumstances in mitigation, relating
both to the crime and to the defendant, as specified. (Cal.
Rules of Court, Rule 4.423.)
Existing law 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).)
Existing law 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).)
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Existing law 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).)
This bill 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.
This bill prohibits the aggravating factor from being considered
unless it is admitted by the defendant or found to be true by
the trier of fact.
This bill makes technical, non-substantive, and conforming
changes.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
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proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for this Bill
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 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
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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) - Ch. 3,
Stats. 2007.) This approach was approved by the California
Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825,
843-852. The new procedure 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.Aggravating Factors as the Basis for an Upper Term,
Prohibition on using the Same Fact to Impose an Aggravated
Term and an Enhancement
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Regardless of whether an upper term is supported by a finding of
fact or imposed through the sound discretion of the court, the
aggravating factor or reason supporting an upper term must
reflect that the defendant's crime is distinctly worse than the
average conviction for that same crime. (People v. Black (2007)
41 Cal.4th 799, 817; People v. Moreno (1982) 128 Cal.App.3d 103,
110.)
Further, California law - from the time of the enactment of the
DSL in 1976 - has prohibited the court from using a fact that
underlies an enhancement as a reason to impose the upper term.
(Pen. Code § 1170, subd. (b).) For example, if a defendant is
convicted of burglary and the prosecutor proved an enhancement
allegation that the defendant used a firearm, the court can
impose an enhancement for the firearm, but it cannot rely on the
use of a firearm to impose the upper term. The court can rely
on firearm use to impose an upper term, but the court cannot
impose punishment for the enhancement. This rule is part of
broader prohibition on the "dual use" of the same fact to impose
more than one punishment.
4.Pleading and Proof Requirements for Enhancements under
Existing Law
Sentence enhancements must be pleaded and proved. This is
compelled by the Cunningham decision, but has been a part of
the DSL since its enactment. Enhancements are based on the
manner in which a crime was committed - use of a firearm for
example - or on the status of the defendant as a recidivist.
This bill would require the prosecution to plead and prove as
an aggravating factor 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.
Current sentencing law allows a defendant to bifurcate most
prior conviction allegations. These would include prior
convictions to establish an enhancement for a prior prison term
and qualifying Three Strike convictions. Prior convictions that
are elements of an offense - prior felony conviction in a trial
for possession of a gun by a convicted felon for example - must
be tried and proved to the jury. (Cal. Const. Art. I § 28 (f).)
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Nevertheless, the defendant can avoid the prejudicial effect of
the jury learning the nature of his or her prior conviction by
admitting the prior conviction so that the jury learns only that
the defendant has been convicted of a felony.
5.Related Legislation
AB 1771 (O'Donnell) would increase 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 Senate.
SB 1202 (Leno) would prohibit 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 in the Assembly. If 1202 is enacted, it appears that
this bill - AB 2513 - would be necessary if the prosecutor
sought an upper term because the defendant recruited a human
trafficking victim from a shelter or placement.
SB 1016 (Monning) would extend the sunset on the sentencing
provisions that grant the trial court discretion to impose one
of the three terms in sentencing a defendant following
conviction of a crime, or to choose among sentence enhancement
terms upon a true finding by the jury on an enhancement
allegation. SB 1202 is pending in the Assembly.
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