BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2513 Hearing Date: June 28, 2016
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|Author: |Williams |
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|Version: |June 21, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|JM |
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Subject: Human Trafficking
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; California
District Attorneys Association; Chief Probation
Officers of California; Peace Officers Research
Association of California; Santa Barbara Women's
Political Committee
Opposition:Legal Services for Prisoners with Children
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to define a sentence enhancement of
one year in a human trafficking conviction where the defendant
recruited or enticed the victim from a shelter or foster
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placement.
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
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of Court, Rule 4.420(b), Pen.Code, § 1170, subd. (b.)
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 defines a one-year enhancement of sentence imposed on
a defendant convicted of human trafficking where the jury
finds 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.
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:
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
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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
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1. Need for This Bill
According to the author:
AB 2513 amends Proposition 35, the Californians
Against Sexual Exploitation (CASE) Act initiative, to
define a new sentencing enhancement in human
trafficking cases. Specifically, the bill would
authorize a prosecutor to seek a one-year sentence
enhancement where the jury finds to be true an
allegation that the defendant recruited, enticed, or
obtained the human trafficking 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, and punishing them for doing
so, is critical to protect these individuals from
trafficking and adequately reflect the culpability of
the defendant.
2.Enhancements for Human Trafficking Sentences; the Human
Trafficking Laws are Designed to be Comprehensive
The basic human trafficking law was enacted by AB 22 (Lieber)
Ch. 240, Stats. 2005. AB 22 provided that the essence of human
trafficking is the deprivation of the victim's liberty in order
to place the person in sexual commerce or obtain labor. The
human trafficking law was amended by Proposition 35 in 2012.
The initiative greatly increased penalties, set special
procedures and rules of evidence and eliminated the element of
deprivation of liberty if the victim is a minor. The penalties
established by the initiative are especially comprehensive and
arguably cover the full range of circumstances in human
trafficking. The initiative stated the following as its main
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purpose: "To combat the crime of human trafficking and ensure
just and effective punishment of people who promote or engage in
the crime of human trafficking." (Italics added.) The ballot
argument stated: "Prop. 35 holds human traffickers accountable
for their horrendous crimes."
Human trafficking of minors can be done through inducements,
persuasion and the like. The use of coercion, fraud, force or
duress against a minor does, however, subjects as defendant to
especially severe penalties, including life terms.
This bill would direct the court to impose a sentence
enhancement of one year if the defendant has been convicted of
human trafficking and the defendant obtained, enticed the victim
for a placement or shelter for runaway youth, or for victims of
domestic violence or human trafficking.
Human trafficking of a minor includes a relatively long list of
crimes involving commercial sex, including prostitution and
child pornography. If the minor is brought into such activities
through "force, fear, fraud, deceit, coercion, violence, duress,
menace, or threat of unlawful injury to the victim or to another
person," the penalty is a term of 15-years-to-life in prison and
a fine of up to $500,000. With mandatory penalty assessments, a
fine of $500,000 is actually a fine of over $2,000,000. It is
hard to imagine that a trafficker could lure a minor into
commercial sex trade without at least deceit or fraud. That is,
if the trafficker misrepresented what the minor would be doing
or the conditions under which they would be done, that would
clearly appear to be fraud and deceit.
It would appear that if very severe felony penalties would not
deter a potential human trafficker, an additional year in prison
would be of little consequence. Further, many, if not all,
cases where a minor under the age of 14 is abducted for purposes
of prostitution would constitute kidnapping for purposes of
engaging in sexual conduct. That form of kidnapping if
punishable by a prison term of 5, 8 or 11 years if the minor is
under the age of 14. Kidnapping per se - taking a person by
fore or fear - is punishable by a prison term of 3, 5 of 8
years. (Pen. Code §§ 207-208.) If kidnapping for a sex offense
increases the danger of harm to a victim beyond that inherent in
the offense, it is punishable by a life term.
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The punishment for human trafficking of a minor, when the crime
does not involve some sort of deceit, coercion or force, is
still relatively severe - 5, 8 or 12 years and a fine of up to
$500,000 (again over $2,000,000 with mandatory penalty
assessments). If this bill is enacted, the prison term could
perhaps be 13 years instead of 12 in a determinate sentence.
For a life term, the defendant would be eligible for parole in
16 years, not 15. Again, it is doubtful that a possible
additional year in prison would change a perpetrator's decision
to engage in human trafficking of a minor in light of the severe
existing penalties.
California sentencing law is so complex that an enhancement for
committing human trafficking on or near a school may not
necessarily result in additional punishment. In some cases,
imposition of the enhancement could result in a lower penalty.
The imposition of the prison term for a crime and enhancements
attached to that term require the court to make a series of
inter-related decision. The process becomes particularly
elaborate when the defendant was convicted of multiple crimes
and numerous enhancements apply.
For this bill, the most important sentencing rule is the
prohibition on "dual use of facts" - the use of one fact to
impose more than one punishment. A close reading of many
enhancements would reveal that they could also be used as
factors in aggravation of the base term - the stated penalty
"triad." The sentencing triad for the less egregious form of
human trafficking of a minor is 5, 8 or 12 years.
3. Vetoes of Related or Similar Bills
Governor Brown has recently vetoed bills that included what were
essentially crimes and penalties that are largely redundant of
existing law. Last session (2013-2014), the governor vetoed SB
473 (Block), which proposed to add human trafficking to the gang
laws. (Any crime committed for the benefit of a gang is
punished by an enhancement or a life term. SB 473 would have
added human trafficking to a list of crimes establish the
existence of a gang, per se. Prosecutors seldom have any
trouble proving the existence of a gang under existing law.)
Similar observations can be made about this bill that were made
about SB 473 Governor Brown stated:
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I am returning Senate Bill 473 without my signature.
Under current law, human trafficking convictions
impose substantial punishment, up to 20 years for sex
trafficking offenses and 15 years-to-life for certain
crimes involving children. These sentences are more
than three times the punishment that existed two years
ago. SB 473 would add yet another set of enhancements,
the third in nine years. No evidence has been
presented to support these new penalties.
4.Prohibition on Using the Same Fact to Impose an Aggravated
Term and an Enhancement
This bill previously provided that where the defendant in a
human trafficking case recruited, obtained or enticed the victim
from a shelter or placement, the court could consider that as
factor in aggravation of sentence. The sentencing court can
rely on a factor in aggravation in determining whether to impose
the upper term of a "triad" base term. For example, the
sentencing triad for trafficking an adult for purposes of
committing or maintaining specified sex crimes is 8, 14 or 20
years. The court could impose the upper term based on the fact
that the defendant recruited by victim from a homeless shelter
or placement for runaway youth.
This bill defines a sentence enhancement for the enticement or
recruitment of a person from a shelter or placement for human
trafficking. California sentencing law generally prohibits the
court from using a fact that underlies an enhancement as a
reason to impose the upper term. (Pen. Code § 1170, subd. (b).)
Thus, if the court imposed the enhancement defined by this
bill, the court could not use the fact that the defendant
recruited or obtained the victim from a placement or shelter to
impose an upper term sentence.
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