BILL ANALYSIS Ó AB 2811 Page 1 Date of Hearing: April 19, 2016 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2811 (Chávez) - As Amended March 15, 2016 SUMMARY: Removes the prior conviction requirement for the impoundment of a vehicle upon an arrest for a prostitution related arrest if the police officer has probable cause to believe that the victim is a minor or a victim of human trafficking as specified. EXISTING LAW: 1)Permits local jurisdictions to adopt local ordinances permitting impoundment of vehicles for violations of prostitution, pimping, and pandering offenses in the same manner with the same procedural protections as provided in this bill. (Veh. Code § 22659.5.) 2)States notwithstanding any other provision of law and except as provided in this provision, a motor vehicle is subject to forfeiture as a nuisance if it is driven on a California highway by a driver with a suspended or revoked license, or by an unlicensed driver, who is a registered owner of the vehicle at the time of impoundment and has a previous misdemeanor conviction for driving on a suspended or revoked license. (Veh. Code § 14607.6, subd. (a).) AB 2811 Page 2 3)Prohibits a peace officer from impounding a vehicle, as specified, if the license of the driver expired within the preceding 30 days and the driver would otherwise have been properly licensed. (Veh. Code § 14607.6, subd. (c)(2).) 4)Provides that a peace officer may exercise discretion in a situation where the driver without a valid license is an employee driving a vehicle registered to the employer in the course of employment. A peace officer may also exercise discretion in a situation where the driver without a valid license is the employee of a bona fide business establishment or is a person otherwise controlled by such an establishment and it reasonably appears that an owner of the vehicle, or an agent of the owner, relinquished possession of the vehicle to the business establishment solely for servicing or parking of the vehicle or other reasonably similar situations, and where the vehicle was not to be driven except as directly necessary to accomplish that business purpose. In this event, if the vehicle can be returned to or be retrieved by the business establishment or registered owner, the peace officer may release and not impound the vehicle. (Veh. Code § 14607.6, subd. (c)(3).) 5)Provides a registered or legal owner of record at the time of impoundment may request a hearing to determine the validity of the impoundment, as specified. (Veh. Code § 14607.6, subd. (c)(4).) 6)States if the driver of a vehicle impounded, as specified, was not a registered owner of the vehicle at the time of impoundment, or if the driver of the vehicle was a registered owner of the vehicle at the time of impoundment but the driver does not have a previous conviction for driving on a suspended or revoked license, the vehicle shall be released pursuant to the Vehicle Code and is not subject to forfeiture. (Veh. Code § 14607.6, subd. (c)(5).) FISCAL EFFECT: Unknown COMMENTS: AB 2811 Page 3 1)Author's Statement: According to the author, "We need to equip cities and counties with the ability to fight against the sexual exploitation of our children. If a city or county sees the need to impound vehicles as a deterrent and effective tool to reduce the sexual exploitation of its minor, they should be able to do so." 2)Vehicle Code Section 22659.5 Currently Authorizes the Similar Procedures with Local Approval, when the Offender has a Prior Offense: Existing law authorizes local jurisdictions to adopt ordinances declaring vehicles used in the commission of prostitution to be impounded as a public nuisance. Vehicle Code Section 22659.5 was enacted in 1993 and allowed a local government to impound a vehicle after a conviction for prostitution, as specified, for up to 48 hours. AB 1332 (Gotch), Chapter 485, Statutes of 1993, declared legislative intent as follows: "The Legislature hereby finds and declares that under the Red Light Abatement Law every building or place used for, among other unlawful purposes, prostitution is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered. It is recognized that in many instances vehicles are used in the commission of acts of prostitution and that if these vehicles were subject to the same procedures currently applicable to buildings and places, the commission of prostitution in vehicles would be vastly curtailed. The Legislature, therefore, intends to enact a five-year pilot program in order to ascertain whether declaring motor vehicles a public nuisance when used in the commission of acts of prostitution would have a substantial effect upon the reduction of prostitution in neighborhoods, thereby serving the local business owners and citizens of our urban communities." In 2009, the pilot program was extended to be a statewide program which permitted the same provisions and procedures in this bill to be adopted by local ordinance through passage of AB 2811 Page 4 AB 14 (Fuentes), Chapter 210, Statutes of 2009. This bill would remove the prior conviction requirement for the impoundment of a vehicle upon an arrest for a prostitution related arrest if the police officer has probable cause to believe that the victim is a minor or a victim of human trafficking as specified. 3)Reason for Inclusion of Prior Offenses: The underlying legislation, as passed by AB 14 (Fuentes), Chapter 210, Statutes of 2009 specified that impoundment may occur upon the arrest of an offender when there is a prior related conviction. The reason for the inclusion of the prior conviction is that the statute authorizes a 30-day impoundment upon the arrest of an alleged offender. The interested parties negotiated this provision because an arrest is not proof of wrongdoing. In fact, the alleged offender is innocent until proven guilty. However, the interested parties felt that persons arrested for prostitution or dumping related offenses when the alleged offender had a prior conviction of the same offense made a much stronger case that they were in fact a nuisance engaged in prostitution or dumping offenses. This bill would eliminate the requirement of a prior. First, this elimination does not meet the specifications that the person is engaged in the alleged offense repeatedly, and thus a public nuisance. Second, the impoundment of the alleged offender's vehicle is based solely on the arrest of the officer and not the conviction of the offender in a court of law. The impoundment of the vehicle upon the arrest without a prior could result in a person engaging in lawful activity, the sufferance of an impound, and the alleged offender not being adjudicated guilty or not guilty prior to the 30-day impoundment running. The inclusion of the prior offense makes it far more likely that the alleged offender is actually engaged in illegal activity giving rise to the impoundment. 4)O'Connell vs. City of Stockton: In July of 2007, the AB 2811 Page 5 California Supreme Court ruled that Vehicle Code Section 22659.5 pre-empted local ordinances on the subject of vehicle impoundment and forfeiture for specified crimes. (O'Connell vs. City of Stockton (2007) 41 Cal.4th 1061, 1068.) The Stockton ordinance at issue, the "Seizure and Forfeiture of Nuisance Vehicles", authorized impoundment and/or forfeiture "of any vehicle used to solicit an act of prostitution, or to acquire or attempt to acquire any controlled substance if found by a preponderance of evidence." (O'Connell at 1069.) Local ordinances that "duplicate, contradict or enter into an area totally occupied" by general state law are unconstitutional and preempted by the general state law. (Sherwin Williams Co. vs. City of Los Angeles (1993) 4 Cal.4th 893, 897.) First, the Court found the Uniform Controlled Substances Act (UCSA) impliedly occupied the entire field of drug sentencing and penalties including forfeiture of a vehicle. The UCSA requires forfeiture of a vehicle only upon proof beyond a reasonable doubt of the vehicle's use to facilitate certain serious drug crimes. (Health and Saf. Code § 11469; O'Connell at 1081.) Second, the Court held that Vehicle Code Section 22659.5(a) expressly pre-empted the provision related to vehicle forfeiture for solicitation. As noted above, the Vehicle Code provision does not authorize forfeiture and only allows for impoundment after conviction for a period of 48 hours. (Veh. Code § 22659.5, subd. (b).) Moreover, Vehicle Code Section 21 prohibits local governments from enacting ordinances on matters included by the Vehicle Code unless otherwise specified. Hence, because state law occupies the entire field of drug sentencing and penalties and specified Vehicle Code sections expressly speak to the issue of vehicle impoundment for prostitution, conflicting local ordinances are pre-empted and unconstitutional. (Calif. Const., Article XI, § 7.) The California Supreme Court asked the parties involved in this case to brief issues regarding federal and state constitutional guarantees of substantive and procedural due process for pre-conviction impoundment and forfeiture. AB 2811 Page 6 Ultimately, however, because the Court ruled the Stockton ordinance was pre-empted by state law, the Court did not resolve the issues of due process. (O'Connell at 1068, fn. 1.) It is important to note the issue of due process still remains and may be litigated in the future. 5)Argument in Support: According to The City of Oakland, "On behalf of the City of Oakland we are writing as the sponsor of AB 2811 (Chavez) Vehicles: Nuisance Abatement. "The City of Oakland has been an active leader in the Bay Area region and State when it comes to addressing the commercial sexual exploitation of children. We were one of the first cities to work with the young victims to help offer counselling services, help clear their criminal records, and actively enforce existing laws to punish the johns involved in this insidious practice. "However, the problem persists. To my dismay, Oakland has a thriving underage sex market, and is the epicenter of a trafficking triangle between San Francisco and Contra Costa counties. 46% of all prosecuted human trafficking cases in California came from the Alameda District Attorney's office. In addition, 80% of reported human trafficking cases in California occurred in the Bay Area, Los Angeles and San Diego. These are three areas that experience the most human trafficking in the US. "The numbers of children that are forced into sex trafficking each year is shocking. Rape, abuse, isolation, emotional, physical, and psychological trauma are just some conditions these young victims face. While we recognize that putting an end to human trafficking is a multifaceted effort we believe that greater enforcement efforts are not only required, but desperately needed. AB 2811 is a crucial piece of legislation that will provide another tool to cities, should they pass a local ordinance, which will allow them to impound the cars of johns who try to purchase sex from minors. AB 2811 Page 7 "As opposed to more traditional means of reprimanding these individuals, AB 2811 will provide a forceful deterrent that will prevent 'johns' from seeking to purchase sex in the future, while at the same time signaling to the public at large that this will not be tolerated." 6)Argument in Opposition: According to the American Civil Liberties Union, "AB 2811 is a bill that would remove the requirement that a person have a previous conviction for a specified crime before that person's car can be impounded as a nuisance following a subsequent arrest for the same crime. We believe this bill may raise due process concerns and we strongly caution against removing the prior conviction requirement from the existing statute. "Under current law, a person's car can be impounded following an arrest for certain prostitution-related offenses or illegal dumping offenses, if the car is alleged to have been used in the commission or attempted commission of the crime for which the person was arrested, and, more importantly, if the person has been convicted of the same offense within the three preceding years. "The existing statute already raises constitutional concerns, as it permits a city or county to deprive a person of his or her property based only on an arrest and without an opportunity for the person to be heard prior to the initial deprivation. A mere arrest is not proof that a person has actually committed a crime or that a person's vehicle is a nuisance, and any undertaking by the government to take a person's property in this context should, with few exceptions, be preceded by the ability of the owner of the property to be heard prior to the actual seizure or taking, and should likewise be preceded by a conviction. "The existing statute helps to assuage some of the above concerns by adding a requirement that before a person's car can be impounded, the person must, within the immediately AB 2811 Page 8 preceding three years, have been convicted of the same crime for which he or she is currently being arrested. While certain types of prostitution-related activities may create a nuisance, for instance if a person repeatedly returns to a community to solicit prostitution or to pander, it has been argued that a person who attempts to engage in such an activity on just one occasion only marginally contributes to a general nuisance, given that the single act will not likely adversely affect the community in a significant manner. Yet even the requirement of a prior conviction, does not cure all of the concerns with the lack of a current conviction, as even evidence of a prior conviction does not prove that a person is guilty of a current crime. "While this bill attempts to address people who commit crimes against minors or victims of human trafficking, it simultaneously makes it easier to deprive a minor or a victim of human trafficking from their own vehicles. AB 2811 permits impoundment following an arrest for the crime of prostitution, in addition to the crime of soliciting prostitution or pandering. Thus, if the person engaging in the act of prostitution is a minor or a victim of human trafficking, that person could likewise be deprived of a vehicle. Depriving a minor or a victim of human trafficking, or any person engaged in prostitution for that matter, from his or her vehicle could have profound negative consequences, particularly if such a person is trying to get away from an abuser. Getting rid of the prior conviction requirement would only make impoundment easier and could result in a person with no conviction history losing access to his or her only means of transportation, which could not only prevent the person from leaving an abuser, as described above, but could also prevent the person from taking his or her children to school or doctors' appointments, attending classes or treatment, or going to a lawful place of employment. "In the face of all of these existing concerns, getting rid of the requirement of a prior conviction, even if an alleged victim is a minor or a victim of human trafficking, will only create new problems without a commensurate benefit. For these AB 2811 Page 9 reasons, we must oppose AB 2811." 7)Related Legislation: AB 2147 (Eggman), specifies that vehicle impoundment programs which are related to solicitation of prostitution offenses, currently authorized under existing state law, do not need to be authorized by a local ordinance. AB 2147 is on third reading on the Assembly Floor. 8)Prior Legislation: a) AB 14 (Fuentes), Chapter 210, Statutes of 2009, authorized cities or counties to adopt local ordinances declaring a motor vehicle to be a public nuisance subject to impoundment for not more than 30 days upon a valid arrest of a person who uses the vehicle in the commission or attempted commission of specified prostitution crimes or illegal commercial dumping and has one prior conviction for either of those crimes. b) AB 1724 (Jones), of the 2007-08 Legislative Session, would have authorized a city, county, or a city and county to adopt an ordinance declaring, under specified conditions, a motor vehicle used in the commission or the attempted commission of an act that constitute the illegal dumping of commercial quantities of waste matter upon a public or private highway or road a public nuisance subject to seizure and 30-day impoundment. AB 1724 was vetoed. c) AB 1145 (Huff), of the 2007-08 Legislative Session, would have authorized vehicle seizure and forfeiture when the owner of the vehicle uses it in connection with the commission of a crime of vandalism, as specified. AB 1145 failed passage in this Committee. AB 2811 Page 10 REGISTERED SUPPORT / OPPOSITION: Support City of Oakland Commercial Sexual Exploitation of Children Opposition American Civil Liberties Union California Attorneys for Criminal Justice Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744