BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2811


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          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).)








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          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: 








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          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  








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            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  








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            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.   








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            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.










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            "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  








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            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  








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            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.


          










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          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