BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1129


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          Date of Hearing:  June 14, 2016


          Counsel:               Gabriel Caswell








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          SB  
          1129 (Monning) - As Introduced February 17, 2016





          SUMMARY: Repeals specified mandatory minimum sentences for  
          specified prostitution offenses.   Specifically, this bill:  

          1)Repeals the mandatory minimum terms for repeated prostitution  
            offenses, leaving discretion with the court to impose an  
            appropriate sentence as follows:


             a)   Eliminates the requirement that a person convicted for a  
               second prostitution offense must serve a sentence of at  
               least 45 days, no part of which can be suspended or reduced  








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               by the court, regardless of whether or not the court grants  
               probation.


             b)   Eliminates the requirement that a person convicted for a  
               third prostitution offense shall serve a sentence of at  
               least 90 days, no part of which can be suspended or reduced  
               by the court regardless of whether or not the court grants  
               probation.  


          2)Repeals the specific authority of a court to order suspension  
            of the driver's license of a convicted prostitution defendant  
            if the offense was committed with a vehicle within 1,000 feet  
            of a residence.

          EXISTING LAW:  


          1)Provides that any person who solicits, agrees to engage in, or  
            engages in an act of prostitution is guilty of misdemeanor.    
            Prostitution includes any lewd act between persons for money  
            or other consideration.  (Pen. Code, § 647, subd. (b).)


          2)Provides that any person who solicits another person to engage  
            in any lewd or dissolute act in a public place is guilty of a  
            misdemeanor.  (Pen. Code, § 647, subd. (a).)


          3)Provides that any person is convicted for a second  
            prostitution offense shall serve a sentence of at least 45  
            days, no part of which can be suspended or reduced by the  
            court, regardless of whether or not the court grants  
            probation.  (Pen. Code, § 647, subd. (k).)


          4)Provides that any person convicted for a third prostitution  
            offense shall serve a sentence of at least 90 days, no part of  








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            which can be suspended or reduced by the court regardless of  
            whether or not the court grants probation.  (Pen. Code, § 647,  
            subd. (k).)


          5)Authorizes a sentencing court to suspend the driver's license  
            of a person convicted of a prostitution offense that occurred  
            with the use of a motor vehicle within 1,000 feet of a  
            "private residence."  The court may restrict for six months  
            the person's driving privilege to necessary travel to and from  
            the person's place of employment or education.  If operation  
            of a motor vehicle is necessary for the performance of the  
            person's employment duties, the court may allow driving for  
            that purpose.  (Pen. Code, § 647, subd. (k); Veh. Code, §  
            13201.5.)

          FISCAL EFFECT:  Unknown


          COMMENTS: 


          1)Author's Statement: According to the author, "Mandatory  
            minimum sentencing laws grew largely out of 1980's  
            tough-on-crime laws that sought stiffer punishments for drug  
            and violent crimes and shifted sentencing many crimes from a  
            rehabilitative approach, to a punitive, deterrence centered  
            approach. The creation of statutory minimum sentences has not  
            only increased jail and prison populations over subsequent  
            decades; they have also stripped the court's ability to  
            address the underlying issues that cause a person to offend in  
            the first place.  


            "California's misdemeanor crime provisions for prostitution  
            contain some of the harshest mandatory penalties of all the  
            current misdemeanor offenses by requiring a mandatory, minimum  
            sentence of up to 90 days in jail for reoffending. Penal Code  
            Section 647 requires that upon a second conviction of  








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            prostitution charges an offender must serve a minimum of 45  
            days in county jail, and 90 days upon a third misdemeanor  
            conviction. The mandatory sentence found in Penal Code 647  
            exists under the assumption that mandatory jail time will  
            deter future offenders from engaging in prostitution. The  
            efficacy of mandatory minimums as a deterrent to crime has  
            been the subject of debate, with many researchers concluding  
            that they have been massively ineffective. 

            "California's prison and jail overcrowding problem has reached  
            crisis levels, and has culminated in pushing supervision of  
            more serious offenders down to the county jails. Requiring a  
            'john' or sex-worker to spend a minimum of 45, or even 90 days  
            in county jail for a misdemeanor like prostitution creates the  
            potential for jails needing to release more serious offenders  
            in order to make room for those convicted of  
            recidivist-prostitution.  

            "Additionally, the mandatory sentences required under  
            conviction of Penal Code 647 require jail time in all  
            instances, and even goes so far as to specifically forbid  
            judicial intervention. This prohibition on court involvement  
            prevents a judge from tailoring a sentence for a specific  
            offender, or ordering alternative probationary sanctions, such  
            as participation in diversion and rehabilitation programs that  
            target the root cause of the recidivism. Mandatory jail time  
            also creates a potential disincentive for offenders to take  
            part in court mandated probation or treatment programs, as an  
            offender may opt to choose the 45 days in jail in order to  
            avoid longer supervision terms or required programs. 

            "Many of those who engage in prostitution are themselves  
            victims of human trafficking and are often n forced into sex  
            work and should not be incarcerated for 45 to 90 days.  
            Providing the courts discretion will allow judges to recognize  
            trafficking and use their discretion in sentencing. With  
            greater discretion a judge can order a sentence longer than 90  
            days for a recidivist john, or recommend a lesser, more  
            programmatic-oriented option for victims of trafficking.  








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            "SB 1129 will repeal the mandatory minimum sentencing  
            requirements for repeat offenders of prostitution and ensure  
            that California's crowded jails are not burdened with these  
            non-violent, non-serious offenders. Removing mandatory jail  
            time will ensure repeat offenders are still punished for  
            breaking the law, but allows for judicial discretion in  
            determining the suitability of the punishment. 

            "SB 1129 will also remove the current statutory punishments  
            outlined in Vehicle Code Section 13201.5, which allow the  
            courts to remove a person's driving privileges for engaging in  
            prostitution. These punitive statutes allow a judge to suspend  
            a person's driver's license for up to 30 days, or restrict  
            their driver's license for up to 6 months, if the prostitution  
            was committed within 1,000 feet of a private residence and  
            with the use of a vehicle. This arbitrary and summary removal  
            of a person's license for up to 6 months is excessive, and  
            would likely derail any rehabilitative efforts that could  
            dissuade an offender from engaging it further prostitution."

          2)Prostitution Generally:  The basic crime of prostitution is a  
            misdemeanor offense.  (Pen. Code § 647(b).)  Prostitution can  
            be generally defined as "soliciting or agreeing to engage in a  
            lewd act between persons for money or other consideration."   
            Lewd acts include touching the genitals, buttocks, or female  
            breast of either the prostitute or customer with some part of  
            the other person's body for the purpose of sexual arousal or  
            gratification of either person.  


            To implicate a person for prostitution themselves, the  
            prosecutor must prove that the defendant "solicited" or  
            "agreed" to "engage" in prostitution.  A person agrees to  
            engage in prostitution when the person accepts an offer to  
            commit prostitution with specific intent to accept the offer,  
            whether or not the offerer has the same intent.










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            For the crime of "soliciting a prostitute" the prosecutors  
            must prove that the defendant requested that another person  
            engage in an act of prostitution, and that the defendant  
            intended to engage in an act of prostitution with the other  
            person, and the other person received the communication  
            containing the request.  The defendant must do something more  
            than just agree to engage in prostitution.  The defendant must  
            do some act in furtherance of the agreement to be convicted.   
            Words alone may be sufficient to prove the act in furtherance  
            of the agreement to commit prostitution 


            Violation of  Pen.  Code § 647(b) is a misdemeanor.  For a first  
            offense conviction of prostitution the defendant faces up to  
            180 days in jail.  If a defendant has one prior conviction of  
            prostitution he or she must receive a county jail sentence of  
            not less than 45 days.  If the defendant has two or more prior  
            convictions, the minimum sentence is 90 days in the county  
            jail. 


            In addition to the punishment described above, if the  
            defendant has a conviction of prostitution, he or she faces  
            fines, probation, possible professional licensing restrictions  
            or revocations, possible immigration consequences, possible  
            asset forfeiture, and possible driving license restrictions.  


            Closely associated crimes to prostitution include:  abduction  
            of a minor for prostitution (Pen. Code, § 267); seduction for  
            prostitution (Pen. Code, § 266); keeping a house of  
            prostitution (Pen. Code, § 315); leasing a house for  
            prostitution (Pen. Code, § 318); sending a minor to a house of  
            prostitution (Pen. Code, § 273e); taking a person against that  
            person's will for prostitution (Pen. Code 266a); compelling a  
            person to live in an illicit relationship (Pen. Code, § 266b);  
            placing or leaving one's wife in a house of prostitution (Pen.  
            Code,  §266g); loitering for prostitution (Pen. Code, §  
            653.22, subd. (a)); pimping (Pen. Code, § 266h); or, pandering  








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            (Pen. Code, § 266i).  Most of these crimes are punished much  
            more severely than the underlying prostitution offense,  
            particularly the crimes of pimping, pandering, and  
            procurement.  


          3)Current Law Limits Judicial Discretion to Impose Appropriate  
            Sentences Based on the Facts and Circumstances of a Particular  
            Case:  Specifically, current law mandates that upon a  
            conviction of subsequent acts of prostitution,  an offender  
            must spend 45 days in county jail for a second offense, and 90  
            days in county jail for a third offense.  Additionally, as  
            applied to both mandatory minimum sentences, a person  
            convicted may have no part of which suspended or reduced by  
            the court regardless of whether or not the court grants  
            probation.  


            From a policy standpoint, there are no mandatory minimum jail  
            sentences for a variety of offenses that are far more serious  
            than misdemeanor prostitution.  For instance, there is no  
            mandatory jail sentence for first time domestic violence  
            offenses, or a wide range of violent felony offenses.  This  
            bill takes the discretion from a judge to craft an appropriate  
            remedy in a misdemeanor case.  Judges are in the best position  
            to make decisions based on the particular facts and  
            circumstances of a case.  Imposing mandatory jail time on a  
            person convicted of prostitution can result in the loss of  
            employment and create problems for the offender that may lead  
            to further criminal acts.  Courts have found success in  
            fashioning other remedies that have kept offenders employed,  
            outside of county jails at the public expense, and freed up  
            jail space for more dangerous offenders.  


             a)   San Francisco District Attorney's Office First Offender  
               Prostitution Program (FOPP):  FOPP is a court diversion  
               program aimed at reducing the volume and impact of sex  
               buying by targeting those who purchase sex.  The program  








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               was first started in San Francisco in 1995.  The program is  
               based on the belief that education as opposed to punishment  
               was an effective strategy to address the problems created  
               by the sex industry.  



             The program is focused on educating the purchasers of sex,  
               sometimes referred to as "john's."  Purchasers of sex that  
               are dealing with criminal charges for that behavior are  
               predominantly men.  The curriculum of the first offender is  
               designed to help men understand the negative effects of  
               being raised in a culture that promotes a system of male  
               superiority and entitlement toward women.  

             The program has incorporated evidence-based practices into  
               the FOPP programming.  It includes:  Social Learning  
               Theory, Cognitive Behavioral Interventions, Brief  
               Interventions, Harm Reduction, and Peer Reeducation.  As  
               part of the FOPP, the legal consequences for subsequent  
               arrests for solicitation of prostitution are emphasized.   
               Participants in the FOPP, are educated about the impacts of  
               prostitution on the participants in the sex industry, the  
               impact of sexual exploitation, the health risks of engaging  
               in prostitution, and the impact of prostitution on the  
               neighborhoods where it occurs.
             b)   Success of Education Programs for Buyers of Sex:  As of  
               2012, approximately 50 cities and counties in the U.S.  
               including Santa Clara, San Diego, Los Angeles, and Fresno  
               have similar programs. (An Overview of John Schools in the  
               United States, (2012), pp. 3-5.)



          A 2008 study commissioned by the Department of Justice and  
          conducted by Abt Associates found that the First Offender  
          Prostitution Program (FOPP) was successful in substantially  
          reducing recidivism among men arrested for soliciting  
          prostitutes. According to the report, data collected from 10  








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          years prior to implementation and 10 years after implementation  
          (1985 through 2005) showed a sharp drop in re-offense rates  
          (recidivism) in 1995, the first year of implementation. This low  
          level of recidivism was sustained throughout the 10 years  
          studied between 1995 and 2005. The study also found that data  
          from San Diego showed that recidivism rates were cut in half  
          after their education program was implemented.  In summary,  
          "FOPP significantly reduces recidivism" and is highly  
          transferable, having been successfully replicated and adapted in  
          other cities in the U.S.  (Final Report on the Evaluation of the  
          First Offender Prostitution Program (2008), Abt Associate, pp.  
          v-vi and x.)


             c)   Courts General Power to Impose Conditions of Probation:   
               Courts have broad general discretion to fashion and impose  
               additional probation conditions that are particularized to  
               the defendant. (People v. Smith (2007) 152, Cal.App.4th  
               1245, 1249.) Courts may impose any "reasonable conditions"  
               necessary to secure justice, make amends to society and  
               individuals injured by the defendant's unlawful conduct,  
               and assist the "reformation and rehabilitation of the  
               probationer." (Pen. Code, § 1203.1.)  A valid condition  
               must be reasonably related to the offense and aimed at  
               deterring such misconduct in the future. (People v.  
               Carbajal (1995) 10 Cal.4th 1114, 1121.)


          4)Jail Overcrowding:  According to a recent report by the Public  
            Policy Institute of California titled Capacity Challenges in  
            California's Jails, California's county jails are facing  
            increasing adult daily populations (ADP).  Many counties are  
            facing capacity constraints on their population.  Prior to  
            realignment, 17 counties were operating under court orders  
            limiting the number of inmates in their jails.   In all, 13  
            counties including some of the biggest (Los Angeles, Orange,  
            San Diego, and Sacramento) had average daily populations that  
            were larger than the number of beds their jails were rated  
            for.   








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          5)Mandatory Minimum Sentences and Driver's License Suspension  
            Provisions:  The authority of a court to suspend for 30 days  
            the driver's license of a prostitution offender was enacted by  
            AB 2949 (Harvey), Ch. 1019, Stats. of 1996.  AB 1788 (Wright),  
            Ch. 758, Stats. of 1998 authorized the court to impose a six  
            month suspension of a driver's license or a convicted  
            prostitution offender, except for travel to and from work.   
            The Senate Floor Analysis of AB 1788 explained: 


               The Prostitution Abatement and Neighborhood Protection  
               Act and authorized courts to suspend the driving  
               privilege of any person convicted of soliciting,  
               agreeing to, or engaging in, an act of prostitution  
               with the use of a vehicle and within 1,000 feet of a  
               private residence for up to 30 days.  AB 2949's intent  
               was to deter individuals from "cruising" residential  
               neighborhoods in search of prostitutes.  According to  
               Los Angeles County:  "The existing 30 days suspension  
               is little more than an inconvenience for many  
               offenders.  A six month suspension should cause  
               violators to think about potential penalties before  
               engaging in acts of prostitution in an automobile.  It  
               will help keep prostitution away from residential  
               neighborhoods."





            Committee staff is unaware of any studies of the effect  
            the driver's license suspension had on prostitution  
            offenses committed within 1,000 feet of private  
            residence.  Existing law does not define the term  
            "private residence."  A thousand feet is the length of  
            three and 1/3 football fields.  It would appear that  
            many, if not most, prostitution offenses in urban areas  








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            occur within 1,000 feet of residences.  Committee staff  
            found no cases applying or interpreting the license  
            suspension provisions.





          6)Mandatory Jail Terms as Conditions of Probation Encourage  
            Defendants to Refuse Probation:  If the court does not impose  
            sentence for a repeated prostitution offenses, but places the  
            defendant on probation, the 45 and 90-day terms must be  
            imposed as a condition of probation - the same penalty as the  
            minimum penalty for an executed sentence.  Many, if not most,  
            county jails are crowded, particularly in urban areas.  A  
            defendant who is convicted of a prostitution offense in a  
            county with crowded jail conditions would very likely refuse  
            probation because he would know that he would not serve more  
            than 45 or 90 days, depending on whether it is the second or  
            subsequent offense, upon a straight sentence without  
            probation.


            A defendant who is not on probation cannot be monitored by the  
            probation department or the court.  A defendant who is not on  
            probation cannot be ordered to engage in rehabilitative or  
            restorative justice programs.   If the odds of getting caught  
            committing such a crime is low, and that may be likely, such a  
            person could remain a significant source of demand for  
            prostitution.


          7)Argument in Support:  According to the American Civil  
            Liberties Union, "under current California law, a person who  
            solicits, agrees to engage in, or engages in prostitution is  
            guilty of a misdemeanor disorderly conduct offense.  If that  
            person is convicted of a second prostitution offense,  
            imprisonment in the county jail for no less than 45 days is  
            required.  Third and subsequent prostitution offenses require  








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            incarceration for no less than 90 days.  A court is also  
            authorized to suspend the driving privileges for up to 30 days  
            of a person convicted of one of the above-described disorderly  
            conduct offenses if the offense was committed within 1,000  
            feet of a private residence and with the use of a private  
            vehicle.  


            By removing these delineated additional sanctions for  
            prostitution offenses, SB 1129 aligns these offenses with the  
            rest of the California Penal Code, which imposes mandatory  
            minimums on very few misdemeanor offenses.  Mandatory minimum  
            sentencing laws, which grew out of the national tough-on-crime  
            stance from the 1980's, contributed to the problems California  
            faces today with significant prison and jail overcrowding.   
            These mandatory sentencing policies no longer reflect  
            California's current approach to realigning the criminal  
            justice system by adopting smarter and more humane sentencing  
            laws.  By removing these sentencing mandates for prostitution  
            offenses, courts can employ evidence-based practices that  
            reduce recidivism and further offender rehabilitation.  


            This legislation also recognizes that prostitution is a unique  
            criminal offense where the offender can be both a perpetrator  
            and a victim.  Many individuals who engage in prostitution are  
            trafficked and forced, induced, or coerced into commercial  
            sex, and others are runaways who find themselves on the  
            streets with no other means to survive.  Imposing mandatory  
                       incarceration on these victims fails to advance their  
            rehabilitation or provide them with the services and support  
            they need to escape coercive and abusive situations."  


          8)Argument in Opposition:  According to the California District  
            Attorneys Association, "this bill would eliminate mandatory  
            jail time for individuals convicted of prostitution (buying or  
            selling) more than once.  It would also eliminate the  
            authority of a court to suspend a person's driving privileges  








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            if the offense was committed in a vehicle in close proximity  
            to a private residence.  


            "At a time when our communities continue to struggle with the  
            scourge of human trafficking, we cannot support eliminating  
            tools of deterrence frequently deployed against purchasers of  
            commercial sex.  We believe these additional sanctions, which  
            apply only to individuals convicted on multiple occasions,  
            serve an important purpose in our efforts to crack down on the  
            illegal sex trade in California."  


          9)Related Legislation: AB 1708 (Gonzalez), imposes mandatory  
            minimum sentences of 72 hours upon first offense prostitution  
            offenses.  AB 1708 is awaiting a hearing in the Senate Public  
            Safety Committee.  


          10)Prior Legislation:  SB 244 (Liu) of the 2013-2014 Legislative  
            Session, would have created a 90 day mandatory jail term  
            minimum for solicitation of a minor for prostitution related  
            offenses.  SB 244 failed passage in the Assembly Public Safety  
            Committee.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Civil Liberties Union


          California Attorneys for Criminal Justice 









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          California Public Defenders Association 


          Legal Services for Prisoners with Children 




          Opposition


          California District Attorneys Association 


          Erotic Service Providers Union 





          Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)  
          319-3744