BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1269 Hearing Date: April 19, 2016
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|Author: |Galgiani |
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|Version: |March 28, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Violent Felonies
HISTORY
Source: Author
Prior Legislation:Proposition 35 - passed by the voters in
November 2012
AB 22 (Lieber) - Ch. 240, Stats. 2005
Support: California District Attorneys Association
Opposition:None known
PURPOSE
The purpose of this bill is to include human trafficking in the
list of violent felonies, for which Three Strike sentencing,
sentencing credit limits, enhancements for prior violent felony
prison terms and other consequences apply.
Existing law provides that any person who deprives or violates
the personal liberty of another with the intent to obtain forced
labor or services, is guilty of human trafficking and shall be
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punished by imprisonment in the state prison for 5, 8, or 12
years and a fine of not more than five hundred thousand dollars
($500,000). (Penal Code Section 236.1(a).)
Existing law states that any person who deprives or violates the
personal liberty of another with the intent to affect or
maintain a violation of specified sex crimes is guilty of human
trafficking and shall be punished by imprisonment in the state
prison for 8, 14, or 20 years and a fine of not more than five
hundred thousand dollars ($500,000). (Penal Code § 236.1(b).)
Existing law states that any person who causes, induces, or
persuades, or attempts to cause, induce, or persuade, a person
who is a minor at the time of commission of the offense to
engage in a commercial sex act, with the intent to affect or
maintain a violation of specified sex crimes is guilty of human
trafficking. A violation of this subdivision is punishable by
imprisonment in the state prison for 5, 8, or 12 years and a
fine of not more than five hundred thousand dollars ($500,000)
or fifteen years to life and a fine of not more than five
hundred thousand dollars ($500,000) when the offense involves
force, fear, fraud, deceit, coercion, violence, duress, menace,
or threat of unlawful injury to the victim or to another person.
(Penal Code Section 236.1(c).)
Existing law provides that in determining whether a minor was
caused, induced, or persuaded to engage in a commercial sex act,
the totality of the circumstances, including the age of the
victim, his or her relationship to the trafficker or agents of
the trafficker, and any handicap or disability of the victim,
shall be considered. (Penal Code § 236.1(d).)
Existing law includes a list of "violent felonies" that are
qualifying convictions under the Three Strikes law, limit
sentencing credits to 15% of the total term, and authorize a
three-year sentence enhancement for each prior prison term for a
violent felony and have a myriad of other consequences. (Pen.
Code§ 667.5, subd. (c).) Violent felonies include:
Murder, attempted murder or voluntary manslaughter;
Mayhem, as specified;
Rape;
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Sodomy by force, violence, duress, menace, or fear of
bodily injury;
Oral copulation or sexual penetration by force,
violence, duress, menace or fear of bodily injury;
Lewd act with child under fourteen years of age and
continuous sexual abuse of a child;
Any felony punishable by death or life imprisonment;
Any felony in which defendant inflicts great bodily
injury or personally uses a firearm;
Assault with intent to commit a sex crime, robbery or
mayhem;
Arson of an inhabited structure;
Explosion causing great bodily injury or mayhem;
Explosion with intent to murder;
Crimes involving weapons of mass destruction;
Burglary if another person other than an accomplice is
present;
Robbery, bank robbery or carjacking;
Kidnapping;
Any felony where defendant personally uses a firearm;
Sale or furnishing heroin, cocaine, PCP, or
methamphetamine to a minor;
Any violation of 10-20-life firearm use and discharge
enhancement law; and
Any gang-related felony that involves extortion or
witness intimidation.
This bill additionally would define human trafficking as a
violent felony in this section.
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
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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
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
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legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
This bill defines any conviction for human trafficking - a
category of separate crimes that each include an element of
deprivation of the victim's liberty for the benefit of the
perpetrator - as a violent felony, as defined by Penal Code
Section 667.5, subdivision (b), a designation that subjects a
convicted defendant to Three Strikes sentencing, sentencing
credit limitations and other consequences, unless a greater
punishment is applicable under another provision of law.
COMMENTS
1.Need for This Bill
Human trafficking is the world's fastest growing
criminal enterprise and is estimated to be a $32
billion-per-year industry. California is considered
one of the top four destinations in the United States
for human trafficking and contains three of the FBI's
thirteen highest child sex trafficking areas in the
nation.
The problem of human trafficking is growing in the
state. Human trafficking victims are subjected to a
multitude of heinous circumstances from working in
sweatshops to being pushed into the sex trade.
Trafficking victims have few economic or legal options
and they are often controlled by violence, threats of
violence, threats of being left destitute or of
immigration consequences. Prosecutors need the
authority to bring harsher charges against people who
participate at any stage of trafficking schemes,
including financing the operation, arranging the
transportation of victims and recruiting the victims.
The inclusion of human trafficking under the
definitions of serious and violent felonies will
ensure that perpetrators are prosecuted according to
the seriousness of their crimes, providing victims
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with a greater sense of justice that their
victimization is taken seriously and prosecuted to the
fullest extent of the law.
2.Human Trafficking is a Comprehensive Class of Crimes Involving
Deprivation of Liberty, with a Comprehensive Penalty
Structure, Including Determinate and Life Sentences, Various
Enhancements, Fines up to $1 Million and Asset Forfeiture
While the offenses that constitute human trafficking were crimes
prior to enactment of the human trafficking statute in 2005, the
statute organized these offenses into a single structure. Human
trafficking is a largely a special punishment structure for a
number of crimes with a common core element - the deprivation of
the victim's liberty in order to obtain labor and commercial sex
services for the benefit of the perpetrator. A number of the
crimes included in the human trafficking are violent or serious
felonies when prosecuted separately, including kidnapping and
sex crimes. California criminal law includes numerous special
sentencing schemes that apply where a defendant is convicted of
a specified crime or the crime involved specified aggravating.
Examples of special sentencing schemes include the Three Strikes
law, One Strike sex crime law and gang-related life terms.
The drafters of the initiative that greatly expanded and
increased penalties for human trafficking could have defined any
or all human trafficking offenses as serious and violent
felonies. Arguably, the drafters determined that the
self-contained and severe penalties in the human trafficking
statutes accurately reflected the culpability of a defendant
convicted under that law. Committee staff is not aware of any
arguments that defendants who have actually been convicted under
the human trafficking laws have not been subject to adequate
punishment.
Human trafficking to obtain labor from the victim draws a
sentence of 5, 8 or 12 years. Human trafficking that involves a
minor in any form of sex trafficking or child pornography faces
a sentence of 15 years to life where the crime involved any kind
of force, fear or deceit. Other forms of sex trafficking of
minors is punished by a term of 5, 8 or 12 years, although it is
very unlikely that human trafficking of a minor for sexual
purposes would ever not involve at least some form deceit or
coercion. Perhaps the determinate term sentences would be used
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in plea bargaining where the prosecution is unsure of its case
or the defendant has no prior criminal history. Human
traffickers who cause great bodily injury receive an enhancement
of 10 years. Each prior trafficking conviction is punished by
five-year enhancement, the same penalty that applies in repeated
serious felony convictions. If this bill is enacted, it is
likely that the three-year enhancement imposed under the violent
felony statute (Pen. Code §667.5 (a) and (c)) would not be
imposed, as a defendant generally can only be punished once for
the same conduct. The greater penalty in the human trafficking
law would likely be imposed, not the violent felony enhancement.
DOES THE HUMAN TRAFFICKING LAW INCLUDE A COMPREHENSIVE PENALTY
STRUCTURE, SUCH THAT ADDITIONAL SANCTIONS IMPOSED FOR VIOLENT
FELONIES ARE NOT NECESSARY OR WOULD BE BARRED BY PROHIBITIONS ON
MULIPLE PUNISHMENTS FOR THE SAME CRIMINAL ACT?
3.Special Sentencing Schemes other than Human Trafficking that
Create Complex Sentencing Issues for Courts and Practitioners
The basic California Determinate Sentencing Law (DSL) involves
the imposition of a lower, middle or upper term, depending on
whether the crime is average, mitigated or aggravated in
comparison with other cases involving the same crime. Soon
after the DSL was enacted, judges complained of the
extraordinary complexity of the law. One appellate justice
wrote: "[I]n some ways [the DSL] resembles the best offerings
of those who author bureaucratic memoranda, income tax forms,
insurance policies or instructions for the assembly of packaged
toys." (Community Release Bd. v. Superior Court (1979) 91
Cal.App.3d 814, 815, fn. 1.) Sentencing complexity has
increased exponentially since that time.
Many defendants are subject to sentencing under special
sentencing schemes that were enacted after and apart from the
DSL, although aspects of the DSL are sometimes used to calculate
a special punishment. The most prominent special sentencing
schemes are the Three Strikes law, the One Strike sex crime law
and the gang penalties. Often, special sentencing schemes
overlap with sentence enhancements, for which the sentencing
court must follow specified and extremely complex rules. For
example, a defendant who has previously been convicted of two or
more serious or violent felonies (all violent felonies are
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serious) who is convicted of a serious felony in the current
case must be sentenced to a term of at least 25-years-to-life
under the terms of the Three Strikes law. The court must also
impose a five-year enhancement for each prior serious felony.
The court has no discretion to not impose the five-year
enhancements, although the court can dismiss a prior serious
felony for purposes of avoiding the full consequences of the
Three Strikes law. Courts must impose consecutive<1> terms in
most Three Strikes cases, but not all. Prior serious felony
convictions are also alleged as the bases of enhancements for
prior prison terms.
The fact that a defendant served a prison term for a violent
nature of a prior conviction would not actually affect a
sentence in which the court imposes enhancements for a prior
serious felony - despite the three-year enhancement for a prior
prison term for a violent conviction described in Section 667.5,
subdivision (a). The conviction underlying an enhancement for
a violent felony prison term would also be the basis for a
mandatory five-year enhancement for a prior serious felony and
two enhancements cannot be imposed for that same conviction.
Only the greater enhancement for the prior serious felony
enhancement can be imposed. (People v. Garcia (2008) 167
Cal.App.4th 1550, 1652; People v. Jones (1993) 5 Cal.4th 1142,
1147-1153.) Thus, the three-year enhancement for each prior
prison term served for a violent felony is seldom, if ever,
imposed. As prior serious felony convictions are strikes, the
imposition of Three Strikes penalties based on the prior serious
felony convictions makes the sentence calculation even more
complex. Adding even further complexities, Section 667.5 - the
statute that defines violent felonies - also includes a one-year
enhancement for prior prison terms for convictions of offenses
that were neither serious nor violent.
As noted above, it appears that all violent felonies are serious
felonies - i.e., violent felonies are a subset of the serious
felonies list. This bill would create an exception to the
rule. Contrary to the description of the bill in the author's
statement, this bill defines any variation of human trafficking
as a violent felony, but not a serious felony. The three-year
enhancement for a prior violent felony prison term could perhaps
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<1> Consecutive sentences are served back-to-back. Concurrent
sentences are served at the same time.
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be imposed for repeated convictions of human trafficking.
However, the human trafficking law currently includes a specific
five-year enhancement for prior human trafficking convictions.
As the enhancement to be imposed for a prior violent felony
prison term would be based on the same conviction as supports
the existing five-year human traffickig enhancement, it is
likely<2> that the defendant could not be punished for the same
prior conviction twice. He or she would receive the greater of
the two enhancements the specific enhancement for a prior human
trafficking conviction. (Pen. Code § 654; People v. Jones,
supra, 5 Cal.4th at pp. 1147-1153.)
A court imposing sentence on a defendant convicted of human
trafficking in the current case would need to determine how to
impose sentencing using at least two sentencing schemes and at
least one enhancement provision. Arguably, the human
trafficking sentence structure should not be augmented by
additional sentencing provisions unless it can be shown that the
existing penalties are insufficient.
WOULD ADDING HUMAN TRAFFICKING TO THE VIOLENT FELONY LIST
INCREASE THE COMPLEXITY OF SENTENCING LAW WITHOUT RESULTING IN
SUBSTANTIALLY DIFFERENT SENTENCES FOR OFFENDERS?
4.Human Trafficking Victims are Reluctant to Come Forward
There have been numerous concerns raised about the difficulty of
prosecuting human trafficking cases. Problems with human
trafficking cases appear to flow from the reluctance of victims
to come forward. They often have been threatened by the
traffickers not to report the crime, they may fear they will not
be believed, they may be undocumented fear deportation, and they
may fear that they will be prosecuted for crimes they were
coerced into committing. (The State of Human Trafficking in
California, 2012, Cal. DOJ p. 75-76.)<3> Perversely, raising
human trafficking penalties could increase the pressure human
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<2> Such a sentencing outcome is likely, not certain, as no
sentencing issue can be considered settled prior to a definitive
ruling by the California Supreme Court.
<3>
https://oag.ca.gov/sites/all/files/agweb/pdfs/ht/human-traffickin
g-2012.pdf?
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trafficking perpetrators place on victims to accept their fates,
exacerbating the problem until victims feel safe.
A number of bills in this and prior sessions have sought to
relieve human trafficking victims of the consequences of
offenses they were coerced into committing and to provide
funding for services trafficking victims. Essentially, it
appears that human trafficking victims must feel they will be
safe and able to live independently before they will come
forward. Without services for victims it is unlikely that the
state can substantially erode human trafficking. Comment #5
discusses the research finding that raising penalties for a
particular crime largely have little deterrence value. This
research reinforces a conclusion that the best way to combat
human trafficking is by providing resource and support for
victims.
IS HUMAN TRAFFICKING BEST ADDRESSED THROUGH SERVICES AND SUPPORT
FOR VICTIMS, RATHER THAN INCREASING PENALTIES?
5.Research on Specific Sentences as a Deterrent to Crime
Criminal justice experts and commentators have noted that, with
regard to sentencing, "a key question for policy development
regards whether enhanced sanctions or an enhanced possibility of
being apprehended provide any additional deterrent benefits.
Research to date generally indicates that increases in
the certainty of punishment, as opposed to the
severity of punishment, are more likely to produce
deterrent benefits.<4>
A comprehensive report published in 2014, entitled The
Growth of Incarceration in the United States, discusses the
effects on crime reduction through incapacitation and
deterrence, and describes general deterrence compared to
specific deterrence:
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<4> Valerie Wright, Ph.D., Deterrence in Criminal Justice
Evaluating Certainty vs. Severity of Punishment (November 2010),
The Sentencing Project
(http://www.sentencingproject.org/doc/Deterrence%20Briefing%20.pd
f.)
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A large body of research has studied the effects of
incarceration and other criminal penalties on crime.
Much of this research is guided by the hypothesis that
incarceration reduces crime through incapacitation and
deterrence. Incapacitation refers to the crimes
averted by the physical isolation of convicted
offenders during the period of their incarceration.
Theories of deterrence distinguish between general and
specific behavioral responses. General deterrence
refers to the crime prevention effects of the threat
of punishment, while specific deterrence concerns the
aftermath of the failure of general deterrence-that
is, the effect on reoffending that might result from
the experience of actually being punished. Most of
this research studies the relationship between
criminal sanctions and crimes other than drug
offenses.
In regard to deterrence, the authors note that in "the
classical theory of deterrence, crime is averted when the
expected costs of punishment exceed the benefits of
offending. Much of the empirical research on the deterrent
power of criminal penalties has studied sentence
enhancements and other shifts in penal policy. . . .
Deterrence theory is underpinned by a rationalistic
view of crime. In this view, an individual
considering commission of a crime weighs the benefits
of offending against the costs of punishment. Much
offending, however, departs from the strict decision
calculus of the rationalistic model. Robinson and
Darley (2004) review the limits of deterrence through
harsh punishment. They report that offenders must
have some knowledge of criminal penalties to be
deterred from committing a crime, but in practice
often do not."<5>
Members may wish to discuss whether the "rationalistic
view" of crime described above likely would apply to
persons who commit human trafficking offense. That is,
will defining human trafficking as a violent felony deters
traffickers from engaging in these crimes.
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<5> Id. at 132-133.
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WOULD DEFINING HUMAN TRAFFICKING AS A VIOLENT FELONY
DISCOURAGE PERSONS FROM ENGAGING IN THE CRIMES INCLUDED IN
THE HUMAN TRAFFICKING STATUTE?
The authors of the 2014 report discussed above conclude
that incapacitation of certain dangerous offenders can have
"large crime prevention benefits," but that incremental,
lengthy prison sentences are ineffective for crime
deterrence.
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