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  

          ---------------------------

          <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  
          ---------------------------

          <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:
          -------------------------
          <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. 



          -------------------------
          <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.


                                      -- END --