Senate Bill No. 1322

Introduced by Senator Mitchell

February 19, 2016

An act to amend Sections 647 and 653.22 of the Penal Code, relating to minors.

LEGISLATIVE COUNSEL’S DIGEST

SB 1322, as introduced, Mitchell. Commercial sex acts: minors.

Existing law makes it a crime to solicit or engage in any act of prostitution. Existing law makes it a crime to loiter in any public place with the intent to commit prostitution.

This bill would make the above provisions inapplicable to a child under 18 years of age who is alleged to have engaged in conduct that would, if committed by an adult, violate the above provisions. Pursuant to those provisions, the bill would require a peace officer to report suspected abuse or neglect of that minor to the county child welfare agency. The bill would authorize the minor to be taken into temporary custody under limited circumstances. By imposing new duties on local law enforcement agencies, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 647 of the Penal Code is amended to
read:

647.  

Except as provided in begin insert paragraph (2) of subdivision (b)
and end insert subdivision (l), every person who commits any of the following
acts is guilty of disorderly conduct, a misdemeanor:

(a) Who solicits anyone to engage in or who engages in lewd
or dissolute conduct in any public place or in any place open to
the public or exposed to public view.

(b)  begin insert (1) end insert begin insert   end insert Who solicits or who agrees to engage in or who engages
in any act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
No agreement to engage in an act of prostitution shall constitute
a violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the
commission of an act of prostitution by the person agreeing to
engage in that act. As used in this subdivision, “prostitution”
includes any lewd act between persons for money or other
consideration.

begin insert

(2) Notwithstanding paragraph (1), this subdivision does not
apply to a child under 18 years of age who is alleged to have
engaged in conduct that would, if committed by an adult, violate
this subdivision. A peace officer who encounters a child involved
in a commercial sex act pursuant to this paragraph, shall report
suspected abuse or neglect of the minor to the county child welfare
agency in accordance with Article 2.5 (commencing with Section
11164) of Chapter 2 of Title 1 of Part 4. A commercially exploited
child under this paragraph may be adjudged a dependent child of
the court pursuant to paragraph (2) of subdivision (b) of Section
300 of the Welfare and Institutions Code and may be taken into
temporary custody pursuant to subdivision (a) of Section 305 of
the Welfare and Institutions Code, if the conditions allowing
temporary custody without warrant are met.

end insert

(c) Who accosts other persons in any public place or in any
place open to the public for the purpose of begging or soliciting
alms.

(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.

(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.

(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.

(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour
treatment and evaluation of inebriates. A peace officer may place
a person in civil protective custody with that kind and degree of
force which would be lawful were he or she effecting an arrest for
a misdemeanor without a warrant. A person who has been placed
in civil protective custody shall not thereafter be subject to any
criminal prosecution or juvenile court proceeding based on the
facts giving rise to this placement. This subdivision shall not apply
to the following persons:

(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.

(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor
in addition to subdivision (f).

(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.

(h) Who loiters, prowls, or wanders upon the private property
of another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, “loiter” means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.

(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of
any inhabited building or structure, without visible or lawful
business with the owner or occupant.

(j) (1) Any person who looks through a hole or opening, into,
or otherwise views, by means of any instrumentality, including,
but not limited to, a periscope, telescope, binoculars, camera,
motion picture camera, camcorder, or mobile phone, the interior
of a bedroom, bathroom, changing room, fitting room, dressing
room, or tanning booth, or the interior of any other area in which
the occupant has a reasonable expectation of privacy, with the
intent to invade the privacy of a person or persons inside. This
subdivision shall not apply to those areas of a private business
used to count currency or other negotiable instruments.

(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person under or through the clothing being worn by
that other person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the consent or
knowledge of that other person, with the intent to arouse, appeal
to, or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in
which the other person has a reasonable expectation of privacy.

(3) (A) Any person who uses a concealed camcorder, motion
picture camera, or photographic camera of any type, to secretly
videotape, film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or partial undress,
for the purpose of viewing the body of, or the undergarments worn
by, that other person, without the consent or knowledge of that
other person, in the interior of a bedroom, bathroom, changing
room, fitting room, dressing room, or tanning booth, or the interior
of any other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy of that
other person.

(B) Neither of the following is a defense to the crime specified
in this paragraph:

(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.

(ii) The victim was not in a state of full or partial undress.

(4) (A) Any person who intentionally distributes the image of
the intimate body part or parts of another identifiable person, or
an image of the person depicted engaged in an act of sexual
intercourse, sodomy, oral copulation, sexual penetration, or an
image of masturbation by the person depicted or in which the
person depicted participates, under circumstances in which the
persons agree or understand that the image shall remain private,
the person distributing the image knows or should know that
distribution of the image will cause serious emotional distress, and
the person depicted suffers that distress.

(B) A person intentionally distributes an image described in
subparagraph (A) when he or she personally distributes the image,
or arranges, specifically requests, or intentionally causes another
person to distribute that image.

(C) As used in this paragraph, “intimate body part” means any
portion of the genitals, the anus and in the case of a female, also
includes any portion of the breasts below the top of the areola, that
is either uncovered or clearly visible through clothing.

(D) It shall not be a violation of this paragraph to distribute an
image described in subparagraph (A) if any of the following
applies:

(i) The distribution is made in the course of reporting an
unlawful activity.

(ii) The distribution is made in compliance with a subpoena or
other court order for use in a legal proceeding.

(iii) The distribution is made in the course of a lawful public
proceeding.

(5) This subdivision shall not preclude punishment under any
section of law providing for greater punishment.

(k) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court, upon
a court trial, or is admitted by the defendant, the defendant shall
be imprisoned in a county jail for a period of not less than 45 days
and shall not be eligible for release upon completion of sentence,
on probation, on parole, on work furlough or work release, or on
any other basis until he or she has served a period of not less than
45 days in a county jail. In all cases in which probation is granted,
the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event does the
court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.

In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been previously convicted two or more
times of a violation of that subdivision, each of these previous
convictions shall be charged in the accusatory pleading. If two or
more of these previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are admitted
by the defendant, the defendant shall be imprisoned in a county
jail for a period of not less than 90 days and shall not be eligible
for release upon completion of sentence, on probation, on parole,
on work furlough or work release, or on any other basis until he
or she has served a period of not less than 90 days in a county jail.
In all cases in which probation is granted, the court shall require
as a condition thereof that the person be confined in a county jail
for at least 90 days. In no event does the court have the power to
absolve a person who violates this subdivision from the obligation
of spending at least 90 days in confinement in a county jail.

In addition to any punishment prescribed by this section, a court
may suspend, for not more than 30 days, the privilege of the person
to operate a motor vehicle pursuant to Section 13201.5 of the
Vehicle Code for any violation of subdivision (b) that was
committed within 1,000 feet of a private residence and with the
use of a vehicle. In lieu of the suspension, the court may order a
person’s privilege to operate a motor vehicle restricted, for not
more than six months, to necessary travel to and from the person’s
place of employment or education. If driving a motor vehicle is
necessary to perform the duties of the person’s employment, the
court may also allow the person to drive in that person’s scope of
employment.

(l) (1) A second or subsequent violation of subdivision (j) is
punishable by imprisonment in a county jail not exceeding one
year, or by a fine not exceeding two thousand dollars ($2,000), or
by both that fine and imprisonment.

(2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and
imprisonment.

(m) (1) If a crime is committed in violation of subdivision (b)
and the person who was solicited was a minor at the time of the
offense, and if the defendant knew or should have known that the
person who was solicited was a minor at the time of the offense,
the violation is punishable by imprisonment in a county jail for
not less than two days and not more than one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both that fine and
imprisonment.

(2) The court may, in unusual cases, when the interests of justice
are best served, reduce or eliminate the mandatory two days of
imprisonment in a county jail required by this subdivision. If the
court reduces or eliminates the mandatory two days’ imprisonment,
the court shall specify the reason on the record.

SEC. 2.  

Section 653.22 of the Penal Code is amended to read:

653.22.  

(a)  begin delete It end delete begin insert (1) end insert begin insert   end insert begin insert Except as specified in paragraph (2), it end insert is
unlawful for any person to loiter in any public place with the intent
to commit prostitution. This intent is evidenced by acting in a
manner and under circumstances begin delete which end delete begin insert that end insert openly demonstrate
the purpose of inducing, enticing, or soliciting prostitution, or
procuring another to commit prostitution.

begin insert

(2) Notwithstanding paragraph (1), this subdivision does not
apply to a child under 18 years of age who is alleged to have
engaged in conduct that would, if committed by an adult, violate
this subdivision. A peace officer who encounters a child involved
in a commercial sex act pursuant to this paragraph, shall report
suspected abuse or neglect of the minor to the county child welfare
agency in accordance with Article 2.5 (commencing with Section
11164) of Chapter 2 of Title 1 of Part 4. A commercially exploited
child under this paragraph may be adjudged a dependent child of
the court pursuant to paragraph (2) of subdivision (b) of Section
300 of the Welfare and Institutions Code and may be taken into
temporary custody pursuant to subdivision (a) of Section 305 of
the Welfare and Institutions Code, if the conditions allowing
temporary custody without warrant are met.

end insert

(b) Among the circumstances that may be considered in
determining whether a person loiters with the intent to commit
prostitution are that the person:

(1) Repeatedly beckons to, stops, engages in conversations with,
or attempts to stop or engage in conversations with passersby,
indicative of soliciting for prostitution.

(2) Repeatedly stops or attempts to stop motor vehicles by
hailing the drivers, waving arms, or making any other bodily
gestures, or engages or attempts to engage the drivers or passengers
of the motor vehicles in conversation, indicative of soliciting for
prostitution.

(3) Has been convicted of violating this section, subdivision (a)
or (b) of Section 647, or any other offense relating to or involving
prostitution, within five years of the arrest under this section.

(4) Circles an area in a motor vehicle and repeatedly beckons
to, contacts, or attempts to contact or stop pedestrians or other
motorists, indicative of soliciting for prostitution.

(5) Has engaged, within six months prior to the arrest under this
section, in any behavior described in this subdivision, with the
exception of paragraph (3), or in any other behavior indicative of
prostitution activity.

(c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should
be considered particularly salient if they occur in an area that is
known for prostitution activity. Any other relevant circumstances
may be considered in determining whether a person has the
requisite intent. Moreover, no one circumstance or combination
of circumstances is in itself determinative of intent. Intent must
be determined based on an evaluation of the particular
circumstances of each case.

SEC. 3.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.