Amended in Senate April 26, 2016

Senate BillNo. 1322


Introduced by Senator Mitchell

begin insert

(Coauthor: Senator Wieckowski)

end insert
begin insert

(Coauthors: Assembly Members Cristina Garcia and Lackey)

end insert

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 amended, 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.begin delete 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.end delete The bill would authorize the minor to be taken into temporary custody under limited circumstances.begin delete By imposing new duties on local law enforcement agencies, the bill would impose a state-mandated local program.end delete

begin delete

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.

end delete
begin delete

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.

end delete

Vote: majority. Appropriation: no. Fiscal committee: begin deleteyes end deletebegin insertnoend insert. State-mandated local program: begin deleteyes end deletebegin insertnoend insert.

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

P2    1

SECTION 1.  

Section 647 of the Penal Code is amended to
2read:

3

647.  

Except as provided in paragraph (2) of subdivision (b)
4and subdivision (l), every person who commits any of the following
5acts is guilty of disorderly conduct, a misdemeanor:

6(a) Who solicits anyone to engage in or who engages in lewd
7or dissolute conduct in any public place or in any place open to
8the public or exposed to public view.

9(b) (1) Who solicits or who agrees to engage in or who engages
10in any act of prostitution. A person agrees to engage in an act of
11prostitution when, with specific intent to so engage, he or she
12manifests an acceptance of an offer or solicitation to so engage,
13regardless of whether the offer or solicitation was made by a person
14who also possessed the specific intent to engage in prostitution.
15No agreement to engage in an act of prostitution shall constitute
16a violation of this subdivision unless some act, in addition to the
17agreement, is done within this state in furtherance of the
18commission of an act of prostitution by the person agreeing to
19engage in that act. As used in this subdivision, “prostitution”
20includes any lewd act between persons for money or other
21consideration.

22(2) Notwithstanding paragraph (1), this subdivision does not
23apply to a child under 18 years of age who is alleged to have
24engaged in conduct that would, if committed by an adult, violate
25this subdivision.begin delete A peace officer who encounters a child involved
26in a commercial sex act pursuant to this paragraph, shall report
27suspected abuse or neglect of the minor to the county child welfare
28agency in accordance with Article 2.5 (commencing with Section
2911164) of Chapter 2 of Title 1 of Part 4.end delete
A commercially exploited
30child under this paragraph may be adjudged a dependent child of
31the court pursuant to paragraph (2) of subdivision (b) of Section
32300 of the Welfare and Institutions Code and may be taken into
33temporary custody pursuant to subdivision (a) of Section 305 of
P3    1the Welfare and Institutions Code, if the conditions allowing
2temporary custody without warrant are met.

3(c) Who accosts other persons in any public place or in any
4place open to the public for the purpose of begging or soliciting
5alms.

6(d) Who loiters in or about any toilet open to the public for the
7purpose of engaging in or soliciting any lewd or lascivious or any
8unlawful act.

9(e) Who lodges in any building, structure, vehicle, or place,
10whether public or private, without the permission of the owner or
11person entitled to the possession or in control of it.

12(f) Who is found in any public place under the influence of
13intoxicating liquor, any drug, controlled substance, toluene, or any
14combination of any intoxicating liquor, drug, controlled substance,
15or toluene, in a condition that he or she is unable to exercise care
16for his or her own safety or the safety of others, or by reason of
17his or her being under the influence of intoxicating liquor, any
18drug, controlled substance, toluene, or any combination of any
19intoxicating liquor, drug, or toluene, interferes with or obstructs
20or prevents the free use of any street, sidewalk, or other public
21way.

22(g) When a person has violated subdivision (f), a peace officer,
23if he or she is reasonably able to do so, shall place the person, or
24cause him or her to be placed, in civil protective custody. The
25person shall be taken to a facility, designated pursuant to Section
265170 of the Welfare and Institutions Code, for the 72-hour
27treatment and evaluation of inebriates. A peace officer may place
28a person in civil protective custody with that kind and degree of
29force which would be lawful were he or she effecting an arrest for
30a misdemeanor without a warrant. A person who has been placed
31in civil protective custody shall not thereafter be subject to any
32criminal prosecution or juvenile court proceeding based on the
33facts giving rise to this placement. This subdivision shall not apply
34to the following persons:

35(1) Any person who is under the influence of any drug, or under
36the combined influence of intoxicating liquor and any drug.

37(2) Any person who a peace officer has probable cause to believe
38has committed any felony, or who has committed any misdemeanor
39in addition to subdivision (f).

P4    1(3) Any person who a peace officer in good faith believes will
2attempt escape or will be unreasonably difficult for medical
3personnel to control.

4(h) Who loiters, prowls, or wanders upon the private property
5of another, at any time, without visible or lawful business with the
6owner or occupant. As used in this subdivision, “loiter” means to
7delay or linger without a lawful purpose for being on the property
8and for the purpose of committing a crime as opportunity may be
9discovered.

10(i) Who, while loitering, prowling, or wandering upon the private
11property of another, at any time, peeks in the door or window of
12any inhabited building or structure, without visible or lawful
13business with the owner or occupant.

14(j) (1) Any person who looks through a hole or opening, into,
15or otherwise views, by means of any instrumentality, including,
16but not limited to, a periscope, telescope, binoculars, camera,
17motion picture camera, camcorder, or mobile phone, the interior
18of a bedroom, bathroom, changing room, fitting room, dressing
19room, or tanning booth, or the interior of any other area in which
20the occupant has a reasonable expectation of privacy, with the
21intent to invade the privacy of a person or persons inside. This
22subdivision shall not apply to those areas of a private business
23used to count currency or other negotiable instruments.

24(2) Any person who uses a concealed camcorder, motion picture
25camera, or photographic camera of any type, to secretly videotape,
26film, photograph, or record by electronic means, another,
27identifiable person under or through the clothing being worn by
28that other person, for the purpose of viewing the body of, or the
29undergarments worn by, that other person, without the consent or
30knowledge of that other person, with the intent to arouse, appeal
31to, or gratify the lust, passions, or sexual desires of that person and
32invade the privacy of that other person, under circumstances in
33which the other person has a reasonable expectation of privacy.

34(3) (A) Any person who uses a concealed camcorder, motion
35picture camera, or photographic camera of any type, to secretly
36videotape, film, photograph, or record by electronic means, another,
37identifiable person who may be in a state of full or partial undress,
38for the purpose of viewing the body of, or the undergarments worn
39by, that other person, without the consent or knowledge of that
40other person, in the interior of a bedroom, bathroom, changing
P5    1room, fitting room, dressing room, or tanning booth, or the interior
2of any other area in which that other person has a reasonable
3expectation of privacy, with the intent to invade the privacy of that
4other person.

5(B) Neither of the following is a defense to the crime specified
6in this paragraph:

7(i) The defendant was a cohabitant, landlord, tenant, cotenant,
8employer, employee, or business partner or associate of the victim,
9or an agent of any of these.

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

11(4) (A) Any person who intentionally distributes the image of
12the intimate body part or parts of another identifiable person, or
13an image of the person depicted engaged in an act of sexual
14intercourse, sodomy, oral copulation, sexual penetration, or an
15image of masturbation by the person depicted or in which the
16person depicted participates, under circumstances in which the
17persons agree or understand that the image shall remain private,
18the person distributing the image knows or should know that
19distribution of the image will cause serious emotional distress, and
20the person depicted suffers that distress.

21(B) A person intentionally distributes an image described in
22subparagraph (A) when he or she personally distributes the image,
23or arranges, specifically requests, or intentionally causes another
24person to distribute that image.

25(C) As used in this paragraph, “intimate body part” means any
26portion of the genitals, the anus and in the case of a female, also
27includes any portion of the breasts below the top of the areola, that
28is either uncovered or clearly visible through clothing.

29(D) It shall not be a violation of this paragraph to distribute an
30image described in subparagraph (A) if any of the following
31applies:

32(i) The distribution is made in the course of reporting an
33unlawful activity.

34(ii) The distribution is made in compliance with a subpoena or
35other court order for use in a legal proceeding.

36(iii) The distribution is made in the course of a lawful public
37proceeding.

38(5) This subdivision shall not preclude punishment under any
39section of law providing for greater punishment.

P6    1(k) In any accusatory pleading charging a violation of
2subdivision (b), if the defendant has been once previously convicted
3of a violation of that subdivision, the previous conviction shall be
4charged in the accusatory pleading. If the previous conviction is
5found to be true by the jury, upon a jury trial, or by the court, upon
6a court trial, or is admitted by the defendant, the defendant shall
7be imprisoned in a county jail for a period of not less than 45 days
8and shall not be eligible for release upon completion of sentence,
9on probation, on parole, on work furlough or work release, or on
10any other basis until he or she has served a period of not less than
1145 days in a county jail. In all cases in which probation is granted,
12the court shall require as a condition thereof that the person be
13confined in a county jail for at least 45 days. In no event does the
14court have the power to absolve a person who violates this
15subdivision from the obligation of spending at least 45 days in
16confinement in a county jail.

17In any accusatory pleading charging a violation of subdivision
18(b), if the defendant has been previously convicted two or more
19times of a violation of that subdivision, each of these previous
20convictions shall be charged in the accusatory pleading. If two or
21more of these previous convictions are found to be true by the jury,
22upon a jury trial, or by the court, upon a court trial, or are admitted
23by the defendant, the defendant shall be imprisoned in a county
24jail for a period of not less than 90 days and shall not be eligible
25for release upon completion of sentence, on probation, on parole,
26on work furlough or work release, or on any other basis until he
27or she has served a period of not less than 90 days in a county jail.
28In all cases in which probation is granted, the court shall require
29as a condition thereof that the person be confined in a county jail
30for at least 90 days. In no event does the court have the power to
31absolve a person who violates this subdivision from the obligation
32of spending at least 90 days in confinement in a county jail.

33In addition to any punishment prescribed by this section, a court
34may suspend, for not more than 30 days, the privilege of the person
35to operate a motor vehicle pursuant to Section 13201.5 of the
36Vehicle Code for any violation of subdivision (b) that was
37committed within 1,000 feet of a private residence and with the
38use of a vehicle. In lieu of the suspension, the court may order a
39person’s privilege to operate a motor vehicle restricted, for not
40more than six months, to necessary travel to and from the person’s
P7    1place of employment or education. If driving a motor vehicle is
2necessary to perform the duties of the person’s employment, the
3court may also allow the person to drive in that person’s scope of
4employment.

5(l) (1) A second or subsequent violation of subdivision (j) is
6punishable by imprisonment in a county jail not exceeding one
7year, or by a fine not exceeding two thousand dollars ($2,000), or
8by both that fine and imprisonment.

9(2) If the victim of a violation of subdivision (j) was a minor at
10the time of the offense, the violation is punishable by imprisonment
11in a county jail not exceeding one year, or by a fine not exceeding
12two thousand dollars ($2,000), or by both that fine and
13imprisonment.

14(m) (1) If a crime is committed in violation of subdivision (b)
15and the person who was solicited was a minor at the time of the
16offense, and if the defendant knew or should have known that the
17person who was solicited was a minor at the time of the offense,
18the violation is punishable by imprisonment in a county jail for
19not less than two days and not more than one year, or by a fine not
20exceeding ten thousand dollars ($10,000), or by both that fine and
21imprisonment.

22(2) The court may, in unusual cases, when the interests of justice
23are best served, reduce or eliminate the mandatory two days of
24imprisonment in a county jail required by this subdivision. If the
25court reduces or eliminates the mandatory two days’ imprisonment,
26the court shall specify the reason on the record.

27

SEC. 2.  

Section 653.22 of the Penal Code is amended to read:

28

653.22.  

(a) (1) Except as specified in paragraph (2), it is
29unlawful for any person to loiter in any public place with the intent
30to commit prostitution. This intent is evidenced by acting in a
31manner and under circumstances that openly demonstrate the
32purpose of inducing, enticing, or soliciting prostitution, or
33procuring another to commit prostitution.

34(2) Notwithstanding paragraph (1), this subdivision does not
35apply to a child under 18 years of age who is alleged to have
36engaged in conduct that would, if committed by an adult, violate
37this subdivision.begin delete A peace officer who encounters a child involved
38in a commercial sex act pursuant to this paragraph, shall report
39suspected abuse or neglect of the minor to the county child welfare
40agency in accordance with Article 2.5 (commencing with Section
P8    111164) of Chapter 2 of Title 1 of Part 4.end delete
A commercially exploited
2child under this paragraph may be adjudged a dependent child of
3the court pursuant to paragraph (2) of subdivision (b) of Section
4300 of the Welfare and Institutions Code and may be taken into
5temporary custody pursuant to subdivision (a) of Section 305 of
6the Welfare and Institutions Code, if the conditions allowing
7temporary custody without warrant are met.

8(b) Among the circumstances that may be considered in
9determining whether a person loiters with the intent to commit
10prostitution are that the person:

11(1) Repeatedly beckons to, stops, engages in conversations with,
12or attempts to stop or engage in conversations with passersby,
13indicative of soliciting for prostitution.

14(2) Repeatedly stops or attempts to stop motor vehicles by
15hailing the drivers, waving arms, or making any other bodily
16gestures, or engages or attempts to engage the drivers or passengers
17of the motor vehicles in conversation, indicative of soliciting for
18prostitution.

19(3) Has been convicted of violating this section, subdivision (a)
20or (b) of Section 647, or any other offense relating to or involving
21prostitution, within five years of the arrest under this section.

22(4) Circles an area in a motor vehicle and repeatedly beckons
23to, contacts, or attempts to contact or stop pedestrians or other
24motorists, indicative of soliciting for prostitution.

25(5) Has engaged, within six months prior to the arrest under this
26section, in any behavior described in this subdivision, with the
27exception of paragraph (3), or in any other behavior indicative of
28prostitution activity.

29(c) The list of circumstances set forth in subdivision (b) is not
30exclusive. The circumstances set forth in subdivision (b) should
31be considered particularly salient if they occur in an area that is
32known for prostitution activity. Any other relevant circumstances
33may be considered in determining whether a person has the
34requisite intent. Moreover, no one circumstance or combination
35of circumstances is in itself determinative of intent. Intent must
36be determined based on an evaluation of the particular
37circumstances of each case.

begin delete
38

SEC. 3.  

If the Commission on State Mandates determines that
39this act contains costs mandated by the state, reimbursement to
40local agencies and school districts for those costs shall be made
P9    1pursuant to Part 7 (commencing with Section 17500) of Division
24 of Title 2 of the Government Code.

end delete


O

    98