Amended in Senate May 31, 2016

Amended in Senate April 26, 2016

Senate BillNo. 1322


Introduced by Senator Mitchell

(Coauthor: Senator Wieckowski)

(Coauthors: Assembly Members Cristina Garcia and Lackey)

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. The bill would authorize the minor to be taken into temporary custody under limited circumstances.

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

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

P1    1

SECTION 1.  

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

P2    1

647.  

Except as provided in paragraph (2) of subdivision (b)
2and subdivision (l), every person who commits any of the following
3acts is guilty of disorderly conduct, a misdemeanor:

4(a) Who solicits anyone to engage in or who engages in lewd
5or dissolute conduct in any public place or in any place open to
6the public or exposed to public view.

7(b) (1) Who solicits or who agrees to engage in or who engages
8in any act of prostitution. A person agrees to engage in an act of
9prostitution when, with specific intent to so engage, he or she
10manifests an acceptance of an offer or solicitation to so engage,
11regardless of whether the offer or solicitation was made by a person
12who also possessed the specific intent to engage in prostitution.
13No agreement to engage in an act of prostitution shall constitute
14a violation of this subdivision unless some act, in addition to the
15agreement, is done within this state in furtherance of the
16commission of an act of prostitution by the person agreeing to
17engage in that act. As used in this subdivision, “prostitution”
18includes any lewd act between persons for money or other
19consideration.

20(2) Notwithstanding paragraph (1), this subdivision does not
21apply to a child under 18 years of age who is alleged to have
22engaged in conductbegin insert to receive money or other considerationend insert that
23would, if committed by an adult, violate this subdivision. A
24commercially exploited child under this paragraph may be adjudged
25a dependent child of the court pursuant to paragraph (2) of
26subdivision (b) of Section 300 of the Welfare and Institutions Code
27and may be taken into temporary custody pursuant to subdivision
28(a) of Section 305 of the Welfare and Institutions Code, if the
29conditions allowing temporary custody without warrant are met.

30(c) Who accosts other persons in any public place or in any
31place open to the public for the purpose of begging or soliciting
32alms.

33(d) Who loiters in or about any toilet open to the public for the
34purpose of engaging in or soliciting any lewd or lascivious or any
35unlawful act.

36(e) Who lodges in any building, structure, vehicle, or place,
37whether public or private, without the permission of the owner or
38person entitled to the possession or in control of it.

39(f) Who is found in any public place under the influence of
40intoxicating liquor, any drug, controlled substance, toluene, or any
P3    1combination of any intoxicating liquor, drug, controlled substance,
2or toluene, in a condition that he or she is unable to exercise care
3for his or her own safety or the safety of others, or by reason of
4his or her being under the influence of intoxicating liquor, any
5drug, controlled substance, toluene, or any combination of any
6intoxicating liquor, drug, or toluene, interferes with or obstructs
7or prevents the free use of any street, sidewalk, or other public
8way.

9(g) When a person has violated subdivision (f), a peace officer,
10if he or she is reasonably able to do so, shall place the person, or
11cause him or her to be placed, in civil protective custody. The
12person shall be taken to a facility, designated pursuant to Section
135170 of the Welfare and Institutions Code, for the 72-hour
14treatment and evaluation of inebriates. A peace officer may place
15a person in civil protective custody with that kind and degree of
16force which would be lawful were he or she effecting an arrest for
17a misdemeanor without a warrant. A person who has been placed
18in civil protective custody shall not thereafter be subject to any
19criminal prosecution or juvenile court proceeding based on the
20facts giving rise to this placement. This subdivision shall not apply
21to the following persons:

22(1) Any person who is under the influence of any drug, or under
23the combined influence of intoxicating liquor and any drug.

24(2) Any person who a peace officer has probable cause to believe
25has committed any felony, or who has committed any misdemeanor
26in addition to subdivision (f).

27(3) Any person who a peace officer in good faith believes will
28attempt escape or will be unreasonably difficult for medical
29personnel to control.

30(h) Who loiters, prowls, or wanders upon the private property
31of another, at any time, without visible or lawful business with the
32owner or occupant. As used in this subdivision, “loiter” means to
33delay or linger without a lawful purpose for being on the property
34and for the purpose of committing a crime as opportunity may be
35discovered.

36(i) Who, while loitering, prowling, or wandering upon the private
37property of another, at any time, peeks in the door or window of
38any inhabited building or structure, without visible or lawful
39business with the owner or occupant.

P4    1(j) (1) Any person who looks through a hole or opening, into,
2or otherwise views, by means of any instrumentality, including,
3but not limited to, a periscope, telescope, binoculars, camera,
4motion picture camera, camcorder, or mobile phone, the interior
5of a bedroom, bathroom, changing room, fitting room, dressing
6room, or tanning booth, or the interior of any other area in which
7the occupant has a reasonable expectation of privacy, with the
8intent to invade the privacy of a person or persons inside. This
9subdivision shall not apply to those areas of a private business
10used to count currency or other negotiable instruments.

11(2) Any person who uses a concealed camcorder, motion picture
12camera, or photographic camera of any type, to secretly videotape,
13film, photograph, or record by electronic means, another,
14identifiable person under or through the clothing being worn by
15that other person, for the purpose of viewing the body of, or the
16undergarments worn by, that other person, without the consent or
17knowledge of that other person, with the intent to arouse, appeal
18to, or gratify the lust, passions, or sexual desires of that person and
19invade the privacy of that other person, under circumstances in
20which the other person has a reasonable expectation of privacy.

21(3) (A) Any person who uses a concealed camcorder, motion
22picture camera, or photographic camera of any type, to secretly
23videotape, film, photograph, or record by electronic means, another,
24identifiable person who may be in a state of full or partial undress,
25for the purpose of viewing the body of, or the undergarments worn
26by, that other person, without the consent or knowledge of that
27other person, in the interior of a bedroom, bathroom, changing
28room, fitting room, dressing room, or tanning booth, or the interior
29of any other area in which that other person has a reasonable
30expectation of privacy, with the intent to invade the privacy of that
31other person.

32(B) Neither of the following is a defense to the crime specified
33in this paragraph:

34(i) The defendant was a cohabitant, landlord, tenant, cotenant,
35employer, employee, or business partner or associate of the victim,
36or an agent of any of these.

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

38(4) (A) Any person who intentionally distributes the image of
39the intimate body part or parts of another identifiable person, or
40an image of the person depicted engaged in an act of sexual
P5    1intercourse, sodomy, oral copulation, sexual penetration, or an
2image of masturbation by the person depicted or in which the
3person depicted participates, under circumstances in which the
4persons agree or understand that the image shall remain private,
5the person distributing the image knows or should know that
6distribution of the image will cause serious emotional distress, and
7the person depicted suffers that distress.

8(B) A person intentionally distributes an image described in
9subparagraph (A) when he or she personally distributes the image,
10or arranges, specifically requests, or intentionally causes another
11person to distribute that image.

12(C) As used in this paragraph, “intimate body part” means any
13portion of the genitals, the anus and in the case of a female, also
14includes any portion of the breasts below the top of the areola, that
15is either uncovered or clearly visible through clothing.

16(D) It shall not be a violation of this paragraph to distribute an
17image described in subparagraph (A) if any of the following
18applies:

19(i) The distribution is made in the course of reporting an
20unlawful activity.

21(ii) The distribution is made in compliance with a subpoena or
22other court order for use in a legal proceeding.

23(iii) The distribution is made in the course of a lawful public
24proceeding.

25(5) This subdivision shall not preclude punishment under any
26section of law providing for greater punishment.

27(k) In any accusatory pleading charging a violation of
28subdivision (b), if the defendant has been once previously convicted
29of a violation of that subdivision, the previous conviction shall be
30charged in the accusatory pleading. If the previous conviction is
31found to be true by the jury, upon a jury trial, or by the court, upon
32a court trial, or is admitted by the defendant, the defendant shall
33be imprisoned in a county jail for a period of not less than 45 days
34and shall not be eligible for release upon completion of sentence,
35on probation, on parole, on work furlough or work release, or on
36any other basis until he or she has served a period of not less than
3745 days in a county jail. In all cases in which probation is granted,
38the court shall require as a condition thereof that the person be
39confined in a county jail for at least 45 days. In no event does the
40court have the power to absolve a person who violates this
P6    1subdivision from the obligation of spending at least 45 days in
2confinement in a county jail.

3In any accusatory pleading charging a violation of subdivision
4(b), if the defendant has been previously convicted two or more
5times of a violation of that subdivision, each of these previous
6convictions shall be charged in the accusatory pleading. If two or
7more of these previous convictions are found to be true by the jury,
8upon a jury trial, or by the court, upon a court trial, or are admitted
9by the defendant, the defendant shall be imprisoned in a county
10jail for a period of not less than 90 days and shall not be eligible
11for release upon completion of sentence, on probation, on parole,
12on work furlough or work release, or on any other basis until he
13or she has served a period of not less than 90 days in a county jail.
14In all cases in which probation is granted, the court shall require
15as a condition thereof that the person be confined in a county jail
16for at least 90 days. In no event does the court have the power to
17absolve a person who violates this subdivision from the obligation
18of spending at least 90 days in confinement in a county jail.

19In addition to any punishment prescribed by this section, a court
20may suspend, for not more than 30 days, the privilege of the person
21to operate a motor vehicle pursuant to Section 13201.5 of the
22Vehicle Code for any violation of subdivision (b) that was
23committed within 1,000 feet of a private residence and with the
24use of a vehicle. In lieu of the suspension, the court may order a
25person’s privilege to operate a motor vehicle restricted, for not
26more than six months, to necessary travel to and from the person’s
27place of employment or education. If driving a motor vehicle is
28necessary to perform the duties of the person’s employment, the
29court may also allow the person to drive in that person’s scope of
30employment.

31(l) (1) A second or subsequent violation of subdivision (j) is
32punishable by imprisonment in a county jail not exceeding one
33year, or by a fine not exceeding two thousand dollars ($2,000), or
34by both that fine and imprisonment.

35(2) If the victim of a violation of subdivision (j) was a minor at
36the time of the offense, the violation is punishable by imprisonment
37in a county jail not exceeding one year, or by a fine not exceeding
38two thousand dollars ($2,000), or by both that fine and
39imprisonment.

P7    1(m) (1) If a crime is committed in violation of subdivision (b)
2and the person who was solicited was a minor at the time of the
3offense, and if the defendant knew or should have known that the
4person who was solicited was a minor at the time of the offense,
5the violation is punishable by imprisonment in a county jail for
6not less than two days and not more than one year, or by a fine not
7exceeding ten thousand dollars ($10,000), or by both that fine and
8imprisonment.

9(2) The court may, in unusual cases, when the interests of justice
10are best served, reduce or eliminate the mandatory two days of
11imprisonment in a county jail required by this subdivision. If the
12court reduces or eliminates the mandatory two days’ imprisonment,
13the court shall specify the reason on the record.

14

SEC. 2.  

Section 653.22 of the Penal Code is amended to read:

15

653.22.  

(a) (1) Except as specified in paragraph (2), it is
16unlawful for any person to loiter in any public place with the intent
17to commit prostitution. This intent is evidenced by acting in a
18manner and under circumstances that openly demonstrate the
19purpose of inducing, enticing, or soliciting prostitution, or
20procuring another to commit prostitution.

21(2) Notwithstanding paragraph (1), this subdivision does not
22apply to a child under 18 years of age who is alleged to have
23engaged in conduct that would, if committed by an adult, violate
24this subdivision. A commercially exploited child under this
25paragraph may be adjudged a dependent child of the court pursuant
26to paragraph (2) of subdivision (b) of Section 300 of the Welfare
27and Institutions Code and may be taken into temporary custody
28pursuant to subdivision (a) of Section 305 of the Welfare and
29Institutions Code, if the conditions allowing temporary custody
30without warrant are met.

31(b) Among the circumstances that may be considered in
32determining whether a person loiters with the intent to commit
33prostitution are that the person:

34(1) Repeatedly beckons to, stops, engages in conversations with,
35or attempts to stop or engage in conversations with passersby,
36indicative of soliciting for prostitution.

37(2) Repeatedly stops or attempts to stop motor vehicles by
38hailing the drivers, waving arms, or making any other bodily
39gestures, or engages or attempts to engage the drivers or passengers
P8    1of the motor vehicles in conversation, indicative of soliciting for
2prostitution.

3(3) Has been convicted of violating this section, subdivision (a)
4or (b) of Section 647, or any other offense relating to or involving
5prostitution, within five years of the arrest under this section.

6(4) Circles an area in a motor vehicle and repeatedly beckons
7to, contacts, or attempts to contact or stop pedestrians or other
8motorists, indicative of soliciting for prostitution.

9(5) Has engaged, within six months prior to the arrest under this
10section, in any behavior described in this subdivision, with the
11exception of paragraph (3), or in any other behavior indicative of
12prostitution activity.

13(c) The list of circumstances set forth in subdivision (b) is not
14exclusive. The circumstances set forth in subdivision (b) should
15be considered particularly salient if they occur in an area that is
16known for prostitution activity. Any other relevant circumstances
17may be considered in determining whether a person has the
18requisite intent. Moreover, no one circumstance or combination
19of circumstances is in itself determinative of intent. Intent must
20be determined based on an evaluation of the particular
21circumstances of each case.



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