BILL NUMBER: AB 2949 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 23, 1996
INTRODUCED BY Assembly Member Harvey
FEBRUARY 23, 1996
An act to amend Sections 44010 and 87010 of the Education Code, to
amend Section 51032 of the Government Code, to amend Sections 266a,
266e, 647, 647f, 647.1, 653.22, 784, 1001.10, and 1202.6 of the Penal
Code, and to amend Section 22659.5 of the Vehicle Code, relating to
prostitution.
LEGISLATIVE COUNSEL'S DIGEST
AB 2949, as amended, Harvey. Prostitution.
(1) Existing law makes it a misdemeanor to solicit or agree to
engage in or to engage in any act of prostitution, which includes any
lewd act between persons for money or other consideration. Existing
law provides that no agreement to engage in prostitution shall
violate this provision unless the person does some act in furtherance
of the agreement.
This bill would enact the Prostitution Abatement and Neighborhood
Protection Act of 1996. The bill would revise the definition of
prostitution by deleting the requirement that a person do some act in
furtherance of the agreement to engage in prostitution.
The bill would provide that prostitution include any sexual conduct,
rather than any lewd act, for money or other consideration.
This bill would provide that a person first convicted of
prostitution shall be punished by imprisonment in a county jail for a
period of not less than 3 months and that a person convicted of a
subsequent violation shall be punished by imprisonment in the state
prison for a period not less than one year . The
bill would provide for an enhanced punishment for a violation
occurring within 1,500 1,000 feet of a
home, school, church, park, or business
private residence or a school . The bill would authorize the
judge to impose a fine to be paid to the arresting law enforcement
agency in addition to this punishment.
By increasing the penalties for existing crimes, the bill would
impose a state-mandated local program.
(2) Existing law authorizes, until January 1, 1999, specified
cities, counties, and portions of cities to adopt an ordinance
establishing a pilot program implementing procedures for declaring
any motor vehicle a public nuisance when used in the commission of an
act of prostitution, and there is a conviction of the underlying
offense, except in specified circumstances. Existing law authorizes
the ordinance to include procedures, as prescribed, to enjoin and
abate the declared nuisance.
This bill would add the County of Kern and any city in that county
to the list of cities and counties authorized to adopt this
ordinance.
The bill would also make conforming changes.
(3) 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 no reimbursement is required by this
act for a specified reason.
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. This act shall be known and may be cited as the
"Prostitution Abatement and Neighborhood Protection Act of 1996."
SEC. 2. Section 44010 of the Education Code is amended to read:
44010. "Sex offense," as used in Sections 44346, 44425, 44436,
44836, 45123, and 45304, means any one or more of the offenses listed
below:
(a) Any offense defined in Section 261.5, 264.1, 266, 267, 285,
286, 288, 288a, 289, 311.3, 311.4, 313.1, 647.6, or former Section
647a, subdivision (a), (b), or (c) of Section 243.4, paragraph (1),
(2), (3), or (4) of subdivision (a) of Section 261, subdivision (b)
of Section 311.2, or paragraph (1) or (4) of subdivision (a) of
Section 647 of the Penal Code.
(b) Any offense defined in former subdivision 5 of former Section
647 of the Penal Code repealed by Chapter 560 of the Statutes of
1961, or any offense defined in former subdivision 2 of former
Section 311 of the Penal Code repealed by Chapter 2147 of the
Statutes of 1961, if the offense defined in those sections was
committed prior to September 15, 1961, to the same extent that an
offense committed prior to that date was a sex offense for the
purposes of this section prior to September 15, 1961.
(c) Any offense defined in Section 314 of the Penal Code committed
on or after September 15, 1961.
(d) Any offense defined in former subdivision 1 of former Section
311 of the Penal Code repealed by Chapter 2147 of the Statutes of
1961 committed on or after September 7, 1955, and prior to September
15, 1961.
(e) Any offense involving lewd and lascivious conduct under
Section 272 of the Penal Code committed on or after September 15,
1961.
(f) Any offense involving lewd and lascivious conduct under former
Section 702 of the Welfare and Institutions Code repealed by Chapter
1616 of the Statutes of 1961, if that offense was committed prior to
September 15, 1961, to the same extent that an offense committed
prior to that date was a sex offense for the purposes of this section
prior to September 15, 1961.
(g) Any offense defined in Section 286 or 288a of the Penal Code
prior to the effective date of the amendment of either section
enacted at the 1975-76 Regular Session of the Legislature committed
prior to the effective date of the amendment.
(h) Any attempt to commit any of the above-mentioned offenses.
(i) Any offense committed or attempted in any other state which,
if committed or attempted in this state, would have been punishable
as one or more of the above-mentioned offenses.
(j) Any conviction for an offense resulting in the requirement to
register as a sex offender pursuant to Section 290 of the Penal Code.
SEC. 3. Section 87010 of the Education Code is amended to read:
87010. "Sex offense," as used in Sections 87405, 88022, and
88123, means any one or more of the offenses listed below:
(a) Any offense defined in Section 261.5, 266, 267, 285, 286, 288,
288a, 647.6, or former Section 647a, subdivision 2 or 3 of Section
261, or paragraph (1) or (4) of subdivision (a) of Section 647 of the
Penal Code.
(b) Any offense defined in former subdivision 5 of former Section
647 of the Penal Code repealed by Chapter 560 of the Statutes of
1961, or any offense defined in former subdivision 2 of former
Section 311 of the Penal Code repealed by Chapter 2147 of the
Statutes of 1961, if the offense defined in those sections was
committed prior to September 15, 1961, to the same extent that such
an offense committed prior to that date was a sex offense for the
purposes of this section prior to September 15, 1961.
(c) Any offense defined in Section 314 of the Penal Code committed
on or after September 15, 1961.
(d) Any offense defined in former subdivision 1 of former Section
311 of the Penal Code repealed by Chapter 2147 of the Statutes of
1961 committed on or after September 7, 1955, and prior to September
15, 1961.
(e) Any offense involving lewd and lascivious conduct under
Section 272 of the Penal Code committed on or after September 15,
1961.
(f) Any offense involving lewd and lascivious conduct under former
Section 702 of the Welfare and Institutions Code repealed by Chapter
1616 of the Statutes of 1961, if the offense was committed prior to
September 15, 1961, to the same extent that such an offense committed
prior to that date was a sex offense for the purposes of this
section prior to September 15, 1961.
(g) Any offense defined in Section 286 or 288a of the Penal Code
prior to the effective date of the amendment of either section
enacted at the 1975 -76 Regular Session of the Legislature committed
prior to the effective date of the amendment.
(h) Any attempt to commit any of the above-mentioned offenses.
(i) Any offense committed or attempted in any other state which,
if committed or attempted in this state, would have been punishable
as one or more of the above-mentioned offenses.
SEC. 4. Section 51032 of the Government Code is amended to read:
51032. The ordinance may also provide that a license to engage in
the business of massage may be denied upon a showing by the
licensing authority of any of the following:
(a) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of a violation of Section
266i, 315, 316, 318, or paragraph (2) of subdivision (a) of Section
647 of the Penal Code, proof that the massage personnel or the owners
or operators of a massage business have been convicted in any other
state of any offense which, if committed or attempted in this state,
would have been punishable as one or more of the above-mentioned
offenses of this subdivision, or proof that the massage personnel or
the owners or operators of a massage business are required to
register under the provisions of Section 290 of the Penal Code.
(b) Proof that the massage personnel and the owners or operators
of a massage business have been convicted of any felony offense
involving the sale of a controlled substance specified in Section
11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code or
proof that the massage personnel or the owners or operators of the
massage business have been convicted in any other state of any
offense which, if committed or attempted in this state, would have
been punishable as one or more of the above-mentioned offenses of
this subdivision.
SEC. 5. Section 266a of the Penal Code is amended to read:
266a. Every person who, within this state, takes any person
against his or her will and without his or her consent, or with his
or her consent procured by fraudulent inducement or
misrepresentation, for the purpose of prostitution, as defined in
paragraph (2) of subdivision (a) of Section 647, shall be punished by
imprisonment in the state prison, and a fine not exceeding two
thousand dollars ($2,000).
SEC. 6. Section 266e of the Penal Code is amended to read:
266e. Every person who purchases, or pays any money or other
valuable thing for, any person for the purpose of prostitution as
defined in paragraph (2) of subdivision (a) of Section 647, or for
the purpose of placing that person, for immoral purposes, in any
house or place against his or her will, is guilty of a felony.
SEC. 7. Section 647 of the Penal Code is amended to read:
647. (a) Every person who commits any of the following acts is
guilty of disorderly conduct, a misdemeanor:
(1) 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.
(2) 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 engage, he or she
manifests an acceptance of an offer or solicitation to engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution.
As used in this subdivision, "prostitution" includes any
sexual conduct lewd act between persons for
money or other consideration.
(3) Who accosts other persons in any public place or in any place
open to the public for the purpose of begging or soliciting alms.
(4) 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.
(5) Who loiters or wanders upon the streets or from place to place
without apparent reason or business and who refuses to identify
himself or herself and to account for his or her presence when
requested by any peace officer so to do, if the surrounding
circumstances would indicate to a reasonable person that the public
safety demands this identification.
(6) 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 such 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.
(7) When a person has violated paragraph (6) of subdivision (a), 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. No person who has been
placed in civil protective custody shall 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:
(A) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.
(B) 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) of this section.
(C) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.
(8) 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 paragraph, "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.
(9) 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.
(10) 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.
(11) Anyone who looks through a hole into a bathroom with the
intent to invade the privacy of persons inside.
(b) A person convicted of a violation of paragraph (2) of
subdivision (a) shall be punished as follows:
(1) Upon a first conviction, by imprisonment in a county jail for
a period of not less than three months but not more than one year.
(2) If the person has been convicted previously of this provision,
by imprisonment in the state prison for a period of not
less than one year. A second conviction of this provision is a
felony for the purposes of Sections 667 and 1170.23. .
(3) If the violation of this provision occurred within
1,500 feet of a home, school, church, park, or business, by
1,000 feet of a private residence or the grounds of any public
or private elementary, vocational, junior high, or high school, by
a period of one year in addition to the punishment prescribed
by paragraph (1) or (2).
SEC. 8. Section 647f of the Penal Code is amended to read:
647f. In any accusatory pleading charging a violation of
paragraph (2) of subdivision (a) of Section 647, if the defendant has
been previously convicted one or more times of a violation of that
paragraph or of any other offense listed in subdivision (d) of
Section 1202.1, and in connection with one or more of those
convictions a blood test was administered pursuant to Section 1202.1
or 1202.6 with positive test results, of which the defendant was
informed, the previous conviction and positive blood test results, of
which the defendant was informed, shall be charged in the accusatory
pleading. If the previous conviction and informed test results are
found to be true by the trier of fact or are admitted by the
defendant, the defendant is guilty of a felony.
SEC. 9. Section 647.1 of the Penal Code is amended to read:
647.1. (a) In addition to any fine assessed under Section 647,
the judge may assess a fine not to exceed seventy dollars ($70)
against any person who violates paragraph (1) or (2) of subdivision
(a) of Section 647, or, if the offense involves intravenous use of a
controlled substance, paragraph (6) of subdivision (a) of Section
647, with the proceeds of this fine to be used in accordance with
Section 1463.23.
(b) In addition to any fine assessed under Section 647, the judge
may assess a fine not to exceed five hundred dollars ($500) against a
person first convicted of a violation of paragraph (2) of
subdivision (a) of Section 647. This fine shall be paid to the
arresting law enforcement agency.
(c) In addition to any fine assessed under Section 647, the judge
may assess a fine not to exceed one thousand dollars ($1,000) against
a person suffering a repeat conviction of a violation of paragraph
(2) of subdivision (a) of Section 647. This fine shall be paid to
the arresting law enforcement agency.
(d) The court shall, however, take into consideration the
defendant's ability to pay and no defendant shall be denied probation
because of his or her inability to pay the fine permitted under this
section.
SEC. 10. Section 653.22 of the Penal Code is amended to read:
653.22. (a) It 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 which openly
demonstrate the purpose of inducing, enticing, or soliciting
prostitution, or procuring another to commit prostitution.
(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, paragraph (1) or
(2) of subdivision (a) 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. 11. Section 784 of the Penal Code is amended to read:
784. The jurisdiction of a criminal action:
(a) For forcibly and without lawful authority seizing and
confining another, or inveigling or kidnapping another, with intent,
against his or her will, to cause him or her to be secretly confined
or imprisoned in this state, or to be sent out of the state, or from
one county to another, or to be sold as a slave, or in any way held
to service;
(b) For inveigling, enticing, or taking away any person for the
purpose of concubinage or prostitution, as defined in paragraph (2)
of subdivision (a) of Section 647;
Is in any competent court within the jurisdictional territory in
which the offense was committed, or in the jurisdictional territory
out of which the person upon whom the offense was committed was taken
or within the jurisdictional territory in which an act was done by
the defendant in instigating, procuring, promoting, or aiding in the
commission of the offense, or in abetting the parties concerned
therein.
SEC. 12. Section 1001.10 of the Penal Code is amended to read:
1001.10. (a) The judge shall require any person described in
subdivision (b), as a condition of either placing the person on
probation or of permitting the person to participate in a drug
diversion program to agree to participate in an AIDS education
program. Testing for AIDS antibodies shall be offered but no person
described in subdivision (b) shall be required to be tested.
(b) This section shall apply to any person who has either been
placed on probation or granted diversion for, any of the following:
(1) A violation of subdivision (a) of Section 11350 of the Health
and Safety Code, subdivision (a) of Section 11377 of the Health and
Safety Code, Section 11550 of the Health and Safety Code, Section
4143 or 4149 of the Business and Professions Code, or of subdivision
(f) of Section 647 if the offense involves intravenous use of a
controlled substance.
(2) A violation of paragraph (1) or (2) of subdivision (a) of
Section 647.
SEC. 13. Section 1202.6 of the Penal Code is amended to read:
1202.6. (a) Notwithstanding Sections 199.20, 199.21, and 199.22
of the Health and Safety Code, upon the first conviction of any
person for a violation of paragraph (2) of subdivision (a) of Section
647, the court shall, before sentencing or as a condition of
probation, order the defendant to complete instruction in the causes
and consequences of acquired immune deficiency syndrome (AIDS)
pursuant to subdivision (d) and shall order the defendant to submit
to testing for AIDS in accordance with subdivision (e). In addition,
the court shall refer a defendant, where appropriate, to a program
under Article 3.2 (commencing with Section 11320) of Chapter 2 of
Part 3 of Division 9 of the Welfare and Institutions Code or to any
drug diversion program, or both.
(b) Upon a second or subsequent conviction of a violation of
paragraph (2) of subdivision (a) of Section 647, the court shall,
before sentencing, order the defendant to submit to testing for AIDS
in accordance with subdivision (e).
(c) At the sentencing hearing of a defendant ordered to submit to
testing for AIDS pursuant to subdivision (a) or (b), the court shall
furnish the defendant with a copy of the report submitted pursuant to
subdivision (e) and shall direct the clerk to note the receipt of
the report by the defendant in the records of the case.
If the results of the test described in the report are positive,
the court shall make certain that the defendant understands the
nature and meaning of the contents of the report and shall further
advise the defendant of the penalty established in Section 647f for a
subsequent violation of paragraph (2) of subdivision (a) of Section
647.
(d) The county health officer in each county shall select an
agency, or agencies, in the county that shall provide AIDS prevention
education. The county health officer shall endeavor to select an
agency, or agencies, that currently provide AIDS prevention education
programs to substance abusers or prostitutes. If no agency is
currently providing this education, the county agency responsible for
substance abuse shall develop an AIDS prevention education program
either within the agency or under contract with a community-based,
nonprofit organization in the county. The county health officer
shall forward to the courts a list of agencies selected for purposes
of referral.
An AIDS prevention education program providing services, at a
minimum, shall include details about the transmission of human
immunodeficiency virus (HIV), the etiologic agent for AIDS, symptoms
of AIDS or AIDS-related conditions, prevention through avoidance or
cleaning of needles, sexual practices which constitute high risk, low
risk, and no risk (including abstinence), and resources for
assistance if the person decides to take a test for the etiologic
agent for AIDS and receives a positive test result. The program also
shall include other relevant medical and prevention information as
it becomes available.
(e) The court shall order testing of every defendant as ordered
pursuant to subdivision (a) or (b) for evidence of antibodies to the
probable causative agent of acquired immune deficiency syndrome.
Notwithstanding Section 199.21 of the Health and Safety Code, written
copies of the report on the test shall be furnished to both of the
following:
(1) The court in which the defendant is to be sentenced.
(2) The State Department of Health Services.
(f) Except as provided in subdivisions (c) and (g), the reports
required by subdivision (e) shall be confidential.
(g) The State Department of Health Services shall maintain the
confidentiality of the reports received pursuant to subdivision (e),
except that the department shall furnish copies of any such report to
a district attorney upon request.
SEC. 14. Section 22659.5 of the Vehicle Code is amended to read:
22659.5. (a) Notwithstanding any other provision of law, the
County of Alameda, any city in that county, the County of Contra
Costa, any city in that county, the County of Kern, any city in that
county, the County of San Diego, any city in that county, the County
of Sacramento, any city in that county, the City and County of San
Francisco, the City of Signal Hill, the City of Long Beach, and the
City of Los Angeles with respect to that portion of that city
situated in the San Fernando Valley statistical area, as described in
subdivision (c) of Section 11093 of the Government Code, may adopt
an ordinance establishing a five-year pilot program which implements
procedures for declaring any motor vehicle a public nuisance when the
vehicle is used in the commission of an act in violation of Section
266h or 266i of the Penal Code or paragraph (2) of subdivision (a) of
Section 647 of that code, and there is a conviction of Section 266h
or 266i of the Penal Code or paragraph (2) of subdivision (a) of
Section 647 of that code, or a provision involving any lesser
included offense to which the defendant enters a plea of guilty or
nolo contendere as part of a plea agreement subsequent to the
defendant having been charged with a violation of Section 266h or
266i of the Penal Code or paragraph (2) of subdivision (a) of Section
647 of that code.
(b) In addition to the authority provided by subdivision (h) of
Section 22651, the ordinance may also include procedures to enjoin
and abate the declared nuisance by ordering the defendant not to use
the vehicle again for purposes of violating Section 266h or 266i of
the Penal Code or paragraph (2) of subdivision (a) of Section 647 of
that code and authorizing the temporary impoundment of the vehicle
that the court has declared a nuisance if the defendant violates the
order. The impoundment shall not exceed 48 hours.
(c) The only action that may be taken to enjoin and abate the
declared nuisance are those actions specified in subdivision (b).
(d) Any procedures implemented pursuant to this section shall
ensure that no vehicle shall be declared a nuisance if the vehicle is
stolen, unless it is not possible to reasonably ascertain the
identity of any owner of the vehicle.
(e) This section shall remain in effect only until January 1,
1999, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 1999, deletes or extends
that date.
SEC. 15. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.