BILL ANALYSIS
AB 499
Page 1
Date of Hearing: January 15, 2008
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 499 (Swanson) - As Amended: January 9, 2008
SUMMARY : Creates a pilot project in Alameda County for the
purpose of diverting sexually exploited minors accused of
prostitution offenses into supervised counseling and treatment
programs. Specifically this bill :
1)States that in accordance with current law, the District
Attorney for Alameda County shall establish a program of
supervision as defined in Welfare and Institutions Code (WIC)
Section 654 (informal court probation) for sexually exploited
minors accused of prostitution offenses.
2)Creates a pilot project in the County of Alameda for the
purpose of creating, implementing, and delivering standardized
training curricula that will provide training on the sexual
exploitation of minors in Alameda County and other counties,
as funding permits.
3)States that the standardized training curricula shall include
advocacy or case planning, including advocacy from the point
of detainment, court advocacy, advocacy and joint case
planning with probation officers, developing and understanding
case studies, and intensive case management and advocacy
throughout any legal process involving the district attorney's
office and law enforcement; deprogramming; empowerment,
including surviving child sexual exploitation workshop series,
self-sufficiency workshop series, and self-discovery and
self-esteem-based workshop series; intensive case management,
including working with a child welfare worker or parents and
probation officers on placement options, educational options,
employment options, engagement activities and other services
recommended for the minor or requested by the minor commencing
with the custody process through and after release.
4)Specifies that the pilot project in the County of Alameda
shall design and create a training curriculum for advocates
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and case managers consisting of a 40-hour sexually exploited
minor crisis counseling training.
5)States that the training shall be administered by a nonprofit
organization that is established specifically to serve
sexually exploited children and will include state
certification as sexually exploited minor crisis counselors
upon completion of the 40-hour training.
6)Specifies that the 40-hour sexually exploited minor crisis
counseling training shall include, but not be limited to,
understanding child sexual exploitation or commercial child
sexual exploitation, the impact of child sexual exploitation
or commercial child sexual exploitation, understanding
childhood sexual abuse, overview of sexual assault or rape,
suicide prevention, sexually exploited minors interfacing with
law enforcement and the child welfare and juvenile justice
systems, domestic violence and sexually exploited minors,
sexually exploited minors with disabilities, crisis
intervention, substance abuse and sexually exploited children,
overview of post-traumatic stress disorder, survivors of
childhood sexual abuse, lesbian, gay, questioning, bisexual,
and transgendered sexually exploited children, sexually
exploited children from immigrant families, and mandated
reporting.
7)States that the standardized training shall be designed for
law enforcement, in cooperation with police officer standards
training, for prosecutors and public defenders, in cooperation
with the Prosecutors and Public Defenders Education and
Training Program and the California District Attorneys
Association; for the judiciary, in cooperation with the
Judicial Council and the Administrative Office of the Courts;
for social service providers and probation officers, in
cooperation with the California Probation, Parole and
Correctional Association; and for advocates, in cooperation
with local rape crisis centers and domestic violence service
providers.
8)Provides that implementation of this chapter is contingent
upon an appropriation in the annual Budget Act or another
statute that provides sufficient funding for the pilot
project.
9)Creates a sunset date of January 1, 2012.
AB 499
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EXISTING LAW :
1)Permits in any case in which a probation officer, after
investigation of an application for a petition or any other
investigation he or she is authorized to make concludes that a
minor is within the jurisdiction of the juvenile court or will
probably soon be within that jurisdiction, the probation
officer may, in lieu of filing a petition to declare a minor a
dependent child of the court or a minor or a ward of the
court, with consent of the minor and the minor's parent or
guardian, delineate specific programs of supervision for the
minor, for not to exceed six months, and attempt thereby to
adjust the situation which brings the minor within the
jurisdiction of the court or creates the probability that the
minor will soon be within that jurisdiction. (WIC Section
654.)
a) Provides that nothing in this section shall be construed
to prevent the probation officer from filing a petition or
requesting the prosecuting attorney to file a petition at
any time within the six-month period or a 90-day period
thereafter.
b) Permits the probation officer, if he determines that the
minor has not involved himself or herself in the specific
programs within 60 days, to immediately file a petition or
request that a petition be filed by the prosecuting
attorney. However, when in the judgment of the probation
officer the interest of the minor and the community can be
protected, the probation officer shall make a diligent
effort to proceed under this section.
c) States that the program of supervision of the minor
undertaken pursuant to this section may call for the minor
to obtain care and treatment for the misuse of or addiction
to controlled substances from a county mental health
service or other appropriate community agency.
d) Provides that the program of supervision shall require
the parents or guardians of the minor to participate with
the minor in counseling or education programs, including,
but not limited to, parent education and parenting programs
operated by community colleges, school districts, or other
appropriate agencies designated by the court if the program
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of supervision.
e) Permits that maintenance and operation of sheltered-care
facilities, or contracts with private or public agencies to
provide these services. Placement shall be limited to a
maximum of 90 days. Counseling services shall be extended
to the sheltered minor and his or her family during this
period of diversion services. The minor and his or her
parents may be required to make full or partial
reimbursement for the services rendered the minor and his
or her family during the diversion process. Referrals for
sheltered-care diversion may be made by the minor, his or
her family, schools, any law enforcement agency, or any
other private or public social service agency. [WIC
Section 654(a).]
f) Allows for the maintenance and operation of crisis
resolution homes, or contract with private or public
agencies offering these services. Residence at these
facilities shall be limited to 20 days during which period
individual and family counseling shall be extended the
minor and his or her family. Failure to resolve the crisis
within the 20-day period may result in the minor's referral
to a sheltered-care facility for a period not to exceed 90
days. Referrals shall be accepted from the minor, his or
her family, schools, law enforcement or any other private
or public social service agency. The minor, his or her
parents, or both, may be required to reimburse the county
for the cost of services rendered at a rate to be
determined by the county board of supervisors. [WIC
Section 654(b).]
g) Permits maintenance and operation of counseling and
educational centers, or contract with private and public
agencies, societies, or corporations whose purpose is to
provide vocational training or skills. The centers may be
operated separately or in conjunction with crisis
resolution homes to be operated by the probation officer.
The probation officer shall be authorized to make referrals
to the appropriate existing private or public agencies
offering similar services when available. [WIC Section
654(c).]
h) At the conclusion of the program of supervision
undertaken pursuant to this section, the probation officer
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shall prepare and maintain a follow up report of the actual
program measures taken.
2)States that if a petition has been filed by the prosecuting
attorney to declare a minor a ward of the court, the court
may, without adjudging the minor a ward of the court and with
the consent of the minor and the minor's parents or guardian,
continue any hearing on a petition for six months and order
the minor to participate in a program of supervision as set
forth above. (WIC Section 654.2.)
a) Provides, if the probation officer recommends additional
time to enable the minor to complete the program, the court
at its discretion may order an extension. Fifteen days
prior to the final conclusion of the program of supervision
undertaken pursuant to this section, the probation officer
shall submit to the court a follow up report of the minor's
participation in the program.
b) States that the minor and the minor's parents or
guardian shall be ordered to appear at the conclusion of
the six-month period and at the conclusion of each
additional three-month period.
c) Provides if the minor successfully completes the program
of supervision, the court shall order the petition be
dismissed.
d) States if the minor has not successfully completed the
program of supervision, proceedings on the petition shall
proceed no later than 12 months from the date the petition
was filed.
e) Provides if the minor is eligible for WIC Section 654
supervision, and the probation officer believes the minor
would benefit from a program of supervision pursuant to
this section, the probation officer may recommend informal
supervision as provided in this section.
3)Defines the following as "disorderly conduct", a misdemeanor
(Penal Code Section 647):
a) Solicitation of any person 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;
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b) Solicitation or agreement to engage in or engagement 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;
c) Loitering 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; and,
d) Loitering or wandering upon the streets or from place to
place without apparent reason or business and refusing 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.
4)Prohibits loitering in any public place with the intent to
commit prostitution. (Penal Code Section 653.22.) Among the
circumstances that may be considered in determining whether a
person loiters with the intent to commit prostitution are that
the person:
a) Repeatedly beckons to, stops, engages in conversations
with, or attempts to stop or engage in conversations with
passersby, indicative of soliciting for prostitution;
b) 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;
c) Has been convicted of violating prostitution laws within
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five years of the arrest under this section;
d) 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.
e) Has engaged, within six months prior to the arrest under
this section, in any behavior described above, or in any
other behavior indicative of prostitution activity; or,
f) The list of circumstances is not exclusive. 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.
5)Provides victims of sexual assault the right to have victim
advocates and a support person of the victim's choosing
present at any interview by law enforcement authorities,
district attorneys, or defense attorneys. However, the
support person may be excluded from an interview by law
enforcement or the district attorney if the law enforcement
authority or the district attorney determines that the
presence of that individual would be detrimental to the
purpose of the interview. As used in this section, "victim
advocate" is defined as a sexual assault counselor. (Penal
Code Section 679.04.)
6)Mandates that when a minor is taken into custody by a peace
officer or probation officer, the minor shall be released
within 48 hours after having been taken into custody unless a
petition to declare the child a dependant of the court has
been filed. (WIC Section 313.)
7)Allows courts to adjudicate a person to be a dependent child
of the court under the following circumstances (WIC Section
300):
a) The child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm inflicted
non-accidentally upon the child by the child's parent or
guardian. For the purposes of this subdivision, a court may
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find there is a substantial risk of serious future injury
based on the manner in which a less serious injury was
inflicted, a history of repeated inflictions of injuries on
the child or the child's siblings, or a combination of
these and other actions by the parent or guardian which
indicate the child is at risk of serious physical harm.
For purposes of this subdivision, "serious physical harm"
does not include reasonable and age-appropriate spanking to
the buttocks where there is no evidence of serious physical
injury.
b) The child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or
illness as a result of the failure or inability of his or
her parent or guardian to adequately supervise or protect
the child, or the willful or negligent failure of the
child's parent or guardian to adequately supervise or
protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or
negligent failure of the parent or guardian to provide the
child with adequate food, clothing, shelter, or medical
treatment, or by the inability of the parent or guardian to
provide regular care for the child due to the parent's or
guardian's mental illness, developmental disability, or
substance abuse. No child shall be found to be a person
described by this subdivision solely due to the lack of an
emergency shelter for the family. Whenever it is alleged
that a child comes within the jurisdiction of the court on
the basis of the parent's or guardian's willful failure to
provide adequate medical treatment or specific decision to
provide spiritual treatment through prayer, the court shall
give deference to the parent's or guardian's medical
treatment, non-treatment, or spiritual treatment through
prayer alone in accordance with the tenets and practices of
a recognized church or religious denomination, by an
accredited practitioner thereof, and shall not assume
jurisdiction unless necessary to protect the child from
suffering serious physical harm or illness. In making its
determination, the court shall consider: (i) the nature of
the treatment proposed by the parent or guardian; (ii) the
risks to the child posed by the course of treatment or
non-treatment proposed by the parent or guardian; (iii) the
risk, if any, of the course of treatment being proposed by
the petitioning agency; and, (iv) the likely success of the
courses of treatment or non-treatment proposed by the
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parent or guardian and agency. The child shall continue to
be a dependent child pursuant to this subdivision only so
long as is necessary to protect the child from risk of
suffering serious physical harm or illness.
c) The child is suffering serious emotional damage, or is
at substantial risk of suffering, serious emotional damage,
evidenced by severe anxiety, depression, withdrawal, or
untoward aggressive behavior toward self or others, as a
result of the conduct of the parent or guardian or who has
no parent or guardian capable of providing appropriate
care. No child shall be found to be a person described by
this subdivision if the willful failure of the parent or
guardian to provide adequate mental health treatment is
based on a sincerely held religious belief and if a less
intrusive judicial intervention is available.
d) The child has been sexually abused, or there is a
substantial risk that the child will be sexually abused, by
his or her parent or guardian or a member of his or her
household; or the parent or guardian has failed to
adequately protect the child from sexual abuse when the
parent or guardian knew or reasonably should have known
that the child was in danger of sexual abuse.
e) The child is under the age of five years and has
suffered severe physical abuse by a parent, or by any
person known by the parent, if the parent knew or
reasonably should have known that the person was physically
abusing the child. For the purposes of this subdivision,
"severe physical abuse" is defined as any of the following:
any single act of abuse which causes physical trauma of
sufficient severity that, if left untreated, would cause
permanent physical disfigurement, permanent physical
disability, or death; any single act of sexual abuse which
causes significant bleeding, deep bruising, or significant
external or internal swelling; or more than one act of
physical abuse, each of which causes bleeding, deep
bruising, significant external or internal swelling, bone
fracture, or unconsciousness; or the willful, prolonged
failure to provide adequate food. A child may not be
removed from the physical custody of his or her parent or
guardian on the basis of a finding of severe physical abuse
unless the social worker has made an allegation of severe
physical abuse.
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f) The child's parent or guardian caused the death of
another child through abuse or neglect.
g) The child has been left without any provision for
support; physical custody of the child has been voluntarily
surrendered and the child has not been reclaimed within 14
days; the child's parent has been incarcerated or
institutionalized and cannot arrange for the care of the
child; or a relative or other adult custodian with whom the
child resides or has been left is unwilling or unable to
provide care or support for the child, the whereabouts of
the parent are unknown, and reasonable efforts to locate
the parent have been unsuccessful.
h) The child has been freed for adoption by one or both
parents for 12 months by either relinquishment or
termination of parental rights or an adoption petition has
not been granted.
i) The child has been subjected to an act or acts of
cruelty by the parent or guardian or a member of his or her
household, or the parent or guardian has failed to
adequately protect the child from an act or acts of cruelty
when the parent or guardian knew or reasonably should have
known that the child was in danger of being subjected to an
act or acts of cruelty.
j) The child's sibling has been abused or neglected, and
there is a substantial risk that the child will be abused
or neglected, as defined in those subdivisions. The court
shall consider the circumstances surrounding the abuse or
neglect of the sibling, the age and gender of each child,
the nature of the abuse or neglect of the sibling, the
mental condition of the parent or guardian, and any other
factors the court considers probative in determining
whether there is a substantial risk to the child.
FISCAL EFFECT : Unknown
COMMENTS :
1)Lack of Pretrial Diversion for Juvenile Offenses : For
violations of certain specified crimes, an adult defendant may
be eligible to participate in a diversion program. (Penal
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Code Sections 1001 to 1001.9.) Diversion is the suspension of
criminal proceedings for the prescribed time period with
certain conditions which must be met. If the defendant is
unsuccessful, criminal proceedings resume. If diversion is
successfully completed, the criminal charges are dismissed and
the defendant may, with certain exceptions, legally answer
that he or she has never been arrested for or charged with the
diverted offense. (Penal Code Section 1001.9). A fee to the
court and a separate fee to the program are usually required.
The benefits and protections of a successful diversion are to
be given broad application. [ B.W. v. Board of Medical Quality
Assurance (1985) 169 CA3d 219.]
Juveniles are not afforded an opportunity to participate in
pretrial diversion programs. Alternatively, juveniles are
afforded the opportunity to participate in supervised informal
probation proceedings. (WIC Sections 654 et seq.)
Additionally, juveniles facing petitions may participate in
deferred entry of judgment proceedings. (WIC Section 790.)
For deferred entry of judgment, the juvenile must actually
enter a plea of guilty. Instead of finding the juvenile
guilty of the offense, the judge does not enter the guilty
finding and permits the juvenile to participate in programs as
supervised by the probation department. Upon successful
completion of the programs, the matter is dismissed. Informal
probation differs in that the juvenile does not have to plead
guilty in order to participate in the program, and upon
successful completion the matter is dismissed without a guilty
plea ever being entered in the record.
2)Argument in Support :
a) The American College of Obstetricians and Gynecologists
state, "We wholeheartedly agree with the premise that teens
arrested for participating in acts of prostitution should
be treated as sexually exploited victims. These girls
often have been pulled into a life of prostitution after
being molested or groomed for prostitution by an adult.
There is a window of opportunity for these young women to
be rescued from their situation, given an opportunity to be
treated for their abuse, and started down a path of
reintegration into society. Lifelong health problems begin
from childhood abuse and trauma. Failure to intervene in a
way that will break the cycle of abuse will sentence these
young women to a lifetime of abuse and criminal behavior,
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physical and mental illness."
b) The California Commission on the Status of Women write,
"The recent increase in sexual exploitation in California
has been through the means of child prostitution and
pornography. Currently, there are no laws that recognize
minors who have been exposed to sexual exploitation as
victims. Minors who are detained for prostitution are
limited in the Juvenile Justice System and are not provided
support for intervention for healing and recovery."
REGISTERED SUPPORT / OPPOSITION :
Support
American College of Obstetricians and Gynecologists
California Commission on the Status of Women
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744