BILL ANALYSIS
AB 16
Page 1
Date of Hearing: March 31, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 16 (Swanson) - As Introduced: December 1, 2008
As Proposed to be Amended in Committee
SUMMARY : Adds human trafficking to the list of "serious" and
"violent" felonies for purposes of sentencing pursuant to the
"Three Strikes" Law.
EXISTING LAW :
1)Defines a "violent felony" as any of the following [Penal Code
Section 667.5(c)]:
a) Murder or voluntary manslaughter;
b) Mayhem;
c) Rape or spousal rape accomplished by means of force or
threats of retaliation;
d) Sodomy by force or fear of immediate bodily injury on
the victim or another person;
e) Oral copulation by force or fear of immediate bodily
injury on the victim or another person;
f) Lewd acts on a child under the age of 14 years, as
defined;
g) Any felony punishable by death or imprisonment in the
state prison for life;
h) Any felony in which the defendant inflicts great bodily
injury on any person other than an accomplice, or any
felony in which the defendant has used a firearm, as
specified;
i) Any robbery;
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j) Arson of a structure, forest land, or property that
causes great bodily injury;
aa) Arson that causes an inhabited structure or property to
burn;
bb) Sexual penetration accomplished against the victim's
will by means of force, menace or fear of immediate bodily
injury on the victim or another person;
cc) Attempted murder;
dd) Explosion or attempted explosion of a destructive device
with the intent to commit murder;
ee) Explosion or ignition of any destructive device or any
explosive which causes bodily injury to any person;
ff) Explosion of a destructive device which causes death or
great bodily injury;
gg) Kidnapping;
hh) Assault with intent to commit mayhem, rape, sodomy or
oral copulation;
ii) Continuous sexual abuse of a child;
jj) Carjacking, as defined;
aaa) Rape or penetration of genital or anal openings by a
foreign object;
bbb) Felony extortion;
ccc) Threats to victims or witnesses, as specified;
ddd) First degree burglary, as defined, where it is proved
that another person other than an accomplice, was present
in the residence during the burglary;
eee) Use of a firearm during the commission of specified
crimes; and,
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fff) Possession, development, production, and transfers of
weapons of mass destruction.
1)Defines a "serious felony" as any of the following: murder or
manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts
on a child under the age of 14; any felony punishable by death
or imprisonment for life; any felony in which the defendant
inflicts great bodily injury; attempted murder; assault with
the intent to commit rape or robbery; assault with a deadly
weapon or instrument on a peace officer; assault by a life
prisoner on a non-inmate; assault with a deadly weapon by an
inmate; arson; exploding a destructive devise with the
intention to commit murder or great bodily injury;
first-degree burglary; armed robbery or bank robbery;
kidnapping; holding of a hostage by a person confined to a
state prison; attempting to commit a felony punishable by
death or life in prison; any felony where the defendant
personally used a dangerous or deadly weapon; selling or
otherwise providing heroin, PCP or any type of
methamphetamine-related drug; forcible sexual penetration;
grand theft involving a firearm; carjacking; assault with the
intent to commit mayhem, rape, sodomy or forcible oral
copulation; throwing acid or other flammable substance;
assault with a deadly weapon on a peace officer; assault with
a deadly weapon on a member of the transit authority;
discharge of a firearm in an inhabited dwelling or car; rape
or sexual penetration done in concert; continuous sexual abuse
of a child; shooting from a vehicle; intimidating a victim or
witness; any attempt to commit the above-listed crimes except
assault or burglary; and using a firearm in the commission of
a crime and possession of weapons of mass destruction. [Penal
Code Section 1192.7(c).]
2)States that every person who, with intent that the crime be
committed, solicits another person to commit or join in the
commission of murder shall be punished by imprisonment in the
state prison for three, six, or nine years. [Penal Code
Section 653f(b).]
3)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has previously
been convicted of two or more serious or violent offenses as
specified, the term for the current conviction is an
indeterminate term of life in prison with the minimum term
calculated as the greater of 25 years, three times the term
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provided for each current felony conviction, or the
determinate term which would otherwise be imposed including
enhancements. (Penal Code Sections 667 and 1170.12.)
4)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has been
convicted of one prior serious or violent offense as defined,
the term of imprisonment is twice the term otherwise imposed
for the current offense. (Penal Code Sections 667 and
1170.12.)
5)Provides that a defendant, who is convicted of any current
felony, with prior convictions of two or more "violent or
serious" felonies, must receive a life sentence with a minimum
term of 25 years. The minimum term for any defendant with two
prior serious or violent offenses must be at least 25 years.
In many cases, multiple terms of 25-years-to-life must be
imposed - one for each count (separately charged offense) which
does not arise from the same operative facts in the current
case. Where multiple convictions do arise from separate
operative facts, the court has discretion to impose
consecutive or concurrent terms. [Penal Code Section
667(c)(6).] According to a complex formula, in a rare case, a
different minimum term may be imposed if it would result in a
longer sentence than 25 years. [Penal Code Sections
667(d)(2)(A)(i) to (iii), 667(a) and (d)(2)(i), and
1170.12(c)(2)(A).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The crimes of
sexual exploitation of minors by organized criminals is a
growing concern in Oakland and has led to the Assemblymember
and local law enforcement to focus on this growing problem.
These minors as young as 12 years old are being held captive
against their will and forced into prostitution and other
illicit sexual activities."
2)Background on Three Strikes : The Three Strikes law was
enacted by AB 971 (Jones/Costa), Chapter 12, Statutes of 1994,
and by Proposition 184 passed by the voters on November 8,
1994. Under the Three Strikes Law, a juvenile adjudication
may constitute an adult strike prior, although a minor is not
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entitled to a jury trial; a person sentenced under the Three
Strikes law may not be committed to any facility other than
prison; the Three Strikes Law prohibits plea-bargaining; Three
Strikes eliminates any "wash-out" period, requiring that any
prior or serious or violent felony conviction be used
regardless of when it occurred; requires the prosecuting
attorney to plead and prove each prior felony conviction; and,
Three Strikes may only be amended by a two-thirds vote of the
Legislature or a ballot measure approved by the electorate.
3)Costs of Adding Crimes to the List of "Serious" and "Violent"
Felonies : Adding an offense to the list of crimes already
specified as "serious" or "violent" will create longer prison
sentences for some offenders as a result of sentencing under
Three Strikes. Proposition 21, enacted by initiative in 2000,
significantly increased the number of offenses included on the
serious or violent felony list. The Secretary of State in its
March 2000 Voter Pamphlet stated that the fiscal cost of
adding several offenses to the list of serious or violent
felonies was an annual cost of $300 million. According to the
Legislative Analyst's Office, the state spends an average of
$49,000 annually to incarcerate an inmate. [Legislative
Analyst's Office, "Corrections Spending and Impact of Possible
Inmate Population Reduction", Assembly Budget Subcommittee No.
4 on State Administration.]
4)Related Legislation :
a) AB 17 (Swanson) requires courts impose a fine, in
addition to the proposed fine and prescribed punishment,
upon any person who solicit another person who is under 18
years of age to engage in an act of prostitution in return
for money or other consideration or to agree to give
another person who is under 18 years of age money or other
consideration in return for the other person committing an
act of prostitution in an amount of $250 to $2,500 per
conviction, as determined by the court. AB 17 is scheduled
to be heard by this Committee today.
b) AB 559 (Swanson) includes in the definition of human
trafficking, as specified, the conduct of any person who
causes a minor at the time of the commission of the act to
engage in pimping, pandering, enticement, as specified,
using a minor in pornography, extortion, solicitation of
prostitution and loitering with the intent to commit
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prostitution or a person who obtains or attempts to obtain
forced labor or services from a minor, as specified. AB
559 is scheduled to be heard by this Committee today.
5)Prior Legislation :
a) AB 426 (Galgiani), of the 2007-08 Legislative Session,
would have added human trafficking to the list of serious
felonies and solicitation of murder to the list both
serious and violent felonies for purposes of sentencing
pursuant to the "Three Strikes" Law. AB 426 was held on
the Assembly Committee on Appropriations' Suspense File.
b) AB 1278 (Ma), of the 2007-08 Legislative Session, was
identical with respect to the language in this bill. Those
provisions were deleted in the Assembly Committee on
Appropriations.
c) AB 677 (Parra), of the 2005-06 Legislative Session,
would have added solicitation of murder to the definition
of a "serious" felony. AB 677 was held on the Assembly
Committee on Appropriations' Suspense File.
d) AB 1838 (Hertzberg), Chapter 606, Statutes of 2002,
added offenses perpetrated by means of a weapon of mass
destruction to the list of crimes that constitute a violent
felony.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County
and Municipal Employees
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Capitol Resource Family Impact
Concerned Women for America
Crime Victims United
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
AB 16
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Friends Committee on Legislation
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744