BILL ANALYSIS
AB 17
Page 1
Date of Hearing: April 28, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 17 (Swanson) - As Amended: April 22, 2009
As Proposed to Be Amended in Committee
SUMMARY : Modifies several provisions related to the sexual
exploitation of minors. Specifically, this bill :
1)Specifies that 50% of specified funds granted to child
exploitation and sexual abuse counseling centers shall be
granted to community-based organizations that serve underage
victims of human trafficking.
2)Adds abduction or procurement by fraudulent inducement for
prostitution to the list of crimes for which a forfeiture of
assets can be sought for criminal profiteering.
3)Increases the maximum fine for pimping, pandering, or
procurement from $5,000 to $20,000.
EXISTING LAW :
1)The Office of Emergency Services (OES) shall provide grants to
proposed and existing child sexual exploitation and child
sexual abuse victim counseling centers and prevention
programs. Grant recipients shall provide appropriate in-person
counseling and referral services during normal business hours,
and maintain other standards or services which shall be
determined to be appropriate by the advisory committee
established pursuant to Section 13836 as grant conditions.
The advisory committee shall identify the criteria to be
utilized in awarding the grants provided by this chapter
before any funds are allocated. In order to be eligible for
funding pursuant to this chapter, the centers shall
demonstrate an ability to receive and make use of any funds
available from governmental, voluntary, philanthropic, or
other sources which may be used to augment any state funds
appropriated for purposes of this chapter. Each center
receiving funds pursuant to this chapter shall make every
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attempt to qualify for any available federal funding. State
funds provided to establish centers shall be utilized when
possible, as determined by the advisory committee, to expand
the program and shall not be expended to reduce fiscal support
from other public or private sources. The centers shall
maintain quarterly and final fiscal reports in a form to be
prescribed by the administering agency. In granting funds, the
advisory committee shall give priority to centers which are
operated in close proximity to medical treatment facilities.
[Penal Code Section 13837(a).]
2)States that upon the conviction of any person for pimping,
pandering, or procurement, the court may, in addition to any
other penalty or fine imposed, order the defendant to pay an
additional fine not to exceed $5,000. In setting the amount
of the fine, the court shall consider any relevant factors
including, but not limited to, the seriousness and gravity of
the offense and the circumstances of its commission, whether
the defendant derived any economic gain as the result of the
crime, and the extent to which the victim suffered losses as a
result of the crime. Every fine imposed and collected under
this section shall be deposited in the Victim-Witness
Assistance Fund to be available for appropriation to fund
child sexual exploitation and child sexual abuse victim
counseling centers and prevention programs. If the court
orders a fine to be imposed pursuant to this section, the
actual administrative cost of collecting that fine, not to
exceed 2% of the total amount paid, may be paid into the
general fund of the county treasury for the use and benefit of
the county. [Penal Code Section 266(k).]
3)States that any person who, knowing another person is a
prostitute, lives or derives support or maintenance in whole
or in part from the earnings or proceeds of the person's
prostitution, or from money loaned or advanced to or charged
against that person by any keeper or manager or inmate of a
house or other place where prostitution is practiced or
allowed, or who solicits or receives compensation for
soliciting for the person, is guilty of pimping, a felony, and
shall be punishable by imprisonment in the state prison for
three, four, or six years. [Penal Code Section 266h(a).]
4)Provides that any person who, knowing another person is a
prostitute, lives or derives support or maintenance in whole
or in part from the earnings or proceeds of the person's
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prostitution, or from money loaned or advanced to or charged
against that person by any keeper or manager or inmate of a
house or other place where prostitution is practiced or
allowed, or who solicits or receives compensation for
soliciting for the person, when the prostitute is a minor, is
guilty of pimping a minor, a felony, and shall be punishable
as follows:
a) If the person engaged in prostitution is a minor over
the age of 16 years, the offense is punishable by
imprisonment in the state prison for three, four, or six
years.
b) If the person engaged in prostitution is under 16 years
of age, the offense is punishable by imprisonment in the
state prison for three, six, or eight years.
5)States any person who does any of the following is guilty of
pandering, a felony, and shall be punishable by imprisonment
in the state prison for three, four, or six years [Penal Code
Section 266i(a)]:
a) Procures another person for the purpose of prostitution.
b) By promises, threats, violence, or by any device or
scheme, causes, induces, persuades or encourages another
person to become a prostitute.
c) Procures for another person a place as an inmate in a
house of prostitution or as an inmate of any place in which
prostitution is encouraged or allowed within this state.
d) By promises, threats, violence or by any device or
scheme, causes, induces, persuades or encourages an inmate
of a house of prostitution, or any other place in which
prostitution is encouraged or allowed, to remain therein as
an inmate.
e) By fraud or artifice, or by duress of person or goods,
or by abuse of any position of confidence or authority,
procures another person for the purpose of prostitution, or
to enter any place in which prostitution is encouraged or
allowed within this state, or to come into this state or
leave this state for the purpose of prostitution.
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f) Receives or gives, or agrees to receive or give, any
money or thing of value for procuring, or attempting to
procure, another person for the purpose of prostitution, or
to come into this state or leave this state for the purpose
of prostitution.
6)Any person who does any of the acts with another person who is
a minor is guilty of pandering, a felony, and shall be
punishable as follows [Penal Code Section 266i(b)]:
a) If the other person is a minor over the age of 16 years,
the offense is punishable by imprisonment in the state
prison for three, four, or six years.
b) If the other person is under 16 years of age, the
offense is punishable by imprisonment in the state prison
for three, six, or eight years.
7)Any person who intentionally gives, transports, provides, or
makes available, or who offers to give, transport, provide, or
make available to another person, a child under the age of 16
for the purpose of any lewd or lascivious act as defined in
Section 288, or who causes, induces, or persuades a child
under the age of 16 to engage in such an act with another
person, is guilty of a felony and shall be imprisoned in the
state prison for a term of three, six, or eight years, and by
a fine not to exceed $15,000. (Penal Code Section 266j.)
8)Any person who deprives or violates the personal liberty of
another with the intent to effect or maintain a felony
violation of inveiglement of a minor for prostitution,
pimping, pandering, abduction for prostitution, employment or
use of a minor for prohibited acts, extortion, or to obtain
forced labor or services, is guilty of human trafficking.
[Penal Code Section 236.1(a).]
9)Establishes the "California Control Profits of Organized Crime
Act." (Penal Code Section 186.)
10) States that the following assets of any person who is
convicted a specified underlying offense and of engaging in a
pattern of criminal profiteering activity are subject to
forfeiture (Penal Code Section 186.3):
a) Any property interest whether tangible or intangible,
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acquired through a pattern of criminal profiteering
activity.
b) All proceeds of a pattern of criminal profiteering
activity, which property shall include all things of value
that may have been received in exchange for the proceeds
immediately derived from the pattern of criminal
profiteering activity.
11) States that, notwithstanding that no response or claim
has been filed, in all cases where property is forfeited, as
specified, and, if necessary, sold by the Department of
General Services (DGS) or local governmental entity, the money
forfeited or the proceeds of sale shall be distributed by the
state or local governmental entity as follows (Penal Code
Section 186.8):
a) To the bona fide or innocent purchaser, conditional
sales vendor, or holder of a valid lien, mortgage, or
security interest, if any, up to the amount of his or her
interest in the property or proceeds, when the court
declaring the forfeiture orders a distribution to that
person. The court shall endeavor to discover all those
lien holders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to
an additional 60 days to ensure that all valid claims are
received and processed.
b) To DGS or local governmental entity for all expenditures
made or incurred by it in connection with the sale of the
property, including expenditures for any necessary repairs,
storage, or transportation of any property seized, as
specified.
c) To the State's GF or local governmental entity,
whichever prosecutes.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "We are facing a
modern day slave trade in our cities across this state and
across the nation. Countless children, from foster youth to
runaways from more affluent neighborhoods are being trapped,
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sold and mercilessly abused for profit. There are even
reports that the number of children kidnapped for sexual
exploitation have increased. Current financial penalties
against traffickers are failing to stem the growing trade in
underage youth. We need to make this enterprise a losing
proposition for everyone involved."
2)Increase in Fines : This bill increases fines for the offenses
of pimping, pandering, and/or procurement. The maximum fine
currently stands at $5,000; this bill increases the fine to
$20,000. The proceeds of these fines fund child exploitation
and child sexual abuse victim counseling centers as managed by
the OES. The proponents state that currently the grants to
sexually exploited minor programs are vastly under funded. By
increasing the maximum fine, the proponents hope to increase
the grants to sexually exploited minor counseling programs and
service providers.
3)Penalty Assessments : This bill imposes a maximum fine of
$20,000. With penalty assessment on this fine, the actual
maximum amount due is $76,050. Penalty assessments must be
considered when deciding to impose fines. Assuming a person
is fined the maximum fine of $20,000 the following penalty
assessments would be imposed pursuant to the Penal Code and
the California Government Code:
Base Fine: $20,000
Penal Code 1464 Assessment: $20,000($10 for every
$10 in fines)
Penal Code 1465.7 Assessment: $ 4,000 (20%
surcharge)
Penal Code 1465.8 Assessment: $ 20($20
fee per fine)
Government Code 70372 Assessment: $10,000($5 for
every $10 in fines)
Government Code 70373 Assessment: $ 30($30
fee per each conviction)
Government Code 76000 Assessment: $14,000 ($7 for
every $10 in fines)
Government Code 7600.5 Assessment: $ 4,000 ($2
for every $10 in fines)
Government Code 76104.6 Assessment: $ 2,000($1 for
every $10 in fines)
Government Code 76104.7 Assessment: $ 2,000($1
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for every $10 in fines)
Total Minimum Fine with Assessments: $76,050
4)Allotment of Resources for Victims of Child Exploitation :
This bill allots 50% of grants under Penal Code Section 13837
to community-based organizations that serve underage victims
of human trafficking. According to the author,
community-based organizations have been unable to receive
grant money through this under-funded section. The author
hopes that by increasing the maximum fine and adding the
allotment provision, these programs may receive funding from
the OES.
5)Criminal Profiteering Procedure : Criminal profiteering asset
forfeiture is a criminal proceeding held in conjunction with
the trial of the underlying criminal offense. Often, the same
jury that heard the criminal charges also determines whether
the defendant's assets were the ill-gotten gains of criminal
profiteering. As a practical matter, the prosecution must
assemble its evidence for the forfeiture matter simultaneously
with the evidence of the crime.
In contrast, drug asset forfeiture is a separate civil action.
Except where the property forfeited is cash of value of at
least $25,000, a conviction for an underlying drug offense is
required. However, the rules of civil discovery and procedure
apply. The prosecution can conduct substantial civil
discovery to determine the extent of the defendant's assets.
Pursuant to Public Resources Code Section 14591, it is a crime
to defraud the State's Recycling Fund. However, in order for
the asset forfeiture laws to apply in a recycling fraud case,
the prosecutor must argue that the Public Resources Code
Section 14591 violation is "grand theft" as defined in Penal
Code Section 487. The crime of grand theft is currently
included in the definition of criminal profiteering contained
in Penal Code Section 186.2. This bill removes the second
step of proving that the recycling fraud is grand theft in an
asset forfeiture case. By listing fraud of the California
Beverage Container Recycling and Letter Reduction Act in Penal
Code Section 186.2, a prosecutor can seek asset forfeiture
without proving grand theft.
6)Criminal Profiteering Proceeds : Under existing law, the
forfeited proceeds of criminal profiteering are placed in the
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county general fund with no directions for use. There is an
exception for forfeiture in child pornography cases. In such
cases, the money is deposited in the county or State
Children's Trust Fund for child abuse and neglect prevention
and intervention. (Penal Code Section 186.8 and Welfare and
Institutions Code Sections 18966 and 18969.)
In California drug asset forfeiture, law enforcement receives
65% of forfeiture proceeds. (Health and Safety Code Sections
11469 et seq.) Of this amount, 15% must be placed in a
special county or city fund used "to combat drug abuse and
divert gang activity." Under federal forfeiture law allowing
"adoption" of state seizures of drug proceeds, the agency
seizing that property may receive as much as 80% of these
proceeds. This money must be used according to guidelines set
by the United States Department of Justice and require that
the money be used largely for law enforcement.
7)Arguments in Support :
a) According to San Bernardino County , "Under existing law,
an individual convicted of pimping, pandering, or
procurement of a child under 16 years of age is guilty of a
felony, punishable by imprisonment in the state prison and
a fine up to $15,000. AB 17 would increase the penalty to
a fine of no less than $2,500 with a maximum of $250,000
per conviction.
"In addition, AB 17 would also permit the court to impound
any personal property used to commit the crime for a period
up to 60 days. If the person has been previously
convicted, the court would be authorized to order any
personal property used to commit the crime forfeited. This
bill would require counties to establish a sexually
exploited minors fund with 50% of the additional fines and
forfeitures specified in the legislation available to local
law enforcement of specified crimes, and 50% available for
community-based organizations that assist sexually
exploited minors through prevention, counseling, job
training, and life skills programs.
"This legislation also permits local law enforcement
agencies to release the name and photograph of any person
who is convicted of soliciting or agreeing to engage in
prostitution, pimping, pandering, or procurement of a child
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under 16, or human trafficking where the victim is under 18
years of age to the media.
"The exploitation of our children is a deplorable act that
threatens the very fabric of our culture. The safety of
our children is a high priority for the County of San
Bernardino and we believe this bill is an important step to
protecting the innocence of our youth.
b) According to Capitol Resource Family Impact (CRFI),
"This bill would add new punishment requirements for
sex-related offenses. (1) If a person solicits
prostitution or agrees to pay for it, with money or other
considerations, the court may impose a fine between $250
and $2,500. (2) If a person is convicted of pimping,
pandering, or procuring a child under age 16, the bill
requires a fine between $2,500 and $250,000, in addition to
any other punishment prescribed. (3) Courts would be
authorized to impound personal property if it is used in
lawful conduct, or in a repeat offense, to order the
property forfeited. (4) If real property is used in a
violation of those provisions, existing provisions of law
that declare property used for illegal purposes a nuisance
would apply to it.
"CRFI supports this legislation, because it recognizes the
serious nature of soliciting and offering prostitution.
The business of renting human bodies is harmful to the
individuals involved, to families, and to society. Hiring
a child under age 16 is particularly egregious, for the
harm inflicted on a minor who is still growing and may face
lifetime of consequences from the act."
8)Arguments in Opposition:
a) According to the California Public Defender's
Association (CPDA), "CPDA recognizes the need for attention
to the problem of youth who are sexually exploited. Our
members represent the interests of those youth in juvenile
court everyday, in both dependency and delinquency courts.
We know that adolescents involved in prostitution are
almost always youth who have either been under the radar in
abusive or neglectful families, or who have been netted in
the child foster care system but have not received
appropriate services. We have for too long treated these
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victimized youth as delinquents and criminals, and CPDA is
supportive of strengthening services to families to prevent
abuse in the first place, and of programs that will help
these troubled adolescents stay out of the delinquency and
criminal justice system. For example, CPDA is supportive
of the type of diversion programs for these adolescents
such as the pilot program Assemblyman Swanson created last
year in Alameda through the enactment of AB 499."
"However, CPDA opposes AB 17 for several reasons. First,
the bill relies on stereotypical, but unrealistic images of
the perpetrating 'pimp.' Relying on these unrealistic
stereotypes - the brothel madam and the hustler who dresses
well, drives fancy cars and owns a lot for property - leads
to the improper, unsupported conclusion that increasing the
penalties for these offenses fiscally would contribute to
resolving the problem. CPDA and those involved in the
court system, however, know from real-life experience, that
in reality, the vast majority of persons charged with these
offenses are small-time street hustlers who are represented
by public defenders when they are arrested because they are
indigent! While CPDA applauds creative efforts to deter
crime and provide funds for victims, this legislation will
accomplish neither of these goals.
"The second reason CPDA opposes this bill is that whatever
minimal funds might be created from the proceeds of
increased fines and forfeited property, those funds would
not be translated into any services or programs that would
actually benefit the sexually exploited youth. Half of the
proceeds are designated for a law enforcement slush fund,
with no real limits on how it would be spent, and counties
would only be allowed to recoup up to 2% of the
administrative costs. Forfeiture proceedings are
complicated and expensive proceedings, requiring due
process protections of court hearings and counsel, and the
end result most likely would be increased net expenditures
which takes away money that could be spent directly on
prevention instead. Setting up creative funding is one
thing, creating a fund which will have no money in it is
another.
"Finally, there is no scienter requirement. Existing law
and AB 17 recognize the different levels of disapprobation
and vulnerability depending on the age of the prostitute.
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However, the enhancements apply irrespective of the
appearance of the prostitute who may look to be 25-30 years
old at age 17 or 15. Deterrence is relegated to a crap
shoot or the luck of the draw unless apparent adulthood is
not a mitigator.
"CPDA maintains that solutions for the problem of sexually
exploited minors must come in a different and more
effective form. Abuse prevention and early intervention
services should be the foremost solution: improving family
and community based services, increasing and improving
family reunification services in dependency and delinquency
courts, sponsoring mentoring programs and providing youth
free substance abuse and mental health treatment, and
increasing the availability of transitional living services
for emancipating youth, including housing, educational
sponsorship and job training, will go much further than
focusing solely on the end result of a dysfunctional
process and trying to arrest our way out of the problem"
9)Prior Legislation : AB 499 (Swanson), Chapter 859, Statutes of
2008, created a pilot project in Alameda County which may be
implemented contingent upon local funding for the purpose of
diverting sexually exploited minors accused of soliciting an
act of prostitution into supervised counseling and treatment
programs.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County, and
Municipal Employees
American College of Obstetricians and Gynecologists
California Commission on the Status of Women
Capital Resources Family Impact
Child Abuse Prevention Center
City of West Hollywood
Concerned Women for America
County of San Bernardino
Crime Victims United
Opposition
American Civil Liberties Union
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California Attorneys for Criminal Justice
California Judges Association
California Public Defenders Association
Friends Committee on Legislation of California
Taxpayers for Improving Public Safety
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744