BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
1
7
AB 17 (Swanson)
As Amended June 2, 2009
Hearing date: July 14, 2009
Penal Code (URGENCY)
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SEXUAL EXPLOITATION OF MINORS
HISTORY
Source: Alameda County District Attorney
Prior Legislation: AB 499 (Swanson) - Ch. 358, Stats. 2008
AB 22 (Lieber) - Ch. 240, Stats. 2005
Support: 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; Planned Parenthood; Alameda County Supervisor
Lai-Bitker; California Coalition Against Sexual
Assault; Polaris Project; California Family Council
Opposition:California Public Defenders Association
Assembly Floor Vote: Ayes 77 - Noes 0
KEY ISSUES
SHOULD ABDUCTION OR PROCUREMENT FOR PURPOSES OF PROSTITUTION BE
ADDED TO THE LIST OF CRIMES FOR WHICH ASSET FORFEITURE IS
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ALLOWED UNDER THE CRIMINAL PROFITEERING LAW?
(CONTINUED)
SHOULD A FINE OF UP TO $20,000 BE ADDED TO THE FINES AND PENALTIES
FOR ABDUCTION AND PROCUREMENT OF A MINOR FOR PURPOSES OF
PROSTITUTION AND FOR PROCUREMENT OF A MINOR UNDER THE AGE OF 16 FOR
LEWD ACTS?
SHOULD 50 PERCENT OF THIS ADDITIONAL FINE FOR ABDUCTING OR PROCURING
A MINOR FOR PROSTITUTION BE DEPOSITED IN THE VICTIM-WITNESS
ASSISTANCE FUND AND BE GRANTED TO COMMUNITY-BASED ORGANIZATIONS THAT
SERVE MINOR VICTIMS OF HUMAN TRAFFICKING, WITH THE BALANCE OF THE
FINE TO BE DEPOSITED IN THE VICTIM-WITNESS ASSISTANCE FUND, AS
SPECIFIED?
PURPOSE
The purposes of this bill are to 1) add abduction or procurement
for prostitution to the criminal profiteering asset forfeiture
law; 2) provide that the court may impose a fine of up to
$20,000, in addition to any other fines and penalties, where the
defendant has been convicted of abduction of a minor for
purposes of prostitution or procurement of a minor under the age
of 16 for lewd conduct; and 3) provide that 50 percent of the
additional fine shall be deposited in the Victim-Witness
Assistance Fund for purposes of grants to community-based
organizations that serve minor victims of human trafficking.
Crimes of Sexual Exploitation of Minors Generally; Special Fines
in such Cases
Existing law provides that the California Emergency Management
Agency (CalEMA) shall make grants to child sexual exploitation
and abuse victim counseling centers and prevention programs.
Recipients shall provide appropriate counseling and referral
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services and maintain other standards or services as determined
by the advisory committee (Pen. 13836.)
Existing law provides that a person convicted of pimping,
pandering, or procurement (Pen. Code 266h, 266i or 266j)
shall be subject to a fine not to exceed $5,000, in addition to
any other fine or penalty. The court shall consider any
relevant factors, such as the seriousness of the offense, profit
made by the defendant, and the losses suffered by the victim.
These fines shall be deposited in the Victim-Witness Assistance
Fund for child sexual exploitation and abuse counseling centers
and prevention programs. (Pen. Code 266, subd. (k).)
Existing law states that any person who knowingly derives
support from the earnings of a prostitute, or from money derived
from any keeper of a place of prostitution, or who solicits or
receives compensation for soliciting for a prostitute, is guilty
of pimping, a felony. Pimping is punishable by a state prison
term of three, four, or six years. Where the crime involves a
minor under the age of 16, the prison term is three, six or
eight years. (Pen. Code 266h, subd. (a).)
Existing law states any person who does any of the following is
guilty of pandering, a felony, and shall be punishable by a
prison term of three, four, or six years. The prison term is
three, six or eight years where the crime involved a minor under
the age of 16. (Pen. Code 266i, subd. (a)):
Procures another person for the purpose of prostitution.
Causes, induces, et cetera, another person to become a
prostitute.
Procures another person a place in a house or place of
prostitution.
Persuades or encourages a person to remain in a house or
place of prostitution through promises, threats, or scheme.
Procures another person for prostitution by fraud,
duress, abuse of confidence or authority.
Commercial exchange in connection with procuring another
person for prostitution.
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Existing law provides that any person who intentionally
transports, provides, et cetera, a child under the age of 16 to
another person for the purpose of any lewd or lascivious act
(Pen. Code 288) is guilty of the felony of procurement. The
crime includes offers to procure. This crime is also committed
where a person causes, induces, or persuades a child under the
age of 16 to engage in lewd or lascivious acts. Procurement of
a child under the age of 16 is punishable by a prison term of
three, six, or eight years, and by a fine not to exceed $15,000.
(Pen. Code 266j.)
Existing law provides that any person, who takes a minor from
his or her parents or guardians without consent and for purposes
of prostitution, is guilty of a felony, punishable by a prison
term of 16 months, two years, or three years and a fine of up to
$2,000. (Pen. Code 267.)
Existing law provides that any person who abducts or
fraudulently induces a person for purposes of prostitution is
guilty of a felony, punishable by a fine of $2,000 and a prison
term of 16 months, two years or three years. (Pen. Code
266a.)
This bill creates an additional fine not to exceed $20,000 for
abduction of a minor for purposes of prostitution and
procurement of a minor under the age of 16 for purposes of lewd
acts.
This bill specifies that 50 percent of the additional fine
imposed for a conviction for abduction of a minor for
prostitution or procuring a minor under the age of 16 for lewd
acts shall be deposited in the Victim-Witness Assistance Fund
and shall be granted to community-based organizations that serve
minor victims of human trafficking.
Criminal Profiteering Forfeiture Crimes - Inclusion of Abduction
or Procurement by Fraudulent Inducement for Purposes of
Prostitution
Existing law includes the criminal profiteering asset forfeiture
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law. Criminal profiteering forfeiture applies where the
defendant is convicted of a specified offense and the defendant
has engaged in a pattern of criminal profiteering activity, as
specified. (Pen. Code 186.3). The following assets or
property is subject to forfeiture:
Any property interest whether tangible or intangible,
acquired through a pattern of criminal profiteering
activity.
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.
Existing law includes human trafficking within the criminal
asset forfeiture law. (Pen. Code 186.2, subd. (b) (28).)
Existing law provides that any person who deprives or violates
the personal liberty of another with the intent to effect or
maintain a felony violation of specified prostitution related
offenses, use of minor in producing or distributing obscene
material or child pornography, extortion, or to obtain forced
labor or services, is guilty of human trafficking. (Pen. Code
236.1, subd. (a).)
Existing law states that forfeited cash and proceeds of the sale
of forfeited property shall be distributed as follows:
To the bona fide or innocent purchaser, conditional
sales vendor, or holder of a valid lien, mortgage, or
security interest, up to the amount of his or her interest
in the property or proceeds, as specified.
To the Department of General Services or local
governmental entity for all expenditures incurred in
connection with the sale of the forfeited property.
To the State General Fund or the general fund of the
local governmental entity, whichever prosecutes. (Pen.
Code 186.8), except in the child pornography or recycling
fraud cases.
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To the county children's trust fund or State Children's
Trust Fund in the case of child pornography crimes.
To a special fund designated in the Public Resources
Code in the case of recycling fraud.
This bill adds abduction or procurement by fraudulent inducement
(of a person of any age) for prostitution to the list of crimes
for which a forfeiture of assets can be sought for criminal
profiteering.
This bill corrects specified statutory references to the
California Emergency Management Agency.
This bill contains an urgency clause allowing this bill to take
effect immediately upon enactment.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
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<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
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facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
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, sold and
mercilessly abused for profit. There are even reports
that the number of children kidnapped for sexual
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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exploitation has 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. Criminal Profiteering Asset Forfeiture Law
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 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.
Proceeds: Under existing law the forfeited proceeds of
criminal profiteering are placed in the county general fund
with no directions for use. There are exceptions for
forfeiture in child pornography cases and in crimes
concerning the state recycling program. In child
pornography cases, the money is deposited in the county's
children's trust fund or the State Children's Trust Fund
for child abuse and neglect prevention and intervention.
Recycling fraud forfeiture proceeds are deposited in a
special account created under the Public Resources Code.
(Pen. Code 186.8; Welf. Inst. Code 18966 and 18969.)
Forfeiture under this Bill: This bill also allows the
proceeds of abduction or procurement by fraudulent
inducement (of a person of any age) for purposes of
prostitution to be forfeited where those crimes are part of
a pattern of criminal profiteering. The prospect of losing
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any profit obtained from exploitation of persons for the
sex trade may deter some from taking the risks associated
with this criminal enterprise.
3. Proceeds from Forfeitures Proceedings in Cases Involving
Sexual Exploitation of Minors
It appears that one of the goals of the author is to increase
services for minors who have been exploited and trafficked for
the sex trade. The bill authorizes a fine of up to $20,000
where the defendant has been convicted under Penal Code Section
266j (procurement of a child under the age of 16 for lewd acts)
and Penal Code Section 267 (abduction of a minor for
prostitution). The proceeds of the fine would be deposited in
the Victim-Witness Assistance Fund, to be available to fund
efforts to prevent child sexual exploitation and to counsel
victims. Further, the bill provides that 50 percent of the
proceeds of the special fine shall be granted to community-based
organizations that serve minor victims of human trafficking.
This bill also adds abduction (of a person of any age) for
purposes of prostitution to the criminal profiteering asset
forfeiture law. Human trafficking is currently within the
criminal asset forfeiture law. Human trafficking essentially
involves restricting another person's liberty for purposes of a
specified crime of exploitation. Included as underlying crimes
in human trafficking are enticing a minor into prostitution
(Pen. Code 266), pimping and pandering a minor (Pen. Code
266h), pandering involving a minor (Pen. Code 266i), and
abduction of a minor for purposes of prostitution (Pen. Code
267). In a human trafficking forfeiture proceeding, the profits
of sexually exploiting minors are distributed to the general
fund of the county of prosecution. Arguably, this would not
serve the author's intent to increase funding for programs
serving sexually exploited children.
Perhaps the bill should provide that forfeited proceeds of
crimes involving sexual exploitation of minors should be
deposited in the Victim-Witness Assistance Fund and used for
victims of child sexual exploitation. The proceeds could be
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used for such purposes either if 1) the defendant was convicted
of sexually exploiting minors under the human trafficking
statute, or 2) the defendant was directly convicted of specific
pimping or prostitution offense involving a minor.
SHOULD FORFEITED PROCEEDS OF CRIMES INVOLVING THE SEXUAL
EXPLOITATION OF MINORS BE DEPOSITED IN THE VICTIM-WITNESS
ASSISTANCE FUND AND USED TO FUND PROGRAMS FOR MINORS WHO ARE THE
VICTIMS OF SEXUAL EXPLOITATION?
4. Payment and Collection Issues - Direct Restitution Needs for
Victims of Child Sexual Exploitation
This bill would include abduction and procurement (of a person
of any age) for prostitution to the list of crimes in criminal
profiteering forfeiture law. The bill also authorizes the court
to impose a special fine of up to $20,000, in addition to the
maximum fine of up to $5,000, where the defendant is convicted
of these abduction or procurement crimes. Criminal fines are
nearly quadrupled through the addition of penalty assessments of
approximately 280 percent of the base fine. Where the court
imposed the maximum statutory fine of $20,000, the actual fine
would be $76,000. The law requires the court to order a
defendant to pay direct restitution to the victim for his or her
losses. Finally, the court must impose a restitution fine of
from $200 to $10,000. Restitution fines are deposited in the
Victims of Crime Fund to reimburse victims of violent crime.
As a practical matter, collection of these fines and forfeitures
may be costly and difficult. Satisfaction of one debt or
liability may interfere with collection of the others. Where
the prosecution is successful in obtaining forfeiture of
substantial profits from a defendant, he or she may have little
money left to satisfy criminal fines. Direct restitution has
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priority<3> over other debts of a defendant, but victims often
must collect restitution on their own. Collection of fines from
defendants could impair a victim's efforts to collect
restitution, particularly where the victim has been traumatized
by the crime.
SHOULD THE COURT BE DIRECTED TO DETERMINE WHETHER THE VICTIM IS
IN NEED OF SPECIAL SERVICES, APPROPRIATE FOR A VICTIM OF HUMAN
TRAFFICKING, THAT CAN BE FUNDED THROUGH RESTITUTION, BEFORE THE
COURT ORDERS THE ADDITIONAL FINE?
5. 2006 California Research Bureau Study on Penalty Assessments,
Revenue Distribution and Collection of Fines
In 2006, the California Research Bureau studied collection of
criminal fines. The Bureau noted that criminal fines and
penalties have climbed steadily in recent decades. Government
entities tasked with collecting these fines - typically a county
revenue office - have realized diminishing returns from
collection efforts. Government resources can be wasted in
futile collection attempts. The fines and forfeitures
applicable to procuring and abducting minors for purposes of
prostitution may provide an example of this problem. Simply
put, criminal defendants can generally not produce a substantial
flow of money for fines. That well will quickly run dry.
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<3> The California Constitution states that all payments,
money or property taken from a convicted defendant shall first
be applied to pay direct restitution to the victim of the crime.
(Cal. Const. art. 1, 28 (b)(13)(C).)
The 2006 Research Bureau report noted:
California now has dedicated funding streams for over
269 separate court fines, fees, forfeitures,
surcharges and penalty assessments. ? These fines,
fees, forfeitures (bail defaults or judgments and
damages), surcharges, and penalties appear in statutes
in 16 different ? codes and are in addition to the
many fees, fines, and special penalties that local
governments may impose on most offenses.
As more surcharges and penalties have been imposed,
the process has become even more complicated. County
courts must now maintain two separate state accounts,
and a state Judicial Council account, and one local
penalty account from which monthly deposits are made
into ten different state and five different county
government sub-funds. This does not include the
special assessment penalty accounts imposed on drug
and alcohol and domestic violence violators.
Court clerks and, in turn, county auditors are
responsible for maintaining detailed records of
payment from individual offenders and transmitting
payments to the state. Our survey found that county
courts and collection agencies use a variety of
methods to collect unpaid debt from violators who fail
to comply with payment schedules. This has led to
uneven collection practices from county-to-county. As
a result, offenders are being treated differently in
how their debt is collected in different counties.
? According to survey comments received from county
court clerks and county collection agencies,
simplifying the distribution process by eliminating
dedicated funds would also improve the collection
process, because there would be fewer accounts to
maintain and distribute.
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Each criminal fine is increased by penalty assessments of
approximately 280 percent. The penalty assessments are added to
the fine that is set out in the penalty provision of the crime.
Where the court imposes a $1,000 fine - the standard maximum for
a misdemeanor - the defendant's actual liability would be
$3,800.
The penalty assessment calculations are as follows:
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 for
every $10 in fines)
Arguably, the fine imposed under this bill would add to the
complication and confusion in the accounting, collection and
distribution of the fine. A special fine would likely be paid
in installments, as are most fines and assessments.
WILL FINES AND OTHER LIABILITIES IMPOSED ON DEFENDANTS CONVICTED
OF ABDUCTING AND PROCURING MINORS UNDER THE AGE OF 16 FOR
PROSTITUTION BE DIFFICULT TO COLLECT?
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