BILL ANALYSIS
SB 557
Page 1
Date of Hearing: June 23, 2009
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 557 (Yee) - As Amended: May 5, 2009
SUMMARY : Provides that, upon a person being convicted of human
trafficking, if real property was used to facilitate the
offense, that property could be found to be a public nuisance
and the remedies applicable under the nuisance or "Red Light
Abatement" statutes, as specified, shall apply. Those remedies
include closing the property for one year and a civil fine of up
to $25,000.
EXISTING LAW :
1)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 sex crimes, extortion, or to
obtain forced labor or services is guilty of human
trafficking. If committed against an adult, this offense is
punishable by three, four or five years in state prison. If
committed against a minor, this offense is punishable by four,
six or eight years in state prison. (Penal Code Section
236.1.)
2)States that buildings used for specified illegal activities
are a nuisance which shall be enjoined, abated, and prevented,
and for which damages may be recovered, whether it is a public
or private nuisance. (Penal Code Section 11225.)
3)Provides that if the existence of a nuisance is established,
as specified, an order of abatement shall be entered as a part
of the judgment in the case (Penal Code Section 11230):
a) Directing the removal from the building or place of all
fixtures, musical instruments and movable property used in
conducting, maintaining, aiding, or abetting the nuisance,
and directing the sale thereof in the manner provided for
the sale of chattels under execution, and the effectual
closing of the building or place against its use for any
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purpose, and that it be kept closed for a period of one
year, unless sooner released.
b) If the court finds that any vacancy resulting from
closure of the building or place may create a nuisance or
that closure is otherwise harmful to the community, in lieu
of ordering the building or place closed, the court may
order the person who is responsible for the existence of
the nuisance to pay damages in an amount equal to the fair
market rental value of the building or place for one year
to the city or county in whose jurisdiction the nuisance is
located.
c) The actual amount of rent being received for the rental
of the building or place, or the existence of any vacancy
therein, may be considered, but shall not be the sole
determinant of the fair market rental value. Expert
testimony may be used to determine the fair market rental
value.
d) While the order remains in effect as to closing, the
building or place is and shall remain in the custody of the
court.
e) For removing and selling the movable property, the
officer is entitled to charge and receive the same fees as
he or she would for levying upon and selling like property
on execution.
f) For closing the premises and keeping them closed, a
reasonable sum shall be allowed by the court.
g) The court may assess a civil penalty not to exceed
$25,000 against any and all of the defendants, based upon
the severity of the nuisance and its duration.
h) One-half of the civil penalties collected pursuant to
this section shall be deposited in the Restitution Fund in
the State Treasury, and one-half of the civil penalties
collected shall be paid to the city in which the judgment
was entered, if the action was brought by the city attorney
or city prosecutor. If the action was brought by a
district attorney, one-half of the civil penalties
collected shall be paid to the treasurer of the county in
which the judgment was entered.
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4)Defines "criminal profiteering activity" as any act made for
financial gain or advantage if the act may be charged as one
of a number of crimes, including human trafficking. [Penal
Code Section 186.2(a)(28).]
5)Defines "pattern of criminal profiteering activity" as
engaging in at least two incidents of criminal profiteering
that have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise
interrelated by distinguishing characteristics; are not
isolated events; and were committed as a criminal activity of
organized crime. [Penal Code Section 186.2(b).]
6)Provides that after conviction of the underlying offense, a
person may be subject to asset forfeiture if the prior act
occurred within 10 years, excluding any period of
imprisonment, of the commission of the underlying offense.
[Penal Code Section 186.2(b).]
7)Defines "organized crime" for purposes of the criminal
profiteering forfeiture statutes as crime that is of a
conspiratorial nature and that is either of an organized
nature and seeks to supply illegal goods and services such as
narcotics, prostitution, loan-sharking, gambling, and
pornography, or that, through planning and coordination of
individual efforts, seeks to conduct the illegal activities of
arson for profit, hijacking, insurance fraud, smuggling,
operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the
assets of a business for the purpose of defrauding creditors.
"Organized crime" also means crime committed by a criminal
street gang, as defined in Penal Code Section 186.22(f).
"Organized crime" also means false or fraudulent activities,
schemes, or artifices, as described in Welfare and
Institutions Code Section 14107, and the theft of personal
identifying information, as defined in Penal Code Section
530.5. [Penal Code Section 186.2(d).]
8)Provides that upon proof of specified provisions, the
following assets shall be subject to forfeiture: a (tangible
or intangible) property interest acquired through a pattern of
criminal profiteering activity; and all proceeds of a pattern
of criminal profiteering activity, including all things of
value received in exchange for the proceeds derived from the
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pattern of criminal profiteering activity. [Penal Code
Section 186.3.]
9)Provides that forfeiture proceedings shall be set for hearing
in the superior court in which the underlying criminal offense
will be tried. If the defendant is found guilty of the
underlying offense, the issue of forfeiture shall be promptly
tried, either before the same jury or before a new jury in the
discretion of the court, unless waived by the consent of all
parties. [Penal Code Section 186.5 (c).]
10)Requires that before assets are forfeited, the prosecuting
agency shall have the burden of establishing beyond a
reasonable doubt that the defendant was engaged in a pattern
of criminal profiteering activity. [Penal Code Section 186.5
(d).]
11)States that any person who maliciously publishes,
disseminates, or otherwise discloses the location of any
trafficking shelter or domestic violence shelter or any place
designated as a trafficking shelter or domestic violence
shelter, without the authorization of that trafficking shelter
or domestic violence shelter, is guilty of a misdemeanor,
punishable by up to six months in county jail, a fine of up to
$1,000, or both. (Penal Code Section 273.7.)
12)Provides that a victim of human trafficking may bring a civil
lawsuit for actual damages, compensatory damages, punitive
damages, injunctive relief, any combination of those, or any
other appropriate relief. In such a lawsuit the plaintiff may
be awarded up to three times his or her actual damages or
$10,000, whichever is greater. In addition, punitive damages
may also be awarded upon proof of the defendant's malice,
oppression, fraud, or duress in committing the act of human
trafficking. (California Civil Code Section 52.5.)
13)States that a trafficking victim has a privilege to refuse to
disclose, and to prevent another from disclosing, a
confidential communication between the victim and a human
trafficking caseworker, as specified. (California Evidence
Code Section 1038 et seq.)
14)Provides that any provision of a contract that purports to
allow a deduction from a person's wages for the cost of
emigrating and transporting that person to the United States
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is void as against public policy. (California Civil Code
Section 1670.7.)
15)States that when charges alleging multiple violations of
human trafficking that involve the same victim or victims in
multiple territorial jurisdictions are filed in one county,
the court shall hold a hearing to consider whether the matter
should proceed in the county of filing, or whether one or more
counts should be severed. The district attorney filing the
complaint shall present evidence to the court that the
district attorney in each county where any of the charges
could have been filed has agreed that the matter should
proceed in the county of filing. In determining whether all
counts in the complaint should be joined in one county for
prosecution, the court shall consider the location and
complexity of the likely evidence, where the majority of the
offenses occurred, the rights of the defendant and the people,
and the convenience of, or hardship to, the victim or victims
and witnesses. (Penal Code Section 784.8.)
16)Provides that a victim of human trafficking can prevent his
or her name from becoming a matter of public record.
(California Government Code Section 6254.)
17)States that law enforcement agencies shall use due diligence
to identify all victims of human trafficking, regardless of
the citizenship of the person. When a peace officer comes into
contact with a person who has been deprived of his or her
personal liberty, a person suspected of violating specified
prostitution offenses, or a victim of a crime of domestic
violence or rape, the peace officer shall consider whether the
following indicators of human trafficking are present (Penal
Code Section 236.2):
a) Signs of trauma, fatigue, injury, or other evidence of
poor care.
b) The person is withdrawn, afraid to talk, or his or her
communication is censored by another person.
c) The person does not have freedom of movement.
d) The person lives and works in one place.
e) The person owes a debt to his or her employer.
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f) Security measures are used to control who has contact
with the person.
g) The person does not have control over his or her own
government-issued identification or over his or her worker
immigration documents.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Typically those
trafficked are used for two different purposes: either forced
labor or sexual exploitation. Statistics show that 90% of
victims of human trafficking are female. According to the
2007 report released by the task force investigating human
trafficking in California, 47% of victims are used in
prostitution, 33% are used in domestic servitude, 5% in
sweatshops and 2% in agriculture. Research by the Human
Rights Center at the University of California found 57 forced
labor operations between 1998 and 2003 throughout California.
"SB 557 seeks to further assist victims and law enforcement in
California, while providing another deterrent for
perpetrators. Specifically, SB 557 allows any real property
used to facilitate human trafficking to be declared a public
nuisance and seized by the court until the nuisance is abated,
and further subjects the trafficker to the costs of the
seizure and a civil fine of up to $25,000."
2)Human Trafficking : Human trafficking involves the
recruitment, transportation or sale of people for forced
labor. Through violence, threats and coercion, victims are
forced to work in, among other things, the sex trade, domestic
labor, factories, hotels and agriculture. According to the
January 2005 United States Department of State's Human
Smuggling and Trafficking Center report, "Fact Sheet:
Distinctions Between Human Smuggling and Human Trafficking",
there is an estimated 600,000 to 800,000 men, women and
children trafficked across international borders each year.
Of these, approximately 80% are women and girls and up to 50%
are minors. A recent report by the Human Rights Center at the
University of California, Berkeley cited 57 cases of forced
labor in California between 1998 and 2003, with over 500
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victims. The report, "Freedom Denied", notes most of the
victims in California were from Thailand, Mexico, and Russia
and had been forced to work as prostitutes, domestic slaves,
farm laborers or sweatshop employees. [University of
California, Berkeley Human Rights Center, "Freedom Denied:
Forced Labor in California" (February, 2005)]. According to
the author:
"While the clandestine nature of human trafficking makes it
enormously difficult to accurately track how many people are
affected, the United States government estimates that about
17,000 to 20,000 women, men and children are trafficked into
the United States each year, meaning there may be as many as
100,000 to 200,000 people in the United States working as
modern slaves in homes, sweatshops, brothels, agricultural
fields, construction projects and restaurants."
3)Trafficking Victims Protection Act of 2000 (22 USC Sections
7101 et seq.) . In October 2000, the Trafficking Victims
Protection Act of 2000 (TVPA) was enacted. TVPA is
comprehensive, addressing the various ways of combating
trafficking, including prevention, protection and prosecution.
The prevention measures include the authorization of
educational and public awareness programs. Protection and
assistance for victims of trafficking include making housing,
educational, health-care, job training and other federally
funded social service programs available to assist victims in
rebuilding their lives. Finally, the TVPA provides law
enforcement tools to strengthen the prosecution and punishment
of traffickers, making human trafficking a federal crime.
This bill conforms to federal law with respect to human
trafficking involving children under 18 years old. In such an
instance, a prosecutor need not prove force, fraud or
coercion. When the victim is under 18 years old, a prosecutor
need only prove that the child was induced to perform a sex
act in relation to the trafficking. [22 USC Section
7102(8)(a).] According to the California District Attorneys
Association:
"Child victims are often too fragile to testify or falsely
believe that they consented to participating in their own
sexual abuse. This bill improves prosecutors' ability to
bring cases involving child victims, removing the elements of
force, fraud and coercion for child victims. Like other
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statutes, such as statutory rape or the federal law against
trafficking, the law is premised on the idea that children
cannot consent to their own abuse and it is not required to
show that they were defrauded or coerced into participating in
commercial sex acts."
4)Final Report of the California Alliance to Combat Trafficking
and Slavery Task Force : AB 22 (Lieber), Chapter 240, Statutes
of 2005, and SB 180 (Kuehl), Chapter 239, Statutes of 2005,
established a 19-member Task Force to examine the issue of
human trafficking in California. That report described the
phenomenon of human trafficking as follows:
"Traffickers lure victims into the United States with deceptive
promises of good jobs and better lives, and then force them to
work under brutal and inhuman conditions, and deprive them of
their freedom. Victims of human trafficking may be involved
in agricultural labor, construction labor, hotel and motel
cleaning services, illegal transporters, organized theft
rings, pornography, prostitution, restaurant services,
domestic services, servile marriage (mail-order brides) and
sweatshops. Once in this country, many suffer extreme
physical and mental abuse, including rape, sexual
exploitation, torture, beatings, starvation, death threats and
threats to family members. (California Alliance to Combat
Trafficking and Slavery Task Force, Human Trafficking in
California, Final Report of the California Alliance to Combat
Trafficking and Slavery Task Force, October 2007, pg 16.
< http://safestate.org/documents/
HT_Final_Report_ADA.pdf >)
5)Distinction between Nuisance Forfeiture and Existing
Forfeiture Procedures under Criminal Profiteering : Proceeds
of human trafficking operations are subject to forfeiture
under the existing criminal profiteering statutes. (Penal
Code Section 186, et seq.) In addition, this bill provides
that after a person is convicted of the crime of human
trafficking, any real property that person used to facilitate
the crime, such as a building used as a sweatshop or a brothel
where trafficked women or girls are forced to work, would be
declared a nuisance and be subject to seizure pursuant to the
statutory scheme for nuisance abatement (known as "Red Light
Abatement" laws). (Penal Code 11225, et seq.)
Under the nuisance abatement statutes, either a citizen or a
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prosecuting agency may bring a civil lawsuit to obtain a court
order that, due to specified illegal activity taking place on
the premises, the property constitutes a nuisance. If the
court finds the specified illegal activity was in fact taking
place on the property, by operation of law the property is
deemed a nuisance per se. The court shall then order the
building seized and the property be kept closed for up to one
year. (Penal Code Section 11230.) If the court finds that
any vacancy resulting from closure of the building would be
harmful to the community, in lieu of ordering the building or
place closed, the court may order the person who is
responsible for the existence of the nuisance to pay damages
in an amount equal to the fair market rental value of the
building or place for one year to the city or county in which
the nuisance is located. The court may also assess a civil
penalty of up to $25,000 against any and all of the
defendants, based upon the severity of the nuisance and its
duration. (Id.)
6)Innocent Owners : Long standing case law establishes that any
order to seize property under the Red Light Abatement statutes
must be consistent with the underlying purpose of the
injunction, which is to abate the nuisance. According to
People ex rel. Hicks v. Sarong Gals (1974) 42 Cal. App. 3d
556, 563, "[t]he purpose of red light abatement proceedings is
to abate a nuisance." Accordingly, where the property owner
takes action in good faith to remove the source of the
nuisance before the abatement lawsuit is brought, the purpose
for the seizure no longer exists and the seizure may not be
ordered. Of course, it is well settled that where a nuisance
to abate which an action has been commenced has been abated or
suppressed by the parties themselves charged with maintaining
the nuisance or otherwise prior to the commencement of the
action, the further prosecution of the action cannot be
maintained and the action should be dismissed for the very
obvious reason that there is then nothing existing against or
upon which the injunctive process of the court can or will
operate. And this rule, of course, applies as well to cases
arising under the Red Light Abatement Act as in other cases of
nuisances. [People v. Goddard (1920) 47 Cal. App. 730, 740.]
In relation to this bill, a situation could arise where, for
example, a homeowner is convicted of human trafficking due to
his having brought a woman from a foreign country with a
promise of employment and instead held the woman against her
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will, forced her to work as a domestic servant, and paid her
nothing. After his conviction, the person responsible for the
trafficking is sent to state prison but the rest of his family
still resides in the home. In this situation, it would appear
so long as there are no other trafficked persons on the
premises, the nuisance would have ceased to exist and the home
would not be subject to seizure.
7)Argument in Support : According to the California Commission
on the Status of Women , "[t]his bill provides that, upon a
person being convicted of human trafficking, if real property
was used to facilitate the offense, that property will be
found and treated as a nuisance.
"In October 2007, the California Department of Justice
released 'Human Trafficking in California," a report produced
by the California Alliance to Combat Slavery and Trafficking
Task force. The Commission on the Status of Women served as a
member on the task force.
"Human trafficking is a modern day version of slavery, and is
prevalent in California. Ninety percent of victims of human
trafficking are women. They are lured to California with
deceptive promises of jobs and better lives. Once they
arrive, they are formed to work under brutal and inhumane
conditions, depriving them of their freedom. Female victims
of human trafficking are forced to work in many industries,
including agricultural labor, hotel and motel cleaning
services, pornography, prostitution, domestic services,
servile marriages (mail-order brides), among many others.
"SB 557 seeks to further assist victims and law enforcement in
California, while providing deterrent and penalty for
perpetrators."
8)Related Legislation:
a) AB 17 (Swanson) 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. AB 17 is pending referral by the
Senate Rules Committee.
b) AB 1002 (Fong) creates the Human Trafficking Trust Fund,
and provides that forfeiture proceeds from human
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trafficking be deposited in that fund for use, upon
appropriation by the Legislature, for the purpose of
funding services for the victims of human trafficking and
for providing training to law enforcement and prosecutorial
personnel to help combat human trafficking. AB 1002 was
held on the Assembly Appropriations Committee's Suspense
File.
REGISTERED SUPPORT / OPPOSITION :
Support
California Commission on the Status of Women
Los Angeles District Attorney's Office
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744