BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 557|
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UNFINISHED BUSINESS
Bill No: SB 557
Author: Yee (D)
Amended: 7/8/09
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/28/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 39-0, 5/26/09
AYES: Aanestad, Alquist, Ashburn, Benoit, Calderon,
Cedillo, Cogdill, Corbett, Correa, Cox, Denham,
DeSaulnier, Ducheny, Dutton, Florez, Hancock, Harman,
Hollingsworth, Huff, Kehoe, Leno, Liu, Lowenthal,
Maldonado, Negrete McLeod, Oropeza, Padilla, Pavley,
Romero, Runner, Simitian, Steinberg, Strickland, Walters,
Wiggins, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Vacancy
ASSEMBLY FLOOR : 77-1, 9/1/09 - See last page for vote
SUBJECT : Human trafficking: property: seizure
SOURCE : Author
DIGEST : This 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 to
CONTINUED
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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.
Assembly Amendments expand and specifies the scope of the
offense to include illegal gambling, lewdness, assignation
or prostitution.
ANALYSIS :
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 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.)
Existing law provides 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.)
Existing law 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/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. (Civil
Code Section 52.5.)
Existing law provides that a trafficking victim has a
privilege to refuse to disclose, and to prevent another
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from disclosing, a confidential communication between the
victim and a human trafficking caseworker, as specified.
(Evidence Code Sections 1038 - 1038.2.)
Existing law 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 is void as against public policy. (Civil
Code Section 1670.7.)
Existing law provides 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.)
Existing law provides that a victim of human trafficking
can prevent his/her name from becoming a matter of public
record. (Government Code Section 6254.)
Existing law provides 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/her personal liberty, a person
suspected of violating subdivision (a) or (b) of Section
647, 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:
1. Signs of trauma, fatigue, injury, or other evidence of
poor care.
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2. The person is withdrawn, afraid to talk, or his/her
communication is censored by another person.
3. The person does not have freedom of movement.
4. The person lives and works in one place.
5. The person owes a debt to his/her employer.
6. Security measures are used to control who has contact
with the person.
7. The person does not have control over his/her own
government-issued identification or over his or her
worker immigration documents. (Penal Code Section
236.2.)
Existing law 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.)
Existing law 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:
1. 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 purpose, and that it be kept closed for
a period of one year, unless sooner released. 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
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nuisance is located. 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.
2. While the order remains in effect as to closing, the
building or place is and shall remain in the custody of
the court.
3. For removing and selling the movable property, the
officer is entitled to charge and receive the same fees
as he/she would for levying upon and selling like
property on execution.
4. For closing the premises and keeping them closed, a
reasonable sum shall be allowed by the court.
5. 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.
6. 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. (Penal
Code Section 11230.)
Existing law 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, subd. (a)(28).)
Existing law defines "pattern of criminal profiteering
activity" as engaging in at least two incidents of criminal
profiteering that meet the following requirements:
1. Have the same or a similar purpose, result, principals,
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victims, or methods of commission, or are otherwise
interrelated by distinguishing characteristics.
2. Are not isolated events.
3. Were committed as a criminal activity of organized
crime. (Penal Code Section 186.2, subd. (b).)
Existing law 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, subd.
(b).)
Existing law 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 subdivision (f) of Section 186.22. "Organized crime"
also means false or fraudulent activities, schemes, or
artifices, as described in Section 14107 of the Welfare and
Institutions Code, and the theft of personal identifying
information, as defined in Section 530.5. (Penal Code
Section 186.2(d).)
Existing law provides that upon proof of specified
provisions, the following assets shall be subject to
forfeiture:
1. A (tangible or intangible) property interest acquired
through a pattern of criminal profiteering activity.
2. All proceeds of a pattern of criminal profiteering
activity, including all things of value received in
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exchange for the proceeds derived from the pattern of
criminal profiteering activity. (Penal Code Section
186.3.)
Existing law 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, subd. (c).)
Existing law 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, subd. (d).)
This bill provides that upon a person being convicted of
human trafficking when real property is used to facilitate
the offense, and the offense in values illegal gambling,
lewdness, assignation or prostitutions, the procedures for
determining whether the property constitutes a nuisance, as
described above, shall apply.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 9/1/09)
California Public Officers Association
Los Angeles County District Attorney's Office
The Polaris Project
ARGUMENTS IN SUPPORT : According to the authors office,
typically those trafficked are used for two different
purposes, either forced labor or sexual exploitation.
Statistics show that 90 percent of victims of human
trafficking are female. According to the 2007 report
released by the task force investigating human trafficking
in California, 47 percent of victims are used in
prostitution, 33 percent are used in domestic servitude,
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five percent in sweatshops and two percent in agriculture.
Research by the Human Rights Center at the University of
California found 57 forced labor operations between 1998
and 2003 throughout California. This bill seeks to further
assist victims and law enforcement in California, while
providing another deterrent for perpetrators.
Specifically, this bill 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.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Hayashi, Hernandez, Hill, Huber,
Huffman, Jeffries, Jones, Knight, Krekorian, Lieu, Logue,
Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava,
Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass
NOES: Harkey
NO VOTE RECORDED: Buchanan, Vacancy
RJG:do 9/2/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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