BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 677 (Yee)
As Amended December 17, 2009
Hearing date: January 12, 2010
Penal Code
SM:mc
HUMAN TRAFFICKING
HISTORY
Source: Author
Prior Legislation: SB 557 (Yee) - 2009, vetoed
AB 2810 (Brownley) - Chapter 358, Stats. of 2008
AB 1278 (Lieber) - Chapter 258, Stats. of 2008
AB 22 (Lieber) - Chapter 240, Stats. of 2005
SB 180 (Kuehl) - Chapter 239, Stats. of 2005
SB 751 (Morrow) - 2005, failed in Senate Public
Safety
SB 1255 (Hughes) - Chapter 1022, Stats.
of 1994
AB 114 (Burton) - Chapter 314, Stats. of 1994
Support: California Narcotic Officers Association; California
Peace Officers Association;
California Police Chiefs Association; California Commission on
the Status of Women
Opposition:None known
KEY ISSUE
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UPON A PERSON BEING CONVICTED OF HUMAN TRAFFICKING, SHOULD REAL
PROPERTY USED TO FACILITATE THE CRIME BE SUBJECT TO SEIZURE
PURSUANT TO THE NUISANCE ABATEMENT STATUTES AND THE TRAFFICKER
SUBJECT TO A CIVIL FINE OF UP TO $25,000?
PURPOSE
The purpose of this bill is to provide 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 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 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 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
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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. (Civil Code 52.5.)
Existing law provides 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. (Evidence Code 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 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 784.8.)
Existing law provides that a victim of human trafficking can
prevent his or her name from becoming a matter of public record.
(Government Code 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
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officer comes into contact with a person who has been deprived
of his or 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:
Signs of trauma, fatigue, injury, or other evidence of
poor care.
The person is withdrawn, afraid to talk, or his or her
communication is censored by another person.
The person does not have freedom of movement.
The person lives and works in one place.
The person owes a debt to his or her employer.
Security measures are used to control who has contact
with the person.
The person does not have control over his or her own
government-issued identification or over his or her worker
immigration documents. (Penal Code 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 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:
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
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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. 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.
While the order remains in effect as to closing, the
building or place is and shall remain in the custody of the
court.
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.
For closing the premises and keeping them closed, a
reasonable sum shall be allowed by the court.
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.
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 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.
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(Pen. Code 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:
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. (Pen. Code 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.
(Pen. Code 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 186.2(d).)
Existing law provides that upon proof of specified provisions,
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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 pattern of criminal profiteering activity.
(Pen. Code 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. (Pen. Code 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. (Pen. Code
186.5, subd. (d).)
This bill provides that upon a person being convicted of human
trafficking, if real property is used to facilitate the offense,
the procedures for declaring the property to be a nuisance, as
described above, shall apply.
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
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growth rate for the age cohort with the highest risk of
incarceration.<1>
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.
. . .
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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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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
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
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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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1. Need for This Bill
According to the author:
Unfortunately, California is home to one of the
largest and most expansive human trafficking problems
in the US.
Typically those trafficked are used for 2 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 677 seeks to further assist victims and law
enforcement in California, while providing another
deterrent and penalty for perpetrators.
2. Background: The Problem of Human Trafficking
AB 22 (Lieber) (2005) and SB 180 (Kuehl) (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
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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.
(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 )
3. Existing Forfeiture Provisions for Human Trafficking and What
This Bill Would Do
Proceeds of human trafficking operations are subject to
forfeiture under the existing criminal profiteering statutes.
(Penal Code 186, et seq.) This bill would, in addition,
provide 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 the Red Light
Abatement laws. (Penal Code 11225, et seq.)
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Under the nuisance abatement statutes, either a citizen or a
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
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.)
4. 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. (See, People ex rel. Hicks v. Sarong
Gals, 42 Cal. App. 3d 556, 563 (1974) "The 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.
It is, of course, well settled -- indeed, it is but the
statement of a rule necessarily following from the very
logic of such a situation -- 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
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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, 47 Cal. App. 730, 740 (1920),
(citations omitted).)
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, instead held the woman against her 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.
AFTER A PERSON IS CONVICTED OF HUMAN TRAFFICKING, SHOULD REAL
PROPERTY THAT WAS USED TO FACILITATE THE CRIME BE SUBJECT TO
NUISANCE ABATEMENT AND THE OWNER SUBJECT TO CIVIL PENALTIES?
WOULD THIS PROVIDE AN ADDITIONAL DETERRENT TO TRAFFICKERS?
WOULD AN INNOCENT OWNER HAVE AN OPPORTUNITY TO ESTABLISH THAT
THE NUISANCE NO LONGER EXISTS ON THE PROPERTY AND THEREBY AVOID
SEIZURE OF THE PROPERTY.
5. Veto of SB 557 (Yee)
This bill contains the same provisions as SB 557 (Yee) (2009),
when it was heard in this Committee in April of 2009. That bill
was subsequently amended in the Assembly to narrow it to apply
only to trafficking offenses dealing with "illegal gambling,
lewdness, assignation, or
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prostitution," and was then vetoed by the Governor. The veto
message stated:
This measure would allow nuisance abatement provisions
to be instituted against real property used to
facilitate the crime of human trafficking. While I
support using nuisance abatement proceedings to deter
human trafficking, this measure would not apply to all
instances of human trafficking. Instead, this measure
is limited to situations in which real property is
used for illegal gambling or prostitution. Since
these situations are already covered under existing
law, this measure is unnecessary.
SB 677 restores the provisions of SB 557 which were deleted in
the Assembly, which appears to address the subject of the
Governor's veto.
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