BILL ANALYSIS
SB 677
Page 1
Date of Hearing: June 15, 2010
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 677 (Norby) - As Amended: June 10, 2010
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
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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.
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
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which the judgment was entered.
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
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value received in exchange for the proceeds derived from the
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
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emigrating and transporting that person to the United States
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;
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e) The person owes a debt to his or her employer;
f) Security measures are used to control who has contact
with the person; and,
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, "California is
home to one of the largest and most expansive human
trafficking problems in the United States. 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 677 seeks to further assist victims and law enforcement in
California, while providing another deterrent for
perpetrators. Specifically, SB 677 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.
"SB 677 restores the provisions of SB 557, which were deleted
in the Assembly, to address the subject of the Governor's
veto. To address the Governor's veto message, this bill now
includes forced labor as an additional human trafficking
offense on any real property besides illegal gambling,
lewdness, assignation, and prostitution."
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
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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
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
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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
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.
)
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
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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
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 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)Expansion of Nuisance Red Light Abatement Statutes : Under the
current Red Light Abatement provisions, a court can determine
specified conduct constitutes a nuisance, per se. Currently,
illegal gambling, prostitution, lewdness, assignation, or the
running of a bathhouse in a manner that according to the
Centers for Disease Control determine could transmit AIDS
(including, but not limited to, anal intercourse, oral
copulation, or vaginal intercourse) may all result in a judge
determining that a parcel or property is being used in a
manner creating a nuisance, per se, and the property may be
seized. This bill adds all forms of human trafficking to the
list, including those that do not currently involve illegal
gambling, prostitution, lewdness, or the illegal operation of
a bathhouse.
7)Innocent Owners : Long standing case law establishes that any
order to seize property under the Red Light Abatement statutes
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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 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
will, forced her to work as a domestic servant, and did not
pay her. 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.
8)Argument in Support : According to the National Council of
Jewish Women, Los Angeles Section , "[h]uman trafficking is the
modern day practice of slavery. It is the fastest growing
criminal industry in the world and consists of the
recruitment, harboring, and transportation of people for the
purpose of forced or coerced labor or sexual exploitation.
Every year traffickers generate billions of dollars by
exploiting those seeking to cross international borders in
search of a better life as well as those who are vulnerable
within the United States, including U.S. citizens. SB 677
would create economic disincentives for the practice of
slavery, by authorizing the court to declare any real property
used to facilitate the crime of human trafficking as a
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nuisance and seize that property until the nuisance is
stopped. The bill further authorizes the court to subject the
trafficker to the costs of the seizure and a civil fine up to
$25,000."
9)Related Legislation: AB 557 (Yee) provided 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. Required that the conduct be related
to the original conduct within the "Red Light Abatement"
statute (namely illegal gambling, prostitution, or lewd
conduct). Those remedies included closing the property for
one year and a civil fine of up to $25,000. AB 557 was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
California Commission on the Status of Women
California Catholic Conference
California Narcotics Officers Association
California Peace Officers Association
California Police Chiefs Association
City and County of San Francisco
Crime Victims United of California
National Council of Jewish Women,
Los Angeles Section
Los Angeles District Attorney's Office
Polaris Project
San Francisco District Attorney's Office
Opposition
None
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744