BILL ANALYSIS �
AB 90
Page 1
Date of Hearing: April 26, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Ammiano, Tom, Chair
AB 90 (Swanson) - As Amended: April 4, 2011
SUMMARY : Includes in the definition of "human trafficking"
the conduct of any person who causes, induces, encourages or
persuades a minor under the age of 18 to engage in a commercial
sex act, as specified, with the intent to effect any of the
following: pimping; pandering, as specified; sexual
exploitation of a child; enticement, as specified; using a minor
in pornography; extortion; or solicitation of prostitution.
"Commercial sex act" is defined as any sexual conduct, as
specified, on account of which anything of value if given or
received from a minor.
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 enticement of a minor into prostitution,
pimping or pandering, abduction of a minor for the purposes of
prostitution, extortion, or to obtain forced labor or
services, is guilty of human trafficking. �Penal Code Section
236.1(a).]
2)States human trafficking of a person over the age of 18 is
punishable by imprisonment in the state prison for three,
four, or five years. If the victim of the trafficking was
under 18 years of age at the time of the commission of the
offense, that offense is punishable by imprisonment in the
state prison for four, six, or eight years. �Penal Code
Section 236.1(b) and (c).]
3)States unlawful deprivation or violation of the personal
liberty of another includes substantial and sustained
restriction of another's liberty accomplished through fraud,
deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person, under
circumstances where the person receiving or apprehending the
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threat reasonably believes that it is likely that the person
making the threat would carry it out. �Penal Code Section
236.1(d).]
4)States any person who solicits or who agrees to engage in or
who engages in any act of prostitution is guilty of
misdemeanor disorderly conduct. A person agrees to engage in
an act of prostitution when, with specific intent to so
engage, he or she manifests an acceptance of an offer or
solicitation to so engage, regardless of whether the offer or
solicitation was made by a person who also possessed the
specific intent to engage in prostitution. No agreement to
engage in an act of prostitution shall constitute a violation
of this subdivision unless some act, in addition to the
agreement, is done within California in furtherance of the
commission of an act of prostitution by the person agreeing to
engage in that act. As used in this subdivision,
"prostitution" includes any lewd act between persons for money
or other consideration. �Penal Code Section 647(b).]
5)States any person who, knowing another person is a prostitute,
lives or derives support or maintenance in whole or in part
from the earnings or proceeds of the person's prostitution, or
from money loaned or advanced to or charged against that
person by any keeper or manager or inmate of a house or other
place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the
person, is guilty of pimping, a felony, and shall be
punishable by imprisonment in the state prison for three,
four, or six years. �Penal Code Section 266h(a).]
6)States any person who, knowing another person is a prostitute,
lives or derives support or maintenance in whole or in part
from the earnings or proceeds of the person's prostitution, or
from money loaned or advanced to or charged against that
person by any keeper or manager or inmate of a house or other
place where prostitution is practiced or allowed, or who
solicits or receives compensation for soliciting for the
person, when the prostitute is a minor, is guilty of pimping a
minor, a felony, and shall be punishable as follows:
a) If the person engaged in prostitution is a minor over
the age of 16 years, the offense is punishable by
imprisonment in the state prison for three, four, or six
years.
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b) If the person engaged in prostitution is under 16 years
of age, the offense is punishable by imprisonment in the
state prison for three, six, or eight years. �Penal Code
Section 266h(b)(1) and (2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "�t]here are an
estimated 800,000 human beings trafficked for domestic, labor,
and sex slavery each year. The inexpensive price of the
victims and the unlikely chance of criminal prosecution makes
this a lucrative criminal endeavor at this time in history.
Our state cannot stand by and watch hundreds of thousands of
young children's lives ruined because some criminals have
found trafficking to be more lucrative and safer than dealing
drugs. Our children are not a business commodity for
criminals to debate over. Some of these girls are as young as
4 years old.
"As Legislators, we must do everything we can to stop the
explosion of slavery on our streets.
"AB 90 is a clean and simple fix to this complex area of law.
Federal law clearly states that prosecutors do not have to
prove force or coercion when a trafficking victim is under the
age of 18. State law is vague regarding force or coercion in
a human trafficking offense: it requires a showing of force,
yet it says state law is intended to conform with federal law.
AB 90 will clean up this confusion by aligning state human
trafficking law with federal law. Therefore, where a person
under 18 is involved, AB 90 will change the standard of proof
to a showing that the defendant "caused, induced, encouraged,
or persuaded the victim.
"This important change in the law recognizes the fact that many
child victims of trafficking suffer from significant physical
and mental health problems, including post-traumatic stress
disorder, depression, and trauma bonding, which creates the
same kind of confinement as physical coercion.
"AB 90 will also allow prosecutors to implement the fines and
forfeiture provisions passed in AB 17, providing funding to
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community based organizations supporting sexually exploited
minors."
2)Background : According to the background submitted by the
author, "�t]he explosion of human trafficking and child sexual
exploitation within the United States borders and in our very
own backyards is out of control. People, including children,
are being sold for a few hundred dollars and some promises.
Children are extremely vulnerable to this manipulative type of
crime, sometimes being forced into sexual slavery through
promises of work opportunities or other forms of emotional
bribery. California's prosecutors are outraged over having to
often ignore the blatant signs that a young girl is the victim
of trafficking, because without a showing of force, the mental
manipulation aspects of the enslavement are not enough under
California law to amount to a human trafficking offense.
"AB 90 will fix this problem. While federal law is clear that
prosecutors do not have to prove force or coercion when a
trafficking victim is under the age of 18, state law is vague
regarding force and coercion. State law specifically states
that it is intended to conform to federal law, but at the same
time, state law, requires a showing of force or coercion.
This ambiguity hinders prosecutors from prosecuting
traffickers to the fullest extent possible and also fails to
recognize the role that mental manipulation plays in human
trafficking."
3)Human Trafficking : "Human trafficking" is defined as "any
person who deprives or violates the personal liberty of
another person with the intent of effect or maintains a felony
violation of enticement, pimping, pandering, abduction for the
purposes of prostitution, employing a minor in sexually
explicit material, and extortion." �Penal Code Section
236.1(a).] The crime of human trafficking was added to the
Penal Code in 2005. Although all of the crimes listed could
be charged individually, the author stated:
"Human trafficking is one of the most pervasive and damaging,
yet unrecognized problems facing our country and our state.
Human trafficking is present day slavery, involving the
recruitment, transportation, or sale of persons for forced
labor. Through the use of violence, threats, and coercion,
enslaved persons may be forced to work in the sex trade,
domestic labor, factories, hotels or restaurants, agriculture,
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peddling, or begging. Members of these vulnerable populations
are actively recruited by traffickers, some of whom are
connected to organized crime. Trafficking recruiters often
mislead victims into believing that the opportunities
recruiters offer will bring the victims and their loved ones a
better life. Traffickers then use techniques such as debt
bondage, isolation from the public, and confiscation of
passports, visas, or pieces of identification to keep victims
enslaved. Women and children comprise the majority of
trafficking victims. The low social status of women in many
parts of the world facilitates a thriving trafficking
industry. Children are not safe from trafficking and
exploitation. Victims of trafficking report children as young
as four years old being sold into slavery, often for sexual
purposes. In 2001, the United States Department of Justice
concluded that between 300,000 and 400,000 American children
are victims of sexual exploitation every year, many as young
as 11 or 12 years of age, some even younger." �Author's
Statement, AB 22 (Lieber), Chapter 240, Statutes of 2005.]
4)Federal Definition of Human Trafficking : Federal law states
in relevant part, "The term 'severe forms of trafficking in
persons' means: sex trafficking in which a commercial sex act
is induced by force, fraud, or coercion, or in which the
person induced to perform such act has not attained 18 years
of age; or the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or services,
through the use of force, fraud, or coercion for the purpose
of subjection to involuntary servitude, peonage, debt bondage,
or slavery." �22 USCS 7102(8)]. Federal law does not require
force, fraud or coercion if the victim is under 18 years of
age. Penal Code Section 236.1(f) states, "Legislation finds
that the definition of human trafficking in this section is
equivalent to the federal definition of a severe form of
trafficking found in Section 7102(8) of Title 22 of the United
States Code." Although there is no indication of such in the
legislative history of AB 22, given that Penal Code Section
236.1(f) directly cross-references that section of federal
law, it is possible that the original statute did contemplate
an exception to the fear, fraud or coercion requirement for
minors.
Moreover, several other states do not require a showing of
force, fraud of coercion in commercial sex trafficking cases
involving minors. Those states include Arizona, Delaware,
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Idaho, Illinois, Iowa, Kansas, Kentucky, Minnesota,
Mississippi, Missouri, Nebraska, North Dakota, Tennessee and
Vermont.
According to the California Alliance to Combat Trafficking and
Slavery Task Force, "In October 2000, Congress enacted the
Trafficking Victims Protection Act of 2000 (TVPA), Public Law
106-386, to prosecute traffickers, protect victims and prevent
trafficking from occurring. Prior to that, no comprehensive
federal law existed to protect victims of trafficking or to
prosecute their traffickers. This law made human trafficking
a federal crime with severe penalties; created new law
enforcement tools to strengthen the prosecution and punishment
of traffickers; addressed the means of coercion used by
traffickers, including psychological coercion, trickery and
the seizure of documents; promoted prevention measures; and
made victims of trafficking eligible for benefits and services
under federal or state programs once they become certified by
the U.S. Department of Health and Human Services (DHHS).
"The Trafficking Victims Protection Reauthorization Act of 2003
(TVPRA 2003), Public Law 108192, augmented the legal tools
that can be used against traffickers, including empowering
victims to bring federal civil suits against traffickers for
actual and punitive damages. It also encouraged the nation's
state and local law enforcement agencies to participate in the
detection and investigation of human trafficking cases.
"The law was reauthorized again in 2005 (TVPRA 2005), Public Law
109-164, and provided additional anti-trafficking resources,
including grant programs to assist state and local law
enforcement efforts in combating trafficking in persons and to
expand victim assistance programs to U.S. citizens or resident
aliens subjected to trafficking. The number of federal
prosecutions against traffickers has increased significantly
since these laws were enacted. Between 2001 and 2005, U.S.
attorneys investigated 555 suspects for violations of federal
human trafficking statutes; of investigations closed in that
time period, 146 suspects were prosecuted. Yet, the number of
traffickers prosecuted is low considering the 14,500 to 17,500
victims estimated to be trafficked into the United States each
year.
"In order to strengthen the nation's efforts to enforce
trafficking laws, the U.S. Department of Justice has
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encouraged state involvement through the development of the
Model State Anti-Trafficking Criminal Statute (2004), designed
to ensure a strong partnership between state and federal
partners in combating trafficking. As of the end of July
2007, 32 states had passed criminal anti-trafficking laws."
�Human Trafficking in California, Final Report (October 2007),
p. 21.]
The California Alliance to Combat Trafficking and Slavery Task
Force made the following recommendations:
"The California Trafficking Victims Protection Act has added
valuable new tools in law enforcement's and prosecutors'
arsenal to investigate and prosecute human traffickers.
However, the Task Force identified some shortcomings in the
law and steps that could strengthen and expand its use as a
prosecutorial tool. These shortcomings include: (1)
California's definition of human trafficking is different than
the federal definition, especially as it relates to
trafficking protections for minors. California's definition
should be changed to mirror the federal definition and
eliminate the elements of force, fraud and coercion if the
trafficking victim is a minor. (2) Penalties for traffickers
are lower in California's law than those in federal law.
Penalties for traffickers should more closely reflect federal
trafficking penalties and penalties for sex crimes under
existing state law. (3) There is no provision in the law that
allows counties to file charges in cross-jurisdictional human
trafficking cases on behalf of all counties involved, as
California law provides in cases of child abuse and domestic
violence." �Human Trafficking in California, Final Report
(October 2007), p. 65.]
5)Domestic Trafficking is an Increasing Problem : Although Penal
Code Section 236.1 was created due to an increase in women and
girls being shipped into the United States from abroad for
purposes of sexual exploitation or forced labor, those girls
now live in the United States and are being shuttled from city
to city also for sexual exploitation. According to the
Polaris Project, "In 2000, 244,000 American children and youth
were estimated to be at risk of child sexual exploitation
including commercial sexual exploitation.
"Victims of human trafficking in the United States also include
U.S. citizens and residents trafficked within its borders.
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Much like the majority of other countries affected by human
trafficking, the U.S. has a large internal or 'domestic'
component of human trafficking for the purposes of both sexual
and labor exploitation. One of the largest forms of domestic
sex trafficking in the U.S. involves traffickers who coerce
women and children to enter the commercial sex industry
through the use of a variety of recruitment and control
mechanisms in strip clubs, street-based prostitution, escort
services, and brothels. Domestic sex traffickers, commonly
referred to as 'pimps', particularly target vulnerable youth,
such as runaway and homeless youth, and reinforce the reality
that the average age of entry into prostitution is 12-13 years
old in the U.S. Recent cases have also demonstrated that
labor trafficking of U.S. citizens occurs in locations such as
restaurants, the agricultural industry, traveling carnivals,
peddling/begging rings, and in traveling sales crews."
(Polaris Project,
).
According to the sponsor of the bill, the Alameda County
District Attorney's Office, Human Exploitation and Trafficking
Unit:
"The commercial sexual exploitation of children is the most
hidden form of child abuse in North America today. It is the
Nation's least recognized epidemic. (Richard Estes, Univ. of
Pennsylvania School of Social Work Center for Youth Study).
Traffickers target children because of their vulnerability and
gullibility as well as the market demand for young victims.
Viewing the commercial sexual exploitation of children as
prostitution, pimping, and pandering fails to recognize the
epidemic size and abusive nature of this rapidly growing
problem facing our state and country.
"The Commercial sexual exploitation of children is big business.
Sadly, today there is no better return on money than selling
a child for sex. The sale and purchase of children for sex is
the second largest industry in our country and has become a
multi-billion dollar industry that is expected to surpass the
illicit trade in guns and narcotics within ten years."
�Dobrisky, Paula J., U.S. Dept. of State, Ending Modern Day
Slavery: U.S. Efforts to Combat Trafficking in Persons (June
2004).]
6)Consent : As noted above, Penal Code Section 236.1(a) requires
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a person to deprive or violate the personal liberty of another
with the intent to commit a specified crime. However, there
is no distinction within the definition of "human trafficking"
for victims that are under a certain age. Existing law
related to lewd and lascivious acts with a person 14 years of
age or under does not require a showing of force. �Penal Code
Section 288(a); See also Penal Code Section 285 (incest);
Penal Code Section 311.3 (sexual exploitation of a minor for
pornographic purpose); Penal Code Section 311.4 (use of minor
to perform prohibited acts); Penal Code Section 261.5(a)
(statutory rape).] As a general matter, the law presumes
persons under a specified age cannot consent to sexual
conduct. �CALJIC No. 10.41.] Consent is not required for
several other offenses involving sexual contact with children.
There is arguably no reason to require force in sexual
commercial trafficking cases involving minors as they are not
capable of consent at any rate. Moreover, given that Penal
Code Section 236.1(f) clearly cross-references the specific
federal provision eliminating the need to show force, this
bill seems a consistent clarification and is congruent with
the Penal Code.
7)Pimping and Pandering : Existing law prohibits pimping and
pandering. Pimping is defined as "any person who, knowing
another person is a prostitute, lives or derives support or
maintenance in whole or in part from the earnings or proceeds
of the person's prostitution, or from money loaned or advanced
to or charged against that person by any keeper or manager or
inmate of a house or other place where prostitution is
practiced or allowed, or who solicits or receives compensation
for soliciting for the person, is guilty of pimping, a felony,
and shall be punishable by imprisonment in the state prison
for three, four, or six years." �Penal Code Section 266h(a).]
A conviction for pimping requires that the victim actually
engage in prostitution and that the alleged "pimp" solicit or
receive compensation. �People vs. James (1969) 274 Cal.App.
2nd 608; CALJIC 10.70.1.]
Pandering is defined as "any person who does any of the
following is guilty of pandering, a felony, and shall be
punishable by imprisonment in the state prison for three,
four, or six years: procures another person for the purpose
of prostitution; by promises, threats, violence, or by any
device or scheme, causes, induces, persuades or encourages
another person to become a prostitute; procures for another
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person a place as an inmate in a house of prostitution or as
an inmate of any place in which prostitution is encouraged or
allowed within this state; by promises, threats, violence or
by any device or scheme, causes, induces, persuades or
encourages an inmate of a house of prostitution, or any other
place in which prostitution is encouraged or allowed, to
remain therein as an inmate; by fraud or artifice, or by
duress of person or goods, or by abuse of any position of
confidence or authority, procures another person for the
purpose of prostitution, or to enter any place in which
prostitution is encouraged or allowed within this state, or to
come into this state or leave this state for the purpose of
prostitution, or; receives or gives, or agrees to receive or
give, any money or thing of value for procuring, or attempting
to procure, another person for the purpose of prostitution, or
to come into this state or leave this state for the purpose of
prostitution." �Penal Code Section 266i(b)(1) to (6).]
Pandering requires the specific intent to induce another person
to become a prostitute and subsequently procures that person
for the purpose of becoming a prostitute, by promise, threat,
fraud or compensation. (CALJIC 10.71.) However, in order to
find a defendant guilty of pandering, the alleged victim
cannot already be engaged in prostitution. �People vs. Wagner
(2009) 170 Cal.App.4th 499, 510-511 ("And because the
undisputed evidence in this case establishes that the young
woman whom �the defendant] was accused of encouraging to
become a prostitute was already engaged in prostitution, the
judgment convicting him of pandering in violation of section
266i, subdivision (b)(1), is reversed").]
Pimping and pandering require proof of elements that are not
often available in domestic trafficking cases involving
underage victims. Traffickers create a psychologically
sophisticated bond with their victims without using violence.
Although the traffickers may become violent, this is often the
case after the victim has engaged in several act of
prostitution. As a result, existing law appears inadequate to
sufficiently punish the type of recruitment most traffickers
use to lure children into sexual commercial acts.
8)Removal of Forced Labor Provisions : Currently, this bill
removes the provisions involving forced labor. It is unclear
why these provisions were previously removed.
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9)Prison Overcrowding : Although this is a serious problem with
inadequate existing remedies, California's overwhelming prison
population and pending federal prisoner release order demands
an examination of any expanded penalty that might increase the
number of offenders sentenced to state prison. A person
convicted of Penal Code Section 236.1 may be sentenced to a
term of three, five or seven years in state prison. However,
nothing in existing law prohibits a court from granting
probation in this case.
The California Policy Research Center (CPRC) issued a report on
the status of California's prisons. The report stated,
"California has the largest prison population of any state in
the nation, with more than 171,000 inmates in 33 adult
prisons, and the state's annual correctional spending,
including jails and probation, amounts to $8.92 billion.
Despite the high cost of corrections, fewer California
prisoners participate in relevant treatment programs than
comparable states, and its inmate-to-officer ratio is
considerably higher. While the nation's prisons average one
correctional officer to every 4.5 inmates, the average
California officer is responsible for 6.5 inmates. Although
officer salaries are higher than average, their ranks are
spread dangerously thin and there is a severe vacancy rate."
�Petersilia, Understanding California Corrections, CPRC (May
2006).] California's prison population will likely exceed
180,000 by 2010.
According to the Little Hoover Commission, "Lawsuits filed in
three federal courts alleging that the current level of
overcrowding constitutes cruel and unusual punishment ask that
the courts appoint a panel of federal judges to manage
California's prison population. United States District Judge
Lawrence Karlton, the first judge to hear the motion, gave the
State until June 2007 to show progress in solving the
overpopulation crisis. Judge Karlton clearly would prefer not
to manage California's prison population. At a December 2006
hearing, Judge Karlton told lawyers representing the
Schwarzenegger administration that he is not inclined 'to
spend forever running the state prison system.' However, he
also warned the attorneys, 'You tell your client June 4 may be
the end of the line. It may really be the end of the line.'
"Despite the rhetoric, thirty years of 'tough on crime' politics
has not made the state safer. Quite the opposite: today
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thousands of hardened, violent criminals are released without
regard to the danger they present to an unsuspecting public.
Years of political posturing have taken a good idea -
determinate sentencing - and warped it beyond recognition with
a series of laws passed with no thought to their cumulative
impact. And these laws stripped away incentive s for
offenders to change or improve themselves while incarcerated.
"Inmates, who are willing to improve their education, learn a
job skill or kick a drug habit find that programs are few and
far between, a result of budget choices and overcrowding.
Consequently, offenders are released into California
communities with the criminal tendencies and addictions that
first led to their incarceration. They are ill-prepared to do
more than commit new crimes and create new victims . . . . "
�Little Hoover Commission Report, Solving California's
Corrections Crisis: Time is Running Out, (2007) pg. 1, 2.]
On January 12, 2010, the Three Judge Panel issued its final
ruling ordering the State of California to reduce its prison
population by approximately 50,000 inmates in the next two
years. �Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] This order is stayed
pending appeal to the United States Supreme Court.
As noted by the Little Hoover Commission and the California
Policy Research Center, unconstitutionally overcrowded prisons
are profound byproduct of two decades of arbitrary and
capricious penalty increases with little or no justification.
But one unintended yet equally significant consequence of
haphazard penalty increases is the inability to expand crimes
or increase sentences where it is truly warranted. The nature
of crime and criminal offenders changes over time, the law
must reflect those changes in order to provide a measure of
protection to society.
10)Arguments in Support : According to the Alameda County
District Attorney's Office , "�d]ue to unclear draftsmanship in
our current human trafficking law, the issue of whether proof
of force or coercion is required, when a minor is sold for
sex, it is unnecessarily unclear and somewhat debatable. The
ambiguity of our state law places local prosecutors at a
significant disadvantage in the fight to protect vulnerable
minors and hold accountable those who profit from exploiting
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them. We cannot afford to let another day pass without
clarifying this ambiguity in our law."
11)Prior Legislation :
a) AB 2319 (Swanson), of the 2009-10 legislative session,
was identical to this bill and was held on the Assembly
Appropriations' Suspense File.
b) AB 1278 (Lieber), Chapter 258, Statutes of 2007,
modified the definition of a "perpetrator of an offense of
human trafficking of a minor" to be any person who causes,
induces, or persuades, or attempts to cause, induce or
persuade, a child to engage in a commercial sex act as
described in specified offenses or who obtains forced labor
or services from such a child, is guilty of human
trafficking. AB 1278 was significantly amended in the
Senate Committee on Public Safety and later chaptered
without AB 1278's original provisions.
a) AB 22 (Lieber), Chapter 240, Statutes of 2005, created
the California Trafficking Victims Protection Act, which
established civil and criminal penalties for human
trafficking and allowed for forfeiture of assets derived
from human trafficking. In addition, the Act required law
enforcement agencies to provide Law Enforcement Agency
Endorsement to trafficking victims, providing trafficking
victims with protection from deportation and created the
human trafficking task force.
REGISTERED SUPPORT / OPPOSITION :
Support
Alameda County
Alameda County District Attorney
American Federation of State, County, and Municipal Employees
California Against Slavery
California Catholic Conference
California Coalition for Youth
California District Attorneys Association
California State PTA
California State Sheriffs' Association
Child Abuse Prevention Center
Children's Advocacy Institute
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Concerned Women for America
Crime Victims United of California
Los Angeles Probation Officers Union, AFSCME, Local 685
National Association of Social Workers, California Chapter
Seven private citizens
Opposition
None
Analysis Prepared by: Gabriel Caswell / PUB. S. / (916)
319-3744