BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
2
1
AB 2212 (Block) 2
As Amended June 4, 2012
Hearing date: June 19, 2012
Civil Code; Penal Code
SM:mc
HUMAN TRAFFICKING: NUISANCE ABATEMENT
HISTORY
Source: Los Angeles City Attorney
Prior Legislation: SB 677 (Yee) -Chapter 625, Stats. of 2010
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 Partnership to End Domestic Violence;
California State Sheriffs' Association; Crime Victims
United of California; Junior Leagues of California;
Coalition to Abolish Slavery and Trafficking;
California Catholic Conference; AFSCME; Peace Officers
Research Association of California (PORAC); Religious
of the Sacred Heart of Mary; San Diego City Attorney
Opposition:California Attorneys for Criminal Justice
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Assembly Floor Vote: Ayes 71 - Noes 0
KEY ISSUES
SHOULD EVERY BUILDING OR PLACE USED FOR THE PURPOSE OF HUMAN
TRAFFICKING, OR UPON WHICH ACTS OF HUMAN TRAFFICKING ARE HELD OR
OCCUR, BE DECLARED A NUISANCE WHICH SHALL BE ENJOINED, ABATED, AND
PREVENTED, AND FOR WHICH DAMAGES MAY BE RECOVERED, WHETHER IT IS A
PUBLIC OR PRIVATE NUISANCE?
SHOULD THE COURT BE PERMITTED TO AWARD COSTS TO THE PREVAILING PARTY
IN ANY CASE IN WHICH A GOVERNMENT AGENCY SEEKS TO ENJOIN THE USE OF
A BUILDING FOR PURPOSES OF HUMAN TRAFFICKING?
IN NUISANCE ABATEMENT CASES INVOLVING HUMAN TRAFFICKING, SHOULD
ONE-HALF OF THE CIVIL PENALTIES COLLECTED, AS SPECIFIED, BE
DEPOSITED IN THE VICTIM-WITNESS ASSISTANCE FUND TO FUND GRANTS FOR
HUMAN TRAFFICKING VICTIM SERVICES AND PREVENTION PROGRAMS, AS
SPECIFIED, AND THE OTHER ONE-HALF OF THE CIVIL PENALTIES BE PAID TO
THE CITY IN WHICH JUDGMENT WAS ENTERED, IF THE ACTION WAS BROUGHT BY
A CITY ATTORNEY OR CITY PROSECUTOR OR, IF THE ACTION WAS BROUGHT BY
A DISTRICT ATTORNEY, THE ONE-HALF OF THE CIVIL PENALTY INSTEAD BE
PAID TO THE TREASURER OF THE COUNTY IN WHICH JUDGMENT WAS ENTERED?
PURPOSE
The purpose of this bill is to (1) provide that every building
or place used for the purpose of human trafficking, or upon
which acts of human trafficking are held or occur, is declared a
nuisance which shall be enjoined, abated, and prevented, and for
which damages may be recovered, whether it is a public or
private nuisance; (2) provide that in any case in which a
government agency seeks to enjoin the use of a building for
purposes of human trafficking, the court may award costs to the
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prevailing party; and (3) provide that, in nuisance abatement
cases involving human trafficking, one-half of the civil
penalties collected, as specified, shall be deposited in the
Victim-Witness Assistance Fund to be available for appropriation
by the Legislature to the California Emergency Management Agency
to fund grants for human trafficking victim services and
prevention programs, as specified, and that the other one-half
of the civil penalties shall be paid to the city in which
judgment was entered, if the action was brought by a city
attorney or city prosecutor or, if the action was brought by a
district attorney, the one-half of the civil penalty shall,
instead, be paid to the treasurer of the county in which
judgment was entered.
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
plaintiff may be awarded up to three times his or her actual
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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
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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. 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.
(Pen. Code � 186.2, subd. (a)(28).)
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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,
the following assets shall be subject to forfeiture:
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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).)
Existing law provides that, upon conviction for human
trafficking, if real property is used to facilitate the
commission of the offense, the procedures for determining
whether the property constitutes a nuisance and the remedies
imposed therefor, as specified, shall apply. (Penal Code �
236.3.)
Existing law provides that in any case in which a government
agency seeks to enjoin the use of a building for purposes of
illegal gambling, lewdness, assignation, or prostitution, the
court may award costs to the prevailing party. (Civil Code �
3496.)
This bill would provide that every building or place used for
the purpose of human trafficking, and every building or place in
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or upon which acts of human trafficking are held or occur, is a
nuisance which shall be enjoined, abated, and prevented, and for
which damages may be recovered, whether it is a public or
private nuisance.
This bill would provide that in any case in which a government
agency seeks to enjoin the use of a building for purposes of
human trafficking, the court may award costs to the prevailing
party.
This bill would provide that, in nuisance abatement cases
involving human trafficking, one-half of the civil penalties
collected, as specified, shall be deposited in the
Victim-Witness Assistance Fund to be available for appropriation
by the Legislature to the California Emergency Management Agency
to fund grants for human trafficking victim services and
prevention programs provided by community-based organizations.
The community-based organizations shall have trained human
trafficking caseworkers, as defined by Section 1038.2 of the
Evidence Code. The other one-half of the civil penalties shall
be paid to the city in which judgment was entered, if the action
was brought by a city attorney or city prosecutor. If the
action was brought by a district attorney, the one-half of the
civil penalty shall, instead, be paid to the treasurer of the
county in which judgment was entered.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
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application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). 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 January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
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circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
This bill seeks to remedy two problems. First, current
law does not provide an effective civil enforcement
mechanism against traffickers, property managers and
business owners who are engaging in, and profiting
from, illegal human trafficking activities. While the
current law allows city attorneys and prosecutors to
bring a nuisance claim against the property where
human trafficking occurred, this process can only be
initiated after a prosecutor has acquired a time
intensive felony conviction. Once a prosecutor
acquires a felony conviction, which can take years,
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there is typically no longer any value in pursuing a
nuisance claim. This bill remedies the problem by
designating human trafficking as a "per se" nuisance.
This allows city attorneys and prosecutors the ability
to initiate a nuisance abatement claim as soon as the
police discover a human trafficking operation.
The second problem has to do with funding for victims.
The California Alliance to Combat Trafficking and
Slavery Task Force found that there is insufficient
funding for organizations in California that provide
services to victims of human trafficking. This bill
would help generate additional funding by directing
recovered penalties to human trafficking victim
service providers.
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
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
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16.
http://safestate.org/documents/HT_Final_Report_ADA.pdf )
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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, regardless of whether any criminal charges are
brought, any building or place that is used for the purpose of
human trafficking or upon which acts of human trafficking are
held or occur, such as a building used as a sweatshop or a
brothel where trafficking victims are forced to work, would be
declared a nuisance and would be subject to seizure, pursuant to
the statutory scheme for nuisance abatement known as the 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, all movable property within the building that was used
in conducting, maintaining, aiding, or abetting the nuisance be
sold, 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.)
Under existing law, activities that are deemed to constitute a
nuisance per se, and would therefore be subject to the Red Light
Abatement laws described above are illegal gambling, lewdness,
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assignation, and prostitution. This bill would add human
trafficking to the list of activities which constitute a
nuisance per se.
Under existing law, proceeds of any civil fine imposed under
these nuisance laws are apportioned as follows:
50% to the state Crime Victims Restitution Fund; and
50% to the city where the judgment was entered, if the
action was brought by the city attorney or city prosecutor,
or, if the action was brought by the district attorney to
the county.
This bill would instead apportion any civil fine imposed in
connection with a nuisance abatement lawsuit based on human
trafficking as follows:
50% to the Victim-Witness Assistance Fund to be
available for appropriation by the Legislature to the
California Emergency Management Agency to fund grants for
human trafficking victim services and prevention programs
provided by community-based organizations. The
community-based organizations shall have trained human
trafficking caseworkers, as defined by Section 1038.2 of
the Evidence Code.
50% to the city in which judgment was entered, if the
action was brought by a city attorney or city prosecutor,
or, if the action was brought by the district attorney to
the county.
4. Statement in Support
The City Attorney of San Diego states:
The Red Light Abatement law has been a very effective
tool for our Code Enforcement Unit. We have used it
against strip clubs, bath houses, and massage parlours
where acts of prostitution take place. This bill
would expand our scope of authority and let our office
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address a serious issue by bringing legal action
against parties involved in human trafficking
including the traffickers, property managers and
business owners who are engaged in and profiting from
illegal human trafficking activities.
As a prosecutor, I believe that it is good to have
multiple ways of addressing criminal activity. Human
traffickers prey on minors and require them to commit
sex acts. The property owners who provide these
criminals a place to commit their crimes should be
held accountable.
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