BILL ANALYSIS �
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2212|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 2212
Author: Block (D)
Amended: 6/4/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/19/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
ASSEMBLY FLOOR : 71-0, 4/23/12 (Consent) - See last page
for vote
SUBJECT : Human trafficking: nuisance abatement
SOURCE : Los Angeles City Attorney
DIGEST : This bill (1) provides 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) provides 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; and (3)
provides 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
CONTINUED
AB 2212
Page
2
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.
ANALYSIS : Existing law provides that any person who
deprives or violates the personal liberty of another with
the intent to effect or maintain a felony violation of
specified sex crimes, extortion, or to obtain forced labor
or services is guilty of human trafficking. If committed
against an adult, this offense is punishable by three,
four, or five years in state prison. If committed against
a minor, this offense is punishable by four, six, or eight
years in state prison. (Penal Code (PEN) Section 236.1)
Existing law provides that any person who maliciously
publishes, disseminates, or otherwise discloses the
location of any trafficking shelter or domestic violence
shelter or any place designated as a trafficking shelter or
domestic violence shelter, without the authorization of
that trafficking shelter or domestic violence shelter, is
guilty of a misdemeanor, punishable by up to six months in
county jail, a fine of up to $1,000, or both. (PEN Section
273.7)
Existing law provides that a victim of human trafficking
may bring a civil lawsuit for actual damages, compensatory
damages, punitive damages, injunctive relief, any
combination of those, or any other appropriate relief. In
such a lawsuit the plaintiff may be awarded up to three
times his 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 (CIV) Section 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.
CONTINUED
AB 2212
Page
3
(Evidence Code Section 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. (CIV
Section 1670.7)
Existing law provides that when charges alleging multiple
violations of human trafficking that involve the same
victim or victims in multiple territorial jurisdictions are
filed in one county, the court shall hold a hearing to
consider whether the matter should proceed in the county of
filing, or whether one or more counts should be severed.
The district attorney filing the complaint shall present
evidence to the court that the district attorney in each
county where any of the charges could have been filed has
agreed that the matter should proceed in the county of
filing. In determining whether all counts in the complaint
should be joined in one county for prosecution, the court
shall consider the location and complexity of the likely
evidence, where the majority of the offenses occurred, the
rights of the defendant and the people, and the convenience
of, or hardship to, the victim or victims and witnesses.
(PEN Section 784.8)
Existing law provides that a victim of human trafficking
can prevent his/her name from becoming a matter of public
record. (Government Code Section 6254)
Existing law provides that law enforcement agencies shall
use due diligence to identify all victims of human
trafficking, regardless of the citizenship of the person.
When a peace officer comes into contact with a person who
has been deprived of his 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
CONTINUED
AB 2212
Page
4
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/her employer.
Security measures are used to control who has contact
with the person.
The person does not have control over his/her own
government-issued identification or over his/her worker
immigration documents. (PEN Section 236.2)
Existing law states that buildings used for specified
illegal activities are a nuisance which shall be enjoined,
abated, and prevented, and for which damages may be
recovered, whether it is a public or private nuisance.
(PEN Section 11225)
Existing law provides that if the existence of a nuisance
is established, as specified, an order of abatement shall
be entered as a part of the judgment in the case:
1. Directing the removal from the building or place of all
fixtures, musical instruments and movable property used
in conducting, maintaining, aiding, or abetting the
nuisance, and directing the sale thereof in the manner
provided for the sale of chattels under execution, and
the effectual closing of the building or place against
its use for any purpose, and that it be kept closed for
a period of one year, unless sooner released. If the
court finds that any vacancy resulting from closure of
the building or place may create a nuisance or that
closure is otherwise harmful to the community, in lieu
of ordering the building or place closed, the court may
order the person who is responsible for the existence of
the nuisance to pay damages in an amount equal to the
fair market rental value of the building or place for
one year to the city or county in whose jurisdiction the
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
CONTINUED
AB 2212
Page
5
shall not be the sole determinant of the fair market
rental value. Expert testimony may be used to determine
the fair market rental value.
2. While the order remains in effect as to closing, the
building or place is and shall remain in the custody of
the court.
3. For removing and selling the movable property, the
officer is entitled to charge and receive the same fees
as he or she would for levying upon and selling like
property on execution.
4. For closing the premises and keeping them closed, a
reasonable sum shall be allowed by the court.
5. The court may assess a civil penalty not to exceed
$25,000 against any and all of the defendants, based
upon the severity of the nuisance and its duration.
6. One-half of the civil penalties collected pursuant to
this section shall be deposited in the Restitution Fund
in the State Treasury, and one-half of the civil
penalties collected shall be paid to the city in which
the judgment was entered, if the action was brought by
the city attorney or city prosecutor. If the action was
brought by a district attorney, one-half of the civil
penalties collected shall be paid to the treasurer of
the county in which the judgment was entered. (PEN
Section 11230)
Existing law defines "criminal profiteering activity" as
any act made for financial gain or advantage if the act may
be charged as one of a number of crimes, including human
trafficking. (PEN Section 186.2, subd. (a)(28))
Existing law defines "pattern of criminal profiteering
activity" as engaging in at least two incidents of criminal
profiteering that meet the following requirements:
have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise
interrelated by distinguishing characteristics
CONTINUED
AB 2212
Page
6
are not isolated events; and
were committed as a criminal activity of organized crime.
(PEN Section 186.2, subd. (b))
Existing law provides that after conviction of the
underlying offense, a person may be subject to asset
forfeiture if the prior act occurred within 10 years,
excluding any period of imprisonment, of the commission of
the underlying offense. (PEN Section 186.2, subd. (b))
Existing law defines "organized crime" for purposes of the
criminal profiteering forfeiture statutes as crime that is
of a conspiratorial nature and that is either of an
organized nature and seeks to supply illegal goods and
services such as narcotics, prostitution, loan-sharking,
gambling, and pornography, or that, through planning and
coordination of individual efforts, seeks to conduct the
illegal activities of arson for profit, hijacking,
insurance fraud, smuggling, operating vehicle theft rings,
fraud against the beverage container recycling program, or
systematically encumbering the assets of a business for the
purpose of defrauding creditors. "Organized crime" also
means crime committed by a criminal street gang, as defined
in subdivision (f) of Section 186.22. "Organized crime"
also means false or fraudulent activities, schemes, or
artifices, as described in Welfare and Institutions Code
Section 14107, and the theft of personal identifying
information, as defined in Section 530.5. (PEN Section
186.2(d))
Existing law 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 value ? received in
exchange for the proceeds ? derived from the pattern of
criminal profiteering activity. (PEN Section 186.3)
Existing law provides that forfeiture proceedings shall be
CONTINUED
AB 2212
Page
7
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
Section 186.5, subd. (c))
Existing law requires that before assets are forfeited, the
prosecuting agency shall have the burden of establishing
beyond a reasonable doubt that the defendant was engaged in
a pattern of criminal profiteering activity. (PEN Section
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. (PEN
Section 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. (CIV Section 3496)
This bill provides that every building or place used for
the purpose of human trafficking, and every building or
place in 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 provides 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 provides 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
CONTINUED
AB 2212
Page
8
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 Evidence Code
Section 1038.2. 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.
Prior Legislation
SB 677 (Yee), Chapter 625, Statutes of 2010
SB 557 (Yee), 2009 - vetoed
AB 2810 (Brownley), Chapter 358, Statutes of 2008
AB 1278 (Lieber), Chapter 258, Statutes of 2008
AB 22 (Lieber), Chapter 240, Statutes of 2005
SB 180 (Kuehl), Chapter 239, Statutes of 2005
SB 751 (Morrow), 2005 - failed in Senate Public Safety
Committee
SB 1255 (Hughes), Chapter 1022, Statutes of 1994
AB 114 (Burton), Chapter 314, Statutes of 1994
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/20/12)
Los Angeles City Attorney (source)
AFSCME
California Catholic Conference
California Partnership to End Domestic Violence
California State Sheriffs' Association
Coalition to Abolish Slavery and Trafficking
Crime Victims United of California
Junior Leagues of California
Peace Officers Research Association of California
Religious of the Sacred Heart of Mary
San Diego City Attorney
CONTINUED
AB 2212
Page
9
ARGUMENTS IN SUPPORT : 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, 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.
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 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
CONTINUED
AB 2212
Page
10
place to commit their crimes should be held accountable.
ASSEMBLY FLOOR : 71-0, 4/23/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Buchanan, Butler, Campos, Carter, Chesbro, Conway, Cook,
Dickinson, Donnelly, Eng, Feuer, Fong, Fuentes, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hern�ndez, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nielsen,
Olsen, Pan, Perea, V. Manuel P�rez, Portantino, Silva,
Skinner, Solorio, Swanson, Torres, Valadao, Wagner,
Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Brownley, Charles Calderon, Cedillo,
Davis, Fletcher, Furutani, Nestande, Norby, Smyth
RJG:m 6/20/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED