BILL NUMBER: AB 2466 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Blumenfield
FEBRUARY 24, 2012
An act to amend Section 236.3 of, and to add Section 236.6 to, the
Penal Code, relating to human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 2466, as introduced, Blumenfield. Human trafficking: seizure of
assets.
Existing law makes it a felony, generally known as human
trafficking, to deprive or violate the personal liberty of another
with the intent to effect or maintain a felony violation of, among
other crimes, pimping, pandering, and abducting a minor for the
purpose of prostitution. Under existing law, the crime of human
trafficking is punishable by a fine not to exceed $1,000 or by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment. Existing law requires the court to order
a person who is convicted of a crime to pay a restitution fine, as
prescribed, and restitution to the victim or victims for the full
amount of economic loss, unless the court finds compelling and
extraordinary reasons for not doing so and states them on the record.
Additionally, under existing law, real property used to facilitate
the commission of human trafficking may be determined to be a
nuisance and remedies may be imposed against that property.
This bill would allow real property and assets used to facilitate
human trafficking to be determined to be a nuisance. The bill would
authorize the prosecuting agency, at the same time as the filing of a
complaint or indictment charging human trafficking, to file a
petition for protective relief necessary to preserve property or
assets that could be used to pay for remedies relating to human
trafficking, including, but not limited to, restitution, fines, and
satisfaction of claims of nuisance. The bill would specify the
process by which a preliminary injunction, temporary restraining
order, or sale of property or assets may be ordered.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 236.3 of the Penal Code is amended to read:
236.3. Upon conviction of a violation of Section 236.1,
if real property is or assets
used to facilitate the commission of the offense , the
procedures for determining whether the property constitutes
may be determined to be a nuisance and the remedies
imposed therefor as provided in Article 2 (commencing with Section
11225) of Chapter 3 of Title 1 of Part 4 shall apply.
SEC. 2. Section 236.6 is added to the Penal Code, to read:
236.6. (a) To prevent dissipation or secreting of assets or
property, the prosecuting agency may, at the same time as or
subsequent to the filing of a complaint or indictment charging human
trafficking under Section 236.1, file a petition with the criminal
division of the superior court of the county in which the accusatory
pleading was filed, seeking a temporary restraining order,
preliminary injunction, the appointment of a receiver, or any other
protective relief necessary to preserve the property or assets. The
filing of the petition shall commence a proceeding that shall be
pendent to the criminal proceeding and maintained solely to effect
the remedies available for this crime, including, but not limited to,
payment of restitution, payment of fines, and charges of nuisance.
The proceeding shall not be subject to or governed by the provisions
of the Civil Discovery Act as set forth in Title 4 (commencing with
Section 2016.010) of Part 4 of the Code of Civil Procedure. The
petition shall allege that the defendant has been charged with human
trafficking under Section 236.1 and shall identify that criminal
proceeding and the assets and property to be affected by an order
issued pursuant to this section.
(b) If the property to be preserved is real property, the
prosecuting agency shall record, at the time of filing the petition,
a lis pendens in each county in which the real property is situated
that specifically identifies the property by legal description, the
name of the owner of record as shown on the latest equalized
assessment roll, and the assessor's parcel number.
(c) A person claiming an interest in the protected property or
assets may, at any time within 30 days from the date of the first
publication of the notice of the petition, or within 30 days after
receipt of actual notice, whichever is later, file with the superior
court of the county in which the action is pending a verified claim
stating the nature and amount of his or her interest in the property
or assets. A verified copy of the claim shall be served by the
claimant on the Attorney General or district attorney, as
appropriate.
(d) If an interested person, other than the defendant, has not
filed a claim within the 30 days provided in subdivision (c), the
court, upon motion, shall declare that the person has defaulted upon
his or her alleged interest, and that interest shall be subject to
forfeiture upon proof of the provisions of subdivision (a).
(e) The defendant may admit or deny that the property or assets
are subject to forfeiture pursuant to the provisions of this chapter.
If the defendant fails to admit or deny or to file a claim of
interest in the property or assets, the court shall enter a response
of denial on behalf of the defendant.
(f) The imposition of fines and restitution shall be determined by
the superior court in which the underlying criminal offense is
sentenced. A judge who is assigned to the criminal division of the
superior court in the county where the petition is filed may issue a
temporary restraining order in conjunction with, or subsequent to,
the filing of an allegation pursuant to this section. A subsequent
hearing on the petition shall also be heard by a judge assigned to
the criminal division of the superior court in the county in which
the petition is filed. At the time of the filing of an information or
indictment in the underlying criminal case, a subsequent hearing on
the petition shall be conducted by the superior court judge assigned
to the underlying criminal case.
(g) Concurrent with or subsequent to the filing of the petition,
the prosecuting agency may move the superior court for, and the
superior court may issue, either of the following pendente lite
orders to preserve the status quo of the property or assets alleged
in the petition:
(1) An injunction to restrain any person from transferring,
encumbering, hypothecating, or otherwise disposing of the property or
assets.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that they may be
maintained and preserved. The court may order that a receiver
appointed pursuant to this section shall be compensated for all
reasonable expenditures made or incurred by him or her in connection
with the possession, care, management, and operation of property or
assets that are subject to the provisions of this section.
(h) The following procedures shall be followed in processing the
petition:
(1) No preliminary injunction shall be granted or receiver
appointed without notice to the interested parties and a hearing to
determine that the order is necessary to preserve the property or
assets, pending the outcome of the criminal proceedings, and that
there is probable cause to believe that the property or assets
alleged in the forfeiture proceedings are proceeds or property
interests forfeitable under this section. However, a temporary
restraining order may be issued pending that hearing pursuant to the
provisions of Section 527 of the Code of Civil Procedure. The
temporary restraining order may be based upon the sworn declaration
of a peace officer with personal knowledge of the criminal
investigation that establishes probable cause to believe that human
trafficking has taken place and that the amount of restitution and
fines established pursuant to subdivision (f) exceeds or equals the
worth of the property or assets subject to the temporary restraining
order. The declaration may include the hearsay statements of
witnesses to establish the necessary facts. The temporary restraining
order may be issued without notice upon a showing of good cause to
the court.
(2) The defendant, or a person who has filed a verified claim as
provided in paragraph (4) of subdivision (c), shall have the right to
have the court conduct an order to show cause hearing within 10 days
of the service of the request for a hearing upon the prosecuting
agency, in order to determine whether the temporary restraining order
should remain in effect, whether relief should be granted from a lis
pendens recorded pursuant to subdivision (b), or whether an existing
order should be modified in the interests of justice. Upon a showing
of good cause, the hearing shall be held within two days of the
service of the request for a hearing upon the prosecuting agency.
(3) In determining whether to issue a preliminary injunction or
temporary restraining order in a proceeding brought by a prosecuting
agency in conjunction with or subsequent to the filing of an
allegation pursuant to this section, the court has the discretion to
consider any matter that it deems reliable and appropriate, including
hearsay statements, in order to reach a just and equitable decision.
The court shall weigh the relative degree of certainty of the
outcome on the merits and the consequences to each of the parties of
granting the interim relief. If the prosecution is likely to prevail
on the merits and the risk of the dissipation of assets outweighs the
potential harm to the defendants and the interested parties, the
court shall grant injunctive relief. The court shall give significant
weight to the following factors:
(A) The public interest in preserving the property or assets
pendente lite.
(B) The difficulty of preserving the property or assets pendente
lite where the underlying alleged crimes involve issues of fraud and
moral turpitude.
(C) The fact that the requested relief is being sought by a public
prosecutor on behalf of alleged victims of human trafficking.
(D) The likelihood that substantial public harm has occurred where
the human trafficking is alleged to have been committed.
(E) The significant public interest involved in compensating
victims of human trafficking and paying court Imposed restitution and
fines.
(4) The court, in making its orders, may consider a defendant's
request for the release of a portion of the property affected by this
section in order to pay reasonable legal fees in connection with the
criminal proceeding, necessary and appropriate living expenses
pending trial and sentencing, and for the purpose of posting bail.
The court shall weigh the needs of the public to retain the property
against the needs of the defendant to a portion of the property. The
court shall consider the factors listed in paragraph (3) prior to
making an order releasing property for these purposes.
(5) The court, in making its orders, shall seek to protect the
interests of innocent third persons, including an innocent spouse,
who were not involved in the commission of criminal activity.
(6) A petition filed pursuant to this section is part of the
criminal proceedings for purposes of appointment of counsel and shall
be assigned to the criminal division of the superior court of the
county in which the accusatory pleading was filed.
(7) Based upon a noticed motion brought by the receiver appointed
pursuant to paragraph (2) of subdivision (g), the court may order an
interlocutory sale of property named in the petition when the
property is liable to perish, to waste, or to be significantly
reduced in value, or when the expenses of maintaining the property
are disproportionate to the value of the property. The proceeds of
the interlocutory sale shall be deposited with the court or as
directed by the court pending determination of the proceeding
pursuant to this section.
(8) The court may make any orders that are necessary to preserve
the continuing viability of a lawful business enterprise that is
affected by the issuance of a temporary restraining order or
preliminary injunction issued pursuant to this section.
(9) In making its orders, the court shall seek to prevent the
property or asset subject to a temporary restraining order or
preliminary injunction from perishing, spoiling, going to waste, or
otherwise being significantly reduced in value. Where the potential
for diminution in value exists, the court shall appoint a receiver to
dispose of or otherwise protect the value of the property or asset.
(10) A preservation order shall not be issued against an asset of
a business that is not likely to be dissipated and that may be
subject to levy or attachment to meet the purposes of this section.