BILL ANALYSIS �
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THIRD READING
Bill No: AB 2466
Author: Blumenfield (D), et al.
Amended: 8/8/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 7/3/12
AYES: Hancock, Anderson, Calderon, Liu, Price, Steinberg
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/6/12
AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price,
Steinberg
ASSEMBLY FLOOR : 73-0, 5/10/12 (Consent) - See last page
for vote
SUBJECT : Seizing and preserving assets of human
trafficking:
defendants payment of fines and restitution
SOURCE : Author
DIGEST : This bill (1) provides that a prosecutor may
obtain an injunction and a restraining order to prevent a
human trafficking defendant from transferring, hiding or
dissipating assets, thus preserving those assets for
payment of fines and restitution; and (2) specifies a
comprehensive process for preserving the assets and levying
upon the assets if the defendant is convicted of the
underlying crime.
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ANALYSIS : Existing law provides that any person who
deprives or violates the personal liberty of another is
guilty of human trafficking if the person specifically
intends one of the following: (1) to effect or maintain a
specified felony prostitution related offense; (2) commit
extortion; (3) use a minor to produce or distribute obscene
material or child pornography; or
(4) obtain forced labor or services. (Penal Code (PEN)
Section 236.1,
subd. (a))
Existing law defines "unlawful deprivation of liberty" as
sustained and substantial restriction of another's liberty
accomplished through fraud, deceit, coercion, violence,
duress, menace or a credible threat of injury to the victim
or another person. (PEN Section 186.22, subd. (d))
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.
(Civil Code Section 52.5)
Existing law provides that where the victim of human
trafficking is an adult, the offense is punishable by a
prison term of three, four or five years in prison and a
fine of up to $10,000. (PEN Section 236.1, subd. (b))
Existing law provides that if the person trafficked is a
minor, the offense is punishable by four, six or eight
years in prison and a fine of up to $10,000. Where the
minor was trafficked for a commercial sex act, the maximum
fine is $100,000. (PEN Section 236.1, subd. (g))
Existing law provides that all fines imposed for human
trafficking shall be deposited in the Victim-Witness
Assistance to fund services for human trafficking victims.
At least 50% of such fines shall be granted to
community-based organizations. (PEN Section 236.1, subd.
(h))
Existing law includes the criminal profiteering asset
forfeiture law. Criminal profiteering forfeiture applies
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where the defendant is convicted of a specified offense,
including human trafficking, and the defendant has engaged
in a pattern of criminal profiteering activity, as
specified. Any property or assets acquired through
criminal profiteering is subject to forfeiture. (PEN
Section 186.2-186.3)
Existing law states that forfeited cash and proceeds of the
sale of forfeited property in a human trafficking case
shall be distributed to the Victim Witness Assistance Fund
for child sexual exploitation and abuse counseling and
prevention programs. Fifty percent of the funds shall be
granted to community-based organizations that serve minor
victims of human trafficking.
Existing law provides that in a criminal profiteering
forfeiture case, the prosecutor may move the superior court
for orders preserving the defendant's assets that may be
subject to forfeiture. The orders may include the
following:
an injunction to prevent transfer, encumbrance, or
disposition of the property.
appointment of a receiver to take possession of, manage,
and care for the property. (PEN Section 186.6)
Existing law provides that where a defendant is convicted
of two or more related felonies involving fraud or
embezzlement, and the pattern of conduct involves the
taking or loss of more than $100,000, the defendant shall
be punished by an "aggravated white collar crime �prison
term] enhancement." (PEN Section 186.11)
Existing law provides the following in white collar
enhancement and large-scale fraud cases: "To prevent
dissipation or secreting of assets or property, the
�prosecutor] may, at the same time as or subsequent to the
filing of �the applicable charges] seek a temporary
restraining order ? or any other protective relief
necessary to preserve the property or assets." (PEN
Section 186.11, subd. (e))
Existing law can order a white collar crime defendant to
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remain on probation for up to 10 years in order to ensure
payment of restitution. The provisions for protection of
assets seized from defendants shall remain in effect
through sentencing in order to satisfy fines and
restitution orders. (PEN Section 186.11, subds. (d))
Existing law sets out detailed procedures and rules that
apply to a petition for preserving property in a white
collar crime cases. These include, but are not limited to,
the following:
The orders (preliminary injunction and temporary
restraining order) must be issued solely to preserve
property so that restitution and fines will be paid.
The prosecutor shall file a lis pendens (notice of a
lawsuit affecting real property) as to all real property
subject to the orders.
The prosecutor may obtain an order that any financial
institution to disclose specified information about
relevant accounts.
The court may issue a temporary restraining order (TRO)
supported by an affidavit by a peace officer with
personal knowledge about the case. The TRO may be issued
without notice to the defendant upon a showing of good
cause.
A person who claims an interest in the protected property
may file a claim concerning his or her interest in seized
property, as specified.
The defendant or a person who has filed a verified
property claim may seek modification of any orders,
including relief from a lis pendens.
The court may appoint a receiver to manage property. The
defendant may be ordered to post a bond.
The court may order sale of a property that is liable to
perish or substantially drop in value.
The court shall weigh the relative certainty of the
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outcome of the prosecution and the consequences to
interested parties if property preservation orders are
issued. The court shall give significant weight to the
following factors:
- The public interest in preserving the property.
- The difficult of preserving the assets.
- The purpose for the preservation orders.
- The likelihood that the charged crime caused
substantial public harm.
The court shall seek to protect the interests of innocent
parties, including an innocent spouse.
The court may consider a defendant's request to release
property to pay bail, legal fees, and living expenses,
but must consider the public interest, the nature of the
crime and the purpose for the preservation orders.
The court may issue orders to preserve the continuing
viability of any lawful business. (PEN Section 186.11,
subds. (d)-(f))
Existing law provides that where the jury finds the
defendant not guilty of the underlying fraud crime, or it
finds the white-collar enhancement allegation untrue, any
preliminary injunction or TRO shall be dissolved. (PEN
Section 186.11, subd. (g))
Existing law provides that if the jury is unable to reach a
verdict on the underlying charge or a decision on the
enhancement allegations, the court may continue all or a
portion of the asset preservation orders. If the
prosecutor elects not to retry the case, the orders shall
be dissolved. (PEN Section 186.11, subds. (g))
Existing law provides that where the defendant is convicted
of the underlying offense and necessary allegations are
found to be true, the court shall continue the injunction
or TRO until sentencing. At sentencing, the court shall
determine which portion of the preserved assets shall be
levied upon to pay restitution and fines and may order
immediate transfer of property or assets to satisfy the
ordered restitution and fines. (PEN Section 186.11, subd.
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(h))
Existing law provides that if execution of judgment is
stayed pending appeal, the preliminary injunction and TRO
shall remain in effect pending resolution of the case.
(PEN Section 186.11, subd. (h)(1)(D))
Existing law provides that the court shall, in making its
final orders, seek to protect the rights of innocent third
parties. Priority of payment from preserved assets shall
be as follows:
To the receiver or appraiser for all reasonable expenses.
To any holder of a valid lien or security interest.
To the victim.
For the payment of any fine, as specified.
To the Restitution Fund or Insurance Fund, as specified.
(PEN Section 186.11, subd. (i))
Existing law provides that in cases involving felony
financial abuse of an elder or dependent person in which
the value of the property taken or lost exceeds $100,000,
the prosecutor may obtain injunctions and restraining
orders to preserve the defendant's assets and property.
With certain exceptions, the asset preservation provisions
for cases of financial abuse of an elder or dependent
person are essentially the same as the white collar crime
provisions. (PEN Section 186.12 and 368, subd. (d)-(e);
Welfare and Institutions Code Section 15656, subd. (c))
Existing law provides that the purpose of asset
preservation in cases of financial abuse of an elder or
dependent person is to ensure that restitution shall be
paid. Unlike in the white collar crime asset preservation
statute, fines are not mentioned in the statute and the
priority for payment does not include fines or payments to
the Restitution Fund. (PEN Section 186.12, subd. (a)(2)
and (g))
This bill authorizes prosecuting agencies, 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,
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including, but not limited to, restitution and fines.
This bill specifies the process by which a preliminary
injunction, temporary restraining order, or sale of
property or assets may be ordered. The process is
essentially the same as the process set out in PEN Section
186.11 - preservation of assets in white collar crime
cases, and 186.12 - preservation of assets in large-scale
elder and dependent abuse financial cases.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Potentially significant ongoing foregone revenue to the
Victim Witness Assistance (VWA) Fund. Proceeds from
fines imposed for human trafficking previously directed
to the VWA Fund would instead be paid to the treasurer of
the county in which the judgment was entered or to the
General Fund if the action was undertaken by the Attorney
General.
Potential increase in fine revenues and restitution paid
to victims of human trafficking to the extent the seizing
of assets prior to final judgment results in the
increased preservation and distribution of assets.
Minor, absorbable impact to court workload related to
petitions for protective relief.
SUPPORT : (Verified 8/8/12)
California Attorney General
Association for Los Angeles Deputy Sheriffs
California Against Slavery
California Catholic Conference
California Narcotics Officers' Association
California Police Chiefs Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
City of Los Angeles
Coalition to Abolish Slavery and Trafficking
Crime Victims United of California
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District Attorney, City and County of San Francisco
Junior Leagues of California
Los Angeles County Probation Officers Union
National Association of Social Workers - California Chapter
National Council of Jewish Women, San Francisco Section
National Organization for Women, Los Angeles Miracle Mile
Chapter
Partnership to End Domestic Violence
Standing Against Global Exploitation
ARGUMENTS IN SUPPORT : According to the author, "Human
trafficking is one of the fastest-growing criminal
activities in California. People are being bought, sold and
smuggled like modern-day slaves in an illegal
multi-billion-dollar industry. Victims of human
trafficking often are trapped in lives of misery.
Prosecutors currently have the ability to seize profits and
property that were directly connected to the tragic crime
of human trafficking, but only after the defendant has been
convicted. This bill would give prosecutors another
important tool to prevent human traffickers from further
profiting from and exploiting their victims, and help
victims secure the restitution they are due."
ASSEMBLY FLOOR : 73-0, 5/10/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Davis, 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, Jones, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Pan, Perea,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. P�rez
NO VOTE RECORDED: Cook, Fletcher, Furutani, Jeffries,
Norby, Olsen, V. Manuel P�rez
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RJG:m 8/8/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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