BILL NUMBER: SB 1133 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 29, 2012
INTRODUCED BY Senator Leno
FEBRUARY 21, 2012
An act to amend Section 186.8 of, and to add Sections 236.6,
236.7, 236.8, 236.9, 236.10, and 236.11 to, the Penal Code,
relating to human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
SB 1133, as amended, Leno. Human trafficking.
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.
Existing law, the California Control of Profits of Organized Crime
Act, defines criminal profiteering as any act committed or
attempted, or any threat made for financial gain or advantage, that
may be charged as a crime under specified provisions, including
murder, money laundering, human trafficking, and crimes in which the
perpetrator induces, encourages, persuades, threatens, or forces a
person under 18 years of age to engage in a commercial sex act. Under
existing law, property and assets acquired or received in exchange
for the proceeds immediately derived from the pattern of criminal
profiteering activity are subject to forfeit. The money proceeds from
that forfeiture is distributed as prescribed, including, in any case
involving human trafficking of minors for purposes of prostitution
or lewd conduct or in any case involving taking a person for
prostitution in which the victim is a minor, depositing funds in the
Victim-Witness Assistance Fund to be available for appropriation to
fund child sexual exploitation and child sexual abuse victim
counseling centers and prevention programs and for grant to
community-based organizations that serve minor victims of human
trafficking.
This bill would remove the provision distributing funds from
forfeiture to the Victim-Witness Assistance Fund as provided above.
The bill would also create provisions for the forfeiture of vehicles,
boats, airplanes, money, negotiable instruments, securities, real
property, or other thing of value used for the purpose of
facilitating the sex trafficking of an individual under 18 years of
age and would prescribe the distribution of those funds, including to
the General Fund of the state or local governmental entity,
whichever prosecutes, and to the Victim-Witness Assistance Fund to be
used upon appropriation for grants to community-based organizations
that serve minor victims of human trafficking. By creating new duties
for local prosecutors, this bill would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would state the intent of the Legislature to enact
legislation that would revise the human trafficking laws to enhance
the state's ability to prosecute people who engage in human
trafficking.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 186.8 of the Penal
Code is amended to read:
186.8. Notwithstanding that no response or claim has been filed
pursuant to Section 186.5, in all cases where property is forfeited
pursuant to this chapter and, if necessary, sold by the Department of
General Services or local governmental entity, the money forfeited
or the proceeds of sale shall be distributed by the state or local
governmental entity as follows:
(a) To the bona fide or innocent purchaser, conditional sales
vendor, or holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to discover all
those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to an
additional 60 days to ensure that all valid claims are received and
processed.
(b) To the Department of General Services or local governmental
entity for all expenditures made or incurred by it in connection with
the sale of the property, including expenditures for any necessary
repairs, storage, or transportation of any property seized under this
chapter.
(c) To the General Fund of the state or a general fund of a local
governmental entity, whichever prosecutes.
(d) In any case involving a violation of subdivision (b) of
Section 311.2, or Section 311.3 or 311.4, in lieu of the distribution
of the proceeds provided for by subdivisions (b) and (c), the
proceeds shall be deposited in the county children's trust fund,
established pursuant to Section 18966 of the Welfare and Institutions
Code, of the county that filed the petition of forfeiture. If the
county does not have a children's trust fund, the funds shall be
deposited in the State Children's Trust Fund, established pursuant to
Section 18969 of the Welfare and Institutions Code.
(e) In any case involving crimes against the state beverage
container recycling program, in lieu of the distribution of proceeds
provided in subdivision (c), the proceeds shall be deposited in the
penalty account established pursuant to subdivision (d) of Section
14580 of the Public Resources Code, except that a portion of the
proceeds equivalent to the cost of prosecution in the case shall be
distributed to the local prosecuting entity that filed the petition
of forfeiture.
(f) In any case involving human trafficking of minors for purposes
of prostitution or lewd conduct or in any case involving a violation
of Section 266a in which the victim is a minor, in lieu of the
distribution provided for in subdivision (c), the proceeds shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs under Section
13837. Fifty percent of the funds deposited in the Victim-Witness
Assistance Fund pursuant to this subdivision shall be granted to
community-based organizations that serve minor victims of human
trafficking.
(g)
(f) (1) In any case described in paragraph (29) or (30)
of subdivision (a) of Section 186.2, in lieu of the distribution
provided for in subdivision (c), the proceeds shall be deposited in
the Victim-Witness Assistance Fund to be available for appropriation
to fund child sexual exploitation and child sexual abuse victim
counseling centers and prevention programs under Section 13837. Fifty
percent of the funds deposited in the Victim-Witness Assistance Fund
pursuant to this subdivision shall be granted to community-based
organizations that serve minor victims of human trafficking.
(2) Notwithstanding paragraph (1), any proceeds specified in
paragraph (1) that would otherwise be distributed to the General Fund
of the state under subdivision (c) pursuant to a paragraph in
subdivision (a) of Section 186.2 other than paragraph (29) or (30) of
subdivision (a) of Section 186.2, shall, except as otherwise
required by law, continue to be distributed to the General Fund of
the state as specified in subdivision (c).
SEC. 2. Section 236.6 is added to the
Penal Code , to read:
236.6. (a) Any interest in a vehicle, boat, airplane, money,
negotiable instruments, securities, real property, or other thing of
value used for the purpose of facilitating the sex trafficking of an
individual under 18 years of age may be seized and ordered forfeited
by the court upon the conviction of a person guilty of sex
trafficking an individual under 18 years of age, pursuant to Section
236.1.
(1) Real property that is used as a family residence or for other
lawful purposes, or that is owned by two or more persons, one of whom
had no knowledge of its unlawful use, shall not be subject to
forfeiture.
(2) Real property subject to forfeiture may not be seized, absent
exigent circumstances, without notice to the interested parties and a
hearing to determine that seizure is necessary to preserve the
property pending the outcome of the proceedings. At the hearing, the
prosecution shall bear the burden of establishing that probable cause
exists for the forfeiture of the property and that seizure is
necessary to preserve the property pending the outcome of the
forfeiture proceedings. The court may issue a seizure order pursuant
to this section if it finds that seizure is warranted or a pendente
lite order pursuant to Section 236.9 if it finds that the status quo
or value of the property can be preserved without seizure.
(b) For purposes of this section, no allegation or proof of a
pattern of criminal profiteering activity is required.
SEC. 3. Section 236.7 is added to the
Penal Code , to read:
236.7. (a) The prosecuting agency shall, in conjunction with the
criminal proceeding, file a petition of forfeiture with the superior
court of the county in which the defendant has been charged with sex
trafficking an individual under 18 years of age. The prosecuting
agency shall make service of process of a notice regarding that
petition upon every individual who may have a property interest in
the alleged proceeds. The notice shall state that any interested
party may file a verified claim with the superior court stating the
amount of their claimed interest and an affirmation or denial of the
prosecuting agency's allegation. If the notice cannot be given by
registered mail or personal delivery, the notice shall be published
for at least three successive weeks in a newspaper of general
circulation in the county where the property is located. If the
property alleged to be subject to forfeiture is real property, the
prosecuting agency shall, at the time of filing the petition of
forfeiture, record a lis pendens with the county recorder in each
county in which the real property is situated that specifically
identifies the real property alleged to be subject to forfeiture. The
judgment of forfeiture shall not affect the interest in real
property of any third party that was acquired prior to the recording
of the lis pendens.
(b) All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed pursuant to
Section 236.8.
SEC. 4. Section 236.8 is added to the
Penal Code , to read:
236.8. (a) A person claiming an interest in the property or
proceeds may, at any time within 30 days from the date of the first
publication of the notice of seizure or within 30 days after receipt
of actual notice, file with the superior court of the county in which
the action is pending a verified claim stating his or her interest
in the property or proceeds. A verified copy of the claim shall be
given by the claimant to the Attorney General or district attorney,
as appropriate.
(b) (1) If, at the end of the time set forth in subdivision (a),
an interested person, other than the defendant, has not filed a
claim, the court, upon motion, shall declare that the person has
defaulted upon his or her alleged interest and the interest shall be
subject to forfeiture upon proof of the provisions of subdivision
(d).
(2) The defendant may admit or deny that the property is 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 proceeds, the court shall enter a response of denial
on behalf of the defendant.
(c) (1) The forfeiture proceeding shall be set for hearing in the
superior court in which the underlying criminal offense will be
tried.
(2) 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.
(d) At the forfeiture hearing, the prosecuting agency shall have
the burden of establishing beyond a reasonable doubt that the
property alleged in the petition comes within the provisions of
Section 236.6.
SEC. 5. Section 236.9 is added to the
Penal Code , to read:
236.9. (a) 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, the following pendente lite orders to
preserve the status quo of the property alleged in the petition:
(1) An injunction to restrain anyone from transferring,
encumbering, hypothecating, or otherwise disposing of that property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
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.
(b) No preliminary injunction may be granted or receiver appointed
without notice to the interested parties and a hearing to determine
that an order is necessary to preserve the property, pending the
outcome of the criminal proceedings, and that there is probable cause
to believe that the property alleged in the forfeiture proceedings
are proceeds or property interests forfeitable under the provisions
of Section 236.6. However, a temporary restraining order may issue
pending that hearing pursuant to the provisions of Section 527 of the
Code of Civil Procedure.
(c) Notwithstanding any other provision of law, the court in
granting these motions may order a surety bond or undertaking to
preserve the property interests of the interested parties.
(d) The court shall, in making its orders, seek to protect the
interests of those who may be involved in the same enterprise as the
defendant, but who were not involved in the sex trafficking of a
minor under 18 years of age.
SEC. 6. Section 236.10 is added to the
Penal Code , to read:
236.10. (a) If the trier of fact at the forfeiture hearing finds
that the alleged property or proceeds is forfeitable pursuant to
Section 236.6 and the defendant was engaged in the sex trafficking of
an individual under 18 years of age, the court shall declare that
property or proceeds forfeited to the state or local governmental
entity, subject to distribution as provided in Section 236.11. No
property solely owned by a bona fide purchaser for value shall be
subject to forfeiture.
(b) If the trier of fact at the forfeiture hearing finds that the
alleged property is forfeitable pursuant to Section 236.6 but does
not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity that
initiated the forfeiture proceeding, the amount of the registered
owner's equity, which shall be deemed to be the difference between
the appraised value and the amount of the lien, mortgage, security
interest, or interest under a conditional sales contract. Upon
payment, the state or local governmental entity shall relinquish all
claims to the property. If the holder of the interest elects not to
pay the state or local governmental entity, the property shall be
deemed forfeited to the state or local governmental entity and the
ownership certificate shall be forwarded. The appraised value shall
be determined as of the date judgment is entered either by agreement
between the legal owner and the governmental entity involved, or if
they cannot agree, by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(c) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the Department of General Services or by the local
governmental entity. The seller shall provide notice of the sale by
one publication in a newspaper published and circulated in the city,
community, or locality where the sale is to take place.
(d) Notwithstanding subdivision (c), a county may dispose of real
property forfeited to the county pursuant to this chapter by the
process prescribed in Section 25538.5 of the Government Code.
SEC. 7. Section 236.11 is added to the
Penal Code , to read:
236.11. Notwithstanding that no response or claim has been filed
pursuant to Section 236.8, in all cases where property is forfeited
pursuant to this chapter and, if necessary, sold by the Department of
General Services or local governmental entity, the money forfeited
or the proceeds of sale shall be distributed by the state or local
governmental entity as follows:
(a) To the bona fide or innocent purchaser, conditional sales
vendor, or holder of a valid lien, mortgage, or security interest, if
any, up to the amount of his or her interest in the property or
proceeds, when the court declaring the forfeiture orders a
distribution to that person. The court shall endeavor to discover all
those lienholders and protect their interests and may, at its
discretion, order the proceeds placed in escrow for up to an
additional 60 days to ensure that all valid claims are received and
processed.
(b) To the Department of General Services or local governmental
entity for all expenditures made or incurred by it in connection with
the sale of the property, including expenditures for necessary
repairs, storage, or transportation of property seized under this
chapter.
(c) (1) Fifty Percent to the General Fund of the state or local
governmental entity, whichever prosecutes.
(2) Fifty percent to the Victim-Witness Assistance Fund to be
used upon appropriation for grants to community-based organizations
that serve minor victims of human trafficking.
SEC. 8. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. It is the intent of the Legislature
to enact legislation that would revise the human trafficking laws to
enhance the state's ability to prosecute people who engage in human
trafficking.