BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1133 (Leno) 3
As Amended April 18, 2012
Hearing date: April 24, 2012
Penal Code
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HUMAN TRAFFICKING OF MINORS FOR SEXUAL PURPOSES:
FORFEITURE OF INSTRUMENTALITIES AND PROFITS OF THE CRIME
HISTORY
Source: Attorney General of California
Prior Legislation: AB 90 (Swanson) - Ch. 457, Stats. 2011
AB 12 (Swanson) - Ch. 75, Stats. 2011
SB 677 (Yee) - Ch. 635, Stats. 2010
AB 17 (Swanson) - Ch. 211, Stats. 2009
SB 22 (Lieber) - Ch. 240, Stats. 2005
Support: Crime Victims United of California
Opposition:American Civil Liberties Union
(NOTE: THIS BILL IS ANALYZED AS PROPOSED TO BE AMENDED IN
COMMITTEE TO CORRECT A DRAFTING ERROR. SEE COMMENT #5 FOR AN
EXPLANATION.)
KEY ISSUE
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SHOULD PROPERTY THAT WAS PUT TO SUBSTANTIAL USE FOR FACILITATING
HUMAN TRAFFICKING OF MINORS FOR COMMERCIAL SEXUAL ACTS, AND
PROCEEDS OF SUCH ACTIVITY, BE SUBJECT TO FORFEITURE UPON
CONVICTION OF THE DEFENDANT FOR HUMAN TRAFFICKING?
PURPOSE
The purposes of this bill are to 1) provide that where a person
is convicted of human trafficking of a minor for sexual
purposes, the instrumentalities used to commit the crime, as
specified, and the profits of the crime shall be forfeited; and
2) provide that 50% of the forfeiture proceeds shall be
distributed to the Victim-Witness Assistance Fund for grants to
community organizations serving human trafficking victims and
50% of the proceeds shall be distributed to the General Fund of
the state or county, depending on whether the Attorney General
or district attorney prosecuted the matter.
Existing law includes numerous crimes concerning sexual
exploitation of minors for commercial purposes. These crimes
include:
Pimping: Deriving income from the earnings of a
prostitute, deriving income from a place of prostitution,
or receiving compensation for soliciting a prostitute.
Where the victim is a minor under the age of 16, the crime
is punishable by a prison term of three, six or eight
years. (Pen. Code � 266h, subds. (a)-(b).)
Pandering: Procuring another for prostitution, inducing
another to become a prostitute, procuring another person to
be placed in a house of prostitution, persuading a person
to remain in a house of prostitution, procuring another for
prostitution by fraud, duress or abuse of authority, and
commercial exchange for procurement. (Pen. Code � 266i,
subd. (a).)
Procurement: Transporting or providing a child under 16
to another person for purposes of any lewd or lascivious
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act. The crime is punishable by a prison term of three,
six, or eight years, and by a fine not to exceed $15,000.
(Pen. Code � 266j.)
Taking a minor from her or his parents or guardian for
purposes of prostitution. This is a felony punishable by a
prison term of 16 months, two years, or three years and a
fine of up to $2,000. (Pen. Code � 267.)
Child pornography production: Using a minor to assist
in the making of child pornography for commercial purposes
is a felony, with a prison term of 3, 6, or 8 years. (Pen.
Code � 311.4, subd. (b).)
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 prostitution related
offenses, use of minor in producing or distributing obscene
material or child pornography, extortion, or to obtain forced
labor or services, is guilty of human trafficking. (Pen. Code �
236.1, subd. (a).)
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. (Civ. Code � 52.5.)
Existing law provides that where the victim of human trafficking
is an adult, the offense is punishable by a prison term of 3, 4
or 5 years in prison and a fine of up to $10,000. (Pen. Code �
236.1, subd. (b).)
Existing law provides that if the person trafficked is a minor,
the offense is punishable by 4, 6 or 8 years in prison and a
fine of up to $10,000. Where the minor was trafficked for a
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commercial sex act, the maximum fine is $100,000. (Pen. Code �
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. Code � 236.1, subd. (h).)
Existing law defines "unlawful deprivation of liberty" includes
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. Code � 186.22, subd. (d).)
Existing law includes the criminal profiteering asset forfeiture
law. Criminal profiteering forfeiture applies where the
defendant is convicted of a specified offense and the defendant
has engaged in a pattern of criminal profiteering activity, as
specified. (Pen. Code � 186.3.) The following assets or
property is subject to forfeiture:
Any property interest whether tangible or intangible,
acquired through a pattern of criminal profiteering
activity.
All proceeds of a pattern of criminal profiteering
activity, which property shall include all things of value
that may have been received in exchange for the proceeds
immediately derived from the pattern of criminal
profiteering activity.
Existing law states that forfeited cash and proceeds of the sale
of forfeited property shall be distributed as follows:
To the bona fide or innocent purchaser, conditional
sales vendor, or holder of a valid lien, mortgage, or
security interest, up to the amount of his or her interest
in the property or proceeds, as specified.
To the Department of General Services or local
governmental entity for all expenditures incurred in
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connection with the sale of the forfeited property.
To the State General Fund or the general fund of the
local governmental entity, whichever prosecutes (Pen. Code
� 186.8), except in the child pornography or recycling
fraud cases.
In a case of fraud involving the state recycling
program, to a special fund designated in the Public
Resources Code.
In the case of child pornography crimes, to the county
children's trust fund or State Children's Trust Fund.
In a case involving human trafficking of minors for
purposes of prostitution or lewd conduct, or a case of
procurement of a minor, 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 includes human trafficking (Pen. Code � 236.1) in
the list of crimes for which a forfeiture of assets can be
sought for criminal profiteering. (Pen. Code � 186.2, subd.
(a)(28).)
Existing law includes abduction or procurement by fraudulent
inducement for prostitution to the list of crimes for which a
forfeiture of assets can be sought for criminal profiteering.
(Pen. Code � 186.2, subd. (a)(31).)
Existing law provides that any case in which the defendant
persuaded, induced, coerced or forced a minor to engage in a
commercial sex act can be the basis of criminal profiteering
asset forfeiture, as specified. (Pen. Code � 186.2, subd.
(a)(29).)
Existing law provides that the proceeds of criminal profiteering
in cases of commercial sexual exploitation of minors, as
specified, 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
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granted to community-based organizations that serve minor
victims of human trafficking. (Pen. Code � 186.2, subd.
(a)(30).)
Existing law defines a commercial sex act as sexual conduct for
which anything of value is given or received by any person.
(Pen. Code � 186.2, subd. (a)(29)-(30).)
This bill provides that where a person has been convicted of
sexual trafficking of a minor, the interest of the defendant in
a vehicle, boat, airplane, money negotiable securities, real
property, or other thing of value "that was put to substantial
use for the purpose of facilitating" that crime shall be seized
and forfeited.
This bill provides the following property shall not be subject
to forfeiture:
Real property 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 use to facilitate sex
trafficking of minor.
Interest in a passenger motor vehicle, as specified,<1>
if there is a community property interest in the vehicle by
a person other than the defendant and the vehicle is the
sole passenger vehicle for the defendant's immediate
family.
This bill provides that real property subject to forfeiture
cannot, absent exigent circumstances, be seized without notice
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<1> The bill refers to vehicles that may be driven with either a
Class C (two axle passenger vehicle or specified agricultural
vehicle), M1 (motorcycle) or M2 (moped) license, as described in
Vehicle Code Section "12804." Section 12804 was repealed in
1993. It appears that the provisions in former Vehicle Code
Section 12804 describing the classes of drivers' licenses now
appear in Section 12804.9, subdivision (b)(3)-(5).) This error
also appears in the drug asset forfeiture law, Health and Safety
Code Section 11470, subd. (e).)
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to interested parties and a judicial hearing to determine
whether or not seizure is necessary to protect the property
pending resolution of the case. The prosecutor shall have the
burden to establish probable cause for the seizure.
This bill describes the procedures for filing and litigating the
forfeiture action:
The prosecutor files the forfeiture petition in the
court where the human trafficking charges are pending.
The prosecutor gives notice to all persons who may have
an interest in the affected property. The notice shall
inform the person how to affirm or deny the prosecutor's
allegations and how the person may assert a claim to the
property.
The prosecutor shall file a lis pendens<2> as to any
real property, as specified.
A person may file a verified claim as to any property
within 30 days of notice or the person shall default.
This bill provides that if the defendant denies the petition
allegations, the forfeiture action shall be heard in the court
where the underlying human trafficking case is tried.
If the defendant is found guilty, the forfeiture matter
shall be promptly tried to the jury that heard the criminal
case, a new jury, or the court upon waiver by the parties
of a jury trial.
The prosecutor has the burden to prove beyond a
reasonable doubt that the property is subject to
forfeiture.
This bill provides that the court may grant the prosecutor's
request to preserve property alleged to be subject to
forfeiture:
The court may issue an injunction to prohibit sale or
transfer of the property.
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<2> Formal notice of pending legal action involving real
property.
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The court may appoint a receiver to take possession of
and manage the property.
The court may not make such orders without probable
cause and the court must give interested parties notice and
an opportunity to be heard on the matter.
The court may order a surety bond to protect the
property and parties; and the court shall protect the
interests of person who were involved in the same
enterprise as the defendant, but who were not involved in
human trafficking.
This bill provides that if the jury or court finds that the
defendant was engaged in human trafficking of a minor for sexual
commerce and that the property is forfeitable, the property
shall be forfeited and distributed, as specified.
This bill provides that if the property is subject to
forfeiture, but that a person holding a specified valid lien
interest in the property had no knowledge of the use of the
property in trafficking, the person may pay to the state the
difference between his or her interest and interest of the
registered owner of the property and thereby obtain the
property.
This bill provides that the proceeds of forfeited property shall
be distributed as follows:
To the innocent purchaser or holder of a specified
security interest, up to the amount of the person's
interest.
To the applicable government entity for the costs of
selling the property.
50% to the General Fund of the state or county,
depending on whether the Attorney General or the district
attorney prosecuted the case.
50% to the Victim-Witness Assistance Fund for grants, as
specified, to community-based organizations that serve
human trafficking victims.
This bill provides that in a proceeding involving human
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trafficking under the criminal profiteering asset forfeiture
rules - not under the new forfeiture system described in this -
the proceeds of the forfeiture shall be deposited in the general
fund of the state or county that prosecuted the matter.
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
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
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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
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
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1. Need for This Bill
According to the author:
SB 1133 creates a new forfeiture statute that will
give prosecutors a powerful tool to ensure that
criminals convicted of sex trafficking minors are not
able to retain any financial benefits from their
participation in this horrendous crime. The bill not
only expands the list of assets subject to forfeiture,
thereby ensuring that these resources are not used in
future crimes, but also includes a formula to redirect
those resources to organizations that provide
treatment and victim services for this vulnerable
population.
According to the U.S. Department of Justice, human
trafficking and sexual exploitation is the fastest
growing and second largest criminal enterprise in the
world. Data gathered by the California Department of
Justice states that 195,644 children ran away from
home in 2009 and 2010. Scholars estimate that, within
48 hours one-third of those children would be lured or
recruited into the underground world of prostitution
and pornography. Even with an estimated 65,000
children lured into the sex trade in California in
2009 and 2010, only thirteen individuals were sent to
prison in California for human trafficking during that
time.
2. Sex Trafficking of Minors - Estimated Prevalence
There appears to be general agreement that sex trafficking of
children is increasing and profitable. However, the 2007 Final
Report of the California Alliance to Combat Trafficking and
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Slavery Task Force<3> noted that California lacks comprehensive
statistics on human trafficking. Thus, many statistics on human
trafficking in general, and sex trafficking of children in
particular, are estimates. The task force report did cite
statistics from various sources, including a study finding that
80 percent of documented cases in California occurred in urban
areas and the majority of victims were non-citizens.
Approximately 50 percent of human trafficking cases involved
prostitution. A U.S. State Department report of global
trafficking estimated that minors constituted 50 percent of
trafficking victims. (2007 Alliance to Combat Trafficking.
Final Report, pp. 33-39.<4>)
The Federal Bureau of Investigation (FBI) conducts 24 Innocence
Lost child sexual exploitation task forces and working groups
across the country. Through 2007, 365 cases were opened and 281
child victims were located. The Shared Hope International
non-profit organization has reported that approximately 100,000
domestic minors are sexually trafficked each year.<5> Numerous
examples of trafficking cases were summarized in California
Alliance Report. In 2001, a Berkeley man was prosecuted for
smuggling 15 girls from India for labor and sexual exploitation.
In 2000, a man was prosecuted for bringing women and girls from
Mexico and forcing them to work as prostitutes in Long Beach.
Traffickers in Los Angeles and San Francisco were prosecuted for
forcibly taking 100 women from Korea to be sex workers in
massage businesses. (2007 Alliance to Combat Trafficking, Final
Report, p. 18.)
3. Criminal Profiteering Asset Forfeiture under Existing Law;
Comparison with this Bill
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<3> The task force was administered by the California Attorney
General's Office.
<4>
http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf .
The report includes citations to the each of the studies
quoted in the report.
<5>
http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report
_on_DMST_2009.pdf
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This bill creates a new forfeiture process for human trafficking
of minors for the commercial sex trade. The forfeiture process
in this bill is largely based on the existing criminal
profiteering forfeiture law in Penal Code Section 186.2, with
important differences.
Current Criminal Profiteering Forfeiture Laws
Criminal profiteering asset forfeiture is a criminal proceeding
held in conjunction with the trial of the underlying criminal
offense. Typically, the same jury that heard the criminal
charges determines whether the defendant's assets were the
ill-gotten gains of criminal profiteering. Where a pattern of
criminal profiteering - organized crime for profit - is shown,
the defendant must forfeit to the state all money and property
derived from the pattern of organized crime.
Under existing law the forfeited proceeds of criminal
profiteering are usually placed in the county general fund with
no directions for use. There are exceptions for forfeiture in
child pornography cases, fraud against the state recycling
program, human trafficking of minors for prostitution, and
procurement of minors for prostitution. In child pornography
cases, the money is deposited in the county's children's trust
fund or the State Children's Trust Fund for child abuse and
neglect prevention and intervention. Recycling forfeiture
proceeds are deposited in a special account created under the
Public Resources Code. (Pen. Code � 186.8; Welf. Inst. Code ��
18966 and 18969.)
Under current law, the proceeds of forfeiture in cases of human
trafficking of minors for prostitution and procurement of minors
for prostitution are distributed solely to the Victim-Witness
Assistance Fund for child sexual exploitation and abuse
counseling and prevention programs. Fifty percent of the funds
are granted to community-based organizations that serve minor
victims of human trafficking.
SB 90 (Swanson) Chapter 457, Statutes 2011, broadened the
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application of criminal profiteering forfeiture in cases
involving sexually exploited minors. SB 90 provided that any
crime in which the defendant sexually exploited a minor for
commercial purposes could be the basis for criminal profiteering
asset forfeiture, regardless of the specific statute violated by
the defendant. That is, the defendant's conduct controls, not
his or her crime of conviction.
Difference between this Bill and Current Law
Under the existing criminal asset forfeiture law, forfeiture is
ordered after the defendant is convicted of a specified crime
and the prosecution establishes that the defendant has been
engaged in a pattern of criminal profiteering. The proceeds of
criminal profiteering - the ill-
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gotten gains of the organized crime - are forfeited to the
state. The California law is modeled on or derived from federal
racketeering laws - RICO.<6>
This bill allows forfeiture where only a single human
trafficking crime is established. The prosecutor need not
establish a pattern of human trafficking to allow forfeiture.
Without a pattern of forfeiture, relatively little money or
property would be forfeited as the proceeds or profits of human
trafficking. That is, a single crime or two would not produce
much profit. However, and most important, this bill allows
forfeiture of not just the profits of crime, but also the
instrumentalities of the crime - the property used to commit the
crime. Property is subject to forfeiture as an instrumentality
if a substantial purpose of the use of the property was to
facilitate sex trafficking of minors. This is true even where
the prosecutor cannot trace a defendant's assets to trafficking
profits. In discussions about the bill, the author argued that
property used to facilitate sex trafficking of minors must be
forfeited in order to reduce the ability of the perpetrator to
commit additional crimes.
Finally, as noted above, under existing law, all forfeited
proceeds of sex trafficking of minors are distributed to the
Victim-Witness Assistance Fund, with 50% available for grants to
community-based organizations. Where forfeiture is done
pursuant to this bill, 50% of the proceeds shall be distributed
to the General Fund of the state or county, whichever
jurisdiction or entity prosecuted the case. These funds can be
used by the state or county for any purpose.
In discussions on prior bills, advocates noted that human
trafficking victims are often reluctant to report the crimes
against them because they are afraid of reprisals and because
they are often in the control of traffickers. In order to
provide more resources and support for victims, the Legislature
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<6> Racketeer Influenced and Corrupt Organizations. (18 U.S.C.
� 1961 et seq.)
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directed that all proceeds of human trafficking of minors for
commercial sex acts shall be used for programs benefiting
victims, including directions that 50% of the money shall be
provided to community-based organizations. (AB 90 (Swanson) Ch.
457, Stats. 2011.)
However, the Attorney General (sponsor) has noted that
investigating and prosecuting human trafficking cases are
costly. This bill would provide some financial relief to the
county or the state without providing a direct payment of
"bounty" to the district attorney or the Attorney General,
depending on which office prosecuted the case. That is, the
decision to pursue forfeiture would not lead to a direct
financial benefit to the prosecutor's office. Rather, 50% of
the forfeiture proceeds would be deposited in the General Fund
of the overall government entity. The Legislature or the board
of supervisors could make deliberative decisions as to the use
of forfeiture proceeds.
Essentially, the Attorney General is arguing that in
distributing forfeiture proceeds in these cases, a balance
should be struck between victims' programs and resources for the
state. Such a distribution could be mutually beneficial to
victims and prosecutors, helping victims come forward and
helping the state investigate and prosecute the cases.
SHOULD FORFEITURE IN CASES INVOLVING SEX TRAFFICKING OF MINORS
INCLUDE THE PROPERTY USED BY THE DEFENDANT TO COMMIT THE
OFFENSE?
SHOULD 50% OF FORFEITURE PROCEEDS IN CASES OF SEX TRAFFICKING OF
MINORS BE DISTRIBUTED TO THE GENERAL FUND OF THE COUNTY OF THE
STATE, DEPENDING ON WHETHER THE DISTRICT ATTORNEY OR THE
ATTORNEY GENERAL PROSECUTED THE CASE?
OR, SHOULD ALL THE FORFEITURE PROCEEDS IN CASES OF TRAFFICKING
OF MINORS FOR SEXUAL COMMERCE CONTINUE TO BE DISTRIBUTED TO
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PROGRAMS FOR VICTIMS OF THOSE CRIMES?
4. Nuisance Remedies in Human Trafficking Matters
SB 677 (Yee) Chapter 625, Statutes of 2010, provided that where
real property is used to facilitate human trafficking, the
property can be declared a nuisance under the Red-Light
Abatement law. (Pen. Code � 11225.) Under that law, the
property can be closed for up to a year and a civil fine imposed
of up to $25,000.
5. Drafting Error in the Bill as Amended April 18, 2012
This bill was most recently amended on April 18, 2012. The
amendments included an inadvertent drafting error concerning the
property subject to forfeiture under the process created by this
bill. Specifically, the amendments did not provide that the
proceeds of human trafficking of minors for sexual commerce -
the profits made by the perpetrator of the crime - are subject
to forfeiture, as well as the property used to commit the
crimes. The bill will be amended to correct the drafting error,
thereby authorizing forfeiture of the profits of human
trafficking of minors for sexual commerce.
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