BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 1133|
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THIRD READING
Bill No: SB 1133
Author: Leno (D), et al.
Amended: 5/24/12
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/24/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE APPROPRIATIONS COMMITTEE : 7-0, 5/14/12
AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price,
Steinberg
SUBJECT : Human trafficking of minors for sexual
purposes: forfeiture of instrumentalities and
profits of the crime
SOURCE : Attorney General of California
DIGEST : This bill (1) provides 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) provides that 50% of the forfeiture
proceeds shall be distributed to the Victim-Witness
Assistance Fund (VWA Fund) for grants to community
organizations serving human trafficking victims and 50% of
the proceeds shall be distributed to the General Fund (GF)
of the state or county, depending on whether the Attorney
General or district attorney prosecuted the matter.
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Senate Floor Amendments of 5/24/12 correct drafting errors
and add coauthors.
ANALYSIS : 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. (Penal Code (PEN) Section
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 Section 266i, subd. (a))
Procurement: Transporting or providing a child under
16 to another person for purposes of any lewd or
lascivious 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 Section 266j)
Taking a minor from his/her 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 Section 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 three, six,
or eight years. (PEN Section 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
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distributing obscene material or child pornography,
extortion, or to obtain forced labor or services, is guilty
of human trafficking. (PEN Section 236.1, subd. (a))
Under existing law pursuant to criminal asset forfeiture
provisions, forfeiture of the proceeds of the crime is
ordered after conviction and establishment that a defendant
has been engaged in a pattern of criminal profiteering. In
the absence of such a pattern, the amount of property
and/or money from the proceeds of a single crime would
likely yield minimal forfeiture revenue.
Currently, the proceeds of asset forfeiture in cases of
human trafficking of minors for prostitution and the
procurement of minors for prostitution are distributed
solely to the VWA Fund for child sexual exploitation and
abuse counseling and prevention programs. 50% of the funds
are granted to community-based organizations that serve
minor victims of human trafficking.
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 that in any case in which a defendant is convicted
of human trafficking and an allegation is found to be true
that the victim was a person under 18 years of age and the
crime involved a criminal sex act, the following assets
shall be subject to forfeiture:
Any property interest, whether tangible or intangible,
acquired through human trafficking that involves a
commercial sex act where the victim was less than 18
years of age at the time of the commission of the crime.
All proceeds from human trafficking that involves a
commercial sex act where the victim was less than 18
years of age at the time of the commission of the crime,
which property shall include all things of value that
may have been received in exchange for the proceeds
immediately derived from the act.
This bill provides the following property shall not be
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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, 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 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 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.
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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.
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/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:
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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 GF of the state or county, depending on
whether the Attorney General or the district attorney
prosecuted the case.
50% to the VWA Fund for grants, as specified, to
community-based organizations that serve human
trafficking victims.
This bill provides that in a proceeding involving human
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 GF of the state or county that prosecuted
the matter.
Prior Legislation
AB 90 (Swanson), Chapter 457, Statutes of 2011, included
within the definition of criminal profiteering activity any
crime in which the perpetrator induces, encourages, or
persuades, or causes through force, fear, coercion, deceit,
violence, duress, menace, or threat of unlawful injury to
the victim or to another person, a person under 18 years of
age to engage in a commercial sex act.
AB 12 (Swanson), Chapter 75, Statutes of 2011, required the
court to impose a special fine of up to $25,000 in a case
where a defendant is convicted of prostitution involving a
minor; and provided that the proceeds of such funds be
available, upon legislative appropriation, to fund programs
and services for sexually exploited minors in the county of
conviction.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
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According to the Senate Appropriations Committee:
Potential increased state and/or county GF revenues to
the extent additional asset forfeiture proceeds are
realized through forfeiture of both the profits and
instrumentalities of the crime.
Unknown, but likely net increase to VWA Fund revenue to
the extent additional asset forfeiture proceeds are
realized through forfeiture of both the profits and
instrumentalities of the crime. Given the relatively few
number of annual convictions specific to human
trafficking, any reduction in VWA Fund revenues received
through existing criminal profiteering asset forfeiture
statute is expected to be minor.
Potential minor cost increases to the Department of
General Services to be offset directly through revenues
from asset forfeiture sales.
Potential annual costs likely less than $50,000 (GF) to
the Judicial Branch to the extent additional forfeiture
hearings are held that would not otherwise have occurred
under existing criminal profiteering law.
SUPPORT : (Verified 5/25/12)
Attorney General Kamala Harris (source)
California Coalition of Sexual Assault
Coalition to Abolish Slavery and Trafficking
Crime Victims Action Alliance
Crime Victims United of California
Peace Officers Research Association of California
OPPOSITION : (Verified 5/25/12)
American Civil Liberties Union
ARGUMENTS IN SUPPORT : According to the author's office:
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
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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.
RJG/DLW:kc 5/25/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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