BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 336|
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THIRD READING
Bill No: AB 336
Author: Ammiano (D)
Amended: 5/29/13 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/24/14
AYES: Hancock, De Le�n, Liu, Mitchell, Steinberg
NOES: Anderson, Knight
SENATE APPROPRIATIONS COMMITTEE : 5-1, 8/14/14
AYES: De Le�n, Hill, Lara, Padilla, Steinberg
NOES: Gaines
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 44-32, 5/31/13 - See last page for vote
SUBJECT : Crimes: prostitution: evidence
SOURCE : AIDS Healthcare Foundation
Los Angeles Gay and Lesbian Center
DIGEST : This bill provides for specified procedures to be
followed, potentially including a hearing out of the presence of
the jury, during the prosecution of a prostitution case, if the
prosecution intends to introduce as evidence the possession of
condoms by the defendant.
ANALYSIS :
Existing law:
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1.Provides that any person who solicits, agrees to engage in, or
engages in an act of prostitution is guilty of misdemeanor.
The crime does not occur unless the person specifically
intends to engage in an act of prostitution and some act is
done in furtherance of agreed upon act. Prostitution includes
any lewd act between persons for money or other consideration.
2.Provides that if the defendant agreed to engage in an act of
prostitution, the person soliciting the act of prostitution
need not specifically intend to engage in an act or
prostitution.
3.Provides that where any person is convicted of a second
prostitution offense, the person shall serve a sentence of at
least 45 days, no part of which can be suspended or reduced by
the court regardless of whether or not the court grants
probation.
4.Provides that where any person is convicted for a third
prostitution offense, the person shall serve a sentence of at
least 90 days, no part of which can be suspended or reduced
by the court regardless of whether or not the court grants
probation.
5.Provides that evidence that is more prejudicial than probative
- tends to create an emotional bias against the defendant in
the mind of the jurors that outweighs the value of the
evidence in resolving the issues in the case - is
inadmissible.
Existing provisions of the California Constitution provide that
all relevant evidence is admissible, with the exception that
evidence that arises from certain categories of privilege or
confidentiality, such attorney-client, doctor-patient, marital,
priest-penitent and psychotherapist-patient, evidence of the
defendant's propensity to commit crimes, is excluded.
This bill provides that in any prosecution for committing an act
of disorderly conduct or for loitering in any public place with
the intent to commit prostitution, if the possession of one or
more condoms is to be introduced as evidence in support of the
commission of the crime, the following procedure shall be
followed:
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A. Requires the prosecutor to make a written motion to the
court and to the defendant stating that the prosecution has
an offer of proof of the relevancy of the possession by the
defendant of one or more condoms.
B. Requires the written motion to be accompanied by an
affidavit, to be filed under seal, as specified, in which
the offer of proof shall be stated.
C. Requires the court to order a hearing out of the
presence of the jury, if any, if the court finds that the
offer of proof is sufficient, and at the hearing allow
questioning regarding the offer of proof made by the
prosecution.
D. Provides that at the conclusion of the hearing, if
evidence found to be relevant, as specified, the court may
make an order stating what evidence may be introduced by
the prosecutor.
E. Provides that an affidavit resealed by the court shall
remain sealed, unless the defendant raises an issue on
appeal or collateral review relating to the offer of proof.
F. Authorizes the Attorney General and appellate counsel to
access the sealed affidavit if the defendant raisers that
issue on appeal, and authorizes access to the district
attorney and defendant's counsel if the issue is raiser on
collateral review.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee, Potentially
significant increase in court workload to process motions and
potentially hold separate hearings out of the presence of a jury
in prostitution cases. For every 500 motions filed (less than
10 motions per court per year), costs could range from $250,000
to $750,000 (*Trial Court Trust Fund) assuming one to three
additional hours of court time per case.
SUPPORT : (Verified 8/15/14)
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AIDS Healthcare Foundation (co-source)
Los Angeles Gay and Lesbian Center (co-source)
ACLU
AFSCME
AIDS Project Los Angeles
Bay Area Sex Worker Advocacy Network
Beyond AIDS
California Academy of Preventive Medicine
California Attorneys for Criminal Justice
California Communities United Institute
California Public Defenders Association
Delhi Center
Drug Policy Alliance
Equality California
Glide HIV Prevention Services
Harm Reduction Coalition
Harm Reduction Services
Health Officers Association of California
Human Rights Watch
Mission Neighborhood Health Center
St. James Infirmary
The Sage Project
OPPOSITION : (Verified 8/15/14)
California District Attorneys Association
California State Sheriffs' Association
ARGUMENTS IN SUPPORT : The AIDS Healthcare Foundation states:
Since the earliest days of the HIV/AIDS epidemic, public health
officials at every level of government have stressed the
critical and essential importance of condoms as an effective
barrier to transmitting HIV. The U.S. Centers for Disease
Control and Prevention declares, 'The body of research on the
effectiveness of latex condoms in preventing sexual transmission
of HIV is both comprehensive and conclusive. The ability of
latex condoms to prevent transmission of HIV has been
scientifically established in 'real-life' studies of sexually
active couples as well as in laboratory studies.'
The core of every HIV prevention education campaign is to use a
condom as the most effective means by which to prevent
transmission of HIV. This message has been strenuously directed
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at persons in the sex trades, in large part because there exists
the potential for transmission of HIV among sex workers and
their customers and into the general public.
However, in direct contradiction to this urgent public health
message, law enforcement in several major U.S. cities use the
possession of condoms by a person suspected of prostitution as
evidence that the person is engaged in prostitution.
ARGUMENTS IN OPPOSITION : The California District Attorneys
Association argues:
Proponents argue that prostitutes are of the mind that a person
can be arrested and prosecuted merely because he/she possesses
condoms. Notwithstanding the absurdity of this misunderstanding
of the law and criminal procedure, the sponsor asserts that the
result is that prostitutes are not carrying and/or using condoms
when they engage in their criminal activity (prostitution).
We understand the public health concern generated by prostitutes
engaging in unprotected sex. That said, we must oppose this
measure because it is more appropriate for courts and court
officers to determine the admissibility of evidence without the
necessity of a cumbersome and time-consuming process. It is
unreasonable to believe that a person is being arrested,
charged, and convicted merely because he/she possesses condoms.
ASSEMBLY FLOOR : 44-32, 5/31/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau,
Chesbro, Cooley, Dickinson, Eggman, Fong, Frazier, Garcia,
Gatto, Gomez, Gonzalez, Gordon, Hall, Roger Hern�ndez,
Jones-Sawyer, Levine, Lowenthal, Medina, Mitchell, Mullin,
Nazarian, Pan, Quirk, Rendon, Skinner, Stone, Ting, Weber,
Wieckowski, Williams, Yamada, John A. P�rez
NOES: Achadjian, Allen, Bigelow, Ch�vez, Conway, Dahle, Daly,
Fox, Beth Gaines, Gorell, Gray, Grove, Hagman, Harkey, Jones,
Linder, Logue, Maienschein, Mansoor, Melendez, Morrell,
Muratsuchi, Nestande, Olsen, Patterson, Perea, V. Manuel
P�rez, Quirk-Silva, Salas, Wagner, Waldron, Wilk
NO VOTE RECORDED: Bonilla, Donnelly, Holden, Vacancy
JG:e 8/15/14 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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