BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1085 (Walters) 5
As Introduced: February 19, 2014
Hearing date: April 8, 2014
Penal Code
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HUMAN TRAFFICKING: PROBATION
HISTORY
Source: Orange County District Attorney
Prior Legislation: Proposition 35 of the November 2013 General
Election
AB 2466 (Blumenfield) Ch. 512, Stats. 2012
SB 1133 (Leno) Ch. 514, Stats. 2012
AB 90 (Swanson) Ch. 457, Stats. 2011
AB 12 (Swanson) Ch. 75, Stats. 2011
AB 17 (Swanson) Ch. 211, Stats. 2009
SB 22 (Lieber) Ch. 240, Stats. 2005
Support: California State Sheriffs' Association; California
Police Chiefs Association
Opposition:California Attorneys for Criminal Justice; Taxpayers
for Public Safety
KEY ISSUE
SHOULD DEFENDANTS CONVICTED OF ANY FORM OF HUMAN TRAFFICKING BE
PROHIBITED FROM RECEIVING PROBATION?
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PURPOSE
The purpose of this bill is to prohibit a court from granting
probation to a defendant convicted of any crime included in the
human trafficking statute.
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. (Pen. Code � 236.1, subd. (a)-(c).)
Existing law provides that if the person trafficked is a minor
and the crime involves a commercial sex act, the prosecution
need not prove substantial deprivation of liberty. The
equivalent element is that the defendant caused, induced or
persuaded a minor to engage in a commercial sex act.
The following provisions apply to human trafficking of a
minor for commercial sex:
o Whether or not a minor was caused, induced or
persuaded to engage in a commercial sex act depends on
the totality of circumstances, including the
relationship between the victim and the defendant;
o Mistake of fact as to the age of the victim is
not a defense; and,
o Consent by a minor to an act underlying a
human trafficking charge is not a defense. (Pen. Code
� 236.1, subd. (d)-(f).)
The offense is punishable as follows:
o 5, 8 or 12 years in prison and a fine of up to
$500,000; or,
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o 15-years-to-life and a fine of up to $500,000
if the offense involved force, threats, coercion or
deceit, as specified. (Pen. Code � 236.1, subd. (c).)
Existing law provides that where the victim of human trafficking
is an adult and the crime involves a commercial sex act the
offense is a felony, punishable by a prison term of 8, 14 or 20
years and a fine of up to $500,000. (Pen. Code �236.1, subd.
(b).)
Existing law provides that where the victim of human trafficking
is an adult and the crime involves a forced or coerced labor
(not involving sexual acts) the offense is a felony, punishable
by a prison term of 5, 8 or 12 years and a fine of up to
$500,000. (Pen. Code �236.1, subd. (b).)
Existing law provides that where a defendant is convicted of any
human trafficking offense and the victim suffers great bodily
injury the defendant shall receive a consecutive prison sentence
enhancement of five, seven or 10 years. (Pen. Code �236.4,
subd. (b).)
Existing law provides that where a defendant is convicted of
human trafficking, the defendant shall receive a consecutive
sentence enhancement of 5 years for each separately charged
prior human trafficking conviction. (Pen. Code �236.4, subd.
(c).)
Existing law provides that the court may impose an additional
and separate fine of up to $1 million upon a defendant convicted
of human trafficking. In setting the amount of the fine, the
court shall consider the duration, seriousness and circumstances
of the offense, the illicit gain realized by the defendant and
the harm suffered by the victim. The statute does not include
factors for the court in determining whether to impose the fine,
per se. (Pen. Code � 236.4.)
Existing law provides that all fines imposed for human
trafficking convictions are deposited in the Victim-Witness
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Assistance Fund, to be used as follows:
70% to public agencies and non-profits to provide direct
victim services; and,
30% to law enforcement and prosecutors in jurisdiction
where charges filed for prevention, witness protection and
rescue. (Pen. Code �236.4.)
Existing law allows the prosecutor to obtain orders freezing and
preserving the assets of a human trafficking defendant so that
the assets can be used to satisfy restitution orders and fines.
(Pen. Code � 236.6)
Existing law provides for forfeiture of assets used to commit a
human trafficking crime. 50% of forfeiture proceeds are
distributed to victim witness programs and 50% to the county or
state general fund, depending whether the state or a county
entity prosecuted the case. The forfeiture law also authorizes
the prosecutor to seek preservation of the defendant's assets.
(Pen. Code � 236.7-236.12.)
Existing law provides that property used in human trafficking
may treated as a public nuisance. The property can be closed
for up to a year, a civil fine of up to $25,0000 imposed and
other remedies ordered, including sale of the property if
necessary to satisfy all fees and costs. One-half of the civil
penalty shall be deposited in the Victim-Witness Assistance Fund
for grants to agencies providing human trafficking prevention
and victim assistance. The other half of the penalty shall be
paid to the city or county that brought the nuisance action.
(Pen. Code �� 236.3 and 11225.)
Existing law includes the following specific charging and
evidence provisions in human trafficking cases:
Prosecution of a human trafficking victim is effectively
barred for crimes involving commercial sex acts that were
done in connection with the trafficking; and,
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Where a trafficking victim is a witness in a human
trafficking prosecution, the initiative bars evidence of
commercial sex acts by the victim to impeach the victim's
credibility. (Evid. Code � 1161.)
Existing law requires persons convicted of human trafficking<1>
to register as sex offenders. (Pen. Code � 290, subds.
(a)-(b).)
Existing law defines unlawful deprivation of liberty as
substantial and sustained restriction of liberty by fraud,
deceit, coercion, violence, duress, menace or threat of unlawful
injury to the victim or another, under circumstances where the
victim reasonably believes the perpetrator would carry out the
threat. (Pen. Code �236.1, subds. (d)-(1).)
Existing law defines a commercial sex act as sexual conduct on
account of which anything of value is given or received by any
person. (Pen. Code � 236.1, subd. (h)(2).)
Existing law provides that duress includes destroying,
concealing or confiscating the victim's passport or immigration
documents. (Pen. Code �236.1, subd. (d)-(2)
Existing law provides that "forced labor or services" means
labor or services that are obtained or maintained through force,
fraud, coercion or equivalent conduct that would reasonably
overbear the will of the victim. (Pen. Code �236.1, subd. (e).)
Existing law provides that the California crime of human
trafficking is equivalent to the federal definition of severe
human trafficking in 22 U.S.C. � 7102 (8). (Pen. Code �236.1,
subd. (f).)
Existing law requires two hours of training for officers
assigned to human trafficking cases. (Pen. Code � 13519.14.)
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<1> In an anomalous provision of the law, a person convicted of
human trafficking that involves extortion alone must register as
a sex offender.
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Existing law generally authorizes courts to grant probation to
persons convicted of crimes, except as specified. (Pen. Code �
1203 et seq.)
Existing law defines "probation" as the suspension of the
imposition or execution of a sentence and the order of
conditional and revocable release in the community under the
supervision of a probation officer. (Pen. Code � 1203, subd.
(a).)
Existing law provides that if a person convicted of a felony is
eligible for probation, the probation department shall report to
the court about the circumstances surrounding the crime and the
prior history and criminal record of the defendant. The report
shall set out factors in mitigation and aggravation about the
crime and the defendant. The report shall recommend whether
probation should be granted or denied, the conditions of
probation, and the sentence to be imposed if probation is denied
or revoked. (Pen. Code � 1203, subd. (b)(1) and (2)(A).
Existing law allows the court to impose any conditions of
probation reasonably related to the defendant and the crime.
Probation serves punitive, rehabilitative and public safety
purposes. The conditions shall provide for restitution to the
victim and promote justice. The court has the authority to
revoke probation and impose a prison or jail term should the
probationer violate the terms and conditions thereof. (Pen.
Code � 1202.7, 1203.1, subds.(a)(3) and (j).)
Existing law specifically authorizes imposition of a period of
incarceration in the county jail as a condition of probation.
(Pen. Code �1203.1, subd. (a)(2).)
Existing law provides that defendants convicted of specified
crimes cannot be placed on probation. These no-probation crimes
include use of a firearm in the commission of robbery,
kidnapping, residential burglary, rape, specified additional sex
crimes and other offenses. (Pen. Code � 1203.6.)
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Existing law includes a significant number of sections and
provisions listing crimes for which probation can only be
granted where the court finds unusual circumstances establishing
that a grant of probation would serve justice. The court must
state on the record and include in the minutes the justification
for the probation grant. Greater probation restrictions or
prohibitions set out in other statutes may take precedence over
these provisions . Examples include the following:
The defendant was armed with (had ready for use) a
weapon in committing arson, robbery, burglary and numerous
other crimes;
The defendant used or attempted to use a firearm upon
another person;
The defendant inflicted great bodily injury (gbi) or
applied torture;
The defendant has been twice previously convicted of a
felony;
The defendant has been previously convicted of a felony
and committed attempted murder, extortion, kidnapping or
other offenses;
The defendant has been previously convicted of a felony
and was armed with a weapon, used a weapon or inflicted
great bodily injury in a previous crime;
The defendant is a public official or peace officers who
accepted or gave a bribe, committed extortion or embezzled
public funds;
The defendant furnished PCP;
The defendant committed arson involving gbi or the
burning of and inhabited structure;
The defendant possessed a short-barreled rifle or
shotgun, a machinegun or silencer;
The defendant violated specified firearms transfer laws;
and,
The defendant supplied a firearm to a mental health
patient. (Pen. Code � 1203, subd. (e).
Existing law includes numerous offense-specific or stand-alone
statutes limiting or prohibiting probation. Some examples
include the following:
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Specified computer offenses; (Pen. Code �1203.046)
Encouraging or soliciting a minor to commit a felony;
and, (Pen. Code �1203.047)
Theft of more than $100,000. (Pen. Code � 1203.45.)
Existing law includes many provisions prohibiting or severely
limiting probation specified sex crimes. These statutes often
include numerous requirements, such as psychological
evaluations, stay-away orders and mandatory treatment. (Pen.
Code � 1203.065 et seq.)
Existing law provides that probation for lewd conduct with a
child under the age of 13 (Pen. Code � 288, subds. (a)-(b)) is
strictly prohibited where the defendant used force, duress or
coercion, as charged under subdivision (b). Where probation is
possible, the court must order a psychological evaluation of the
defendant, find that probation for the defendant is in the best
interests of the victim in an intra-family case and find that
the defendant can be rehabilitated. Where specified factors are
alleged and proved by the prosecutor, probation is strictly
prohibited. The court has no discretion to strike or dismiss
these qualifying factors:
The defendant injured the child;
The defendant befriended the child for purposes of
sexual abuse;
The defendant used a weapon;
The defendant has been previously convicted of one of a
list of sex crimes;
The defendant kidnapped the child;
The crime involved more than one victim; or,
The crime involved substantial sexual conduct -
penetration, oral copulation or masturbation of either the
defendant or victim. (Pen. Code �1203.066)
This bill provides that probation is prohibited for any
defendant convicted of any offense defined as human trafficking
pursuant to Penal Code Section 236.1.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
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to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
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capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
Human trafficking is a modern-day form of slavery.
All instances fall within at least one of these
categories: sex trafficking, labor trafficking or
domestic servitude.
Globally, an estimated 20.9 million people are victims
of forced labor annually. Of those, 4.5 million are
victims of forced sexual exploitation. Human
trafficking consistently places innocent individuals
in dangerous and harmful situations within varying
industries. California is not immune to this criminal
activity, where transport of persons is easily
accomplished due to the number of transportation hubs
including ports, highways, and airports.
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By defining human trafficking as an offense which is
ineligible for probation, this bill aims to curb human
trafficking crimes and decrease the instances of human
trafficking violations. SB 1085 seeks to ensure that
the perpetrators sentence accurately reflects the
serious crime which they have committed.
2. Issues Presented by a Ban of Probation in a Human Trafficking
Case
Possible Reasons for Granting Probation to a Defendant Convicted
of Human Trafficking
There are a number of reasons why a court, typically with the
support or concurrence of the prosecutor, would grant probation
to a person convicted of human trafficking.<2> In human
trafficking involving commercial sex acts, law enforcement could
arrest a person who does not control or manage the human
trafficking entity or scheme. For example, a defendant arrested
for human trafficking at a so-called relaxation or massage
business could actually be an employee of the owners of the
businesses. He or she could originally have been trafficked by
the business owners. If law enforcement has little or no proof
that the owners profited from and directed the commercial sex
trafficking, the most culpable defendants could go free unless
the defendant cooperates. The owners could learn from the case
how to avoid future arrests, move the business and continue to
exploit others.
A grant of probation might be necessary to gain a low-level
defendant's cooperation. The prosecution could offer the
defendant immunity from prosecution in exchange for his or her
testimony, but the prosecutor could conclude that the
defendant's conduct was serious enough that he or she should
still face prosecution. The terms of probation could include a
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<2> See Comment # 3, infra, for an explanation of a prosecutor's
ability to file a writ in a reviewing court to challenge to an
improper grant of probation.
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requirement that the defendant cooperate in the prosecution of
other defendants. If the defendant failed to cooperate or
engaged in illegal activity, probation would be revoked and the
defendant sentenced to prison.
Further, human trafficking involving forced labor could include
relatively non-egregious violations of labor laws and standards.
For example, withholding wages unless an employee agrees to
work overtime or to do a personal errands for a supervisor on
numerous occasions could constitute human trafficking under an
expansive reading of the law. The defendant could be a business
employee with no prior criminal record who only implemented the
policy of his or her employer. In such a case, the court could
reasonably find that the defendant should be granted probation.
As noted above, if the defendant violates the terms of
probation, the court can revoke probation and execute a prison
sentence.
Where the prosecution needs the cooperation or testimony of a
person charged with human trafficking, a ban on probation for
human trafficking raises other concerns. That is, the
prosecutor could be forced to offer to allow the defendant to
plea to another crime for which probation can be granted. The
penalty would likely be lower than that for human trafficking if
probation is revoked. The plea would not reflect what the
defendant actually did and would appear to minimize his or her
culpability. If the person is later arrested for human
trafficking, the prior conviction could not be used to enhance
his or her sentence and the court and prosecutor might not be
aware of the person's history as a human trafficker, especially
if the defendant has moved to another jurisdiction.
To address these concerns, the bill could be amended to limit
the court's discretion to grant probation. As with many other
crimes, the bill could provide that the court may only grant
probation to a defendant convicted of human trafficking in
unusual circumstances where probation serves the interests of
justice. The court would be required to state on the record its
reasons for granting probation. As noted in Comment # 3 below,
the prosecution can challenge an improper grant of probation by
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a writ of prohibition or mandate in a reviewing court.
SHOULD COURTS BE ALLOWED TO GRANT PROBATION TO A DEFENDANT
CONVICTED OF HUMAN TRAFFICKING ONLY IN UNUSUAL CIRCUMSTANCES
WHERE THE PROBATION SERVES THE INTERESTS OF JUSTICE?
Sponsor's Concern that Courts would Inappropriately Grant
Probation in Human Trafficking Cases
According to the author's office, the sponsor of the bill - the
Orange County District Attorney - is concerned that courts would
be overly willing to grant probation to defendants in human
trafficking cases. The sponsor noted to the author's office
that where probation is appropriate for a defendant who could be
charged with human trafficking, the prosecution could charge a
probation eligible offense or agree to a plea bargain for such a
crime.
Possible Application to Human Trafficking Cases of the rules for
Probation in Lewd Conduct Convictions: Probation is Prohibited
where Specified Factors are Proved and Strictly Limited in other
Circumstances.
When the current rules for grants of probation in lewd conduct
cases were set in 2006 by SB 33 (Battin) Ch. 477, prosecutors'
organizations sought and obtained an amendment providing that
probation would be prohibited where the prosecutor pleaded and
proved certain factors. Prosecutors were concerned that
completely prohibiting probation could make it difficult to
prosecute lewd conduct cases. Very young victims could have
difficulty communicating or be reluctant to testify in public
about the facts of the underlying incident. Testimony about the
incident could be traumatizing. In intra-family cases, the
victim may be pressured to recant or not cooperate with the
prosecution.
The probation-disqualifying factors in lewd conduct cases
include injury to the victim, grooming of the victim for abuse
by a stranger, the defendant's use of a weapon and multiple
victims. If these factors are not charged and established, the
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court still can grant probation only under very limited
circumstances and conditions. These include a psychological
evaluation of the defendant, a finding of amenability to
rehabilitation, entry into a qualified treatment program and
residency restrictions. In an intra-family case, the court must
find that a grant of probation to the defendant was in the best
interests of the victim.
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A similar process in human trafficking cases might be
particularly appropriate. Victims of sex trafficking may be
traumatized or very reluctant to reveal embarrassing or
emotionally painful facts of the abuse. They may be afraid to
cooperate with law enforcement because they are not citizens or
believe that the traffickers could harm them. Victims may have
come from places where police protect traffickers or ignore
their crimes. Advocates on prior bills have often noted that it
can be very difficult to gain the trust and cooperation of human
trafficking victims.
Further, human trafficking actually involves a number very
distinguishable crimes and a wide range of culpability.
Defendants can be low-level supervisors who acted under duress
themselves, or they could be operators of a large trafficking
organization. The offenses can range from coerced labor of one
person to sex trafficking of young children.
The following suggested factors appear to describe egregious
human trafficking cases. Proof of such factors would establish
that a defendant is not deserving of probation consideration.
Suggested Factors that would Prohibit Probation for Human
Trafficking
The crime involved three or more victims;
The defendant attempts to hide evidence or dissuade a
witness;
The defendant did not allow the victim to retain
identity documents, such as a passport, birth certificate,
driver's license, or state or national identification
card;
The crime involved more than $20,000 in proceeds; or,
A victim was under the age of 16.
SHOULD PROBATION BE PROHIBITED FOR ANY HUMAN TRAFFICKING
CONVICTION?
SHOULD PROBATION ONLY BE ALLOWED WHERE THE COURT FINDS UNUSUAL
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CIRCUMSTANCES JUSTIFYING A GRANT OF PROBATION?
SHOULD PROBATION BE STRICTLY PROHIBITED WHERE THE PROSECUTOR
ALLEGES AND PROVES SPECIFIED FACTORS?
3. Prosecutor's Ability to Challenge Improper Grant of Probation
A prosecutor has specific statutory authority to challenge an
improper grant of probation by a writ of prohibition or mandate.
(Pen. Code � 1238, subd. (d).) While a reviewing court would
review the challenge under an abuse of discretion standard, the
court's discretion must be exercised within the framework of the
existing law. A number of statutes provide that the court can
only grant probation to defendants convicted of specified crimes
if the court finds unusual circumstances establish that a grant
of probation is in the interests of justice. Where the law
provides that a human trafficking defendant may only receive
probation under unusual circumstances, the prosecution could
challenge any grant of probation not supported by unusual
circumstances.
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