Amended in Senate May 14, 2014

Senate Bill No. 1388

Introduced by Senators Lieu, Hill, and Mitchell

(Principal coauthor: Senator Huff)

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(Coauthors: Assembly Members Cooley, Eggman, and Olsen)

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February 21, 2014

An act to amend Sections 266k and 647 of the Penal Code, relating to human trafficking.

LEGISLATIVE COUNSEL’S DIGEST

SB 1388, as amended, Lieu. Human trafficking.

Existing law provides that a person who solicits or agrees to engage in or engages in any act of prostitution is guilty of disorderly conduct, a misdemeanor, punishable by imprisonment in begin delete the end delete begin insert a end insert county jail for no more than 6 months, by a fine not exceeding $1,000, or by both that fine and imprisonment. Disorderly conduct includes, but is not limited to, soliciting or agreeing to engage in or engaging in any act of prostitution, and agreeing to engage in an act of prostitution when, with specific intent to so engage, the person manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution.

This bill would instead make a person who seeks to purchase or purchases a commercial sex act guilty of a misdemeanor, punishable by imprisonment in begin delete the end delete begin insert a end insert county jail for at least 48 hours, but not more than 6 months, and by a fine of at least $1,000, and, if probation is granted, by a fine of at least $1,000, but not more than $50,000, to be deposited in the Victim-Witness Assistance Fund to fund grants to local programs. The bill would also authorize the court to order a defendant who is convicted of a violation of the above offense, involving any person who was a minor at the time of the offense, to pay an additional fine of not less than $1,000 and not more than $10,000. This fine would not be imposed upon a defendant who is a minor at the time of the offense. Moneys collected would be deposited into the Commercial Sexual Exploitation of Children Services Fund, which would be created in the State Treasury. These moneys would be available, upon appropriation by the Legislature, for the purpose of funding child sexual exploitation and child sexual abuse victim counseling centers and programs that fund services for child victims of human trafficking.

Existing law authorizes the court to order a person convicted of violating certain prohibitions against the prostitution of a minor to pay an additional fine not to exceed $20,000.

This bill would require that the additional fine be not less than $5,000.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 266k of the Penal Code is amended to
read:

266k.  

(a) Upon the conviction of any person for a violation
of Section 266h or 266i, the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed five thousand dollars ($5,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense and the circumstances of its commission, whether the
defendant derived any economic gain as the result of the crime,
and the extent to which the victim suffered losses as a result of the
crime. Every fine imposed and collected under this section 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.

(b) Upon the conviction of any person for a violation of Section
266j or 267, the court may, in addition to any other penalty or fine
imposed, order the defendant to pay an additional fine of not less
than five thousand dollars ($5,000) and not more than twenty
thousand dollars ($20,000).

(c) Fifty percent of the fines collected pursuant to subdivision
(b) and deposited in the Victim-Witness Assistance Fund pursuant
to subdivision (a) shall be granted to community-based
organizations that serve minor victims of human trafficking.

(d) If the court orders a fine to be imposed pursuant to this
section, the actual administrative cost of collecting that fine, not
to exceed 2 percent of the total amount paid, may be paid into the
general fund of the county treasury for the use and benefit of the
county.

SEC. 2.  

Section 647 of the Penal Code is amended to read:

647.  

Except as provided in subdivisions (k), (l), and (m), every
person who commits any of the following acts is guilty of
disorderly conduct, a misdemeanor:

(a) Who solicits anyone to engage in or who engages in lewd
or dissolute conduct in any public place or in any place open to
the public or exposed to public view.

(b) (1) Who agrees to purchase or purchases a commercial sex
act. A person agrees to purchase a commercial sex act if, with
specific intent to so purchase, he or she manifests an acceptance
of an offer or solicitation to purchase the act, regardless of whether
the offer or solicitation was made by a person who also possessed
the specific intent to engage in a commercial sex act. An agreement
to purchase a commercial sex act does not violate this paragraph
unless some act, in addition to the agreement, is done within this
state in furtherance of the commission of a commercial sex act by
the person who has agreed to purchase that act.

(2) Who agrees to perform or performs a commercial sex act.
A person agrees to perform a commercial sex act if, with specific
intent to so perform, he or she manifests an acceptance of an offer
or solicitation to perform the act, regardless of whether the offer
or solicitation was made by a person who also possessed the
specific intent to engage in a commercial sex act. An agreement
to perform a commercial sex act does not violate this paragraph
unless some act, in addition to the agreement, is done within this
state in furtherance of the commission of a commercial sex act by
the person who has agreed to perform that act.

(3) For purposes of this subdivision, “commercial sex act” means
any lewd act between persons for money or other consideration.

(c) Who accosts other persons in any public place or in any
place open to the public for the purpose of begging or soliciting
alms.

(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.

(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.

(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.

(g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour
treatment and evaluation of inebriates. A peace officer may place
a person in civil protective custody with that kind and degree of
force that would be lawful were he or she effecting an arrest for a
misdemeanor without a warrant. A person who has been placed
in civil protective custody shall not thereafter be subject to any
criminal prosecution or juvenile court proceeding based on the
facts giving rise to this placement. This subdivision shall not apply
to the following persons:

(1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.

(2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor
in addition to subdivision (f).

(3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.

(h) Who loiters, prowls, or wanders upon the private property
of another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, “loiter” means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.

(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of
any inhabited building or structure, without visible or lawful
business with the owner or occupant.

(j) (1) Any person who looks through a hole or opening, into,
or otherwise views, by means of any instrumentality, including,
but not limited to, a periscope, telescope, binoculars, camera,
motion picture camera, camcorder, or mobile begin delete phone, end delete begin insert telephone, end insert
the interior of a bedroom, bathroom, changing room, fitting room,
dressing room, or tanning booth, or the interior of any other area
in which the occupant has a reasonable expectation of privacy,
with the intent to invade the privacy of a person or persons inside.
This subdivision shall not apply to those areas of a private business
used to count currency or other negotiable instruments.

(2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person under or through the clothing being worn by
that other person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the consent or
knowledge of that other person, with the intent to arouse, appeal
to, or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in
which the other person has a reasonable expectation of privacy.

(3) (A) Any person who uses a concealed camcorder, motion
picture camera, or photographic camera of any type, to secretly
videotape, film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or partial undress,
for the purpose of viewing the body of, or the undergarments worn
by, that other person, without the consent or knowledge of that
other person, in the interior of a bedroom, bathroom, changing
room, fitting room, dressing room, or tanning booth, or the interior
of any other area in which that other person has a reasonable
expectation of privacy, with the intent to invade the privacy of that
other person.

(B) Neither of the following is a defense to the crime specified
in this paragraph:

(i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.

(ii) The victim was not in a state of full or partial undress.

(4) (A) Any person who photographs or records by any means
the image of the intimate body part or parts of another identifiable
person, under circumstances where the parties agree or understand
that the image shall remain private, and the person subsequently
distributes the image taken, with the intent to cause serious
emotional distress, and the depicted person suffers serious
emotional distress.

(B) As used in this paragraph, intimate body part means any
portion of the genitals, and in the case of a female, also includes
any portion of the breasts below the top of the areola, that is either
uncovered or visible through less than fully opaque clothing.

(C) Nothing in this subdivision precludes punishment under
any section of law providing for greater punishment.

(k) (1) (A) A person convicted of a violation of paragraph (1)
of subdivision (b) is guilty of a misdemeanor punishable by
imprisonment in begin delete the end delete begin insert a end insert county jail for not less than 48 hours of
continuous confinement, nor more than six months, and by a fine
of one thousand dollars ($1,000). In all cases in which probation
is granted, the court shall require as a condition thereof that the
person be confined in a county jail for at least 48 hours of
continuous confinement and pay a fine of at least one thousand
dollars ($1,000), but not more than fifty thousand dollars ($50,000).
A court shall not waive the requirement that a person who violates
paragraph (1) of subdivision (b) shall be confined for at least 48
continuous hours in a county jail.

(B) Each fine imposed and collected pursuant to this paragraph
shall be deposited in the Victim-Witness Assistance Fund to fund
grants to local programs. Fifty percent of the fines collected and
deposited shall be granted to public agencies and nonprofit
corporations that provide exit or recovery programs for individuals
exploited through commercial sex. Fifty percent of the fines
collected and deposited shall be granted to law enforcement and
prosecution agencies in the jurisdiction in which the charges were
filed to fund programs to prevent sex purchasing.

(2) (A) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court, upon
a court trial, or is admitted by the defendant, the defendant shall
be imprisoned in a county jail for a period of not less than 45 days
and shall not be eligible for release upon completion of sentence,
on probation, on parole, on work furlough or work release, or on
any other basis until he or she has served a period of not less than
45 days in a county jail. In all cases in which probation is granted,
the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event does the
court have the power to absolve a person who violates this
subparagraph from the obligation of spending at least 45 days in
confinement in a county jail.

(B) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been previously convicted
two or more times of a violation of that subdivision, each of these
previous convictions shall be charged in the accusatory pleading.
If two or more of these previous convictions are found to be true
by the jury, upon a jury trial, or by the court, upon a court trial, or
are admitted by the defendant, the defendant shall be imprisoned
in a county jail for a period of not less than 90 days and shall not
be eligible for release upon completion of sentence, on probation,
on parole, on work furlough or work release, or on any other basis
until he or she has served a period of not less than 90 days in a
county jail. In all cases in which probation is granted, the court
shall require as a condition thereof that the person be confined in
a county jail for at least 90 days. In no event does the court have
the power to absolve a person who violates this subparagraph from
the obligation of spending at least 90 days in confinement in a
county jail.

(3) In addition to any punishment prescribed by this section, a
court may suspend, for not more than 30 days, the privilege of the
person to operate a motor vehicle pursuant to Section 13201.5 of
the Vehicle Code for any violation of subdivision (b) that was
committed within 1,000 feet of a private residence and with the
use of a vehicle. In lieu of the suspension, the court may order a
person’s privilege to operate a motor vehicle restricted, for not
more than six months, to necessary travel to and from the person’s
place of employment or education. If driving a motor vehicle is
necessary to perform the duties of the person’s employment, the
court may also allow the person to drive in that person’s scope of
employment.

(l) (1) A second or subsequent violation of subdivision (j) is
punishable by imprisonment in a county jail not exceeding one
year, or by a fine not exceeding two thousand dollars ($2,000), or
by both that fine and imprisonment.

(2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and
imprisonment.

(m) (1) The court may order a defendant who is convicted of
a violation of subdivision (b) involving any person who was a
minor at the time of the offense, to pay, in addition to any other
penalty or fine imposed, a fine of not less than one thousand dollars
($1,000) and not more than ten thousand dollars ($10,000). This
subdivision does not apply to a defendant who was a minor at the
time of the offense.

(2) Moneys collected pursuant to this subdivision shall be
deposited in the Commercial Sexual Exploitation of Children
Services Fund, which is hereby created in the State Treasury, to
be administered by begin delete ____. end delete begin insert the Office of Emergency Services. end insert
Moneys deposited in this fund are available, upon appropriation
by the Legislature, to fund child sexual exploitation and child
sexual abuse victim counseling centers as described in Section
13837 and programs that fund services for child victims of human
trafficking as defined in Section 236.1 in the county in which the
fine was collected.

(3) If the court orders a fine to be imposed pursuant to this
subdivision, the actual administrative costs of collecting that fine,
not to exceed 2 percent of the total amount paid, may be paid into
the general fund of the county treasury for the use and benefit of
the county.