BILL NUMBER: AB 2513 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 21, 2016
AMENDED IN ASSEMBLY APRIL 25, 2016
INTRODUCED BY Assembly Member Williams
FEBRUARY 19, 2016
An act to amend Sections 236.1, 236.7, 236.8, 236.10, and 236.11
of the Penal Code, relating to human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 2513, as amended, Williams. Human trafficking: aggravating
factors.
Existing law, as amended by the Californians Against Sexual
Exploitation (CASE) Act, an initiative measure enacted by the
approval of Proposition 35 at the November 6, 2012, statewide general
election, proscribes the crime of human trafficking. A person who
deprives or violates the personal liberty of another with the intent
to obtain forced labor or services, or to effect or maintain a
violation of various felony or misdemeanor offenses, including
offenses relating to prostitution, child pornography, as specified,
or extortion, as defined, is guilty of human trafficking. A person
who causes, induces, or persuades, or attempts to cause, induce, or
persuade, a person who is a minor at the time of commission of the
offense to engage in a commercial sex act, with the intent to effect
or maintain a violation of various felony or misdemeanor offenses, is
also guilty of human trafficking.
This bill would authorize the court to consider and take
into account, in certain circumstances, as an aggravating factor for
purposes of determining the sentence to be imposed the fact that the
defendant recruited, enticed, or obtained the victim from a shelter
or placement that is designed to serve runaway youth, foster
children, homeless persons, or victims of human trafficking or
domestic violence. make a person who is convicted of a
violation of that prohibition subject to a penalty enhancement of
one additional year in the state prison, to be served consecutive to
any other term imposed by the court, if it is found that he or she
recruited, enticed, or obtained the victim from a shelter or
placement that is designed to serve runaway youth, foster children,
homeless persons, or victims of human trafficking or
domestic violence. The bill would also make technical and
nonsubstantive conforming changes. By increasing the
penalty for an existing crime, the bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 236.1 of the Penal Code is amended to read:
236.1. (a) A person who deprives or violates the personal liberty
of another with the intent to obtain forced labor or services, is
guilty of human trafficking and shall be punished by imprisonment in
the state prison for 5, 8, or 12 years and a fine of not more than
five hundred thousand dollars ($500,000).
(b) A person who deprives or violates the personal liberty of
another with the intent to effect or maintain a violation of Section
266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6,
or 518 is guilty of human trafficking and shall be punished by
imprisonment in the state prison for 8, 14, or 20 years and a fine of
not more than five hundred thousand dollars ($500,000).
(c) A person who causes, induces, or persuades, or attempts to
cause, induce, or persuade, a person who is a minor at the time of
commission of the offense to engage in a commercial sex act, with the
intent to effect or maintain a violation of Section 266, 266h, 266i,
266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is
guilty of human trafficking. A violation of this subdivision is
punishable by imprisonment in the state prison as follows:
(1) Five, 8, or 12 years and a fine of not more than five hundred
thousand dollars ($500,000).
(2) Fifteen years to life and a fine of not more than five hundred
thousand dollars ($500,000) when the offense involves force, fear,
fraud, deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person.
(d) In determining whether a minor was caused, induced, or
persuaded to engage in a commercial sex act, the totality of the
circumstances, including the age of the victim, his or her
relationship to the trafficker or agents of the trafficker, and any
handicap or disability of the victim, shall be considered.
(e) Consent by a victim of human trafficking who is a minor at the
time of the commission of the offense is not a defense to a criminal
prosecution under this section.
(f) Mistake of fact as to the age of a victim of human trafficking
who is a minor at the time of the commission of the offense is not a
defense to a criminal prosecution under this section.
(g) The Legislature finds that the definition of human trafficking
in this section is equivalent to the federal definition of a severe
form of trafficking found in Section 7102 of Title 22 of the United
States Code.
(h) The court may consider and take into account as an aggravating
factor, for purposes of determining the sentence to be imposed, the
fact that the defendant recruited, enticed, or obtained the victim
from a shelter or placement that is designed to serve runaway youth,
foster children, homeless persons, or victims of human trafficking or
domestic violence. The aggravating factor provided for in this
subdivision shall only be considered if it is admitted by the
defendant or found to be true by the trier of fact.
(h) A person who is convicted of a violation of this section shall
be subject to a penalty enhancement of one additional year in the
state prison, which shall be served consecutive to any other term
imposed by the court, if it is found that he or she recruited,
enticed, or obtained the victim from a shelter or placement that is
designed to serve runaway youth, foster children, homeless persons,
or victims of human trafficking or domestic violence. The enhancement
provided for in this subdivision shall only be imposed if it is
admitted by the defendant or found to be true by the trier of fact.
(i) For purposes of this chapter, the following definitions apply:
(1) "Coercion" includes any scheme, plan, or pattern intended to
cause a person to believe that failure to perform an act would result
in serious harm to or physical restraint against any person; the
abuse or threatened abuse of the legal process; debt bondage; or
providing and facilitating the possession of any controlled substance
to a person with the intent to impair the person's judgment.
(2) "Commercial sex act" means sexual conduct on account of which
anything of value is given or received by any person.
(3) "Deprivation or violation of the personal liberty of another"
includes substantial and sustained restriction of another's liberty
accomplished through force, fear, fraud, deceit, coercion, violence,
duress, menace, or threat of unlawful injury to the victim or to
another person, under circumstances where the person receiving or
apprehending the threat reasonably believes that it is likely that
the person making the threat would carry it out.
(4) "Duress" includes a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to cause a
reasonable person to acquiesce in or perform an act which he or she
would otherwise not have submitted to or performed; a direct or
implied threat to destroy, conceal, remove, confiscate, or possess
any actual or purported passport or immigration document of the
victim; or knowingly destroying, concealing, removing, confiscating,
or possessing any actual or purported passport or immigration
document of the victim.
(5) "Forced labor or services" means labor or services that are
performed or provided by a person and are obtained or maintained
through force, fraud, duress, or coercion, or equivalent conduct that
would reasonably overbear the will of the person.
(6) "Great bodily injury" means a significant or substantial
physical injury.
(7) "Minor" means a person less than 18 years of age.
(8) "Serious harm" includes any harm, whether physical or
nonphysical, including psychological, financial, or reputational
harm, that is sufficiently serious, under all the surrounding
circumstances, to compel a reasonable person of the same background
and in the same circumstances to perform or to continue performing
labor, services, or commercial sexual acts in order to avoid
incurring that harm.
(j) The total circumstances, including the age of the victim, the
relationship between the victim and the trafficker or agents of the
trafficker, and any handicap or disability of the victim, shall be
factors to consider in determining the presence of "deprivation or
violation of the personal liberty of another," "duress," and
"coercion" as described in this section.
SEC. 2. Section 236.7 of the Penal Code is amended to read:
236.7. (a) An interest in a vehicle, boat, airplane, money,
negotiable instruments, securities, real property, or other thing of
value that was put to substantial use for the purpose of facilitating
the crime of human trafficking that involves a commercial sex act,
as defined in paragraph (2) of subdivision (i) of Section 236.1, in
which the victim was less than 18 years of age at the time of the
commission of the crime, may be seized and ordered forfeited by the
court upon the conviction of a person guilty of human trafficking
that involves a commercial sex act in which the victim is an
individual under 18 years of age, pursuant to Section 236.1.
(b) In any case in which a defendant is convicted of human
trafficking pursuant to Section 236.1 and an allegation is found to
be true that the victim was a person under 18 years of age and the
crime involved a commercial sex act, as defined in paragraph (2) of
subdivision (i) of Section 236.1, the following assets shall be
subject to forfeiture upon proof of the provisions of subdivision (d)
of Section 236.9:
(1) A property interest, whether tangible or intangible, acquired
through human trafficking that involves a commercial sex act in which
the victim was less than 18 years of age at the time of the
commission of the crime.
(2) 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.
(c) If a prosecuting agency petitions for forfeiture of an
interest under subdivision (a) or (b), the process prescribed in
Sections 236.8 to 236.12, inclusive, shall apply, but no local or
state prosecuting agency shall be required to petition for forfeiture
in any case.
(d) Real property that is 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 unlawful use, shall not be subject to
forfeiture.
(e) An interest in a vehicle that may be lawfully driven with a
class C, class M1, or class M2 license, as prescribed in Section
12804.9 of the Vehicle Code, may not be forfeited under this section
if there is a community property interest in the vehicle by a person
other than the defendant and the vehicle is the sole vehicle of this
type available to the defendant's immediate family.
(f) Real property subject to forfeiture may not be seized, absent
exigent circumstances, without notice to the interested parties and a
hearing to determine that seizure is necessary to preserve the
property pending the outcome of the proceedings. At the hearing, the
prosecution shall bear the burden of establishing that probable cause
exists for the forfeiture of the property and that seizure is
necessary to preserve the property pending the outcome of the
forfeiture proceedings. The court may issue a seizure order pursuant
to this section if it finds that seizure is warranted or a pendente
lite order pursuant to Section 236.10 if it finds that the status quo
or value of the property can be preserved without seizure.
(g) For purposes of this section, no allegation or proof of a
pattern of criminal profiteering activity is required.
SEC. 3. Section 236.8 of the Penal Code is amended to read:
236.8. (a) If the prosecuting agency, in conjunction with the
criminal proceeding, files a petition of forfeiture with the superior
court of the county in which the defendant has been charged with
human trafficking that involves a commercial sex act, as defined in
paragraph (2) of subdivision (i) of Section 236.1, where the victim
was less than 18 years of age at the time of the commission of the
crime, the prosecuting agency shall make service of process of a
notice regarding that petition upon every individual who may have a
property interest in the alleged proceeds or instruments. The notice
shall state that any interested party may file a verified claim with
the superior court stating the amount of their claimed interest and
an affirmation or denial of the prosecuting agency's allegation. If
the notice cannot be given by registered mail or personal delivery,
the notice shall be published for at least three successive weeks in
a newspaper of general circulation in the county where the property
is located. If the property alleged to be subject to forfeiture is
real property, the prosecuting agency shall, at the time of filing
the petition of forfeiture, record a lis pendens with the county
recorder in each county in which the real property is situated that
specifically identifies the real property alleged to be subject to
forfeiture. The judgment of forfeiture shall not affect the interest
in real property of a third party that was acquired prior to the
recording of the lis pendens.
(b) All notices shall set forth the time within which a claim of
interest in the property seized is required to be filed pursuant to
Section 236.9.
SEC. 4. Section 236.10 of the Penal Code is amended to read:
236.10. (a) Concurrent with or subsequent to the filing of the
petition, the prosecuting agency may move the superior court for, and
the superior court may issue, the following pendente lite orders to
preserve the status quo of the property alleged in the petition:
(1) An injunction to restrain anyone from transferring,
encumbering, hypothecating, or otherwise disposing of the property.
(2) Appointment of a receiver to take possession of, care for,
manage, and operate the assets and properties so that the property
may be maintained and preserved. The court may order that a receiver
appointed pursuant to this section be compensated for all reasonable
expenditures made or incurred by him or her in connection with the
possession, care, management, and operation of property or assets
that are subject to the provisions of this section.
(b) A preliminary injunction may not be granted or receiver
appointed without notice to the interested parties and a hearing to
determine that an order is necessary to preserve the property,
pending the outcome of the criminal proceedings, and that there is
probable cause to believe that the property alleged in the forfeiture
proceedings are proceeds, instruments, or property interests
forfeitable under the provisions of Section 236.7. However, a
temporary restraining order may issue pending that hearing pursuant
to the provisions of Section 527 of the Code of Civil Procedure.
(c) Notwithstanding any other law, the court in granting these
motions may order a surety bond or undertaking to preserve the
property interests of the interested parties.
(d) The court shall, in making its orders, seek to protect the
interests of those who may be involved in the same enterprise as the
defendant, but who were not involved in human trafficking that
involves a commercial sex act, as defined in paragraph (2) of
subdivision (i) of Section 236.1, in which the victim was less than
18 years of age at the time of the commission of the crime.
SEC. 5. Section 236.11 of the Penal Code is amended to read:
236.11. (a) If the trier of fact at the forfeiture hearing finds
that the alleged property, instruments, or proceeds are forfeitable
pursuant to Section 236.7 and the defendant was engaged in human
trafficking that involves a commercial sex act, as defined in
paragraph (2) of subdivision (i) of Section 236.1, if the victim was
less than 18 years of age at the time of the commission of the crime,
the court shall declare that property or proceeds forfeited to the
state or local governmental entity, subject to distribution as
provided in Section 236.12. Property that is solely owned by a bona
fide purchaser for value shall not be subject to forfeiture.
(b) If the trier of fact at the forfeiture hearing finds that the
alleged property is forfeitable pursuant to Section 236.7 but does
not find that a person holding a valid lien, mortgage, security
interest, or interest under a conditional sales contract acquired
that interest with actual knowledge that the property was to be used
for a purpose for which forfeiture is permitted, and the amount due
to that person is less than the appraised value of the property, that
person may pay to the state or the local governmental entity that
initiated the forfeiture proceeding the amount of the registered
owner's equity, which shall be deemed to be the difference between
the appraised value and the amount of the lien, mortgage, security
interest, or interest under a conditional sales contract. Upon
payment, the state or local governmental entity shall relinquish all
claims to the property. If the holder of the interest elects not to
pay the state or local governmental entity, the property shall be
deemed forfeited to the state or local governmental entity and the
ownership certificate shall be forwarded. The appraised value shall
be determined as of the date judgment is entered either by agreement
between the legal owner and the governmental entity involved, or, if
they cannot agree, by a court-appointed appraiser for the county in
which the action is brought. A person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract
shall be paid the appraised value of his or her interest.
(c) If the amount due to a person holding a valid lien, mortgage,
security interest, or interest under a conditional sales contract is
less than the value of the property and the person elects not to make
payment to the governmental entity, the property shall be sold at
public auction by the Department of General Services or by the local
governmental entity. The seller shall provide notice of the sale by
one publication in a newspaper published and circulated in the city,
community, or locality where the sale is to take place.
(d) Notwithstanding subdivision (c), a county may dispose of real
property forfeited to the county pursuant to this chapter by the
process prescribed in Section 25538.5 of the Government Code.
SEC. 6. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.