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 the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines prostitution to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

This bill would recast these provisions to distinguish between the different individuals who are guilty of disorderly conduct by soliciting, agreeing to engage in, or engaging in, any act of prostitution based on whether the person is soliciting or agreeing to receive compensation, money, or anything of value for an act of prostitution, as specified, or the person is soliciting or agreeing to provide compensation, money, or anything of value for an act of prostitution with a minor or with an adult, as specified. The bill would provide that committing disorderly conduct by soliciting or agreeing to provide compensation is punishable by a fine of not less than $250 but not exceeding $1,000, and imprisonment in a county jail for not less than 72 hours, or if probation is granted, not less than 48 hours, as specified, and not exceeding 6 months. The bill would provide that committing disorderly conduct by soliciting or agreeing to provide compensation when the defendant knew or should have known that the person solicited was a minor or the person was posing as a minor, is punishable by a fine of not less than $1,000 but not exceeding $10,000, and imprisonment in a county jail for not less than 72 hours, or if probation is granted, not less than 48 hours, as specified, and not exceeding one year. By imposing those mandatory terms of incarceration, this bill would impose a state-mandated local program.

This bill would incorporate additional changes to Section 647 of the Penal Code, proposed by SB 1129 and SB 1322, that would become operative only if this bill and one or more of those other bills are enacted and become effective on or before January 1, 2017, and this bill is chaptered last.

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.

The bill would provide that no reimbursement is required by this act for a specified reason.

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 the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines prostitution to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

This bill would recast these provisions to distinguish between the different individuals who are guilty of disorderly conduct by soliciting, agreeing to engage in, or engaging in, any act of prostitution based on whether the person is soliciting or agreeing to receive compensation, money, or anything of value for an act of prostitution, as specified, or the person is soliciting or agreeing to provide compensation, money, or anything of value for an act of prostitution with a minor or with an adult, as specified. The bill would provide that committing disorderly conduct by soliciting or agreeing to provide compensation is punishable by a fine of not less than $250 but not exceeding $1,000, and imprisonment in a county jail for not less than 72 hours, or if probation is granted, not less than 48 hours, as specified, and not exceeding 6 months. The bill would provide that committing disorderly conduct by soliciting or agreeing to provide compensation when the defendant knew or should have known that the person solicited was a minor or the person was posing as a minor, is punishable by a fine of not less than $1,000 but not exceeding $10,000, and imprisonment in a county jail for not less than 72 hours, or if probation is granted, not less than 48 hours, as specified, and not exceeding one year. By imposing those mandatory terms of incarceration, this 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.

The bill would provide that no reimbursement is required by this act for a specified reason.

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 the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines prostitution to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

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.

The bill would provide that no reimbursement is required by this act for a specified reason.

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 the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines prostitution to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

This bill would recast the provisions regarding prostitution to distinguish between a person who commits prostitution with intent to receive compensation, in exchange for providing compensation to a person who is 18 years of age or older, or in exchange for providing compensation to a minor. The bill would require a conviction either upon proof of the intent to receive compensation, money, or anything of value and with the specific intent to engage in an act of prostitution, or upon the individual providing compensation, money, or anything of value to the other person. The bill would require a person who commits prostitution by providing money or other consideration to serve at least 72 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 24 hours. The bill would expand the scope of prostitution involving by soliciting a minor to include a situation where the person who was solicited is posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor. The bill would provide that the provisions involving soliciting a minor apply only to persons who commit prostitution involving by providing money or other consideration. The bill would require a person who commits prostitution involving by soliciting a minor to serve a period of at least 72 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified, and would prohibit the court from eliminating the mandatory minimum sentence. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 48 hours. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. The bill would require those fines a portion of those fines, as specified, to be used by the county where the offense occurred for services for victims of human trafficking. The bill would clarify that nothing in this section these provisions shall preclude prosecution under any other provision of law. By revising the scope of a 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.

The bill would provide that no reimbursement is required by this act for a specified reason.

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 the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines prostitution to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

Existing law provides various penalties for human trafficking and sex trafficking offenses.

This bill would require a person convicted of a human trafficking offense or a specified sex trafficking offense, when any part of the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during the hours that the school is open for classes or school-related programs, or at any time when minors are using the facility, to receive, in addition to any other penalty imposed, an additional term of one year in state prison.

This bill would recast the provisions regarding prostitution to distinguish between a person who commits prostitution with intent to receive compensation, in exchange for providing compensation to a person who is 18 years of age or older, or in exchange for providing compensation to a minor. The bill would require a conviction either upon proof of the intent to receive compensation, money, or anything of value and with the specific intent to engage in an act of prostitution, or upon the individual providing compensation, money, or anything of value to the other person. The bill would require a person who commits prostitution by providing money or other consideration to serve at least 24 72 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 24 hours. The bill would expand the scope of prostitution involving soliciting a minor to include a situation where the person who was solicited is posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor. The bill would provide that the provisions involving soliciting a minor apply only to persons who commit prostitution involving providing money or other consideration. The bill would require a person who commits prostitution involving soliciting a minor to serve a period of at least 48 72 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified, and would prohibit the court from eliminating the mandatory minimum sentence. In all cases in which probation is granted, the bill would also require as a condition of probation that the person be confined in a county jail for at least 48 hours. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. This The bill would require those fines to be used by the county where the offense occurred for services for victims of human trafficking. The bill would clarify that nothing in this section shall preclude prosecution under any provision of law. By revising the scope of a 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 The bill would provide that no reimbursement is required by this act for a specified reason.

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 the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines prostitution to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

Existing law provides various penalties for human trafficking and sex trafficking offenses.

This bill would require a person convicted of a human trafficking offense or a specified sex trafficking offense, when any part of the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school during the hours that the school is open for classes or school-related programs, or at any time when minors are using the facility, to receive, in addition to any other penalty imposed, an additional term of one year in state prison.

This bill would recast the provisions regarding prostitution to distinguish between a person who commits prostitution with intent to receive compensation, in exchange for providing compensation to a person who is 18 years of age or older, or in exchange for providing compensation to a minor. The bill would require a conviction either upon proof of the intent to receive compensation, money, or anything of value and with the specific intent to engage in an act of prostitution, or upon the individual providing compensation, money, or anything of value to the other person. The bill would require a person who commits prostitution by providing money or other consideration to serve at least 72 24 continuous hours in the county jail. jail, to be served on days other than days of regular employment of the person, as specified. The bill would expand the scope of prostitution involving soliciting a minor to include a situation where the person who was solicited is posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor. The bill would provide that the provisions involving soliciting a minor apply only to persons who commit prostitution involving providing money or other consideration. The bill would require a person who commits prostitution involving soliciting a minor to serve a period of at least 72 48 continuous hours in the county jail, to be served on days other than days of regular employment of the person, as specified, and would prohibit the court from eliminating the mandatory minimum sentence. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. This bill would require those fines to be used by the county where the offense occurred for services for victims of human trafficking. By revising the scope of a 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.

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 the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines prostitution to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

This bill would recast those provisions the provisions regarding prostitution to distinguish between a person who commits prostitution by providing money or other consideration and a person who commits prostitution by receiving money or other consideration. The bill would provide that prostitution committed by receiving money or other consideration is not a crime for a person under 18 years of age and that it is an affirmative defense that a person engaged in the acts constituting the offense did so due to being a victim of human trafficking. with intent to receive compensation, in exchange for providing compensation to a person who is 18 years of age or older, or in exchange for providing compensation to a minor. The bill would require a conviction either upon proof of the intent to receive compensation, money, or anything of value and with the specific intent to engage in an act of prostitution, or upon the individual providing compensation, money, or anything of value to the other person. The bill would require a person who commits prostitution by providing money or other consideration to serve at least 72 hours in the county jail. The bill would expand the scope of prostitution involving soliciting a minor to include a situation where the person who was solicited is posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor. The bill would provide that the provisions involving soliciting a minor apply only to persons who commit prostitution involving providing money or other consideration. The bill would require a person who commits prostitution involving soliciting a minor to serve a period of at least 72 hours in the county jail, and would prohibit the court from eliminating the mandatory minimum sentence. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. This bill would require those fines to be used by the county where the offense occurred for services for victims of human trafficking.

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.

Existing law governs venue in criminal actions. If more than one violation of any of specified criminal offenses occurs in more than one jurisdictional territory, the jurisdiction of any one of those offenses, and of any offenses properly joinable with that offense, shall be in any jurisdiction where at least one of the offenses occurred, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

GOVERNOR'S VETO

GV Bill Id:AB 1708

Author:(Gonzalez)

As Enrolled Ver:September 8, 2016

2/3 vote

Original Committee Reference: PUB. S.

SUMMARY: Imposes mandatory minimum 72 hours in custody for persons convicted of purchasing commercial sex with specified times servable as work furlough and recasts the crime of prostitution as specified.

The Senate amendments:

1. Clarify that the mandatory minimum sentences imposed by this bill shall apply to persons placed on probation.
2. Eliminate the one year sentence enhancement for specified human traffic offenses.
3. Conform intent language of provisions related to prostitution, as they have been recast by this bill, with existing law.
4. Eliminate the funding of human trafficking programs from the fines imposed by this bill.
5. Double join this bill with SB 1129 (Monning), Chapter 724, Statutes of 2016 and SB 1322 (Mitchell), Chapter 654, Statutes of 2016 to prevent chaptering issues.

EXISTING LAW:

1. Defines "unlawful sexual intercourse" as an act of sexual intercourse accomplished with a person under the age of 18 years, when no other aggravating elements – such as force or duress – are present.
2. Provides the following penalties for unlawful sexual intercourse:
   1. Where the defendant is not more than three years older or three years younger than the minor, the offense is a misdemeanor;
   2. Where the defendant is more than three years older than the minor, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000; or,
   3. Where the defendant is at least 21 years of age and the minor is under the age of 16, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000.
3. Provides that in the absence of aggravating elements each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor is punishable as follows:
   1. Where the defendant is over 21 and the minor under 16 years of age, the offense is a felony, with a prison term of 16 months, two years or three years.
   2. In other cases sodomy with a minor is a wobbler, with a felony prison term of 16 months, two years or three years.
4. Provides that where each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor who is under 14 and the perpetrator is more than 10 years older than the minor, the offense is a felony, punishable by a prison term of three, six or eight years.
5. Provides that any person who engages in lewd conduct – any sexually motivated touching or a defined sex act – with a child under the age of 14 is guilty of a felony, punishable by a prison term of three, six or eight years. Where the offense involves force or coercion, the prison term is five, eight or 10 years.
6. Provides that where any person who engages in lewd conduct with a child who is 14 or 15 years old, and the person is at least 10 years older than the child, the person is guilty of an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000.

AS PASSED BY THE ASSEMBLY, this bill:

1. Defined and divided the crime of prostitution into three separate forms:
   1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
   2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
   3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
2. Clarified that a manifestation of acceptance of an offer or solicitation to engage in an act of prostitution shall not constitute a violation unless some act, in addition to the manifestation of acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration.
3. Specified that purchasers of commercial sex is punishable as follows:
   1. A mandatory minimum 72 hours in custody (with specified times servable as work furlough);
   2. Up to six months in the county jail; and
   3. A fine not exceeding $1,000, which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
4. Clarified that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor.
5. Increased mandatory minimum jail time for solicitation of a minor from two days to 72 hours.
6. Specified that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
7. Removed judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults and solicitation of minors, as specified. States that a person is not 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 24 hours in a county jail for purchasing commercial sex, and 48 hours for solicitation of a minor.
8. Provided that persons who are convicted of human trafficking of a minor or abduction of a minor for purposes of prostitution within 1,000 feet of a school shall be subject to a one-year state prison enhancement.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. County jails: Ongoing increase in local incarceration costs, potentially in the hundreds of thousands of dollars (Local Funds/General Fund*) annually due to the imposition of mandatory minimum jail terms. Department of Justice statistics indicate over 2,000 convictions annually under this specified provision of law. Although the proportion of convictions that would be subject to a mandatory minimum jail term is unknown, for every 25% of convictions subject to a 72-hour jail term could cost over $180,000.
2. County fine revenues: Potential increase in overall fine revenues (Local Funds) due to the mandatory minimum amounts specified, however, the requirement to utilize a portion of fine revenues to fund services for victims of human trafficking may reduce the net level of county funding available for existing programs and services currently being supported by these revenues.
3. State penalty assessment revenues: Potential minor increase in state penalty and assessment revenues (General Fund) to the extent imposing minimum fines results in increased state penalty assessment and state surcharge revenues.
4. Proposition 30*: Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. While Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

COMMENTS: According to the author, "Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while "pimps" and "johns" have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized "prostitutes" are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking.

"In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42% of first-time prostitution arrests are in fact cases involving sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

"Recently, strides have been made to recognize these sex trafficking victims as such, particularly in the case of children. However, a strong demand for the industry still exists, contributing to more and more vulnerable youth being exploited. Evidence of this can be seen as recently as the Super Bowl, in which hundreds were arrested for attempting to purchase sex^[1][1].

"There is currently no comprehensive statewide solution to combat commercial sexual exploitation of children and to assist those children. We are having the necessary conversations about the appropriate services these victims need- from mental health services, to job training, to stable housing. However, we also have to recognize that in order to stop this exploitation from happening in the first place, we need to combat the demand for commercial sex which incentivizes trafficking to happen.

"Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves.

"AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims."

Please see the policy committee analysis for a full discussion of this bill.

GOVERNOR'S VETO MESSAGE:

I am returning Assembly Bill 1708 without my signature.

This bill separates the crime of prostitution into three distinct offenses, increases monetary penalties and requires mandatory jail time for solicitation.

I signed SB 420 (Huff), which creates the same distinctions between acts of prostitution as this bill seeks to do. However, this bill goes further by adding a minimum period of confinement in county jail for solicitation. I believe that existing law provides sufficient flexibility in punishing these crimes appropriately based on circumstance.

Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0005139

1. [1]http://www.cookcountysheriff.org/press_page/press_SuperbowlSexTraffickngSting_02_9_2016.html ↑

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1708

Author:(Gonzalez)

As Amended Ver:August 19, 2016

Majority vote

Original Committee Reference: PUB. S.

SUMMARY: Imposes mandatory minimum 72 hours in custody for persons convicted of purchasing commercial sex with specified times servable as work furlough and recasts the crime of prostitution as specified.

The Senate amendments:

1. Clarify that the mandatory minimum sentences imposed by this bill shall apply to persons placed on probation.
2. Eliminate the one year sentence enhancement for specified human traffic offenses.
3. Conform intent language of provisions related to prostitution, as they have been recast by this bill, with existing law.
4. Eliminate the funding of human trafficking programs from the fines imposed by this bill.
5. Double join this bill with SB 1129 (Monning) and SB 1322 (Mitchell) of the current legislative session to prevent chaptering issues.

EXISTING LAW:

1. Defines "unlawful sexual intercourse" as an act of sexual intercourse accomplished with a person under the age of 18 years, when no other aggravating elements – such as force or duress – are present.
2. Provides the following penalties for unlawful sexual intercourse:
   1. Where the defendant is not more than three years older or three years younger than the minor, the offense is a misdemeanor;
   2. Where the defendant is more than three years older than the minor, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000; or,
   3. Where the defendant is at least 21 years of age and the minor is under the age of 16, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000.
3. Provides that in the absence of aggravating elements each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor is punishable as follows:
   1. Where the defendant is over 21 and the minor under 16 years of age, the offense is a felony, with a prison term of 16 months, two years or three years.
   2. In other cases sodomy with a minor is a wobbler, with a felony prison term of 16 months, two years or three years.
4. Provides that where each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor who is under 14 and the perpetrator is more than 10 years older than the minor, the offense is a felony, punishable by a prison term of three, six or eight years.
5. Provides that any person who engages in lewd conduct – any sexually motivated touching or a defined sex act – with a child under the age of 14 is guilty of a felony, punishable by a prison term of three, six or eight years. Where the offense involves force or coercion, the prison term is five, eight or 10 years.
6. Provides that where any person who engages in lewd conduct with a child who is 14 or 15 years old, and the person is at least 10 years older than the child, the person is guilty of an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000.

AS PASSED BY THE ASSEMBLY, this bill:

1. Defined and divided the crime of prostitution into three separate forms:
   1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
   2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
   3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
2. Clarified that a manifestation of acceptance of an offer or solicitation to engage in an act of prostitution shall not constitute a violation unless some act, in addition to the manifestation of acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration.
3. Specified that purchasers of commercial sex is punishable as follows:
   1. A mandatory minimum 72 hours in custody (with specified times servable as work furlough);
   2. Up to 6 months in the county jail; and
   3. A fine not exceeding $1,000, which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
4. Clarified that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor.
5. Increased mandatory minimum jail time for solicitation of a minor from two days to 72 hours.
6. Specified that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
7. Removed judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults and solicitation of minors, as specified. States that a person is not 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 24 hours in a county jail for purchasing commercial sex, and 48 hours for solicitation of a minor.
8. Provided that persons who are convicted of human trafficking of a minor or abduction of a minor for purposes of prostitution within 1,000 feet of a school shall be subject to a one-year state prison enhancement.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. County jails: Ongoing increase in local incarceration costs, potentially in the hundreds of thousands of dollars (Local Funds/General Fund*) annually due to the imposition of mandatory minimum jail terms. Department of Justice statistics indicate over 2,000 convictions annually under this specified provision of law. Although the proportion of convictions that would be subject to a mandatory minimum jail term is unknown, for every 25% of convictions subject to a 72-hour jail term could cost over $180,000.
2. County fine revenues: Potential increase in overall fine revenues (Local Funds) due to the mandatory minimum amounts specified, however, the requirement to utilize a portion of fine revenues to fund services for victims of human trafficking may reduce the net level of county funding available for existing programs and services currently being supported by these revenues.
3. State penalty assessment revenues: Potential minor increase in state penalty and assessment revenues (General Fund) to the extent imposing minimum fines results in increased state penalty assessment and state surcharge revenues.
4. Proposition 30*: Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. While Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

COMMENTS: According to the author, "Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while "pimps" and "johns" have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized "prostitutes" are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking.

"In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42% of first-time prostitution arrests are in fact cases involving sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

"Recently, strides have been made to recognize these sex trafficking victims as such, particularly in the case of children. However, a strong demand for the industry still exists, contributing to more and more vulnerable youth being exploited. Evidence of this can be seen as recently as the Super Bowl, in which hundreds were arrested for attempting to purchase sex^[1][1].

"There is currently no comprehensive statewide solution to combat commercial sexual exploitation of children and to assist those children. We are having the necessary conversations about the appropriate services these victims need- from mental health services, to job training, to stable housing. However, we also have to recognize that in order to stop this exploitation from happening in the first place, we need to combat the demand for commercial sex which incentivizes trafficking to happen.

"Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves.

"AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims."

Please see the policy committee analysis for a full discussion of this bill.

Analysis Prepared by: Gabriel Caswell / PUB. S. / (916) 319-3744 FN: 0004799

1. [1]http://www.cookcountysheriff.org/press_page/press_SuperbowlSexTraffickngSting_02_9_2016.html ↑

 THIRD READING  

Bill No: AB 1708

Author: Gonzalez (D), et al.

Amended: 8/19/16 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/21/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: 75-1, 5/19/16 - See last page for vote

SUBJECT: Disorderly conduct: prostitution

SOURCE: Author

DIGEST: This bill (1) recasts the crime of prostitution into three parts, one applicable to the person who agreed to receive, or received compensation in exchange for a sexual act , one applicable to the person who paid, or agreed to pay compensation, one applicable to the person who paid, or agreed to pay compensation to a minor and placed prostitution-related subdivisions together in Penal Code Section 647; (2) imposes a mandatory minimum sentenced term of 72 hours in jail and a fine of between $250 and $1,000 for persons convicted of purchasing commercial sex; (3) provides that if the defendant knew or should have known that the other party was a minor, or the defendant intended to purchase sex from a minor, the $1,000 fine is the minimum fine, with a maximum of $10,000; (4) requires any person convicted of providing compensation, or agreeing to provide compensation for a sexual act to serve at least a continuous 24 hours in jail before being eligible for release on any basis – 48 hours if the defendant intended to engage in prostitution with a minor, or knew or should have known the other party was a minor; and (5) requires defendants granted probation to serve a continuous 24 or 48 hours in jail as a condition of probation.

Senate Floor Amendments of 8/19/16 are chaptering amendments to protect this bill, SB 1129 (Monning), and SB 1322 (Mitchell).

ANALYSIS:

Existing law:

1. 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: a) to effect or maintain a specified felony commercial sex or prostitution-related offense; b) commit extortion; c) specified child pornography offenses or d) obtain forced labor or services. (Pen. Code § 236.1, subd. (a)-(b).)
2. Provides that human trafficking of a minor does not include an element of deprivation of the victim’s liberty. Trafficking of a minor is committed through inducing, persuading or causing a minor to engage commercial sex acts, child pornography or extortion, or attempting to do so. It is punishable as follows:
   1. Five, eight or 12 years in prison and a fine of up to $500,000.
   2. Fifteen-years-to-life and a fine of up to $500,000 if the offense involved force, threats, coercion, fraud or deceit, as specified. (Pen. Code § 236.1, subd. (c).)
3. Includes these special rules applicable to human trafficking of a minor:
   1. Whether the defendant caused, induced or persuaded a minor to engage in a commercial sex act depends on the totality of circumstances, including the relationship between the victim and the defendant.
   2. Mistake of fact as to the age of the victim is not a defense.
   3. Consent by a minor to an act underlying a human trafficking charge is not a defense. (Pen. Code § 236.1, subd. (d)-(f)
4. Provides for the following enhancements and special fines in human trafficking cases:
   1. The court may impose on the defendant an additional fine of up to $1,000,000. (Pen. Code § 236.4, subd. (a).)
   2. A defendant who inflicts great bodily injury on the victim of human trafficking shall be punished by a consecutive prison term enhancement of five, seven, or 10 years. (Pen. Code § 236.4, subd. (b).)
   3. A defendant shall receive a consecutive prison enhancement term of five years for each prior human trafficking conviction.
5. Provides that taking a minor from her or his parents or guardian for purposes of prostitution is a felony punishable by a prison term of 16 months, two years, or three years and a fine of up to $2,000. The offense can be committed through inducements, not abduction alone. (Pen. Code § 267.)
6. Provides that prostitution involves any lewd act between persons for money or other consideration. (Pen. Code § 647, subd. (b); CALCRIM 1154)
7. Defines a lewd act as “touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification.” (CALCRIM 1154, citing Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256; See, Wooten v. Superior Court (2001) 93 Cal.App.4th 422, pp. 431–433.)
8. Provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a misdemeanor. The crime includes an element that the defendant specifically intended to engage in an act of prostitution and some act was done in furtherance of the agreed upon act. (Pen. Code § 647, subd. (b).)
9. Provides that where any person is convicted for 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. (Pen. Code § 647, subd. (k).)
10. 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. (Pen. Code § 647, subd. (k).)
11. Provides that where a defendant is convicted of a prostitution offense in which the defendant sought to procure or procured the "sexual services of a prostitute who was a minor,” the following shall apply:
    1. The defendant shall, in addition to any other fine or penalty, be ordered to pay up to $25,000; and
    2. Upon appropriation by the Legislature, the proceeds of the fine shall "be available to fund programs and services for commercially sexually exploited minors in the counties" of conviction. (Pen. Code §§ 261.9 and 647, subd. (b).

This bill:

1. Defines and divides the crime of prostitution into three separate forms:
   1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
   2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
   3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
2. Specifies that a defendant, who purchased or agreed to purchase commercial sex, is guilty of a misdemeanor, punishable as follows:
   1. A mandatory minimum 72 hours in county jail;
   2. Up to six months in the county jail; and
   3. A fine of between $250 and $1,000;
   4. A convicted defendant is not eligible for release upon completion of sentence 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 24 hours in a county jail; and
   5. A defendant granted probation must serve a term of 24 continuous hours in jail as a condition or of probation.
3. Specifies that if a defendant who purchased or agreed to purchase commercial sex knew or should have known that the provider of the commercial sex act was a minor, or specifically intended to obtain such services from a minor, the misdemeanor is punishable as follows:
   1. A term of up to one year in a county jail;
   2. A mandatory minimum term of 72 hours; and
   3. A fine of at least $1,000 (with a maximum of $10,000);
   4. A convicted defendant is not eligible for release upon completion of sentence 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 48 hours in a county jail; and
   5. A defendant granted probation must serve a term of48 continuous hours in jail as a condition or of probation.
4. Provides that where the defendant purchased, or agreed to purchase commercial sex and the defendant knew or should have known that the person to be compensated is a minor, or where the defendant specifically intended to purchase sex from a minor, the penalties are as follows: must impose a sentence of at least 72 hours in jail; and a defendant must serve a minimum of 48 continuous hours in jail before release on parole, on work furlough or work release, or on any other basis.
5. Grants the court discretion to allow a defendant to serve the required 48 continuous hours in jail so as to not interfere with his work schedule. If 48 continuous hours of custody would interfere the defendant’s work schedule, the court can allow the defendant to serve that time when he is not working.

Background

According to the author:

Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while “pimps” and “johns” have been the least likely offenders to face jail time. This ignores that many of these “prostitutes” are actually victims of sex trafficking. In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42 percent of first-time prostitution arrests involve sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

Strides have been made to recognize these sex trafficking victims as such, particularly children. We are starting to provide appropriate services for these victims - mental health services, job training and stable housing. We also must recognize that we need to combat the demand for commercial sex which incentivizes trafficking to happen. Commercial sex trafficking remains a lucrative business, with a high demand leading to more and more youth exploitation. AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking. We need to make sure that the negative consequences fall on the true criminals, not the victims.

This bill separately defines prostitution in which the person who provides, or agreed to provide, sexual services is a minor. Any sexual conduct with a minor constitutes a felony in most instances.

This bill requires prostitution “johns” to serve 24 continuous hours in jail. The bill also provides that a person who is not granted probation, or who refuses probation, and who is then sentenced to a term of at least 72 hours in jail would be eligible for release on work furlough, work release or some other basis after 24 hours. Most county jails are crowded, particularly in urban areas. A defendant convicted of a prostitution offense and sentenced to serve 72 hours in jail in a county with crowded jail conditions could well serve no more than the continuous 24 hours in jail. As such, it is unlikely that a prostitution defendant would agree to probation, as he would serve the same jail term as a sentenced inmate. A sentenced inmate might well elect to serve his sentence and avoid probation supervision. A defendant who is not on probation cannot be monitored by the probation department or the court or ordered to engage in rehabilitative or restorative justice programs. If the odds of getting caught committing such a crime is low, and that may be likely, such a person could remain a significant source of demand for prostitution.

A draft University of Chicago study examined street-level prostitution in Chicago. The study noted that more upscale prostitution occurred over the Internet and through escort services, where the likelihood of arrest was low. Levitt found “many men making a few visits and a small number of men making very frequent visits.” He found that 25 johns were arrested twice and 2,969 johns were arrested once. Leavitt concluded that some men may have learned from one arrest how to avoid another.

A 2002 study in the Western Criminology Review of a first-offender program in Portland, Oregon (SEEP) found very low recidivism rates for all arrestees, regardless of whether they participated in SEEP. They could not say whether the education from the SEEP program would have led the participants to a avoid prostitution in the future. A number of other cities adopted special first-offender prostitution diversion programs that educate “johns” about the harms caused by commercial sex. The San Francisco program – First Offender Prostitution Program (FOPP) – was one of the first. A report on FOPP conducted by Abt Associates concluded that program was effective. The claims of a sharp drop in recidivism in the Abt report have been harshly criticized and questioned by academic researchers.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations analysis:

• County jails. Ongoing increase in local incarceration costs, potentially in the hundreds of thousands of dollars (Local Funds/General Fund*) annually due to the imposition of mandatory minimum jail terms. Department of Justice statistics indicate over 2,000 convictions annually under this specified provision of law. Although the proportion of convictions that would be subject to a mandatory minimum jail term is unknown, for every 25 percent of convictions subject to a 72-hour jail term could cost over $180,000.
• County fine revenues. Potential increase in overall fine revenues (Local Funds) due to the minimum fine amounts specified.
• State penalty assessment revenues. Potential minor increase in state penalty and assessment revenues (General Fund) to the extent imposing minimum fines results in increased state penalty assessment and state surcharge revenues.
• Proposition 30. Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. While Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

SUPPORT: (Verified 8/19/16)

Alameda County District Attorney

California District Attorneys Association

Grossmont Union High School District

Peace Officers Research Association of California

San Diego County

San Diego County District Attorney

San Diego School Police Officers Association

State Coalition of Probation Organizations

OPPOSITION: (Verified 8/19/16)

American Civil Liberties Union of California

California Public Defenders Association

ASSEMBLY FLOOR: 75-1, 5/19/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon

NOES: Quirk

NO VOTE RECORDED: Chang, Mathis, McCarty, Williams

Prepared by: Jerome McGuire / PUB. S. /

8/22/16 22:40:39

**** END ****

 THIRD READING  

Bill No: AB 1708

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/21/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: 75-1, 5/19/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill (1) recasts the crime of prostitution into three parts, one applicable to the person who agreed to receive, or received compensation in exchange for a sexual act , one applicable to the person who paid, or agreed to pay compensation, one applicable to the person who paid, or agreed to pay compensation to a minor and placed prostitution-related subdivisions together in Penal Code Section 647; (2) imposes a mandatory minimum sentenced term of 72 hours in jail and a set fine of between $250 and $1,000 for persons convicted of purchasing commercial sex; (3) provides that if the defendant knew or should have known that the other party was a minor, or the defendant intended to purchase sex from a minor, the $1,000 fine is the minimum fine, with a maximum of $10,000; (4) requires any person convicted of providing compensation, or agreeing to provide compensation for a sexual act to serve at least a continuous 24 hours in jail before being eligible for release on any basis – 48 hours if the defendant intended to engage in prostitution with a minor, or knew or should have known the other party was a minor; and (5) requires defendants granted probation to serve a continuous 24 or 48 hours in jail as a condition of probation.

ANALYSIS:

Existing law:

1. 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: a) to effect or maintain a specified felony commercial sex or prostitution-related offense; b) commit extortion; c) specified child pornography offenses or d) obtain forced labor or services. (Pen. Code § 236.1, subd. (a)-(b).)
2. Provides that human trafficking of a minor does not include an element of deprivation of the victim’s liberty. Trafficking of a minor is committed through inducing, persuading or causing a minor to engage commercial sex acts, child pornography or extortion, or attempting to do so. It is punishable as follows:
   1. Five, eight, or 12 years in prison and a fine of up to $500,000.
   2. Fifteen-years-to-life and a fine of up to $500,000 if the offense involved force, threats, coercion, fraud or deceit, as specified. (Pen. Code § 236.1, subd. (c).)
3. Includes these special rules applicable to human trafficking of a minor:
   1. Whether the defendant caused, induced or persuaded a minor to engage in a commercial sex act depends on the totality of circumstances, including the relationship between the victim and the defendant.
   2. Mistake of fact as to the age of the victim is not a defense.
   3. Consent by a minor to an act underlying a human trafficking charge is not a defense. (Pen. Code § 236.1, subd. (d)-(f)
4. Provides for the following enhancements and special fines in human trafficking cases:
   1. The court may impose on the defendant an additional fine of up to $1,000,000. (Pen. Code § 236.4, subd. (a).)
   2. A defendant who inflicts great bodily injury on the victim of human trafficking shall be punished by a consecutive prison term enhancement of five, seven, or 10 years. (Pen. Code § 236.4, subd. (b).)
   3. A defendant shall receive a consecutive prison enhancement term of five years for each prior human trafficking conviction.
5. Provides that taking a minor from her or his parents or guardian for purposes of prostitution is a felony punishable by a prison term of 16 months, two years, or three years and a fine of up to $2,000. The offense can be committed through inducements, not abduction alone. (Pen. Code § 267.)
6. Provides that prostitution involves any lewd act between persons for money or other consideration. (Pen. Code § 647, subd. (b); CALCRIM 1154)
7. Defines a lewd act as “touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification.” (CALCRIM 1154, citing Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256; See, Wooten v. Superior Court (2001) 93 Cal.App.4th 422, pp. 431–433.)
8. Provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a misdemeanor. The crime includes an element that the defendant specifically intended to engage in an act of prostitution and some act was done in furtherance of the agreed upon act. (Pen. Code § 647, subd. (b).)
9. Provides that where any person is convicted for 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. (Pen. Code § 647, subd. (k).)
10. 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. (Pen. Code § 647, subd. (k).)
11. Provides that where a defendant is convicted of a prostitution offense in which the defendant sought to procure or procured the "sexual services of a prostitute who was a minor,” the following shall apply:
    1. The defendant shall, in addition to any other fine or penalty, be ordered to pay up to $25,000; and
    2. Upon appropriation by the Legislature, the proceeds of the fine shall "be available to fund programs and services for commercially sexually exploited minors in the counties" of conviction. (Pen. Code §§ 261.9 and 647, subd. (b).

This bill:

1. Defines and divides the crime of prostitution into three separate forms:
   1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
   2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
   3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
2. Specifies that a defendant, who purchased or agreed to purchase commercial sex, is guilty of a misdemeanor, punishable as follows:
   1. A mandatory minimum 72 hours in county jail;
   2. Up to six months in the county jail; and
   3. A fine of between $250 and $1,000;
   4. A convicted defendant is not eligible for release upon completion of sentence 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 24 hours in a county jail; and
   5. A defendant granted probation must serve a term of 24 continuous hours in jail as a condition or of probation.
3. Specifies that if a defendant who purchased or agreed to purchase commercial sex knew or should have known that the provider of the commercial sex act was a minor, or specifically intended to obtain such services from a minor, the misdemeanor is punishable as follows:
   1. A term of up to one year in a county jail;
   2. A mandatory minimum term of 72 hours; and
   3. A fine of at least $1,000 (with a maximum of $10,000);
   4. A convicted defendant is not eligible for release upon completion of sentence 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 48 hours in a county jail;
   5. A defendant granted probation must serve a term of48 continuous hours in jail as a condition or of probation.
4. Provides that where the defendant purchased, or agreed to purchase commercial sex and the defendant knew or should have known that the person to be compensated is a minor, or where the defendant specifically intended to purchase sex from a minor, the penalties are as follows: must impose a sentence of at least 72 hours in jail; and a defendant must serve a minimum of 48 continuous hours in jail before release on parole, on work furlough or work release, or on any other basis.
5. Grants the court discretion to allow a defendant to serve the required 48 continuous hours in jail so as to not interfere with his work schedule. If 48 continuous hours of custody would interfere the defendant’s work schedule, the court can allow the defendant to serve that time when he is not working.

Background

According to the author:

Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while “pimps” and “johns” have been the least likely offenders to face jail time. This ignores that many of these “prostitutes” are actually victims of sex trafficking. In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42 percent of first-time prostitution arrests involve sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

Strides have been made to recognize these sex trafficking victims as such, particularly children. We are starting to provide appropriate services for these victims - mental health services, job training and stable housing. We also must recognize that we need to combat the demand for commercial sex which incentivizes trafficking to happen. Commercial sex trafficking remains a lucrative business, with a high demand leading to more and more youth exploitation. AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking. We need to make sure that the negative consequences fall on the true criminals, not the victims.

This bill separately defines prostitution in which the person who provides, or agreed to provide, sexual services is a minor. Any sexual conduct with a minor constitutes a felony in most instances.

This bill requires prostitution “johns” to serve 24 continuous hours in jail. The bill also provides that a person who is not granted probation, or who refuses probation, and who is then sentenced to a term of at least 72 hours in jail would be eligible for release on work furlough, work release or some other basis after 24 hours. Most county jails are crowded, particularly in urban areas. A defendant convicted of a prostitution offense and sentenced to serve 72 hours in jail in a county with crowded jail conditions could well serve no more than the continuous 24 hours in jail. As such, it is unlikely that a prostitution defendant would agree to probation, as he would serve the same jail term as a sentenced inmate. A sentenced inmate might well elect to serve his sentence and avoid probation supervision. A defendant who is not on probation cannot be monitored by the probation department or the court or ordered to engage in rehabilitative or restorative justice programs. If the odds of getting caught committing such a crime is low, and that may be likely, such a person could remain a significant source of demand for prostitution.

A draft University of Chicago study examined street-level prostitution in Chicago. The study noted that more upscale prostitution occurred over the Internet and through escort services, where the likelihood of arrest was low. Levitt found “many men making a few visits and a small number of men making very frequent visits.” He found that 25 johns were arrested twice and 2,969 johns were arrested once. Leavitt concluded that some men may have learned from one arrest how to avoid another.

A 2002 study in the Western Criminology Review of a first-offender program in Portland, Oregon (SEEP) found very low recidivism rates for all arrestees, regardless of whether they participated in SEEP. They could not say whether the education from the SEEP program would have led the participants to a avoid prostitution in the future. A number of other cities adopted special first-offender prostitution diversion programs that educate “johns” about the harms caused by commercial sex. The San Francisco program – First Offender Prostitution Program (FOPP) – was one of the first. A report on FOPP conducted by Abt Associates concluded that program was effective. The claims of a sharp drop in recidivism in the Abt report have been harshly criticized and questioned by academic researchers.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• County jails: Ongoing increase in local incarceration costs, potentially in the hundreds of thousands of dollars (Local Funds/General Fund*) annually due to the imposition of mandatory minimum jail terms. Department of Justice statistics indicate over 2,000 convictions annually under this specified provision of law. Although the proportion of convictions that would be subject to a mandatory minimum jail term is unknown, for every 25 percent of convictions subject to a 72-hour jail term could cost over $180,000.
• County fine revenues: Potential increase in overall fine revenues (Local Funds) due to the minimum fine amounts specified.
• State penalty assessment revenues: Potential minor increase in state penalty and assessment revenues (General Fund) to the extent imposing minimum fines results in increased state penalty assessment and state surcharge revenues.
• Proposition 30: Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. While Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

SUPPORT: (Verified 8/12/16)

Alameda County District Attorney

California District Attorneys Association

Grossmont Union High School District

Peace Officers Research Association of California

San Diego County

San Diego County District Attorney

San Diego School Police Officers Association

State Coalition of Probation Organizations

OPPOSITION: (Verified 8/12/16)

American Civil Liberties Union of California

California Public Defenders Association

ASSEMBLY FLOOR: 75-1, 5/19/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon

NOES: Quirk

NO VOTE RECORDED: Chang, Mathis, McCarty, Williams

Prepared by: Jerome McGuire / PUB. S. /

8/16/16 13:08:18

**** END ****

 THIRD READING  

Bill No: AB 1708

Author:

:

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/21/16

AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: 75-1, 5/19/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill (1) recasts the crime of prostitution into three parts, one applicable to the person who agreed to receive, or received compensation in exchange for a sexual act , one applicable to the person who paid, or agreed to pay compensation, one applicable to the person who paid, or agreed to pay compensation to a minor and placed prostitution-related subdivisions together in Penal Code Section 647; (2) imposes a mandatory minimum sentenced term of 72 hours in jail and a set fine of $1,000 for persons convicted of purchasing commercial sex; (3) provides that if the defendant knew or should have known that the other party was a minor, or the defendant intended to purchase sex from a minor, the $1,000 fine is the minimum fine, with a maximum of $10,000; (4) requires any person convicted of providing compensation, or agreeing to provide compensation for a sexual act to serve at least a continuous 24 hours in jail before being eligible for release on any basis – 48 hours if the defendant intended to engage in prostitution with a minor, or knew or should have known the other party was a minor; and (5) requires defendants granted probation to serve a continuous 24 or 48 hours in jail as a condition of probation.

ANALYSIS:

Existing law:

1. 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: a) to effect or maintain a specified felony commercial sex or prostitution-related offense; b) commit extortion; c) specified child pornography offenses or d) obtain forced labor or services. (Pen. Code § 236.1, subd. (a)-(b).)
2. Provides that human trafficking of a minor does not include an element of deprivation of the victim’s liberty. Trafficking of a minor is committed through inducing, persuading or causing a minor to engage commercial sex acts, child pornography or extortion, or attempting to do so. It is punishable as follows:
   1. Five, eight, or 12 years in prison and a fine of up to $500,000.
   2. Fifteen-years-to-life and a fine of up to $500,000 if the offense involved force, threats, coercion, fraud or deceit, as specified. (Pen. Code § 236.1, subd. (c).)
3. Includes these special rules applicable to human trafficking of a minor:
   1. Whether the defendant caused, induced or persuaded a minor to engage in a commercial sex act depends on the totality of circumstances, including the relationship between the victim and the defendant.
   2. Mistake of fact as to the age of the victim is not a defense.
   3. Consent by a minor to an act underlying a human trafficking charge is not a defense. (Pen. Code § 236.1, subd. (d)-(f)
4. Provides for the following enhancements and special fines in human trafficking cases:
   1. The court may impose on the defendant an additional fine of up to $1,000,000. (Pen. Code § 236.4, subd. (a).)
   2. A defendant who inflicts great bodily injury on the victim of human trafficking shall be punished by a consecutive prison term enhancement of five, seven, or 10 years. (Pen. Code § 236.4, subd. (b).)
   3. A defendant shall receive a consecutive prison enhancement term of five years for each prior human trafficking conviction.
5. Provides that taking a minor from her or his parents or guardian for purposes of prostitution is a felony punishable by a prison term of 16 months, two years, or three years and a fine of up to $2,000. The offense can be committed through inducements, not abduction alone. (Pen. Code § 267.)
6. Provides that prostitution involves any lewd act between persons for money or other consideration. (Pen. Code § 647, subd. (b); CALCRIM 1154)
7. Defines a lewd act as “touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification.” (CALCRIM 1154, citing Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256; See, Wooten v. Superior Court (2001) 93 Cal.App.4th 422, pp. 431–433.)
8. Provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a misdemeanor. The crime includes an element that the defendant specifically intended to engage in an act of prostitution and some act was done in furtherance of the agreed upon act. (Pen. Code § 647, subd. (b).)
9. Provides that where any person is convicted for 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. (Pen. Code § 647, subd. (k).)
10. 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. (Pen. Code § 647, subd. (k).)
11. Provides that where a defendant is convicted of a prostitution offense in which the defendant sought to procure or procured the "sexual services of a prostitute who was a minor,” the following shall apply:
    1. The defendant shall, in addition to any other fine or penalty, be ordered to pay up to $25,000; and
    2. Upon appropriation by the Legislature, the proceeds of the fine shall "be available to fund programs and services for commercially sexually exploited minors in the counties" of conviction. (Pen. Code §§ 261.9 and 647, subd. (b).

This bill:

1. Defines and divides the crime of prostitution into three separate forms:
   1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
   2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
   3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
2. Specifies that a defendant, who purchased or agreed to purchase commercial sex, is guilty of a misdemeanor, punishable as follows:
   1. A mandatory minimum 72 hours in county jail;
   2. Up to six months in the county jail; and
   3. A fine not exceeding $1,000, to be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking;
   4. A convicted defendant is not eligible for release upon completion of sentence 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 24 hours in a county jail; and
   5. A defendant granted probation must serve a term of 24 continuous hours in jail as a condition or of probation.
3. Specifies that if a defendant who purchased or agreed to purchase commercial sex knew or should have known that the provider of the commercial sex act was a minor, or specifically intended to obtain such services from a minor, the misdemeanor is punishable as follows:
   1. A term of up to one year in a county jail;
   2. A mandatory minimum term of 72 hours; and
   3. A fine of at least $1,000 (with a maximum of $10,000) to be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking;
   4. A convicted defendant is not eligible for release upon completion of sentence 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 48 hours in a county jail;
   5. A defendant granted probation must serve a term of48 continuous hours in jail as a condition or of probation.
4. Provides that where the defendant purchased, or agreed to purchase commercial sex and the defendant knew or should have known that the person to be compensated is a minor, or where the defendant specifically intended to purchase sex from a minor, the penalties are as follows: must impose a sentence of at least 72 hours in jail; and a defendant must serve a minimum of 48 continuous hours in jail before release on parole, on work furlough or work release, or on any other basis.
5. Grants the court discretion to allow a defendant to serve the required 48 continuous hours in jail so as to not interfere with his work schedule. If 48 continuous hours of custody would interfere the defendant’s work schedule, the court can allow the defendant to serve that time when he is not working.

Background

According to the author:

Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while “pimps” and “johns” have been the least likely offenders to face jail time. This ignores that many of these “prostitutes” are actually victims of sex trafficking. In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42 percent of first-time prostitution arrests involve sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

Strides have been made to recognize these sex trafficking victims as such, particularly children. We are starting to provide appropriate services for these victims - mental health services, job training and stable housing. We also must recognize that we need to combat the demand for commercial sex which incentivizes trafficking to happen. Commercial sex trafficking remains a lucrative business, with a high demand leading to more and more youth exploitation. AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking. We need to make sure that the negative consequences fall on the true criminals, not the victims.

This bill separately defines prostitution in which the person who provides, or agreed to provide, sexual services is a minor. Any sexual conduct with a minor constitutes a felony in most instances.

This bill requires prostitution “johns” to serve 24 continuous hours in jail. The bill also provides that a person who is not granted probation, or who refuses probation, and who is then sentenced to a term of at least 72 hours in jail would be eligible for release on work furlough, work release or some other basis after 24 hours. Most county jails are crowded, particularly in urban areas. A defendant convicted of a prostitution offense and sentenced to serve 72 hours in jail in a county with crowded jail conditions could well serve no more than the continuous 24 hours in jail. As such, it is unlikely that a prostitution defendant would agree to probation, as he would serve the same jail term as a sentenced inmate. A sentenced inmate might well elect to serve his sentence and avoid probation supervision. A defendant who is not on probation cannot be monitored by the probation department or the court or ordered to engage in rehabilitative or restorative justice programs. If the odds of getting caught committing such a crime is low, and that may be likely, such a person could remain a significant source of demand for prostitution.

A draft University of Chicago study examined street-level prostitution in Chicago. The study noted that more upscale prostitution occurred over the Internet and through escort services, where the likelihood of arrest was low. Levitt found “many men making a few visits and a small number of men making very frequent visits.” He found that 25 johns were arrested twice and 2,969 johns were arrested once. Leavitt concluded that some men may have learned from one arrest how to avoid another.

A 2002 study in the Western Criminology Review of a first-offender program in Portland, Oregon (SEEP) found very low recidivism rates for all arrestees, regardless of whether they participated in SEEP. They could not say whether the education from the SEEP program would have led the participants to a avoid prostitution in the future. A number of other cities adopted special first-offender prostitution diversion programs that educate “johns” about the harms caused by commercial sex. The San Francisco program – First Offender Prostitution Program (FOPP) – was one of the first. A report on FOPP conducted by Abt Associates concluded that program was effective. The claims of a sharp drop in recidivism in the Abt report have been harshly criticized and questioned by academic researchers.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• County jails: Ongoing increase in local incarceration costs, potentially in the hundreds of thousands of dollars (Local Funds/General Fund*) annually due to the imposition of mandatory minimum jail terms. Department of Justice statistics indicate over 2,000 convictions annually under this specified provision of law. Although the proportion of convictions that would be subject to a mandatory minimum jail term is unknown, for every 25 percent of convictions subject to a 72-hour jail term could cost over $180,000.
• County fine revenues: Potential increase in overall fine revenues (Local Funds) due to the minimum fine amounts specified.
• State penalty assessment revenues: Potential minor increase in state penalty and assessment revenues (General Fund) to the extent imposing minimum fines results in increased state penalty assessment and state surcharge revenues.
• Proposition 30: Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. While Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

SUPPORT: (Verified 8/12/16)

Alameda County District Attorney

California District Attorneys Association

Grossmont Union High School District

Peace Officers Research Association of California

San Diego County

San Diego County District Attorney

San Diego School Police Officers Association

State Coalition of Probation Organizations

OPPOSITION: (Verified 8/12/16)

American Civil Liberties Union of California

California Public Defenders Association

ASSEMBLY FLOOR: 75-1, 5/19/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mayes, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Wood, Rendon

NOES: Quirk

NO VOTE RECORDED: Chang, Mathis, McCarty, Williams

Prepared by: Jerome McGuire / PUB. S. /

8/15/16 20:33:21

**** END ****

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1708 (Gonzalez) - Disorderly conduct: prostitution

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 11, 2016

Bill Summary:

AB 1708 would impose minimum fines and mandatory minimum county jail terms for persons convicted of purchasing commercial sex, and would recast the provisions of the crime of prostitution, as specified.

Fiscal Impact:

• County jails: Ongoing increase in local incarceration costs, potentially in the hundreds of thousands of dollars (Local Funds/General Fund*) annually due to the imposition of mandatory minimum jail terms. DOJ statistics indicate over 2,000 convictions annually under this specified provision of law. Although the proportion of convictions that would be subject to a mandatory minimum jail term is unknown, for every 25 percent of convictions subject to a 72-hour jail term could cost over $180,000.
• County fine revenues: Potential increase in overall fine revenues (Local Funds) due to the minimum fine amounts specified.
• State penalty assessment revenues: Potential minor increase in state penalty and assessment revenues (General Fund) to the extent imposing minimum fines results in increased state penalty assessment and state surcharge revenues.
• Proposition 30*: Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. While Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

Author Amendments:

Remove the requirement to utilize a specified amount of fine revenue to fund services for victims of human trafficking and make other technical changes.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 1708 (Gonzalez) - Disorderly conduct: prostitution

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 1708 would impose minimum fines and mandatory minimum county jail terms for persons convicted of purchasing commercial sex, and would recast the provisions of the crime of prostitution, as specified.

Fiscal Impact:

• County jails: Ongoing increase in local incarceration costs, potentially in the hundreds of thousands of dollars (Local Funds/General Fund*) annually due to the imposition of mandatory minimum jail terms. DOJ statistics indicate over 2,000 convictions annually under this specified provision of law. Although the proportion of convictions that would be subject to a mandatory minimum jail term is unknown, for every 25 percent of convictions subject to a 72-hour jail term could cost over $180,000.
• County fine revenues: Potential increase in overall fine revenues (Local Funds) due to the mandatory minimum amounts specified, however, the requirement to utilize a portion of fine revenues to fund services for victims of human trafficking may reduce the net level of county funding available for existing programs and services currently being supported by these revenues.
• State penalty assessment revenues: Potential minor increase in state penalty and assessment revenues (General Fund) to the extent imposing minimum fines results in increased state penalty assessment and state surcharge revenues.
• Proposition 30*: Under 2011 Realignment Legislation, the state provided funding to the counties to place offenders in county jail for specified felonies that previously would have required a state prison sentence. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. While Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

Background:

Existing law provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a misdemeanor, punishable by up to six months in county jail, a fine of up to $1,000, or both. (Penal Code (PC) § 647(b).)

For second and third (or subsequent) prostitution offenses, existing law provides for minimum county jail sentences of 45 days and 90 days, respectively, no part of which can be suspended or reduced by the court regardless of whether or not the court grants probation. (PC § 647(k).)

Under existing law, solicitation of a minor for an act of prostitution is punishable by a mandatory minimum sentence of two days and up to one year in county jail, a fine of up to $10,000, or by both that fine and imprisonment. Under existing law, a court may reduce or eliminate the mandatory minimum two-day sentence when the interests of justice are best served. (PC § 647(m).)

Existing law further provides that where a defendant is convicted of a prostitution offense in which the defendant sought to procure or procured the sexual services of a prostitute who was a minor, the defendant shall be ordered to pay, in addition to any other fine or penalty, up to $25,000. The proceeds of such funds are to be available, upon legislative appropriation, to fund programs and services for sexually exploited minors in the counties where the underlying offenses were committed. (PC § 261.9.)

Proposed Law:

This bill would impose minimum fines and mandatory minimum county jail terms for persons convicted of purchasing commercial sex, and would recast the provisions of the crime of prostitution as specified. Specifically, this bill:

• Defines and divides the crime of prostitution into three separate forms:
  • The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
  • The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act, regardless of which party made the initial solicitation;
  • The defendant provided compensation, agreed to provide compensation, or solicited a minor to accept compensation in exchange for a lewd act, regardless of which party made the initial solicitation.
• Clarifies that a manifestation of acceptance of an offer or solicitation for prostitution is not a violation unless some act, in addition to acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.
• Specifies that purchase of commercial sex is punishable as follows:
  • A minimum of 72 hours and up to six months in county jail; and
  • A minimum fine of $250 but not exceeding $1,000, $250 of which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
  • Specifies a person is not 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 at least 24 continuous hours in a county jail.
  • In cases in which probation is granted, the court shall require as a condition of probation that the person be confined in county jail for at least 24 hours that may be served on days other than days of regular employment of the person, as determined by the court, as specified.
• Specifies that purchase of commercial sex, in the case where the defendant knew or should have known that the person was a minor, or the person who was solicited was posing as a minor and the person engaged in the solicitation had the specific intent to solicit a minor, is punishable as follows:
  • A minimum of 72 hours and up to one year in county jail; and
  • A minimum fine of $1,000 but not exceeding $10,000. Specifies that the fine shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
  • Specifies a person is not 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 at least 48 continuous hours in a county jail.
  • In cases in which probation is granted, the court shall require as a condition of probation that the person be confined in county jail for at least 48 hours. Requires the court to order the person be imprisoned on days other than regular days of regular employment of the person, as determined by the court, as specified.
• Provides that these provisions do not prohibit prosecution under any other law.

Related Legislation:

SB 776 (Block) 2015 would have specified a minimum fine upon offenders who engage in prostitution and directed that money to be spent on services for commercially exploited persons in the county in which the fines were collected. This bill was held in the Assembly Committee on Public Safety for interim study.

SB 420 (Huff) 2015 would divide the crime of prostitution into three specific crimes based on whether the alleged offender is agreeing to receive compensation for a lewd act, or whether the alleged offender is agreeing to provide compensation for a lewd act. This bill recently passed the Assembly on June 27, 2016, and was enrolled on June 29, 2016.

Prior Legislation: SB 982 (Huff) 2014 would have provided that soliciting an act of prostitution from a minor, or engaging in an act of prostitution with a minor, as specified, is an alternate felony-misdemeanor for a first conviction, and a straight felony for a repeated conviction. This bill was held on the Suspense File of this Committee.

SB 1388 (Lieu) Chapter 714/2014 increased the fines related to the solicitation of an act of prostitution, as specified.

AB 12 (Swanson) Chapter 75/2011 established the “Abolition of Child Commerce, Exploitation, and Sexual Slavery Act of 2011,” or ACCESS Act of 2011. AB 12 requires 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 provides 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.

Staff Comments:

By imposing mandatory minimum jail terms and fines against persons who solicit or agree to engage in any act of prostitution, as specified, this bill could result in an increase in incarceration costs to local jails and varying impacts on county general fund revenues available for specified use.

Staff notes that because the crime of disorderly conduct (PC § 647(b)) under existing law is a misdemeanor, no costs were provided to local agencies under 2011 Realignment Legislation for this offense. Pursuant to Proposition 30 (2012), legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation apply to local agencies only to the extent that the state provides annual funding for the cost increase. Although Proposition 30 specifies that legislation defining a new crime or changing the definition of an existing crime is not subject to this provision, changing the penalty for a crime is not specifically exempted and could potentially require a subvention of funds from the state.

DOJ statistics indicate on average over 2,000 convictions annually for PC § 647(b) for the last two years. While it is unknown what percentage of convictions would be subject to a mandatory minimum jail term, for every 25 percent of convictions that are subject to a mandatory minimum 72-hour jail term, costs are estimated in excess of $180,000.

Recommended Amendments:

1. This bill appears to intend to provide defendants to serve mandatory jail stays of 24-72 hours on days other than regular employment, however, as drafted, it appears the court could be required to provide this flexibility for misdemeanor convictions requiring county jail sentences of six months to one year. Staff recommends the following technical amendments:

On page 5, in line 4, strike “subdivision” and insert “paragraph”.

1. This bill specifies $250 of a fine ranging from $250 to $1,000 to be set aside to fund services for victims of human trafficking. For consistency, for violations of involving minors, staff recommends the following technical amendments to the proposed fine structure ranging from $1,000 to $10,000:

On page 5, in line 22, after the period strike “The fine imposed” and insert, “An amount of $1,000 of the fine”

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 1708 Hearing Date: June 21, 2016

Subject: Disorderly Conduct: Prostitution

HISTORY

Source: Author

Prior Legislation: SB 776 (Block) 2015, held in Assembly Public Safety
SB 420 (Huff) 2015, held in Assembly Public Safety
SB 982 (Huff) – Held in Senate Appropriations, 2014

SB 1388 (Lieu) – Ch. 714, Stats. 2014
SB 244 (Liu) 2013 – 2014 died in the Assembly

Support: Alameda County District Attorney; California District Attorneys Association; Grossmont Union High School District; Peace Officers Research Association of California (PORAC); San Diego County; San Diego County District Attorney; San Diego School Police Officers Association; State Coalition of Probation Organizations (SCOPO)

Opposition: American Civil Liberties Union of California; California Public Defenders Association; California State Sheriffs' Association

Assembly Floor Vote: 75 - 1

PURPOSE

The purposes of this bill are 1) to recast the crime of prostitution into three parts, one applicable to the person who agreed to receive, or received compensation in exchange for a sexual act , one applicable to the person who paid, or agreed to pay compensation, one applicable to the person who paid, or agreed to pay compensation to a minor; 2) to impose a mandatory minimum sentenced term of 72 hours in jail and a set fine of $,1000 for persons convicted of purchasing commercial sex; 3) to provide that if the defendant knew or should have known that the other party was a minor, or the defendant intended to purchase sex from a minor, the $1,000 fine is the minimum fine, with a maximum of $10,000; 4) to direct that the fine proceeds be deposited with the county to fund services for human trafficking victims; 5) to require any person convicted of providing compensation, or agreeing to provide compensation for a sexual act to serve at least a continuous 24 hours in jail before being eligible for release on any basis – 48 hours if the defendant intended to engage in prostitution with a minor, or knew or should have known the other party was a minor; 6) to require defendants granted probation to serve a continuous 24 or 48 hours in jail as a condition of probation; 7) to impose a one-year sentence enhancement for human trafficking or abduction of a minor for prostitution, if the crime occurred on or within 1,000 feet of a school.

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 commercial sex or prostitution-related offense; 2) commit extortion; 3) specified child pornography offenses or 4) obtain forced labor or services. (Pen. Code § 236.1, subd. (a)-(b).)

Existing law provides that human trafficking of a minor does not include an element of deprivation of the victim’s liberty. Trafficking of a minor is committed through inducing, persuading or causing a minor to engage commercial sex acts, child pornography or extortion, or attempting to do so. It is punishable as follows:

• 5, 8 or 12 years in prison and a fine of up to $500,000.
• 15-years-to-life and a fine of up to $500,000 if the offense involved force, threats, coercion, fraud or deceit, as specified. (Pen. Code § 236.1, subd. (c).)

Existing law includes these special rules applicable to human trafficking of a minor:

• Whether the defendant caused, induced or persuaded a minor to engage in a commercial sex act depends on the totality of circumstances, including the relationship between the victim and the defendant.
• Mistake of fact as to the age of the victim is not a defense.
• Consent by a minor to an act underlying a human trafficking charge is not a defense. (Pen. Code § 236.1, subd. (d)-(f)

Existing law provides for the following enhancements and special fines in human trafficking cases:

• The court may impose on the defendant an additional fine of up to $1,000,000. (Pen. Code § 236.4, subd. (a).)
• A defendant who inflicts great bodily injury on the victim of human trafficking shall be punished by a consecutive prison term enhancement of 5, 7, or 10 years. (Pen. Code § 236.4, subd. (b).)
• A defendant shall receive a consecutive prison enhancement term of 5 years for each prior human trafficking conviction.

Existing law provides that taking a minor from her or his parents or guardian for purposes of prostitution is a felony punishable by a prison term of 16 months, two years, or three years and a fine of up to $2,000. The offense can be committed through inducements, not abduction alone. (Pen. Code § 267.)

Existing law provides that prostitution involves any lewd act between persons for money or other consideration. (Pen. Code § 647, subd. (b); CALCRIM 1154)

Existing decisional law defines a lewd act as “touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification.” (CALCRIM 1154, citing Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256; See, Wooten v. Superior Court (2001) 93 Cal.App.4th 422, pp. 431–433.)

Existing law provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a misdemeanor. The crime includes an element that the defendant specifically intended to engage in an act of prostitution and some act was done in furtherance of the agreed upon act. (Pen. Code § 647, subd. (b).)

Existing law provides that where any person is convicted for 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. (Pen. Code § 647, subd. (k).)

Existing law 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. (Pen. Code § 647, subd. (k).)

Existing law provides that where a defendant is convicted of a prostitution offense in which the defendant sought to procure or procured the "sexual services of a prostitute who was a minor,” the following shall apply:

a) The defendant shall, in addition to any other fine or penalty, be ordered to pay up to$25,000; and

b) Upon appropriation by the Legislature, the proceeds of the fine shall "be available to fund programs and services for commercially sexually exploited minors in the counties" of conviction. (Pen. Code §§ 261.9 and 647, subd. (b).

This bill defines and divides the crime of prostitution into three separate forms:

• 1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
  2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
  3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.

This bill specifies that a defendant, who purchased or agreed to purchase commercial sex, is guilty of a misdemeanor, punishable as follows:

a) A mandatory minimum 72 hours in county jail;

b Up to 6 months in the county jail; and

c) A fine not exceeding $1,000, to be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking;

d) A convicted defendant is not eligible for release upon completion of sentence 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 24 hours in a county jail;

e) A defendant granted probation must serve a term of 24 continuous hours in jail as a condition or of probation.

This bill specifies that if a defendant who purchased or agreed to purchase commercial sex knew or should have known that the provider of the commercial sex act was a minor, or specifically intended to obtain such services from a minor, the misdemeanor is punishable as follows:

a) A term of up to one year in a county jail;

b) A mandatory minimum term of 72 hours; and

c) A fine of at least $1,000 (with a maximum of $10,000) to be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking;

d) A convicted defendant is not eligible for release upon completion of sentence 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 48 hours in a county jail;

e) A defendant granted probation must serve a term of48 continuous hours in jail as a condition or of probation.

This bill provides that where the defendant purchased, or agreed to purchase commercial sex and the defendant knew or should have known that the person to be compensated is a minor, or where the defendant specifically intended to purchase sex from a minor, the penalties are as follows must impose a sentence of at least 72 hours in jail; and a defendant must serve a minimum of 48 continuous hours in jail before release on parole, on work furlough or work release, or on any other basis.

This bill grants the court discretion to allow a defendant to serve the required 48 continuous hours in jail so as to not interfere with his work schedule. If 48 continuous hours of custody would interfere the defendant’s work schedule, the court can allow the defendant to serve that time when he is not working.

This bill specifies that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.

This bill provides that persons who are convicted of human trafficking of a minor, or taking a minor from his or her parents or guardian for purposes of prostitution, or within 1,000 feet of a school shall be subject to a one-year state prison enhancement.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while “pimps” and “johns” have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized “prostitutes” are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking.

In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42 percent of first-time prostitution arrests are in fact cases involving sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

Recently, strides have been made to recognize these sex trafficking victims as such, particularly in the case of children. However, a strong demand for the industry still exists, contributing to more and more vulnerable youth being exploited. Evidence of this can be seen as recently as the Super Bowl, in which hundreds were arrested for attempting to purchase sex.

There is currently no comprehensive statewide solution to combat commercial sexual exploitation of children and to assist those children. We are having the necessary conversations about the appropriate services these victims need- from mental health services, to job training, to stable housing. However, we also have to recognize that in order to stop this exploitation from happening in the first place, we need to combat the demand for commercial sex which incentivizes trafficking to happen.

Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves.

AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims.

2. Sexual Acts with Minors – Regardless of the Payment of Compensation – Constitutes a Sex Crime

This bill would separately define prostitution in which the person who provides, or agreed to provide, sexual services is a minor. Sexual conduct with a minor constitutes a felony in most instances, regardless of whether anything of value was offered or exchanged for the sexual acts. If the minor involved in commercial sex of was under the age of 14, the defendant has committed the felony of lewd conduct, with a prison term of three, six or eight years, or five, eight or 10 years if coercion is involved (Pen. Code § 288, subds. (a)-(b).) Soliciting an act of prostitution from a minor under the age of 14 could likely be prosecuted as attempted lewd conduct. The prison or jail term for an attempt is generally one-half the punishment for the completed crime. Where the defendant solicited or employed a minor who was14 or 15 years old, and the defendant was at least 10 years older than the minor, the defendant has committed an alternate felony-misdemeanor.

Any defined sex act – sodomy, sexual penetration, oral copulation or sexual intercourse – with a minor is a crime. The penalties depend on the relative ages of the defendant and the minor and whether the crime involved some form of force, coercion or improper advantage. A defendant charged with a prostitution-related offense involving a minor could also be charged and convicted of a sex crime in the same case. Generally, because the defined sex crime and the sexual commerce offense would involve a single transaction or act, the defendant could only be punished for one offense – the offense carrying the greatest penalty. (Pen. Code § 654.)

DO MOST PROSTITUTION INCIDENTS IN WHICH AN ADULT SOUGHT TO PURCHASE SEX FROM A MINOR CONSTITUTE ATTEMPTED OR COMPLETED SEX CRIMES?

If this bill is enacted, a defendant could argue that if he engaged in acts of prostitution with a minor, he should only be charged for that offense, not with a sex crime against a minor. That is because a maxim of statutory construction holds that where a defendant’s conduct can be prosecuted under a general law and a law that more specifically describes the defendant’s conduct, the Legislature intended that the more specific statute apply. That is especially true where the specific law is enacted after the more general law, as the Legislature would be presumed to have known about the general law at the time the specific law was passed. To preclude such an argument, it is recommended that the bill be amended to include a “savings clause” stating that this bill does not preclude prosecution under any other provision of law.

SHOULD THE BILL BE AMENDED TO STATE THAT THIS BILL DOES NOT PRECLUDE PROSECUTION UNDER ANY OTHER PROVISION OF LAW?

3. A Defendant Required to Serve a Minimum Jail Term as a Condition of Probation may Refuse Probation

It appears that this bill would require a person convicted of agreeing to provide, or providing compensation in exchange for a sexual act to serve 24 continuous hours in jail. The bill also provides that a person who is not granted probation, or who refuses probation, and who is then sentenced to a term of at least 72 hours in jail would be eligible for release on work furlough, work release or some other basis after 24 hours. Many, if not most, county jails are crowded, particularly in urban areas. A defendant who is convicted of a prostitution offense and sentenced to serve 72 hours in jail in a county with crowded jail conditions could well serve no more than the continuous 24 hours in jail. As such, it is unlikely that a prostitution defendant would agree to probation, as he would serve the same jail term as a sentenced inmate. Even where a sentenced inmate would actually serves up to 72 hours in jail, he may well elect to serve that sentence and avoid probation supervision. This may be particularly likely where a defendant can serve his sentence on days when he is not working.

A defendant who is not on probation cannot be monitored by the probation department or the court. A defendant who is not on probation cannot be ordered to engage in rehabilitative or restorative justice programs. If the odds of getting caught committing such a crime is low, and that may be likely, such a person could remain a significant source of demand for prostitution.

4. Application of the Fine Provisions

The bill provides that the proceeds of a fine imposed on a defendant who was convicted of seeking or obtaining commercial sex from a minor, or who intended to obtain commercial sex from a minor, shall be deposited with the county to fund services for human trafficking victims. It is not clear how the fine would be applied. That is, is the fine exempt from penalty assessments? Generally, every criminal fine is subject to penalty assessments unless the section defining the fine specifically exempts it from penalty assessments. If this fine is not exempt from penalty assessment, is the intent of the author that the $1,000 to $10,000 base fine be used for human trafficking services, not any other local program or expense?

5. Mandatory Penalty Assessments Effectively Quadruple a Criminal Fine

Penalty assessments and fees must be assessed on the base fine for a crime.  Assuming a defendant was fined $1,000 as the fine for a criminal offense, the following penalty assessments would be imposed pursuant to the Penal Code and the California Government Code:

Base Fine:                                                                        $  1,000

Pen. Code § 1464 state penalty on fines:                                      $1,000 ($10 for every $10)
Pen. Code § 1465.7 state surcharge:                                         $ 200 (20% surcharge)
Pen. Code § 1465.8 court operation assessment:                               $40
Gov. Code § 70372 court construction penalty:                     $500 ($5 for every $10)
Gov. Code § 70373 assessment:                                   $30

Gov. Code § 76000 penalty:                                $700 ($7 for every $10)
Gov. § 76000.5 EMS penalty:                           $200  ($2 for every $10)
Gov.§ Code § 76104.6 DNA fund penalty:                             $100  ($1 for every $10)
Gov. § Code § 76104.7 addt'l DNA fund penalty:                    $400  ($4 for every $10)

Total Fine with Assessments:                                $4,170

It should be noted that this figure does not include restitution, a mandatory restitution fine, and that other fines and fees, such as the jail booking fee, attorney fees, OR release fees, probation department fees, may also be applicable.

6. Limited Distribution of Fines into the Victim Witness Fund for Sex Trafficking Victims

The value of special fines to fund services for sexually exploited persons – particularly juveniles – appears to be quite limited. A negligible amount of income – $20,000 in 2013-14 is generated from surplus money investments and penalties on specific felony convictions.

The Victim Witness Assistance Fund is largely funded by a small portion of the penalty assessments imposed on each criminal fine. Local victim-witness assistance programs also receive federal Victims of Crime Act and Violence Against Women Act funding. In 2013-14, the fund was projected to have a negative balance of $83,000. In 2014-15, the fund was projected to have a balance (reserve) of $5.8 million due to a $10.1 million General Fund loan repayment from 2011. The fund balance for 2015-2016 is projected to be approximately $900,000, arguably not a substantial sum in light of the need for assistance to victims. Each county designates an agency to operate a victim witness assistance program. The district attorney is the designated agency in all but seven counties (three in probation departments and one in a county sheriff’s office).

There appears to be a great unmet need for funding community-based agencies that provide services to sex trafficking victims and commercially sexually exploited persons. The fund created by this bill could raise funds that individual counties could disburse to address specific problems in their areas.

7. Study of Homeless Young People Engaged in Survival-Sex Prostitution in New York City

A 2008 John Jay College study^[1] of commercially, sexually exploited homeless youth in New York city found that these young people often sought out customers and found customers for each other. As many young men and boys were engaged in survival sex as young women and girls in the study. (This finding is consistent with a 2004 study published by US DOJ.) Sexually exploited youth sought older white customers who were perceived to have more money, although the actual range of customers was relatively wide. A 2012 New Yorker article reported that these young people in lived in harsh conditions and risked becoming “lifers” on the street. Programs and services for them were scarce and typically short-term.^[2]

8. Limited Studies of the Demographics of Prostitution Customers

A draft University of Chicago study by Steven Levitt and Sudhir Alladi Venkatesh (Freakonomics) examined street-level prostitution in certain Chicago neighborhoods known for prostitution, including a neighborhood where prostitution was controlled by pimps and a neighborhood where prostitutes were independent. Levitt estimated that there were 1,200 acts of prostitution per arrest, indicating that even street-level prostitution customers generally need not fear arrest. The Chicago study noted that more upscale prostitution occurred over the Internet and through escort services, where the likelihood of arrest was low. Freakonomics publications later noted that the cost of prostitution had declined in recent decades, likely indicating that customers were spread across economic classes.

Levitt found “many men making a few visits and a small number of men making very frequent visits.” He found that 25 johns were arrested twice and 2,969 johns were arrested once. As in the Western Criminology Review study discussed in Comment # 6, Leavitt concluded that some men may have learned from one arrest how to avoid another. However, some johns may have been arrested multiple times because they were not good at distinguishing between an actual prostitute and a police decoy.

A 2008 review in the Electronic Journal of Human Sexuality of studies from cities across the country found wide variance in education, income and ethnicity among prostitution customers. There were some regional differences, such as lower levels of education in Indianapolis, marginally higher income in Portland, Oregon.

9. Recidivism Studies on Persons Convicted of Purchasing Sex – Effects of Special Programs

A study in 2002 in the Western Criminology Review of a now defunct first-offender program in Portland, Oregon (SEEP) found very low recidivism rates for all prostitution arrestees, regardless of whether they participated in SEEP, were referred to SEEP but did not attend, or were not referred to the program. The study considered only a two-year period and a relatively small number of offenders. The researchers inferred from the data that an arrest, per se, could have deterred offenders, as prostitution offenses involve significant shame. The authors, however, also questioned if the offenders continued to solicit prostitutes but simply learned how to avoid arrest. They could not say whether the education from the SEEP program would have led the participants to a avoid prostitution for a substantial time in the future.

A number of other cities adopted special first-offender prostitution diversion programs that educate “johns” about the harms caused by or attendant to the commercial sex trade. The San Francisco program – First Offender Prostitution Program (FOPP) – was one of the first of these programs. The program required men arrested for the first time for a prostitution offense to attend a one-day course of the harms caused or exacerbated by the demand for prostitution. Men who completed the course were diverted out of the criminal justice system. A report on the San Francisco FOPP conducted by Abt Associates concluded that program was well run and effective. The claims of a sharp drop in recidivism in the Abt report have been harshly criticized and questioned. One study by researchers from DePaul University and American University found methodological flaws in the Abt report. The study from the Western Criminology Review (noted above) found that recidivism rates attributable to FOPP programs are difficult to measure, as johns arrested for prostitution offenses can easily learn how to avoid arrest. Further, the increasing shift of prostitution to the Internet makes it difficult to measure recidivism.

DOES RESEARCH INDICATE THAT AN ARREST, PER SE, MAY BE A SUBSTANTIAL DETERRENT FOR MEN WHO SOLICIT PROSTITUTES?

IS THERE DATA ABOUT THE EFFECT OF MANDATORY MINIMUM PENALTIES IN EXISTING LAW FOR REPEAT PROSTITUTION OFFENDERS?

10. Jail Space is a Limited Commodity

This bill requires minimum jail terms for defendants sentenced for prostitution offenses and requires 24 or 48 jail terms as a condition of probation in such cases. County jails in California, especially in urban areas, have been chronically overcrowded for some time.

Realignment required many defendants to serve their felony sentences in jail, thereby straining already crowded jails. Proposition 47 made many drug possession and specified theft crimes misdemeanors, easing some of the pressure. Nevertheless, it has been reported that many Prop. 47 inmates do not spend significant portions of their misdemeanor sentences because there is not enough room in the jails. Judges in drug courts and cases arising under the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36) have argued that defendants are refusing to accept probation and treatment because they are likely to serve only a small portion of any misdemeanor drug possession sentence.

This bill requires minimum terms in prostitution cases, essentially creating a legislative priority for incarcerating these defendants over others where jail space is limited. The relatively short mandatory minimum terms can be a burden to jails because it can take many hours to process a defendant into jail and then out. Deputies who operate jail would need to expend significant resources to process the cases covered by this bill.

11. Enhancement for Human Trafficking, or Taking a Minor from his or her Parents, for Prostitution on the Grounds of, or within 1,000 feet of a School

The basic human trafficking law was enacted by AB 22 (Lieber) Ch. 240, Stats. 2005. AB 22 provided that the essence of human trafficking is the deprivation of the victim’s liberty in order to place the person in sexual commerce or obtain labor. The human trafficking law was amended by Proposition 35 in 2012. The initiative greatly increased penalties, set special procedures and rules of evidence and eliminated the element of deprivation of liberty if the victim is a minor. The penalties established by the initiative are especially comprehensive and arguably cover the full range of circumstances in human trafficking. Human trafficking of minors can be done through inducements, persuasion and the like. The use of coercion, fraud, force or duress against a minor does, however, subjects as defendant to especially severe penalties, including life terms.

This bill would direct the court to impose a sentence enhancement of one year if the defendant has been convicted of human trafficking and the crime occurred on the grounds of a school, or within 1,000 feet of a school. The enhancement also applies to taking a minor from his or her parents for purposes of prostitution (§ 267), a felony with a determinate term sentence of 16 months, two years or three years. It appears, however, that many, if not most, cases of taking a minor for prostitution could be charged as human trafficking, as Section 267 is specifically included as a target offense in human trafficking.

Human trafficking of a minor includes a relatively long list of crimes involving commercial sex, including prostitution and child pornography. If the minor is brought into such activities through “force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person,” the penalty is a term of 15-years-to-life in prison and a fine of up to $500,000. With mandatory penalty assessments, a fine of $500,000 is actually a fine of over $2,000,000. It is hard to imagine that a trafficker could lure a minor into commercial sex trade without at least deceit or fraud. That is, if the trafficker misrepresented what the minor would be doing or the conditions under which they would be done, that would clearly appear to be fraud and deceit.

It would appear that if very severe felony penalties would not deter a potential human trafficker, an additional year in prison would be of little consequence. Further, many, if not all, cases where a minor under the age of 14 is abducted for purposes of prostitution would constitute kidnapping for purposes of engaging in sexual conduct. That form of kidnapping if punishable by a prison term of 5, 8 or 11 years if the minor is under the age of 14. Kidnapping per se - taking a person by fore or fear - is punishable by a prison term of 3, 5 of 8 years. (Pen. Code §§ 207-208.) If kidnapping for a sex offense increases the danger of harm to a victim beyond that inherent in the offense, it is punishable by a life term.

The punishment for human trafficking of a minor, when the crime does not involve some sort of deceit, coercion or force, is still relatively severe - 5, 8 or 12 years and a fine of up to $500,000 (again over $2,000,000 with mandatory penalty assessments). If this bill is enacted, the prison term could perhaps be 13 years instead of 12 in a determinate sentence. For a life term, the defendant would be eligible for parole in 16 years, not 15. Again, it is doubtful that a possible additional year in prison would change a perpetrator’s decision to engage in human trafficking of a minor in light of the severe existing penalties.

California sentencing law is so complex that an enhancement for committing human trafficking on or near a school may not necessarily result in additional punishment. In some cases, imposition of the enhancement could result in a lower penalty. The imposition of the prison term for a crime and enhancements attached to that term require the court to make a series of inter-related decision. The process becomes particularly elaborate when the defendant was convicted of multiple crimes and numerous enhancements apply.

For this bill, the most important sentencing rule is the prohibition on “dual use of facts” - the use of one fact to impose more than one punishment. A close reading of many enhancements would reveal that they could also be used as factors in aggravation of the base term - the stated penalty “triad.” The sentencing triad for the less egregious form of human trafficking of a minor is 5, 8 or 12 years.

12. Vetoes of Related or Similar Bills

Governor Brown has recently vetoed bills that included what were essentially crimes and penalties that are largely redundant of existing law. Last session (2013-2014), the governor vetoed SB 473 (Block), which proposed to add human trafficking to the gang laws. (Any crime committed for the benefit of a gang is punished by an enhancement or a life term. SB 473 would have added human trafficking to a list of crimes establish the existence of a gang, per se. Prosecutors seldom have any trouble proving the existence of a gang under existing law.) Similar observations can be made about this bill that were made about SB 473 Governor Brown stated:

I am returning Senate Bill 473 without my signature.

Under current law, human trafficking convictions impose substantial punishment, up to 20 years for sex trafficking offenses and 15 years-to-life for certain crimes involving children. These sentences are more than three times the punishment that existed two years ago. SB 473 would add yet another set of enhancements, the third in nine years. No evidence has been presented to support these new penalties

-- END –

1. https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf, pp 48-49,. 32-102. ↑

2. http://www.newyorker.com/magazine/2012/12/10/netherland ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1708

Author:(Gonzalez)

As Amended Ver:May 5, 2016

Majority vote

SUMMARY: Imposes mandatory minimum 72 hours in custody for persons convicted of purchasing commercial sex with specified times servable as work furlough, imposes a one-year sentence enhancement for specified human trafficking offenses, and recasts the crime of prostitution as specified. Specifically, this bill:

1. Defines and divides the crime of prostitution into three separate forms:
   1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
   2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
   3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
2. Clarifies that a manifestation of acceptance of an offer or solicitation to engage in an act of prostitution shall not constitute a violation unless some act, in addition to the manifestation of acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration.
3. Specifies that purchasers of commercial sex is punishable as follows:
   1. A mandatory minimum 72 hours in custody (with specified times servable as work furlough);
   2. Up to 6 months in the county jail; and
   3. A fine not exceeding $1,000, which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
4. Clarifies that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor.
5. Increases mandatory minimum jail time for solicitation of a minor from two days to 72 hours.
6. Specifies that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
7. Removes judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults and solicitation of minors, as specified. States that a person is not 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 24 hours in a county jail for purchasing commercial sex, and 48 hours for solicitation of a minor.
8. Provides that persons who are convicted of human trafficking of a minor or abduction of a minor for purposes of prostitution within 1,000 feet of a school shall be subject to a one-year state prison enhancement.

EXISTING LAW:

1. Defines "unlawful sexual intercourse" as an act of sexual intercourse accomplished with a person under the age of 18 years, when no other aggravating elements – such as force or duress – are present.
2. Provides the following penalties for unlawful sexual intercourse:
   1. Where the defendant is not more than three years older or three years younger than the minor, the offense is a misdemeanor;
   2. Where the defendant is more than three years older than the minor, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000; or,
   3. Where the defendant is at least 21 years of age and the minor is under the age of 16, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000.
3. Provides that in the absence of aggravating elements each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor is punishable as follows:
   1. Where the defendant is over 21 and the minor under 16 years of age, the offense is a felony, with a prison term of 16 months, two years or three years.
   2. In other cases sodomy with a minor is a wobbler, with a felony prison term of 16 months, two years or three years.
4. Provides that where each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor who is under 14 and the perpetrator is more than 10 years older than the minor, the offense is a felony, punishable by a prison term of three, six or eight years.
5. Provides that any person who engages in lewd conduct – any sexually motivated touching or a defined sex act – with a child under the age of 14 is guilty of a felony, punishable by a prison term of three, six or eight years. Where the offense involves force or coercion, the prison term is five, eight or 10 years.
6. Provides that where any person who engages in lewd conduct with a child who is 14 or 15 years old, and the person is at least 10 years older than the child, the person is guilty of an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000.

FISCAL EFFECT: According to the Assembly Appropriations Committee;

1. Likely minor fiscal impact to the Department of Corrections and Rehabilitation (CDCR). There are currently two persons in state prison convicted for human trafficking of minors and there are twenty-four persons serving time for pimping or pandering minors. If two persons were convicted per human trafficking of minors near a school and received the one-year state prison enhancement, the annual cost to CDCR would be approximately $58,000, $29,000 per individual per year.
2. Moderate, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the arrest results in incarceration. Also, additional resources to fund services for victims of human trafficking will be available if the offense is solicitation of a minor.
3. Additional penalty assessment funds revenues. The amounts of penalty assessments are spelled out in statute, and they are related to the base fine. Assuming a defendant is fined $1,000 under the Penal Code for a felony or misdemeanor, approximately $3,170 in penalty assessments is imposed pursuant to the Government and Penal codes.

COMMENTS: According to the author, "Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while "pimps" and "johns" have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized "prostitutes" are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking.

"In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42% of first-time prostitution arrests are in fact cases involving sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

"Recently, strides have been made to recognize these sex trafficking victims as such, particularly in the case of children. However, a strong demand for the industry still exists, contributing to more and more vulnerable youth being exploited. Evidence of this can be seen as recently as the Super Bowl, in which hundreds were arrested for attempting to purchase sex^[1][1].

"There is currently no comprehensive statewide solution to combat commercial sexual exploitation of children and to assist those children. We are having the necessary conversations about the appropriate services these victims need- from mental health services, to job training, to stable housing. However, we also have to recognize that in order to stop this exploitation from happening in the first place, we need to combat the demand for commercial sex which incentivizes trafficking to happen.

"Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves.

"AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims."

Analysis Prepared by: Gabriel Caswell/ PUB. S. / (916) 319-3744 FN: 0002989

1. [1]http://www.cookcountysheriff.org/press_page/press_SuperbowlSexTraffickngSting_02_9_2016.html ↑

Date of Hearing: May 11, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1708

Author:(Gonzalez) – As Amended Ver:April 13, 2016

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill imposes mandatory minimum 72 hours in jail for persons convicted of purchasing commercial sex, imposes a one-year sentence enhancement for specified human trafficking offenses, and recasts the crime of prostitution as specified. Specifically, this bill:

1. Defines and divides the crime of prostitution into three separate forms:
   
2. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
3. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
4. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
5. Clarifies that a manifestation of acceptance of an offer or solicitation for prostitution is not a violation unless some act, in addition to acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.
6. Specifies that purchase of commercial sex is punishable as follows:
   1. A mandatory minimum 72 hours and up to 6 months in county jail; and
   2. A fine not exceeding $1,000, which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
7. Clarifies that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor, and increases mandatory minimum jail time for solicitation of a minor from two days to 72 hours. Also, specifies that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
8. Removes judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults and solicitation of minors.
9. Provides that persons who are convicted of human trafficking of a minor or abduction of a minor for purposes of prostitution within 1,000 feet of a school shall be subject to a one-year state prison enhancement.

FISCAL EFFECT:

1. Likely minor fiscal impact to the Department of Corrections and Rehabilitation (CDCR). There are currently two persons in state prison convicted for human trafficking of minors and there are twenty-four persons serving time for pimping or pandering minors. If two persons were convicted per human trafficking of minors near a school and received the one-year state prison enhancement, the annual cost to CDCR would be approximately $58,000, $29,000 per individual per year.
2. Moderate, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the arrest results in incarceration. Also, additional resources to fund services for victims of human trafficking will be available if the offense is solicitation of a minor.
3. Additional penalty assessment funds revenues. The amounts of penalty assessments are spelled out in statute, and they are related to the base fine. Assuming a defendant is fined $1,000 under the Penal Code for a felony or misdeameanor, approximately $3,170 in penalty assessments is imposed pursuant to the Government and Penal codes.

COMMENTS:

1. Background. The basic crime of prostitution is a misdemeanor offense. Prostitution can be generally defined as "soliciting or agreeing to engage in a lewd act between persons for money or other consideration." Lewd acts include touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person.

For the crime of "soliciting a prostitute" the prosecutors must prove that the defendant requested that another person engage in an act of prostitution, and that the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication containing the request. The defendant must do something more than just agree to engage in prostitution. The defendant must do some act in furtherance of the agreement to be convicted. Words alone may be sufficient to prove the act in furtherance of the agreement to commit prostitution

For a first offense conviction of prostitution the defendant faces up to 180 days in jail. If a defendant has one prior conviction of prostitution he or she must receive a county jail sentence of not less than 45 days. If the defendant has two or more prior convictions, the minimum sentence is 90 days in the county jail.

In addition to the punishment described above, if the defendant has a conviction of prostitution, he or she faces fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions.

1. Purpose. Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while “pimps” and “johns” have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized “prostitutes” are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking.

"Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves.

"AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims."

This bill separates prostitution into separately defined and charged offenses, different procedures, penalties and other outcomes and goals that can easily be amended into the law.

Additionally, the bill imposes mandatory minimum jail sentences on individuals who are convicted of buying or attempting to buy commercial sex in the form of prostitution. Imposing mandatory jail time on a person convicted of prostitution can result in the loss of employment and create problems for the offender that may lead to further criminal acts.

1. Support. According to the Alameda County District Attorney's Office, "In order to fully combat the problem of commercial sex trafficking, it is important to combat the demand for these services, and recognize that purchasers of sex are driving this exploitative and dangerous industry of slavery.
2. Opposition. According to the American Civil Liberties Union, “While protecting minors from victimization is an extremely important objective, we believe that lengthening sentences for the offenses referenced in this bill and decreasing judicial discretion in sentencing will not accomplish that goal.” They also raise several concerns with the punishments associated with soliciting a minor when the person is not minor.
3. Related Legislation:
   1. AB 1051 (Maienschein), of this legislative session, changed the definition of "pattern of criminal gang activity" to add the crime of human trafficking and creates a new one-year state prison enhancement for specified crimes committed against a minor on the grounds of, or within 1,000 feet of a school. AB 1051 was held in the Senate Appropriations Committee.
   2. SB 420 (Huff), of this legislative session, recasts the prostitution section using the exact same language as this bill, dividing buyers, sellers, and buyers of sexual services from minors. SB 420 was held for interim study in Assembly Public Safety.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Gabriel Caswell

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1708

Author:(Gonzalez) – As Amended Ver:April 13, 2016

SUMMARY: Imposes mandatory minimum 72 hours in jail for persons convicted of purchasing commercial sex, imposes a one-year sentence enhancement for specified human trafficking offenses, and recasts the crime of prostitution as specified. Specifically, this bill:

1. Defines and divides the crime of prostitution into three separate forms:
   
   1. The defendant agreed to receive compensation, received compensation, or solicited compensation in exchange for a lewd act;
      
   2. The defendant provided compensation, agreed to provide compensation, or solicited an adult to accept compensation in exchange for a lewd act; and
      
   3. The defendant provided compensation, or agreed to provide compensation, to a minor in exchange for a lewd act, regardless of which party made the initial solicitation.
2. Clarifies that a manifestation of acceptance of an offer or solicitation to engage in an act of prostitution shall not constitute a violation unless some act, in addition to the manifestation of acceptance, is done within this state in furtherance of the commission of the act of prostitution by the person manifesting an acceptance of an offer or solicitation to engage in that act. As used in this subdivision, “prostitution” includes any lewd act between persons for money or other consideration.
3. Specifies that purchasers of commercial sex is punishable as follows:
   1. A mandatory minimum 72 hours in county jail;
   2. Up to 6 months in the county jail; and
   3. A fine not exceeding $1,000, which shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
4. Clarifies that solicitation of a minor can be solicitation of a person posing as a minor if the person engaged in the solicitation had the specific intent to solicit a minor.
5. Increases mandatory minimum jail time for solicitation of a minor from two days to 72 hours.
6. Specifies that the fine for solicitation of a minor shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking.
7. Removes judicial discretion on imposition of the 72 hour mandatory minimum jail time imposed for solicitation of adults and solicitation of minors.
   1. States that a person is not 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 three days in a county jail.
   2. Provides that in all cases in which probation is granted, the court shall require as a condition of probation that the person be confined in a county jail for at least three days.
   3. States that the court shall not absolve a person from the obligation of spending at least 72 hours in confinement in a county jail.
      
8. Provides that persons who are convicted of human trafficking of a minor or abduction of a minor for purposes of prostitution within 1,000 feet of a school shall be subject to a one-year state prison enhancement.

EXISTING LAW:

1. Defines “unlawful sexual intercourse” as an act of sexual intercourse accomplished with a person under the age of 18 years, when no other aggravating elements – such as force or duress – are present. (Pen. Code, § 261.5, subd. (a).)
   
2. Provides the following penalties for unlawful sexual intercourse:
   
   1. Where the defendant is not more than three years older or three years younger than the minor, the offense is a misdemeanor;
      
   2. Where the defendant is more than three years older than the minor, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000; or,
      
   3. Where the defendant is at least 21 years of age and the minor is under the age of 16, the offense is an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000. (Pen. Code, § 261.5, subd (b)-(d).)
      
3. Provides that in the absence of aggravating elements each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor is punishable as follows:
   
   1. Where the defendant is over 21 and the minor under 16 years of age, the offense is a felony, with a prison term of 16 months, two years or three years.
      
   2. In other cases sodomy with a minor is a wobbler, with a felony prison term of 16 months, two years or three years. (Pen. Code, §§ 286, subd. (b), 288a, subd. (b), 289, subd. (h).)
      
4. Provides that where each crime of sodomy, oral copulation or penetration with a foreign or unknown object with a minor who is under 14 and the perpetrator is more than 10 years older than the minor, the offense is a felony, punishable by a prison term of three, six or eight years. (Pen. Code, §§ 286, subd. (c)(1), 288a, subd. (c)(1), 289, subd. (j).)
   
5. Provides that any person who engages in lewd conduct – any sexually motivated touching or a defined sex act – with a child under the age of 14 is guilty of a felony, punishable by a prison term of three, six or eight years. Where the offense involves force or coercion, the prison term is five, eight or 10 years. (Pen. Code, § 288, subd. (b).)
   
6. Provides that where any person who engages in lewd conduct with a child who is 14 or 15 years old, and the person is at least 10 years older than the child, the person is guilty of an alternate felony-misdemeanor, punishable by a jail term of up to one year, a fine of up to $1,000, or both, or by a prison term of 16 months, two years or three years and a fine of up $10,000. (Pen. Code, § 288, subd. (c)(1).)
   
7. Includes numerous crimes concerning sexual exploitation of minors for commercial purposes. These crimes include:
   
   1. 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. (Pen. Code, § 266h, subds. (a)-(b);
      
   2. 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. Code, § 266i, subd. (a).);
      
   3. 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. Code, § 266j.)
      
   4. Taking a minor from her or his 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. Code, § 267.); and,
      
8. Provides that where a person is convicted of pimping or pandering involving a minor the court may order the defendant to pay an additional fine of up to $5,000. In setting the fine, the court shall consider the seriousness and circumstances of the offense, the illicit gain realized by the defendant and the harm suffered by the victim. The proceeds of this fine shall be deposited in the Victim-Witness Assistance Fund and made available to fund programs for prevention of child sexual abuse and treatment of victims. (Pen. Code, § 266k, subd. (a).)
   
9. Provides that where a defendant is convicted of taking a minor under the age 16 from his or her parents to provide to others for prostitution (Pen. Code, § 267) or transporting or providing a child under the age of 16 for purposes of any lewd or lascivious act (Pen. Code § 266j), the court may impose an additional fine of up to $20,000. (Pen. Code, § 266k, subd. (b).)
   
10. Provides that where a defendant is convicted under the Penal Code of taking a minor (under the age of 18) from his or her parents for purposes of prostitution (Pen. Code, § 267), or transporting or providing a child under the age of 16 for purposes of any lewd or lascivious act (266j), the court, if it decides to impose a specified additional fine, the fine must be no less than $5,000, but no more than $20,000. (Pen. Code, § 266k, subd. (b).)
    
11. Provides that any person who solicits, agrees to engage in, or engages in an act of prostitution is guilty of a 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. (Pen. Code, § 647, subd. (b).)
    
12. 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. (Pen. Code, § 647, subd. (b).)
    
13. 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. (Pen. Code, § 647, subd. (k).)
    
14. 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. (Pen. Code, § 647, subd. (k).)
    
15. Requires the California Department of Justice (DOJ) to collect data from law enforcement agencies about “the amount and types of offenses known to the public authorities.” (Pen. Code, §§ 13000 and 13002.) DOJ must:
    
    1. Prepare and distribute forms and electronic means for reporting crime data.
       
    2. Recommend the form and content of records to “ensure the correct reporting of data…” and instruct agencies in the collecting, keeping and reporting of crime data.
       
    3. Process, interpret and analyze crime data.
       
16. Requires law enforcement agencies, as specified, district attorneys, the Department of Correction and other entities to do the following: (Pen. Code, § 13020.)
    
    1. Install and maintain records for reporting statistical data.
       
    2. Report data to DOJ “in the manner [DOJ] prescribes.”
       
17. Provides that any person who deprives or violates the personal liberty of any other with the intent to obtain forced labor or services is guilty of human trafficking and shall be punished in state prison for 5, 8, or 12 years and a fine of not more than $500,000. (Pen. Code, § 236.1, subd. (a).)
18. States that any person who deprives or violates the personal liberty of any other with the intent to effect or maintain a violation of specified offenses related to sexual conduct, obscene matter or extortion, 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 $500,000. (Pen. Code, § 236.1, subd. (b).)
19. Specifies the following penalties for any person who causes, induces, or persuades, or attempts to cause, induce, persuade, a person who is minor at the time of commission of the offense to engage in a commercial sex act, as provided:
    1. Five, 8, or 12 years and a fine of not more than $500,000; or,
       
    2. Fifteen years to life and a fine of not more than $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. (Pen. Code, § 236.1, subd. (c).)
       
20. Provides that any person who takes away any other person under the age of 18 years from the father, mother, or guardian, or other person, without their consent, for the purpose of prostitution, is punishable by imprisonment in the state prison and a fine not exceeding $2,000. (Pen. Code, § 267.)
    

FISCAL EFFECT:

COMMENTS:

1. Author's Statement: According to the author, "Traditionally, law enforcement has tackled prostitution by arresting the women and girls on the street, while “pimps” and “johns” have been the least likely offenders in the commercial sex trade to face jail time. This neglects the fact that many of these criminalized “prostitutes” are actually victims of sex trafficking, punishing the victim with possible jail time and making it more difficult to go back to school or find work, while leaving their exploiters without any incentive to stop their profitable trafficking.

"In San Diego County, a recent joint study by researchers at University of San Diego and Point Loma Nazarene University found that 42% of first-time prostitution arrests are in fact cases involving sex trafficking, and that the average age of entry into child commercial sexual exploitation was 15 years old.

"Recently, strides have been made to recognize these sex trafficking victims as such, particularly in the case of children. However, a strong demand for the industry still exists, contributing to more and more vulnerable youth being exploited. Evidence of this can be seen as recently as the Super Bowl, in which hundreds were arrested for attempting to purchase sex^[1][1].

"There is currently no comprehensive statewide solution to combat commercial sexual exploitation of children and to assist those children. We are having the necessary conversations about the appropriate services these victims need- from mental health services, to job training, to stable housing. However, we also have to recognize that in order to stop this exploitation from happening in the first place, we need to combat the demand for commercial sex which incentivizes trafficking to happen.

"Commercial sex trafficking remains a lucrative business for many, with a high demand leading to more and more youth being exploited. Furthermore, traffickers continue to prey on children at or near their schools to recruit them and traffic them to purchasers, making these spaces that should be a safe place for youth dangerous with few consequences to themselves.

"AB 1708 would help tackle the problem of commercial sexual exploitation by taking a hard stance against those contributing to the demand for sex trafficking and those making schools an unsafe place for children by trafficking at or near them. We need to make sure that the negative consequences fall on the true criminals, not the victims."

1. This Bill Seeks to Focus Prosecution Efforts on The Demand Side of Prostitution: This bill separates prostitution into separately defined and charged offenses, different procedures, penalties and other outcomes and goals can easily be amended into the law. Additionally, the bill imposes mandatory minimum jail sentences on individuals who are convicted of buying or attempting to buy commercial sex in the form of prostitution.
2. Removal of Judicial Discretion in the Sentencing of Prostitution Offenders by Mandating 72 Hours in County Jail and a Mandatory Minimum Fine: Specifically, this bill mandates that upon a conviction of prostitution, "a person is not 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 three days in a county jail. In all cases in which probation is granted, the court shall require as a condition of probation that the person be confined in a county jail for at least three days. The court shall not absolve a person…from the obligation of spending at least 72 hours in confinement in a county jail."

From a policy standpoint, there are no mandatory minimum jail sentences for a variety of offenses that are far more serious than misdemeanor prostitution. For instance, there is no mandatory jail sentence for first time domestic violence offenses, or a wide range of violent felony offenses. This bill takes the discretion from a judge to craft an appropriate remedy in a misdemeanor case. Judges are in the best position to make decisions based on the particular facts and circumstances of a case. Imposing mandatory jail time on a person convicted of prostitution can result in the loss of employment and create problems for the offender that may lead to further criminal acts. Courts have found success in fashioning other remedies that have kept offenders employed, outside of county jails at the public expense, and freed up jail space for more dangerous offenders.

• 1. San Francisco District Attorney’s Office First Offender Prostitution Program (FOPP): FOPP is a court diversion program aimed at reducing the volume and impact of sex buying by targeting those who purchase sex. The program was first started in San Francisco in 1995. The program is based on the belief that education as opposed to punishment was an effective strategy to address the problems created by the sex industry.
     
     The program is focused on educating the purchasers of sex, sometimes referred to as “john’s.” Purchasers of sex that are dealing with criminal charges for that behavior are predominantly men. The curriculum of the first offender is designed to help men understand the negative effects of being raised in a culture that promotes a system of male superiority and entitlement toward women.
     
     The program has incorporated evidence-based practices into the FOPP programming. It includes: Social Learning Theory, Cognitive Behavioral Interventions, Brief Interventions, Harm Reduction, and Peer Reeducation. As part of the FOPP, the legal consequences for subsequent arrests for solicitation of prostitution are emphasized. Participants in the FOPP, are educated about the impacts of prostitution on the participants in the sex industry, the impact of sexual exploitation, the health risks of engaging in prostitution, and the impact of prostitution on the neighborhoods where it occurs.
  2. Success of Education Programs for Buyers of Sex: As of 2012, approximately 50 cities and counties in the U.S. including Santa Clara, San Diego, Los Angeles, and Fresno have similar programs. (An Overview of John Schools in the United States, (2012), pp. 3-5.)

A 2008 study commissioned by the Department of Justice and conducted by Abt Associates found that the First Offender Prostitution Program (FOPP) was successful in substantially reducing recidivism among men arrested for soliciting prostitutes. According to the report, data collected from 10 years prior to implementation and 10 years after implementation (1985 through 2005) showed a sharp drop in re-offense rates (recidivism) in 1995, the first year of implementation. This low level of recidivism was sustained throughout the 10 years studied between 1995 and 2005. The study also found that data from San Diego showed that recidivism rates were cut in half after their education program was implemented. In summary, “FOPP significantly reduces recidivism” and is highly transferable, having been successfully replicated and adapted in other cities in the U.S. (Final Report on the Evaluation of the First Offender Prostitution Program (2008), Abt Associate, pp. v-vi and x.)

• 1. Courts General Power to Impose Conditions of Probation: Courts have broad general discretion to fashion and impose additional probation conditions that are particularized to the defendant. (People v. Smith (2007) 152, Cal.App.4^th 1245, 1249.) Courts may impose any “reasonable conditions” necessary to secure justice, make amends to society and individuals injured by the defendant’s unlawful conduct, and assist the “reformation and rehabilitation of the probationer.” (Pen. Code, § 1203.1.) A valid condition must be reasonably related to the offense and aimed at deterring such misconduct in the future. (People v. Carbajal (1995) 10 Cal.4^th 1114, 1121.)
  2. Mandatory Fine is Subject to Penalty Assessments: The amount spelled out in statute as a fine for violating a criminal offense are base figures, as these amounts are subject to statutorily-imposed penalty assessments, such as fees and surcharges. This bill seeks to impose a mandatory minimum fine of $1,000 with no judicial discretion to depart from this financial penalty, the following penalty assessments would be imposed pursuant to the Government and Penal codes:
     

*In addition to the assessments detailed in the chart, the defendant could be subject to pay "actual administrative costs" related to his or her arrest and booking (Gov. Code, § 29550 et seq.) and victim restitution for damages impose by the court.

• 1. Abnormally High Criminal Penalties and Assessments in California: In a January 2016 report, the LAO found that California has abnormally high criminal penalties and assessments. ^[2] According to the report, "[c]urrently, comprehensive information is not available on the criminal fine and fee levels of other states. However, in order to compare California's fine and fee levels to the rest of the nation, we surveyed other states. Specifically, we surveyed one large jurisdiction in each of 33 states (including many states similar to California) for the fines and fees associated with two offenses: a stop sign violation and speeding at 20 miles per hour over the limit. We found that California's fines and fees associated with these common traffic offenses are relatively high. For example, the total fines and fees for a stop sign violation in California is $238, which was higher than 28 of the [33] surveyed states (about 85 percent). The total in other surveyed states ranged from $58 to $277, and averaged $157. The total fines and fees for speeding at 20 miles per hour over the limit in California was $367, which was higher than all of the states we surveyed. The total in other surveyed states ranges from $73 to $350, and averaged $203.

The LAO made a number of recommendations to improve the state’s fine and fee system. "First, we recommend that the Legislature reevaluate the overall structure of the fine and fee system to ensure the system is consistent with its goals. As part of this process, the Legislature will want to determine the specific goals of the system, whether ability to pay should be incorporated into the system, what should be the consequences for failing to pay, and whether fines and fees should be regularly adjusted. Second, we recommend increasing legislative control over the use of criminal fine and fee revenue to ensure that its uses are in line with legislative priorities by (1) requiring that most criminal fine and fee revenue be deposited in the state General Fund, (2) consolidating most fines and fees into a single, statewide charge, (3) evaluating the existing programs supported by fine and fee revenues, and (4) mitigating the impacts of potential changes to the fine and fee system on local governments."

1. Sexual Acts with Minors Regardless of the Payment of Compensation Constitutes a Sex Crime: This bill would separately define prostitution in which the person who provides, agreed to provide, sexual services is a minor. Sexual conduct with a minor constitutes a felony in most instances, regardless of whether anything of value was offered or exchanged for the sexual acts. If the minor involved in commercial sex of was under the age of 14, the defendant has committed the felony of lewd conduct, with a prison term of three, six or eight years, or five, eight or 10 years if coercion is involved (Pen. Code § 288, subds. (a) & (b).) Soliciting an act of prostitution from a minor under the age of 14 could likely be prosecuted as attempted lewd conduct. The prison or jail term for an attempt is generally one-half the punishment for the completed crime. Where the defendant solicited or employed a minor who was 14 or 15 years old, and the defendant was at least 10 years older than the minor, the defendant has committed an alternate felony-misdemeanor.

Any defined sex act – sodomy, sexual penetration, oral copulation or sexual intercourse – with a minor is a crime. The penalties depend on the relative ages of the defendant and the minor and whether the crime involved some form of force, coercion or improper advantage. A defendant charged with a prostitution-related offense involving a minor could also be charged and convicted of a sex crime in the same case. Generally, because the defined sex crime and the sexual commerce offense would involve a single transaction or act, the defendant could only be punished for one offense – the offense carrying the greatest penalty. (Pen. Code § 654.)

1. Accurate and Full Data Collection on Individually Defined Forms of Prosecution: One of the purposes of this bill is to collect data to determine how many adults are arrested for and convicted of paying for sexual acts, how many adults are arrested for and convicted of selling sexual acts and how many adults are arrested for and convicted of paying for sexual services from minors. The bill divides the prosecution statute – Penal Code Section 647, subdivision (b) - into three paragraphs reflecting each form of the crime. In order for the data to be valuable and accurate, reporting agencies will need to specifically note the paragraph under which a defendant was arrested and convicted. Representatives from DOJ explained: “The way [crime reports] appears in the system is entirely dependent on the law enforcement agency or court that enters the offense into the system. One agency may enter PC 647(b)(2) while another may only enter PC 647(b).”

Prosecutors will likely record the specific paragraph under which the defendant is convicted - PC 647 (b)(2) for example. However, police officers and sheriff’s deputies might not specifically record the paragraph of arrest unless instructed to do so. Further, it may not be apparent to officers and deputies what specific form of prostitution would be charged by the prosecutor in any particular case. That could cause some confusion and inaccuracy in the data.

Another impediment to full and accurate data collection is the fact that sex with a minor is a crime. If a minor and an adult are involved in a prostitution incident, numerous outcomes involving sex crimes and prostitution could occur. For example, the police could arrest both parties for prostitution, but the prosecutor could charge the adult with a sex crime, or prostitution, or both. The prosecutor could charge the minor with no crime, or file a prostitution charge. The adult could be initially charged with a sex crime but plead guilty to a prostitution offense, perhaps if the minor appeared to be an adult. In sum, it may be difficult to determine the extent of prostitution involving minors from arrest and conviction data. If committee members approve the bill, they may wish to inquire as to whether DOJ should be directed to instruct agencies on the reporting of prostitution offenses. Committee members may also wish to inquire whether it could be assured that prostitution involving minors could be accurately reported and tracked.

1. Prostitution and Human Trafficking, Though Related, are not Always the Same Thing: A growing number of policy discussions are equating prostitution offenses with human trafficking offenses. There is no doubt that the crimes are related, however, they are not the same crime. A number of proposals seek to treat all prostitution offenses more severely because of the grave threat and nature of human trafficking. Human trafficking is a very serious crime, involving forced servitude, with very serious penalties. Most prostitution offenses between a person who is soliciting a prostitute and the prostitute themselves are misdemeanor crimes. Additionally, pimps and panderers generally are treated more severely by the law, with much more serious consequences than the prostitute or the "john." Unlike the crimes of pimping and pandering, human trafficking is a crime that generally involves some form of force or coercion. Prostitution, by definition, does not require any form of force or coercion.
   
   California has existing strict laws for the treatment of pimps and panderers, as well as human traffickers. However, those crimes are not the same and should not be treated the same. Furthermore, not every person who solicits a prostitute is engaged in the crime of human trafficking. Categorizing all "johns" as human traffickers, or all pimps and panderers as human traffickers, is unproductive in setting criminal justice policy. Distinctions between these crimes must be maintained so that proper resources can be allocated to combat and deal with the crimes based on their relative severity. Blurring the lines between the less severe crimes related to prostitution, and the more severe crimes related to human trafficking, weakens the severity of human trafficking offenses. For instance, this committee has approved bills to add human trafficking to the list of serious felonies. However, if we continue to expand the definition of human trafficking to include more minor prostitution-related offenses the committee would have to re-evaluate in the future whether it would still consider human trafficking a serious felony.

According to the Polaris Project, "Human trafficking is a form of modern-day slavery where people profit from the control and exploitation of others.  As defined under U.S. federal law, victims of human trafficking include children involved in the sex trade, adults age 18 or over who are coerced or deceived into commercial sex acts, and anyone forced into different forms of 'labor or services,' such as domestic workers held in a home, or farm-workers forced to labor against their will.  The factors that each of these situations have in common are elements of force, fraud, or coercion that are used to control people."  (<http://www.polarisproject.org/human-trafficking/overview>.) 

Pimping under California law means receiving compensation from the solicitation of a known prostitute.  (Pen. Code, § 266h.)  Whereas pandering means procuring another person for the purpose of prostitution by intentionally encouraging or persuading that person to become or continue being a prostitute.  (Pen. Code, § 266i.)  Oftentimes, pimps use mental, emotional, and physical abuse to keep their prostitutes generating money.  Consequently, there has been a paradigm shift where pimping and pandering is now viewed as possible human trafficking.

This new approach has been criticized by some because it blurs the line between human trafficking and prostitution.  Sex workers say it discounts their ability to willingly work in the sex industry.  (See Nevada Movement Draws the Line on Human Trafficking by Tom Ragan, Las Vegas Review Journal, May 26, 2013, < http://www.reviewjournal.com/news/las-vegas/nevada-movement-draws-line-human-trafficking>.) 

• 1. Prostitution Generally: The basic crime of prostitution is a misdemeanor offense. (Pen. Code § 647(b).) Prostitution can be generally defined as "soliciting or agreeing to engage in a lewd act between persons for money or other consideration." Lewd acts include touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification of either person.

To implicate a person for prostitution themselves, the prosecutor must prove that the defendant "solicited" or "agreed" to "engage" in prostitution. A person agrees to engage in prostitution when the person accepts an offer to commit prostitution with specific intent to accept the offer, whether or not the offerer has the same intent.

For the crime of "soliciting a prostitute" the prosecutors must prove that the defendant requested that another person engage in an act of prostitution, and that the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication containing the request. The defendant must do something more than just agree to engage in prostitution. The defendant must do some act in furtherance of the agreement to be convicted. Words alone may be sufficient to prove the act in furtherance of the agreement to commit prostitution

Violation of Pen. Code § 647(b) is a misdemeanor. For a first offense conviction of prostitution the defendant faces up to 180 days in jail. If a defendant has one prior conviction of prostitution he or she must receive a county jail sentence of not less than 45 days. If the defendant has two or more prior convictions, the minimum sentence is 90 days in the county jail.

In addition to the punishment described above, if the defendant has a conviction of prostitution, he or she faces fines, probation, possible professional licensing restrictions or revocations, possible immigration consequences, possible asset forfeiture, and possible driving license restrictions.

Closely associated crimes to prostitution include: abduction of a minor for prostitution (Pen. Code 267); seduction for prostitution (Pen. Code 266); keeping a house of prostitution (Pen. Code 315); leasing a house for prostitution (Pen. Code 318); sending a minor to a house of prostitution (Pen. Code 273e); taking a person against that person's will for prostitution (Pen. Code 266a); compelling a person to live in an illicit relationship (Pen. Code 266b); placing or leaving one's wife in a house of prostitution (Pen. Code 266g); loitering for prostitution (Pen. Code 653.22 subd. (a)); pimping ( Pen. Code 266h); or, pandering ( Pen. Code 266i). Most of these crimes are punished much more severely than the underlying prostitution offense, particularly the crimes of pimping, pandering, and procurement.

• 1. Human Trafficking Generally: Human trafficking involves the recruitment, transportation or sale of people for forced labor. Through violence, threats and coercion, victims are forced to work in, among other things, the sex trade, domestic labor, factories, hotels and agriculture. According to the January 2005 United States Department of State's Human Smuggling and Trafficking Center report, "Fact Sheet: Distinctions Between Human Smuggling and Human Trafficking", there is an estimated 600,000 to 800,000 men, women and children trafficked across international borders each year. Of these, approximately 80% are women and girls and up to 50% are minors. A recent report by the Human Rights Center at the University of California, Berkeley cited 57 cases of forced labor in California between 1998 and 2003, with over 500 victims. The report, "Freedom Denied", notes most of the victims in California were from Thailand, Mexico, and Russia and had been forced to work as prostitutes, domestic slaves, farm laborers or sweatshop employees. [University of California, Berkeley Human Rights Center, "Freedom Denied: Forced Labor in California" (February, 2005).] According to the author:
     
     "While the clandestine nature of human trafficking makes it enormously difficult to accurately track how many people are affected, the United States government estimates that about 17,000 to 20,000 women, men and children are trafficked into the United States each year, meaning there may be as many as 100,000 to 200,000 people in the United States working as modern slaves in homes, sweatshops, brothels, agricultural fields, construction projects and restaurants."
     

In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. The proposition increased criminal penalties for human trafficking, including prison sentences up to 15-years-to-life and fines up to $1,500,000. Additionally, the proposition specified that the fines collected are to be used for victim services and law enforcement. Proposition 35 requires persons convicted of trafficking to register as sex offenders. Proposition 35 prohibits evidence that victim engaged in sexual conduct from being used against victims in court proceedings. Additionally, the proposition lowered the evidential requirements for showing of force in cases of minors.

• • 1. Trafficking Victims Protection Act of 2000 (22 USC Sections 7101 et seq.): In October 2000, the Trafficking Victims Protection Act of 2000 (TVPA) was enacted and is comprehensive, addressing the various ways of combating trafficking, including prevention, protection and prosecution. The prevention measures include the authorization of educational and public awareness programs. Protection and assistance for victims of trafficking include making housing, educational, health-care, job training and other federally funded social service programs available to assist victims in rebuilding their lives. Finally, the TVPA provides law enforcement with tools to strengthen the prosecution and punishment of traffickers, making human trafficking a federal crime.
       
    2. Proposition 35 Update to Human Trafficking Laws: In 2012, Californians voted to pass Proposition 35, which modified many provisions of California's already tough human trafficking laws. Specifically, Proposition 35 increased criminal penalties for human trafficking offenses, including prison sentences up to 15-years-to-life and fines up to $1.5 million. The proposition specified that the fines collected are to be used for victim services and law enforcement. In criminal trials, the proposition prohibits the use of evidence that a person was involved in criminal sexual conduct (such as prostitution) to prosecute that person for that crime if the conduct was a result of being a victim of human trafficking, and makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim’s credibility or character in court. The proposition lowered the evidentiary requirements for showing of force in cases of minors.
       
       Proposition 35 also requires persons convicted of human trafficking to register as sex offenders and expanded registration requirements by requiring registered sex offenders to provide the names of their internet providers and identifiers, such as e-mail addresses, user names, and screen names, to local police or sheriff’s departments. After passage of Proposition 35, plaintiffs American Civil Liberties Union and Electronic Frontier Foundation filed a law suit claiming that these provisions unconstitutionally restricts the First Amendment rights of registered sex offenders in the states. A United States District Court judge granted a preliminary injunction prohibiting the implementation or enforcement of Proposition 35's provisions that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. [Doe v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013 LEXIS 5428.]
       
    3. California Attorney General's Report on Human Trafficking: The California Attorney General’s Human Trafficking in California 2012 report stated that human trafficking investigations and prosecutions have become more comprehensive and organized. There are nine human trafficking task forces in California, composed of local, state and federal law enforcement and prosecutors.

Data on human trafficking has improved, although the data still does not reflect the actual extent and range of human trafficking. Data from 2010 through 2012 collected by the California task forces are set out in the following chart:

California Human Trafficking Task Forces Data 2010-2012

Trafficking by Category

1. Current Penalties for Human Trafficking: In 2012, California voters enacted Proposition 35, which modified many provisions of California's already tough human trafficking laws. Specifically, Proposition 35 expanded the definition of human trafficking and increased criminal penalties and fines for human trafficking offenses. The proposition specified that the fines collected are to be used for victim services and law enforcement. In criminal trials, the proposition makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim's credibility or character in court. The proposition also lowered the evidentiary requirements for showing of force in cases of minors. (See Proposition 35 voter guide available at Secretary of State's website, <http://www.voterguide.sos.ca.gov/past/2012/general/propositions/35/analysis.htm> (as of Apr. 22, 2015.)

The current penalties for human trafficking are very severe. Human trafficking for the purpose of obtaining forced labor or services is punishable by imprisonment in state prison for up to 12 years. If the offense involves human trafficking for the purpose of specified sexual conduct, obscene matter or extortion, the punishment proscribed is up to 20 years imprisonment in state prison. If the offense involves causing a minor to engage in a commercial sex act, the penalty imposed may be 15-years to life. (Pen. Code, § 236.1.) The court may also impose up to a $1.5 million fine on a person convicted of human trafficking. (Pen. Code §§ 236.1 and 236.4.)

1. State Prison Overcrowding Considerations: In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that CDCR was unable to provide inmates with constitutionally adequate healthcare. (Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.) The United State Supreme Court upheld the decision, declaring that "without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill" inmates in California’s prisons. (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.)

After continued litigation, on February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 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.

In its most recent status report to the court (February 2015), the administration reported that as "of February 11, 2015, 112,993 inmates were housed in the State's 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity." (Defendants' February 2015 Status Report In Response To February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).

The state now must stabilize these advances and demonstrate to the federal court that California has in place the "durable solution" to prison overcrowding "consistently demanded" by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants' Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).)

Moreover, there are still approximately 10,500 prisoners being housed in out of state and in private prisons. (See latest CDCR monthly population report, as of March 31, 2015: <http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1503.pdf>.)

This bill creates a new enhancement of one year when the defendant is convicted of a human trafficking offense, where the offense was committed against a minor, or convicted of abducting a minor for the purpose of prostitution, where the offense was committed on the grounds of, or within 1,000 feet of a school. Although the state is currently in compliance with the court-ordered population cap, creating new enhancements that increase the length of time that an inmate must serve in prison will reverse the progress made in reducing the state prison population. This is contrary to the court's order for a durable solution to prison overcrowding.

1. Argument in Support: According to the Alameda County District Attorney's Office, "In order to fully combat the problem of commercial sex trafficking, it is important to combat the demand for these services, and recognize that purchasers of sex are driving this exploitative and dangerous industry of slavery. This bill would require a person who sought to procure or did procure sexual services to spend at least 3 days in jail in addition to paying a minimum fine of $1,000 to fund victim services. This bill would also add an additional one year in state prison to a felony conviction of trafficking if the victim was a minor and the activities took place near a school.

"As long as there is demand, there will be an exploiter to fill it. Unfortunately it is at the expense of the life, well-being and psychological impact of the child. Individuals who purchase human beings for sex fuel the market the traffickers supply with victims. Until we eliminate the demand, the sex exploitation of our society's most vulnerable girls, women and men, and boys, will continue."

1. Argument in Opposition: According to the American Civil Liberties Union, "We believe that the new sentencing enhancement proposed is unnecessary in light of existing penalties, and that the mandatory 72 hours of confinement for solicitation unnecessarily infringes on judicial discretion. In addition, we believe it is inappropriate to expand the punishment for the offense of soliciting a minor to include soliciting someone 'posing as a minor.'

"AB 1708 makes six changes to California’s criminal laws as follows:

1. Divides the offense of prostitution into two separate sections, one for the person receiving compensation and one for the person offering compensation.
2. Imposes a mandatory 72 hour period of confinement on any individual convicted of offering to provide compensation for an act of prostitution, removing the judge’s discretion to allow a person to serve this sentence through community service, work furlough or another non-custodial form of punishment.
3. Expands the punishment for soliciting an act of prostitution with a minor to include a person 'posing as a minor.'
   
4. Adds a new sentencing enhancement for committing the crime of human trafficking “against a minor” on the grounds of or within 1,000 feet of a school.

"First, imposing a mandatory 72 hour period of incarceration for the offense of solicitation unnecessarily reduces judicial discretion in sentencing. Current law provides for a mandatory two day jail sentence for soliciting an act of prostitution if the person solicited was a minor. (Pen. Code sec. 647(m)(1).) Current law also provides that the judge 'may, in unusual cases, when the interests of justice are best served, reduce or eliminate the mandatory two days of imprisonment.' (Pen. Code sec. 647(m)(2).)

"AB 1708 would eliminate this narrow safety-valve of judicial discretion, would increase the mandatory jail period from 48 to 72 hours, and would apply the mandatory jail period to all solicitation offenses, including offenses where the person solicited was an adult. We believe these increases in criminal sanctions will not reduce the instances of human trafficking but will exacerbate jail overcrowding and prevent judges from imposing appropriate sentences based on the unique facts of the case before them. Current law sufficiently punishes offenders while also preserving judicial discretion in unusual cases, when the interests of justice would best be served by not imposing the jail sentence. This is a very restricted but wise safeguard that allows judge to exercise their discretion when the specific circumstances of the case call for another approach. Mandating jail time, without any judicial discretion to pursue alternatives, for low-level, nonviolent conduct that involves no actual sexual activity is counter-productive to the goals of rehabilitation and limits the ability to use scarce jail space for serious offenders.

"Second, punishing a person for soliciting a minor for an act of prostitution, when the person solicited was not actually a minor but instead a person 'posing as a minor,' would significantly expand the punishment provided under current law. Current law doubles the maximum possible punishment for solicitation 'if the defendant knew or should have known that the person who was solicited was a minor at the time of the offense.' (Pen. Code sec. 647(b)(m).) This double punishment takes into account the harm caused to the minor who was solicited.

"AB 1708 would apply this longer maximum punishment 'if the person who was solicited was a person posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor.' This appears intended to facilitate undercover sting operations in which law enforcement pose as minors, typically in online forums. But in these circumstances, no minor has actually been harmed. The additional punishment is thus unwarranted.

"Third and finally, we believe AB 1708’s new proposed sentencing enhancement for human trafficking committed “against a minor” on the grounds of or within 1,000 feet of a school is unnecessary and counter-productive. Research has shown that more severe sentences do not actually enhance public safety.^[3] Studies have concluded that the severity of punishment does not generally have an increased effect on deterrence.^[4] Rather, researchers have found that certainty of punishment – that someone will be punished for a particular crime – has a greater deterrent effect than the severity of the punishment itself.^[5]

"California law already provides significant punishments for human trafficking involving a minor. Under existing Penal Code section 236.1, the lowest penalty possible for human trafficking is five years in state prison. (Pen. Code sec. 2361.(a).) The highest penalty is life imprisonment. (Pen. Code sec. 236.1(c)(2).) These punishments can be further enhanced by a myriad of existing sentence enhancements.

"Governor Brown has criticized our state’s criminal laws, particularly the number of sentencing enhancements, observing, '[t]here are now 400 separate enhancements that can add up to 25 years, each one of them, and now you have over 5,000 separate criminal provisions.'^[6] As the Governor stated in his veto message of several bills last fall, '[t]his multiplication and particularization of criminal behavior creates increasing complexity without commensurate benefit.'^[7]

"While protecting minors from victimization is an extremely important objective, we believe that lengthening sentences for the offenses referenced in this bill and decreasing judicial discretion in sentencing will not accomplish that goal. For these reasons, we must oppose AB 1708 unless amended. Please do not hesitate to contact us should you have any questions."

1. Related Legislation:
   1. AB 1051 (), of this legislative session, changed the definition of "pattern of criminal gang activity" to add the crime of human trafficking and creates a new one-year state prison enhancement for specified crimes committed against a minor on the grounds of, or within 1,000 feet of a school. AB 1051 was held in the Senate Appropriations Committee.
   2. SB 420 (Huff), recasts the prostitution section using the exact same language as this bill, dividing buyers, sellers, and buyers of sexual services from minors. SB 420 was held for interim study by this committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney's Office

California District Attorneys Association

County of San Diego

Peace Officers Research Association of California

San Diego District Attorney's Office

State Coalition of Probation Organizations

Opposition

American Civil Liberties Union

California Public Defenders Association

California State Sheriffs' Association

Analysis Prepared by:

Gabriel Caswell / PUB. S. / (916) 319-3744

1. [1]http://www.cookcountysheriff.org/press_page/press_SuperbowlSexTraffickngSting_02_9_2016.html ↑

2. Improving California's Criminal Fine and Fee System. http://www.lao.ca.gov/Publications/Report/3322 ↑

3. Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment (Sentencing Project 2010) available at http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf ↑

4. Id. ↑

5. Id. ↑

6. Scott Shafer, Prosecutors Cry Foul Over Jerry Brown’s Ballot Measure, KQED, Feb. 12, 2016, available at http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jerry-browns-ballot-measure ↑

7. Patrick McGreevy, With Strong Message Against Creating New Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015, available at http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-restricting-hobbyist-drones-at-fires-schools-prisons-20151003-story.html ↑