Existing law, the Sex Offender Registration Act, last amended by Proposition 35, as approved by the voters at the November 6, 2012, statewide general election, requires a person convicted of certain crimes, as specified, to register with law enforcement as a sex offender for the rest of his or her life while residing in California or while attending school or working in California, as specified. A willful failure to register, as required by the act, is a misdemeanor, or felony, depending on the underlying offense.

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

Date of Hearing: May 11, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2188

Author:(Grove) – As Amended Ver:April 12, 2016

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

SUMMARY:

This bill authorizes a peace officer to arrest a person without a warrant if the officer has probable cause to believe that the person has committed the misdemeanor offense of soliciting a minor for prostitution, even if the offense did not take place in the officer’s presence.

FISCAL EFFECT:

Minor, nonreimbursable costs for incarceration, offset to a degree by increased fine revenue, to the extent the misdemeanor results in incarceration.

COMMENTS:

1. Background. An officer is only allowed to make an arrest for a misdemeanor offense that occurs in the officer’s presence, with some very limited exceptions. However, officers can take custody of individuals that have been arrested by a citizen, even if the arrest does not take place in the officer’s presence. Citizens are allowed to make arrests. In order for a citizen to make an arrest for a misdemeanor, the crime must have been committed in the citizen’s presence. If the citizen makes the arrest, law enforcement can then take custody of the arrestee.
2. Individuals Can Be Prosecuted for the Crime of Solicitation Whether or Not an Arrest is Made: If there is sufficient evidence to establish that the crime of solicitation of a minor for prostitution has occurred, the adult responsible for the crime can be charged in court. Assuming sufficient evidence, the individual would be convicted in court and receive punishment appropriate to their criminal conduct. To the extent an arrest can provide a deterrent effect to individuals soliciting prostitutes, that deterrent effect can be achieved through prosecution and punishment through the court process.
3. Purpose. According to the author, "AB 2188 would allow law enforcement the authority to arrest any adult when there is probable cause to believe they solicited sex from a minor. Currently, law enforcement officials can only arrest an adult for soliciting sex from a minor if they witness the solicitation.”
4. Support. The Bakersfield Police Department states the deterrent effect of this bill will be instrumental in dissuading not only "Johns" from pursuing these girls but "Pimps" from trafficking them.
5. Opposition. According to The American Civil Liberties Union of California, “The ability to stop, arrest and search an individual is an enormous power that we give police. Lowering the threshold to allow an officer to arrest someone for a misdemeanor raises serious concerns about likely abuse of that power. An officer may be tempted to arrest someone as a pre-text, in order to question the suspect or conduct a search for additional evidence. Pre-text arrests are akin to stop-and-frisk programs and frequently associated with racial profiling and other abuses of power.

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

Date of Hearing: April 19, 2016

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Allows a peace officer to arrest a person without a warrant if the officer has probable cause to believe that the person has committed the misdemeanor offense of soliciting a minor for prostitution, even if the offense did not take place in the officer’s presence.

EXISTING LAW:

1. States that a peace officer may arrest a person in obedience to a warrant, or without a warrant, may arrest a person whenever any of the following circumstances occur:
   
   1. The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's presence; (Pen. Code, § 836, subd. (a)(1).)
      
   2. The person arrested has committed a felony, although not in the officer's presence.; or (Pen. Code, § 836, subd. (a)(2).)
      
   3. The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (Pen. Code, § 836, subd. (a)(3).)
      
2. Specifies that any time a peace officer is called out on a domestic violence call, it shall be mandatory that the officer make a good faith effort to inform the victim of his or her right to make a citizen's arrest, unless the peace officer makes an arrest for specified domestic violence offenses. (Pen. Code, § 836, subd. (b).)
   
3. Provides that when a peace officer is responding to a call alleging a violation of a domestic violence protective or restraining order issued as specified, and the peace officer has probable cause to believe that the person against whom the order is issued has notice of the order and has committed an act in violation of the order, the officer shall make a lawful arrest of the person without a warrant and take that person into custody whether or not the violation occurred in the presence of the arresting officer. (Pen. Code, § 836, subd. (c)(1).)
   
4. Specifies that in situations where mutual protective orders have been issued as specified, liability for arrest applies only to those persons who are reasonably believed to have been the dominant aggressor. (Pen. Code, § 836, subd. (c)(3).)
   
5. States that the dominant aggressor is the person determined to be the most significant, rather than the first, aggressor. In identifying the dominant aggressor, an officer shall consider (A) the intent of the law to protect victims of domestic violence from continuing abuse, (B) the threats creating fear of physical injury, (C) the history of domestic violence between the persons involved, and (D) whether either person involved acted in self-defense. (Pen. Code, § 836, subd. (c)(3).)
   
6. Provides that if a suspect commits an assault or battery upon a current or former spouse, fiance, fiancee, a current or former cohabitant, a person with whom the suspect currently is having or has previously had an engagement or dating relationship, a person with whom the suspect has parented a child, or other specified individuals, a peace officer may arrest the suspect without a warrant where both of the following circumstances apply:
   
   1. The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed; and (Pen. Code, § 836, subd. (d)(1).)
      
   2. The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed. (Pen. Code, § 836, subd. (d)(2).)
      
7. States that a peace officer may, without a warrant, arrest a person for a violation of carrying a concealed firearm when all of the following apply:
   
   1. The officer has reasonable cause to believe that the person to be arrested has committed the violation of carrying a concealed firearm; (Pen. Code, § 836, subd. (e)(1).)
      
   2. The violation of carrying a concealed firearm occurred within an airport, in an area to which access is controlled by the inspection of persons and property; and (Pen. Code, § 836, subd. (e)(2).)
      
   3. The peace officer makes the arrest as soon as reasonable cause arises to believe that the person to be arrested has committed the violation of carrying a concealed firearm. (Pen. Code, § 836, subd. (e)(3).)
      
8. Provides that a private person may arrest another:
   
   1. For a public offense committed or attempted in his presence; and (Pen. Code, § 837.)
      
   2. When the person arrested has committed a felony, although not in his presence. (Pen. Code, § 837.)
      
   3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it. (Pen. Code, § 837.)
      
9. States that any person making an arrest may orally summon as many persons as he deems necessary to aid him therein. (Pen. Code, § 839.)
   
10. Specifies that a private person who has arrested another for the commission of a public offense must, without unnecessary delay, take the person arrested before a magistrate, or deliver him or her to a peace officer. (Pen. Code, § 847.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 2188 would allow law enforcement the authority to arrest any adult when there is probable cause to believe they solicited sex from a minor. Currently, law enforcement officials can only arrest an adult for soliciting sex from a minor if they witness the solicitation. If police come upon a situation where there is probable cause to believe an adult has solicited a minor for sex, an officer can only issue a ticket, because this is a misdemeanor crime.”
   
2. Individuals Can Be Prosecuted for the Crime of Solicitation Whether or Not an Arrest is Made: If there is sufficient evidence to establish that the crime of solicitation of a minor for prostitution has occurred, the adult responsible for the crime can be charged in court. Assuming sufficient evidence, the individual would be convicted in court and receive punishment appropriate to their criminal conduct. To the extent an arrest can provide a deterrent effect to individuals soliciting prostitutes, that deterrent effect can be achieved through prosecution and punishment through the court process. Needless to say, the process of arrest should not be used as punishment itself, or as a pretext to obtain further evidence. A court proceeding provides a full opportunity to present evidence and administer punishment in a forum that ensures due process.
   
3. Citizen’s Arrest: An officer is only allowed to make an arrest for a misdemeanor offense that occurs in the officer’s presence, with some very limited exceptions. However, officers can take custody of individuals that have been arrested by a citizen, even if the arrest does not take place in the officer’s presence. Citizens are allowed to make arrests. (Pen. Code, § 837.) In order for a citizen to make an arrest for a misdemeanor, the crime must have been committed in the citizen’s presence. If the citizen makes the arrest, law enforcement can then take custody of the arrestee. The Alameda County District Attorney’s Office has published materials providing guidelines for police officers when taking custody of an individual placed under citizen’s arrest.
   

“If the suspect is present when officers initially meet with the citizen, and if the citizen arrests him or has already done so, officers must ‘receive’ him, meaning they must take custody of him. The purpose of this requirement is to ‘minimize the potential for violence when a private person restrains another by a citizen’s arrest by requiring that a peace officer (who is better equipped by training and experience) accept custody of the person arrested from the person who made the arrest.’” (http://le.alcoda.org/publications/files/CITIZENSARREST.pdf.)

The mechanism of citizen’s arrest provides an avenue to apprehend a suspect that has committed a misdemeanor, even if the offense has not been committed in an officer’s presence.

1. Peace Officers are Mandated Reporters of Child Abuse or Neglect: The California Child Abuse Neglect Reporting Act (CANRA) requires mandatory reporting when certain individuals suspect that a child has been abused or neglected. Law enforcement officers are one of the groups which have mandatory reporting responsibilities.
   
   A mandated reporter must make a report whenever, in his/her professional capacity or within the scope of his/her employment, he/she has knowledge of, or observes a child (a person under 18) whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. Abuse includes the sexual exploitation of a child.
   
   When law enforcement suspects abuse or neglect they inform child protective services and the district attorney’s office of the suspected abuse.
   
   Those responsibilities are triggered whether or not an arrest is made of an individual suspected committing sexual exploitation.
   
2. Argument in Support: According to The Bakersfield Police Department, “Human Trafficking is a growing problem in Kern County and the City of Bakersfield is not immune. Kern County has three major state highways that dissect the County. This facilitates the smuggling and transport of human victims. Runaway juveniles are forced into prostitution by "Pimps", who lure the juveniles in with promises of money, clothes, and other material things they would not normally be able to afford. These pimps then force the juveniles to perform sex acts with strange men and women, and give them nothing in return. They often beat these juveniles into submission and prevent them, by means of force or fear, from leaving. These are the vulnerable victims that are sought out by men seeking sex with underage juveniles. The deterrent effect of this bill will be instrumental in dissuading not only "Johns" from pursuing these girls but "Pimps" from trafficking them.
   
   “In 2013, the Bakersfield Police Department investigated the first known human trafficking case in Kern County, wherein a 15 year old female juvenile was kidnapped in Bakersfield and taken to Reno, Nevada. Once in Reno, she was forced to pose nude for photographs that were uploaded onto a prostitution website. The juvenile was forced to perform sex acts with at least 15 men before Officers were able to locate her. Officers were able to glean vital information from her regarding the prevalence of human trafficking in Bakersfield and Kern County. Again in 2013, a 14 year old female was lured out of a continuation school by an adult male who subsequently forced her into multiple sex acts with adult males who sought her out because of her young age. In both cases the traffickers were convicted and sentenced to multiple years in prison.
   
   “Data was analyzed over a three year period (2013-2015) and the Bakersfield Police Department received 27 calls for service regarding Human Trafficking, which resulted in 19 arrests. In that same time period, 1,861 people were arrested for prostitution. Based on these numbers, it is clear that we have a problem.
   
   “The Bakersfield Police Department is committed to impacting and eliminating sex trafficking in our city. It is our intent to expose the human trafficking problem. We will also focus efforts on educating the public on the severity of the problem in Kern County and ways that they can assist law enforcement in combating the problem. We will help the victims through the entire justice process and provide them the services necessary to return them to a normal life. It is our belief that there exists a need for stiffer penalties on offenders who solicit sex from girls who are minors as they are not legally allowed to give consent to participate in sex acts. This too would have a deterrent effect as it would be known that severe punishment will be handed down.”
   
3. Argument in Opposition: According to The American Civil Liberties Union of California, “AB 2188 seeks to expand the power of an officer to arrest a person to include “if the officer has probable cause to believe that the person to be arrested has violated subdivision (m) of Section 647. . . .” Penal Code section 647(m), in turn, proscribes a higher punishment for the offense of soliciting a person to commit an act of prostitution if “the person who was solicited was a minor at the time of the offense, and if the defendant knew or should have known that the person who was solicited was a minor at the time of the offense.”
   
   “In order for an officer to arrest someone under the proposed language of AB 2221, the officer would have to have probable cause to believe that:
   
   1) The suspected solicited an act of prostitution;
   2) The person solicited was in fact a minor; and
   3) The person solicited knew or reasonable should have known that the person solicited was a minor.
   
   “It is difficult to imagine how an officer would have probable cause to believe all of these elements have been established unless a) the offense is committed in the officer’s presence or b) a witness informs the officer that he or she witnessed the behavior. In the latter case—when the offense was not committed in the officer’s presence—the civilian witness can effectuate a citizen’s arrest and the officer can assume custody. In addition, case law has made clear that “presence” does not require visual observation by the officer of the entire crime. Rather, presence includes detection of the crime through any senses, including hearing and includes observing sufficient circumstantial factors to establish that the crime was committed. AB 2221 thus appears unnecessary given the current power of law enforcement to effectuate an arrest.
   
   “The letter of support from the Bakersfield Police Department further demonstrates this point. The Department states that between 2013 and 2015, they arrested 1,861 people for prostitution. The Department, by its own reporting, is quite effective at arresting people for prostitution.
   
   “The ability to stop, arrest and search an individual is an enormous power that we give police. Lowering the threshold to allow an officer to arrest someone for a misdemeanor raises serious concerns about likely abuse of that power. An officer may be tempted to arrest someone as a pre-text, in order to question the suspect or conduct a search for additional evidence. Pre-text arrests are akin to stop-and-frisk programs and frequently associated with racial profiling and other abuses of power. A recent poll found that most voters in California believe that police discriminate against people of color. 71% of California voters believe police are most likely to discriminate against young black men. Similarly, voters view Latinos (58%) and young Latino men (61%) as groups that are more likely to be discriminated against. Making it easier for police to arrest people for low-level offenses will only make these problems worse.”
   
4. Related Legislation: AB 1276 (Santiago), would authorize, under specified conditions, a minor 17 years of age or younger to testify by contemporaneous examination and cross-examination in another place and out of the presence of the judge, jury, defendant or defendants, and attorneys if the testimony will involve the recitation of the facts of an alleged offense of human trafficking. SB 1276 is awaiting hearing in the Senate Public Safety Committee.
   
5. Prior Legislation: SB 1091 (Pavley), Chapter 148, Statutes of 2012, expanded the list of cases in which a prosecuting witness may have support persons to include, among others, cases involving human trafficking, prostitution, child exploitation, and obscenity, as specified.
   

REGISTERED SUPPORT / OPPOSITION:

Support

Bakersfield Police Department
California Police Chiefs Association

Opposition

American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Legal Services for Prisoners with Children

Analysis Prepared by: