Existing law, as amended by the Californians Against Sexual Exploitation (CASE) Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election, proscribes the crime of human trafficking. A person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, or to effect or maintain a violation of various felony or misdemeanor offenses, including offenses relating to prostitution, child pornography, as specified, or extortion, as defined, is guilty of human trafficking. A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of various felony or misdemeanor offenses, is also guilty of human trafficking.

This bill would authorize the court to consider and take into account, in certain circumstances, as an aggravating factor for purposes of determining the sentence to be imposed the fact that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. make a person who is convicted of a violation of that prohibition subject to a penalty enhancement of one additional year in the state prison, to be served consecutive to any other term imposed by the court, if it is found that he or she recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. The bill would also make technical and nonsubstantive conforming changes. By increasing the penalty for an existing crime, the bill would impose a state-mandated local program.

Existing law, as amended by the Californians Against Sexual Exploitation (CASE) Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election, proscribes the crime of human trafficking. A person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, or to effect or maintain a violation of various felony or misdemeanor offenses, including offenses relating to prostitution, child pornography, as specified, or extortion, as defined, is guilty of human trafficking. A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of various felony or misdemeanor offenses, is also guilty of human trafficking.

This bill would authorize the court to consider and take into account account, in certain circumstances, as an aggravating factor for purposes of determining the sentence to be imposed the fact that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. The bill would also make technical and nonsubstantive conforming changes.

Existing law, as amended by the Californians Against Sexual Exploitation (CASE) Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election, proscribes the crime of human trafficking. A person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, or to effect or maintain a violation of various felony or misdemeanor offenses, including offenses relating to prostitution, child pornography, as specified, or extortion, as defined, is guilty of human trafficking. A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of various felony or misdemeanor offenses, is also guilty of human trafficking.

This bill would authorize the court to consider and take into account as an aggravating factor for purposes of determining the sentence to be imposed the fact that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. The bill would also make technical and nonsubstantive conforming changes.

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2513 (Williams) - Human trafficking: aggravating factors

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

Bill Summary:

AB 2513 would impose a sentence enhancement of one year in state prison for a human trafficking conviction in which the defendant recruited or enticed the victim from a shelter or placement designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence.

Fiscal Impact:

Potentially significant increase in state costs (General Fund) for longer state prison sentences for human trafficking convictions. The CDCR indicates 92 commitments to state prison under the human trafficking statutes in 2015. While the number of annual commitments potentially subject to the sentence enhancement is unknown, for every 10 percent of annual commitments meeting the specified criteria, increased state costs of about $270,000 (General Fund) could be incurred.

Background:

Existing law, as amended by the Californians Against Sexual Exploitation (CASE) Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election, proscribes the crime of human trafficking.

Under existing law, a person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, is guilty of human trafficking, which is punishable by imprisonment in the state prison for 5, 8, or 12 years and a fine of not more than $500,000. (PC § 236.1 (a).)

Under existing law, person who deprives or violates the personal liberty of another to effect or maintain a violation of various felony or misdemeanor offenses, including offenses relating to prostitution, child pornography, as specified, or extortion, as defined, is guilty of human trafficking 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. (PC § 236.1 (b).)

Under existing law, a person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of various offenses is guilty of human trafficking and is punishable by imprisonment in the state prison as follows:

• Five, 8, or 12 years and a fine of not more than $500,000.
• 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. (PC § 236.1 (c).)

Proposed Law:

This bill would impose a sentence enhancement of one year in state prison for a human trafficking conviction in which the defendant recruited or enticed the victim from a shelter or placement designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. This bill would provide that the enhancement shall only be imposed if it is admitted by the defendant or found to be true by the trier of fact.

This bill would be make additional technical, conforming changes.

Related Legislation:

AB 2327 (Cooley) 2016 would expand the crime of contacting or communicating with a minor, with the intent to commit specified sexual offenses involving the minor, to include attempting to contact or communicate with a minor with the intent to commit human trafficking. This bill is scheduled to be heard today by this Committee.

Prior Legislation: SB 473 (Block) 2014 would have added human trafficking to the list of offenses that may be used to establish a pattern of criminal activity for the purpose of enhancing the sentence of any person who commits a crime for the benefit of a criminal street gang. This bill was vetoed by the Governor with the following message:

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

Today I have signed AB 1610, AB 1791, SB 955 and SB 1388, bills that will solidly enhance enforcement of human trafficking laws through use of wiretap, ensuring the availability of a victim's testimony at trial and strengthening penalties for certain human trafficking crimes involving minors.

Proposition 35, of the November 2012 election, also known as the “Californians Against Sexual Exploitation (CASE) Act,” among its numerous provisions, increased penalties for human trafficking offenses, required convicted sex traffickers to register as sex offenders, mandated law enforcement training on human trafficking, and required criminal fines from convicted human traffickers to pay for services to help victims.

Staff Comments:

By establishing a one-year sentence enhancement to be served in state prison for the offense of human trafficking under specified circumstances, this bill could result in additional state incarceration costs for longer sentences to be served in state prison.

The increase to state incarceration costs would be dependent on the number of human trafficking convictions meeting the specified provisions of this measure, which is unknown. Additionally, the costs for the sentence enhancements imposed on defendants would be incurred at the conclusion of the primary sentences being served, which would vary. Commitment data from CDCR reflects 92 commitments to state prison in 2015 under the human trafficking statutes specified in this measure. While the number of annual commitments potentially subject to the sentence enhancement is unknown, for every 10 percent of annual commitments meeting the specified criteria, increased state costs of about $270,000 (General Fund) could be incurred.

The U.S. Supreme Court ordered the CDCR to reduce the prison population to 137.5 percent of the prison system’s design capacity by February 28, 2016. Although public safety realignment has achieved significant reductions in the prison population, and the 2016-17 Governor’s Budget projects meeting the population cap in the near-term, the analysis by the Legislative Analyst’s Office suggests that CDCR’s long-term prison caseload will likely exceed this cap. Because California's institutions are projected to exceed the population limit, any near-term and future increases to the state's prison population would likely require the state to pursue one of several options including contracting-out for additional bed space or releasing current inmates early onto parole. Both alternatives would result in additional state costs.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 2513 Hearing Date: June 28, 2016

Subject: Human Trafficking

HISTORY

Source: Author

Prior Legislation: Proposition 35, of the November 2012 election

SB 40 (Romero) – Chapter 3, Stats. of 2007

Support: California State Sheriffs' Association; California District Attorneys Association; Chief Probation Officers of California; Peace Officers Research Association of California; Santa Barbara Women’s Political Committee

Opposition: Legal Services for Prisoners with Children

Assembly Floor Vote: 78 - 0

PURPOSE

The purpose of this bill is to define a sentence enhancement of one year in a human trafficking conviction where the defendant recruited or enticed the victim from a shelter or foster placement.

Existing law generally provides that a court must, on the record, state a reason for each sentencing choice. (Pen. Code § 1170, subds. (b), (c) and (d)(2)(I).

Existing law provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, § 1170, subd. (b).)

Existing law provides that when a sentencing enhancement specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, § 1170.1, subd. (d).)

Existing law provides that sentencing choices requiring a statement of a reason include "[s]electing one of the three authorized prison terms referred to in section 1170(b) for either an offense or an enhancement." (Cal. Rules of Court, Rule 4.406(b)(4).)

Existing law requires the sentencing judge to consider relevant criteria enumerated in the Rules of Court. (Pen. Code, § 1170, subd. (a)(3), Cal. Rules of Court, Rule 4.409.

Existing law provides that, in exercising discretion to select one of the three authorized prison terms referred to in section 1170, subdivision (b), "the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court, Rule 4.420(b), Pen.Code, § 1170, subd. (b.)

Existing law prohibits the sentencing court from using a fact charged and found as an enhancement as a reason for imposing the upper term unless the court exercises its discretion to strike the punishment for the enhancement. (Pen. Code, § 1170, subd. (b), Cal. Rules of Court, Rule 4.420(c).)

Existing law prohibits the sentencing court from using a fact that is an element of the crime to impose a greater term. (Pen. Code § 1170, subds. (b), (c) and (d)(2)(I); Cal. Rules of Court, Rule 4.420(d).)

Existing law enumerates circumstances in aggravation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court, Rule 4.421.)

Existing law enumerates circumstances in mitigation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court, Rule 4.423.)

Existing law provides that a person who deprives or violates the personal liberties of another with the intent to obtain forced labor or services is guilty of human trafficking and shall be punished by a state prison term of 5, 8, or 12 years. (Pen. Code, § 236.1, subd. (a).)

Existing law provides that any person who deprives or violates the personal liberties of another with the intent to effect or maintain a violation of specified sex offenses, is guilty of human trafficking and shall be punished by a state prison term of 8, 14, or 20 years. (Pen. Code, § 236.1, subd. (b).)

Existing law provides that any person who causes or persuades, or attempts to cause or persuade, a minor to engage in a commercial sex act, with the intent to effect a violation of specified sex offenses is guilty of human trafficking and shall be punished by a state prison term of 5, 8, or 12 years, unless the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, in which case the punishment is 15 years to life in state prison. (Pen. Code § 236.1, subd. (c).)

This bill defines a one-year enhancement of sentence imposed on a defendant convicted of human trafficking where the jury finds that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence.

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:

AB 2513 amends Proposition 35, the Californians Against Sexual Exploitation (CASE) Act initiative, to define a new sentencing enhancement in human trafficking cases. Specifically, the bill would authorize a prosecutor to seek a one-year sentence enhancement where the jury finds to be true an allegation that the defendant recruited, enticed, or obtained the human trafficking victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. It is our responsibility as a society to care for those who are defenseless and in need of community support. Discouraging offenders from preying on the easiest targets in our community, and punishing them for doing so, is critical to protect these individuals from trafficking and adequately reflect the culpability of the defendant.

2. Enhancements for Human Trafficking Sentences; the Human Trafficking Laws are Designed to be Comprehensive

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. The initiative stated the following as its main purpose: “To combat the crime of human trafficking and ensure just and effective punishment of people who promote or engage in the crime of human trafficking.” (Italics added.) The ballot argument stated: “Prop. 35 holds human traffickers accountable for their horrendous crimes.”

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 defendant obtained, enticed the victim for a placement or shelter for runaway youth, or for victims of domestic violence or 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.

3. 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.

4. Prohibition on Using the Same Fact to Impose an Aggravated Term and an Enhancement

This bill previously provided that where the defendant in a human trafficking case recruited, obtained or enticed the victim from a shelter or placement, the court could consider that as factor in aggravation of sentence. The sentencing court can rely on a factor in aggravation in determining whether to impose the upper term of a “triad” base term. For example, the sentencing triad for trafficking an adult for purposes of committing or maintaining specified sex crimes is 8, 14 or 20 years. The court could impose the upper term based on the fact that the defendant recruited by victim from a homeless shelter or placement for runaway youth.

This bill defines a sentence enhancement for the enticement or recruitment of a person from a shelter or placement for human trafficking. California sentencing law generally prohibits the court from using a fact that underlies an enhancement as a reason to impose the upper term. (Pen. Code § 1170, subd. (b).) Thus, if the court imposed the enhancement defined by this bill, the court could not use the fact that the defendant recruited or obtained the victim from a placement or shelter to impose an upper term sentence.

-- END –

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: AB 2513 Hearing Date: June 14, 2016

Subject: Human Trafficking: Aggravating Factors

HISTORY

Source: Author

Prior Legislation: Proposition 35, of the November 2012 election

SB 40 (Romero) – Chapter 3, Stats. of 2007

Support: California State Sheriffs' Association; Peace Officers Research Association of California

Opposition: Legal Services for Prisoners with Children; San Diego County District Attorney

Assembly Floor Vote: 78 - 0

PURPOSE

The purpose of this bill is to allow the court to consider for purposes of determining the sentence on a human trafficking conviction that the defendant recruited or enticed the victim from a shelter or foster placement.

Existing law generally provides that a court must, on the record, state a reason for each sentencing choice. (Pen. Code § 1170, subds. (b), (c) and (d)(2)(I).

Existing law provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, § 1170, subd. (b).)

Existing law provides that when a sentencing enhancement specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, § 1170.1, subd. (d).)

Existing law provides that sentencing choices requiring a statement of a reason include "[s]electing one of the three authorized prison terms referred to in section 1170(b) for either an offense or an enhancement." (Cal. Rules of Court, Rule 4.406(b)(4).)

Existing law requires the sentencing judge to consider relevant criteria enumerated in the Rules of Court. (Pen. Code, § 1170, subd. (a)(3), Cal. Rules of Court, Rule 4.409.

Existing law provides that, in exercising discretion to select one of the three authorized prison terms referred to in section 1170, subdivision (b), "the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court, Rule 4.420(b), Pen.Code, § 1170, subd. (b.)

Existing law prohibits the sentencing court from using a fact charged and found as an enhancement as a reason for imposing the upper term unless the court exercises its discretion to strike the punishment for the enhancement. (Pen. Code, § 1170, subd. (b), Cal. Rules of Court, Rule 4.420(c).)

Existing law prohibits the sentencing court from using a fact that is an element of the crime to impose a greater term. (Pen. Code § 1170, subds. (b), (c) and (d)(2)(I); Cal. Rules of Court, Rule 4.420(d).)

Existing law enumerates circumstances in aggravation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court, Rule 4.421.)

Existing law enumerates circumstances in mitigation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court, Rule 4.423.)

Existing law provides that a person who deprives or violates the personal liberties of another with the intent to obtain forced labor or services is guilty of human trafficking and shall be punished by a state prison term of 5, 8, or 12 years. (Pen. Code, § 236.1, subd. (a).)

Existing law provides that any person who deprives or violates the personal liberties of another with the intent to effect or maintain a violation of specified sex offenses, is guilty of human trafficking and shall be punished by a state prison term of 8, 14, or 20 years. (Pen. Code, § 236.1, subd. (b).)

Existing law provides that any person who causes or persuades, or attempts to cause or persuade, a minor to engage in a commercial sex act, with the intent to effect a violation of specified sex offenses is guilty of human trafficking and shall be punished by a state prison term of 5, 8, or 12 years, unless the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, in which case the punishment is 15 years to life in state prison. (Pen. Code § 236.1, subd. (c).)

This bill states that the court may consider as an aggravating factor in sentencing on a human trafficking offense that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence.

This bill prohibits the aggravating factor from being considered unless it is admitted by the defendant or found to be true by the trier of fact.

This bill makes technical, non-substantive, and conforming changes.

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:

AB 2513 amends Proposition 35, the Californians Against Sexual Exploitation (CASE) Act initiative, to specify that when sentencing a criminal defendant convicted of human trafficking, California judges have the discretion to consider as an aggravating factor the fact that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. It is our responsibility as a society to care for those who are defenseless and in need of community support. Discouraging offenders from preying on the easiest targets in our community is critical to protecting these individuals from trafficking. Empowering our judges is one way to discourage criminals from participating in acts of human trafficking.

1. Sixth Amendment Implications

This bill allows the court to consider and take into account as an aggravating factor for purposes of sentencing on a human trafficking conviction that the defendant lured or obtained the victim in a shelter that houses runaways, the homeless, domestic violence or human trafficking victims, or from a foster placement.

The Sixth Amendment right to a jury applies to any factual finding, other than that of a prior conviction, necessary to warrant any sentence beyond the presumptive maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely v. Washington (2004) 524 U.S. 296, 301, 303-04.)

In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme Court held California's Determinate Sentencing Law (DSL) violated a defendant's right to trial by jury by placing sentence-elevating fact finding within the judge's province. (Id., at p. 274.) The DSL authorized the court to increase the defendant's sentence by finding facts not reflected in the jury verdict. Specifically, the trial judge could find factors in aggravation by a preponderance of evidence to increase the offender's sentence from the presumptive middle term to the upper term and, as such, was constitutionally flawed. The Court stated, "Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the sentence cannot withstand measurement against our Sixth Amendment precedent." (Id., at p. 293.)

Following Cunningham, the Legislature amended the DSL, specifically Penal Code sections 1170 and 1170.2, to make the choice of lower, middle, or upper prison term one within the sound discretion of the court. (See SB 40 (Romero) - Ch. 3, Stats. 2007.) This approach was approved by the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, 843-852. The new procedure removes the mandatory middle term and the requirement of weighing aggravation against mitigation before imposition of the upper term. Now, the sentencing court is permitted to impose any of the three terms in its discretion, and need only state reasons for the decision so that it will be subject to appellate review for abuse of discretion. (Id. at pp. 843, 847.)

Under this bill, the judge can increase the sentence based on the fact that the defendant enticed or took the human trafficking victim from a shelter or a placement. However, consistent with the holdings in Apprendi, Blakely, and Cunningham, supra, the factual finding must be admitted by the defendant, or found to be true by the trier of fact, before the court can consider it as an aggravating factor.

1. Aggravating Factors as the Basis for an Upper Term, Prohibition on using the Same Fact to Impose an Aggravated Term and an Enhancement

Regardless of whether an upper term is supported by a finding of fact or imposed through the sound discretion of the court, the aggravating factor or reason supporting an upper term must reflect that the defendant’s crime is distinctly worse than the average conviction for that same crime. (People v. Black (2007) 41 Cal.4^th 799, 817; People v. Moreno (1982) 128 Cal.App.3d 103, 110.)

Further, California law - from the time of the enactment of the DSL in 1976 - has prohibited the court from using a fact that underlies an enhancement as a reason to impose the upper term. (Pen. Code § 1170, subd. (b).) For example, if a defendant is convicted of burglary and the prosecutor proved an enhancement allegation that the defendant used a firearm, the court can impose an enhancement for the firearm, but it cannot rely on the use of a firearm to impose the upper term. The court can rely on firearm use to impose an upper term, but the court cannot impose punishment for the enhancement. This rule is part of broader prohibition on the “dual use” of the same fact to impose more than one punishment.

1. Pleading and Proof Requirements for Enhancements under Existing Law

Sentence enhancements must be pleaded and proved. This is compelled by the Cunningham decision, but has been a part of the DSL since its enactment. Enhancements are based on the manner in which a crime was committed – use of a firearm for example – or on the status of the defendant as a recidivist. This bill would require the prosecution to plead and prove as an aggravating factor that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence.

Current sentencing law allows a defendant to bifurcate most prior conviction allegations. These would include prior convictions to establish an enhancement for a prior prison term and qualifying Three Strike convictions. Prior convictions that are elements of an offense - prior felony conviction in a trial for possession of a gun by a convicted felon for example - must be tried and proved to the jury. (Cal. Const. Art. I § 28 (f).) Nevertheless, the defendant can avoid the prejudicial effect of the jury learning the nature of his or her prior conviction by admitting the prior conviction so that the jury learns only that the defendant has been convicted of a felony.

1. Related Legislation

AB 1771 (O'Donnell) would increase the punishment for supervising or aiding a prostitute from up to six months in the county jail to up to a year in the county jail, and adds additional circumstances that can be considered in determining whether someone is guilty of a violation of supervising or aiding a prostitute. AB 1771 is pending in the Senate.

SB 1202 (Leno) would prohibit the court from imposing an upper term based upon aggravating facts unless those facts are presented to and found to be true by the trier of fact. SB 1202 is pending in the Assembly. If 1202 is enacted, it appears that this bill – AB 2513 – would be necessary if the prosecutor sought an upper term because the defendant recruited a human trafficking victim from a shelter or placement.

SB 1016 (Monning) would extend the sunset on the sentencing provisions that grant the trial court discretion to impose one of the three terms in sentencing a defendant following conviction of a crime, or to choose among sentence enhancement terms upon a true finding by the jury on an enhancement allegation. SB 1202 is pending in the Assembly.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 2513

Author:(Williams)

As Introduced Ver:April 25, 2016

Majority vote

SUMMARY: Allows the court to consider for purposes of determining the sentence on a human trafficking conviction that the defendant recruited or enticed the victim from a shelter or foster placement. Specifically, this bill:

1. States that the court may consider as an aggravating factor in sentencing on a human trafficking offense that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence.
2. Prohibits the aggravating factor from being considered unless it is admitted by the defendant or found to be true by the trier of fact.
3. Makes technical, non-substantive, and conforming changes.

EXISTING LAW:

Provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.

1. Provides that when a sentencing enhancement specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.
2. Provides that sentencing choices requiring a statement of a reason include "[s]electing one of the three authorized prison terms referred to in section [Penal Code Section] 1170(b) for either an offense or an enhancement."
3. Requires the sentencing judge to consider relevant criteria enumerated in the Rules of Court.
4. Provides that, in exercising discretion to select one of the three authorized prison terms referred to in section Penal Code Section 1170(b), "the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing."
5. Prohibits the sentencing court from using a fact charged and found as an enhancement as a reason for imposing the upper term unless the court exercises its discretion to strike the punishment for the enhancement.
6. Prohibits the sentencing court from using a fact that is an element of the crime to impose a greater term.
7. Enumerates circumstances in aggravation, relating both to the crime and to the defendant, as specified.
8. Enumerates circumstances in mitigation, relating both to the crime and to the defendant, as specified.
9. Provides that a person who deprives or violates the personal liberties of another with the intent to obtain forced labor or services is guilty of human trafficking and shall be punished by a state prison term of five, eight, or 12 years.
10. Provides that any person who deprives or violates the personal liberties of another with the intent to effect or maintain a violation of specified sex offenses, is guilty of human trafficking and shall be punished by a state prison term of eight, 14, or 20 years.
11. Provides that any person who causes or persuades, or attempts to cause or persuade, a minor to engage in a commercial sex act, with the intent to effect a violation of specified sex offenses is guilty of human trafficking and shall be punished by a state prison term of five, eight, or 12 years, unless the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, in which case the punishment is 15 years to life in state prison.

FISCAL EFFECT:

Unknown. This bill is keyed non-fiscal by the Legislative Counsel.

COMMENTS: According to the author, "AB 2513 amends Proposition 35, the Californians Against Sexual Exploitation (CASE) Act initiative, to specify that when sentencing a criminal defendant convicted of human trafficking, California judges have the discretion to consider as an aggravating factor the fact that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. It is our responsibility as a society to care for those who are defenseless and in need of community support. Discouraging offenders from preying on the easiest targets in our community is critical to protecting these individuals from trafficking. Empowering our judges is one way to discourage criminals from participating in acts of human trafficking."

Analysis Prepared by: Sandy Uribe/ PUB. S. / (916) 319-3744 FN: 0002778

Date of Hearing: April 19, 2016

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

As Proposed to be Amended in Committee

SUMMARY:

Allows the court to consider for purposes of determining the sentence on a human trafficking conviction that the defendant recruited or enticed the victim from a shelter or foster placement. Specifically, this bill:

1. States that the court may consider as an aggravating factor in sentencing on a human trafficking offense that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence.
2. Prohibits the aggravating factor from being considered unless it is admitted by the defendant or found to be true by the trier of fact.
3. Makes technical, non-substantive, and conforming changes.

EXISTING LAW:

1. Provides that when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen.Code, § 1170, subd. (b).)
   
2. Provides that when a sentencing enhancement specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, § 1170.1, subd. (d).)
   
3. Provides that sentencing choices requiring a statement of a reason include "[s]electing one of the three authorized prison terms referred to in section 1170(b) for either an offense or an enhancement." (Cal. Rules of Court, Rule 4.406(b)(4).)
   
4. Requires the sentencing judge to consider relevant criteria enumerated in the Rules of Court. (Pen. Code, § 1170, subd. (a)(3), Cal. Rules of Court, Rule 4.409.)
   
5. Provides that, in exercising discretion to select one of the three authorized prison terms referred to in section 1170, subdivision (b), "the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court, Rule 4.420(b), Pen.Code, § 1170, subd. (b.)
   
6. Prohibits the sentencing court from using a fact charged and found as an enhancement as a reason for imposing the upper term unless the court exercises its discretion to strike the punishment for the enhancement. (Pen. Code, § 1170, subd. (b), Cal. Rules of Court, Rule 4.420(c).)
   
7. Prohibits the sentencing court from using a fact that is an element of the crime to impose a greater term. (Cal. Rules of Court, Rule 4.420(d).)
   
8. Enumerates circumstances in aggravation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court, Rule 4.421.)
   
9. Enumerates circumstances in mitigation, relating both to the crime and to the defendant, as specified. (Cal. Rules of Court, Rule 4.423.)
   
10. Provides that a person who deprives or violates the personal liberties of another with the intent to obtain forced labor or services is guilty of human trafficking and shall be punished by a state prison term of 5, 8, or 12 years. (Pen. Code, § 236.1, subd. (a).)
    
11. Provides that any person who deprives or violates the personal liberties of another with the intent to effect or maintain a violation of specified sex offenses, is guilty of human trafficking and shall be punished by a state prison term of 8, 14, or 20 years. (Pen. Code, § 236.1, subd. (b).)
    
12. Provides that any person who causes or persuades, or attempts to cause or persuade, a minor to engage in a commercial sex act, with the intent to effect a violation of specified sex offenses is guilty of human trafficking and shall be punished by a state prison term of 5, 8, or 12 years, unless the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, in which case the punishment is 15 years to life in state prison. (Pen. Code § 236.1, subd. (c).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "AB 2513 amends Proposition 35, the Californians Against Sexual Exploitation (CASE) Act initiative, to specify that when sentencing a criminal defendant convicted of human trafficking, California judges have the discretion to consider as an aggravating factor the fact that the defendant recruited, enticed, or obtained the victim from a shelter or placement that is designed to serve runaway youth, foster children, homeless persons, or victims of human trafficking or domestic violence. It is our responsibility as a society to care for those who are defenseless and in need of community support. Discouraging offenders from preying on the easiest targets in our community is critical to protecting these individuals from trafficking. Empowering our judges is one way to discourage criminals from participating in acts of human trafficking."
   
2. Sixth Amendment Implications: This bill allows the court to consider and take into account as an aggravating factor for purposes of sentencing on a human trafficking conviction that the defendant lured or obtained the victim in a shelter that houses runaways, the homeless, domestic violence or human trafficking victims, or from a foster placement.
   
   The Sixth Amendment right to a jury applies to any factual finding, other than that of a prior conviction, necessary to warrant any sentence beyond the presumptive maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490; Blakely v. Washington (2004) 524 U.S. 296, 301, 303-04.)
   
   In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme Court held California's Determinate Sentencing Law (DSL) violated a defendant's right to trial by jury by placing sentence-elevating fact finding within the judge's province. (Id. at p. 274.) The DSL authorized the court to increase the defendant's sentence by finding facts not reflected in the jury verdict. Specifically, the trial judge could find factors in aggravation by a preponderance of evidence to increase the offender's sentence from the presumptive middle term to the upper term and, as such, was constitutionally flawed. The Court stated, "Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the sentence cannot withstand measurement against our Sixth Amendment precedent." (Id. at p. 293.)
   

Following Cunningham, the Legislature amended the DSL, specifically Penal Code sections 1170 and 1170.2, to make the choice of lower, middle, or upper prison term one within the sound discretion of the court. (See SB 40 (Romero) - Chapter 3, Statutes of 2007.) This approach was embraced by the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, 843-852. The new procedure removes the mandatory middle term and the requirement of weighing aggravation against mitigation before imposition of the upper term. Now, the sentencing court is permitted to impose any of the three terms in its discretion, and need only state reasons for the decision so that it will be subject to appellate review for abuse of discretion. (Id. at pp. 843, 847.)

Under this bill, the judge can increase the sentence based on the fact that the defendant enticed or took the human trafficking victim from a shelter or a placement. However, consistent with the holdings in Apprendi, Blakely, and Cunningham, supra, the factual finding must be admitted by the defendant, or found to be true by the trier of fact, before the court can consider it as an aggravating factor.

1. Argument in Support: According to the California State Sheriffs' Association, "It goes without saying that trafficking offenses committed against children are reprehensible and offenses that are facilitated by the fact that the minor is a foster child or homeless are especially pernicious. AB 2513 is a modest alteration to existing law that allows a court to appropriately recognize that evil that is inherent in the child trafficking crimes."
   
2. Related Legislation:
   
   1. AB 1771 (O'Donnell) increases the punishment for supervising or aiding a prostitute from up to six months in the county jail to up to a year in the county jail, and adds additional circumstances that can be considered in determining whether someone is guilty of a violation of supervising or aiding a prostitute. AB 1771 is pending in the Assembly Appropriations Committee.
      
   2. SB 1202 (Leno) prohibits the court from imposing an upper term based upon aggravating facts unless those facts are presented to and found to be true by the trier of fact. SB 1202 is pending hearing in the Senate Public Safety Committee.
      
3. Prior Legislation:
   
   1. Proposition 35, of the November 2012 election, increased the punishment for human-trafficking offenses; imposed new fines to fund services for human-trafficking victims; changed how evidence can be used against human-trafficking victims; and, required additional law enforcement training on handling human-trafficking cases.
      
   2. SB 40 (Romero), Chapter 3, Statutes of 2007, amended California's DSL to eliminate the presumption for the middle term and to state that where a court may impose a lower, middle or upper term in sentencing a defendant, the choice of appropriate term shall be left to the discretion of the court.

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association
California State Sheriffs' Association
Peace Officers Research Association of California

Opposition

Legal Services for Prisoners with Children

Analysis Prepared by: