Existing law requires a court to consider issuing a protective order restraining the defendant from contact with the victim for up to 10 years in all cases in which a criminal defendant has been convicted of a crime involving domestic violence, rape, unlawful sexual intercourse, or any crime requiring registration as a sex offender, including, but not limited to, pimping or pandering a minor, and human trafficking to effect or maintain a violation of specified sex offenses. A violation of a protective order is punishable as contempt, a misdemeanor.

This bill would additionally require the court to consider issuing a protective order, as provided above, in all cases in which a criminal defendant has been convicted of human trafficking with the intent to obtain forced labor or services, and pimping or pandering without regard to whether the victim is a minor. Because a violation of the protective order would be a crime, 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.

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

Existing law requires a court to consider issuing a protective order restraining the defendant from contact with the victim for up to 10 years in all cases in which a criminal defendant has been convicted of a crime involving domestic violence, rape, unlawful sexual intercourse, or any crime requiring registration as a sex offender, including, but not limited to, pimping or pandering a minor, and human trafficking to effect or maintain a violation of specified sex offenses. A violation of a protective order is punishable as contempt, a misdemeanor.

This bill would additionally require the court to consider issuing a protective order, as provided above, in all cases in which a criminal defendant has been convicted of human trafficking with the intent to obtain forced labor or services, and pimping or pandering without regard to whether the victim is a minor. Because a violation of the protective order would be a crime, 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.

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

Existing law requires a court to consider issuing a protective order restraining the defendant from contact with the victim for up to 10 years in all cases in which a criminal defendant has been convicted of a crime involving domestic violence, rape, unlawful sexual intercourse, or any crime requiring registration as a sex offender, including, but not limited to, pimping or pandering a minor, and human trafficking to effect or maintain a violation of specified sex offenses. A violation of a protective order is punishable as contempt, a misdemeanor.

This bill would additionally require the court to consider issuing a protective order, as provided above, in all cases in which a criminal defendant has been convicted of human trafficking with the intent to obtain forced labor or services, and pimping or pandering without regard to whether the victim is a minor. Because a violation of the protective order would be a crime, 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.

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

 THIRD READING  

Bill No: AB 1735

Author:

Introduced: 1/3/18

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 4-0, 6/19/18

AYES: Anderson, Jackson, Stone, Wiener

NO VOTE RECORDED: Skinner, Bradford, Mitchell

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/16/18

AYES: Portantino, Bates, Beall, Bradford, Hill, Nielsen, Wiener

ASSEMBLY FLOOR: 76-2, 5/29/18 - See last page for vote

SUBJECT: Protective orders: human trafficking: pimping: pandering

SOURCE: Author

DIGEST:

This bill requires the court to consider issuing a protective order in all cases in which a defendant has been convicted of human trafficking, pimping or pandering.

ANALYSIS:

Existing law:

1. Authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur. (Pen. Code § 136.2, subd. (a).)
2. Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Pen. Code § 136.2, subd. (b).
3. Requires a court to consider issuing a protective order for up to 10 years to protect the victim of the crime when a defendant is convicted of any of the following crimes:
4. A crime involving domestic violence, as specified;
5. Cases of rape, spousal rape, and statutory rape;
6. Gang cases;
7. Any offense requiring sex-offender registration;
8. Stalking cases; and
9. Elder and dependent adult abuse cases. (Pen. Code §§ 136.2, subd. (i)(1); 646.9, subd. (k); 368, subd. (l).)

This bill adds human trafficking, pimping and pandering to the list of offenses for which a court is required to consider issuing a protective order upon a conviction.

Background

Protective Orders

As a general matter, the court can issue a protective order in any criminal proceeding pursuant to Penal Code Section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)

When criminal proceedings have concluded, the court has authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a “no-contact order” as a condition of probation. (Pen. Code § 1203.097.)

Finally, in some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant’s child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, gang cases, or any crime requiring sex offender registration. (Pen. Code § 136.2, subd. (i)(1).) The same is true of stalking cases. (Pen. Code §646.9, subd. (k).) Similarly, in cases involving a criminal conviction or juvenile adjudication for a sex offense in which the victim was a minor, the court may issue an order “that would prohibit … harassing, intimidating, or threatening the victim or the victim’s family members or spouse.” (Pen. Code § 1201.3, subd. (a).) Lastly, the court has authority to issue no-contact orders lasting up to 10 years in cases involving the abuse of an elder or dependent adult. (Pen. Code § 368, subd. (l).)

This bill extends the court’s authority to issue post-conviction protective orders lasting up to 10 years in human trafficking, pimping, and pandering cases. As to all three offenses addressed by this bill, it should be noted that human trafficking for commercial sexual purposes, as well as the pimping or pandering of a minor require sex offender registration. (Pen. Code § 290, subd. (c).) As noted above, the court is already required to consider issuing a post-conviction restraining order for any crime requiring sex offender registration. (Pen. Code § 136.2, subd. (i)(1).)

Therefore, the practical effect of this bill is to permit such an order when (1) the victim of pimping or pandering is an adult, and (2) in human trafficking cases involving forced labor or services.

Criminal Contempt

Disobedience of a court order may be punished as criminal contempt. The crime of contempt is a general intent crime. It is proven by showing that the defendant intended to commit the prohibited act, without any additional showing that he or she intended “to do some further act or achieve some additional consequence.” (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.) A violation must also be willful, which in the case of a court order encompasses both intent to disobey the order, and disregard of the duty to obey the order. (In re Karpf (1970) 10 Cal.App.3d 355, 372.)

Criminal contempt under Penal Code Section 166 is a misdemeanor, and so proceedings under the statute are conducted like any other misdemeanor offense. (In re McKinney (1968) 70 Cal.2d 8, 10; In re Kreitman (1995) 40 Cal.App.4th 750, 755.) Therefore, the criminal contempt power is vested in the prosecution; the trial court has no power to institute criminal contempt proceedings under the Penal Code. (In re McKinney, supra, 70 Cal.2d at p. 13.) A defendant charged with the crime of contempt “is entitled to the full panoply of substantive and due process rights.” (People v. Kalnoki (1992) 7 Cal.App.4t Supp. 8, 11.) Therefore, the defendant has the right to a jury trial, regardless of the sentence imposed. (People v. Earley (2004) 122 Cal.App.4th 542, 550.)

Effects of Restraining Orders

A restraining order prevents a person from being able to go to certain places or to do certain things. For example, the restraining order may prohibit the defendant from being within a certain distance of the person named in the order, thereby implicating the defendant’s right to travel. Depending on the facts, such an order may implicate an individual’s property interests by forcing him or her to vacate his or her own home.

The restraining order may affect a person’s immigration status. A violation of a protective order is a deportable offense. Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act states: “Any alien who at any time after entry is enjoined under a protection order issued by a court an whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.”

The restrained person will also generally not be able to own a gun and will have to turn in, sell, or store any guns he or she has, and will not be able to buy a gun while the restraining order is in effect. (Pen. Code § 29825.)

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• State prison: Unknown, potentially-significant increase in state costs for new commitments to state prison for persons found guilty of violating a restraining order related to a human trafficking, pimping, or pandering conviction. The 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual costs would depend on how many defendants are sentenced to prison for violating the specified protective orders. (General Fund)
• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants for contempt of court for violating protective orders that are the subject of this bill. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the 2018 Budget Act appropriated $64 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found in contempt of court for violating a protective order. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

* Trial Court Trust Fund

SUPPORT: (Verified 8/16/18)

California District Attorneys Association

California Police Chiefs Association

California State Sheriffs’ Association

End Violence Against Women International

Los Angeles County District Attorney

Riverside Sheriffs’ Association

San Diego County District Attorney’s Office

University of San Diego School of Law – Children’s Advocacy Institute

OPPOSITION: (Verified 8/16/18)

American Civil Liberties Union of California

California Public Defenders Association

ASSEMBLY FLOOR: 76-2, 5/29/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NOES: Kamlager-Dove, Quirk

Prepared by: Stephanie Jordan / PUB. S. /

8/18/18 13:45:42

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 1735 (Cunningham) - Protective orders: human trafficking: pimping: pandering

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

Bill Summary:

AB 1735 would require the court to consider issuing a protective order in cases in which the defendant has been convicted of human trafficking, pimping, or pandering.

Fiscal Impact:

• State prison: Unknown, potentially-significant increase in state costs for new commitments to state prison for persons found guilty of violating a restraining order related to a human trafficking, pimping, or pandering conviction. The 2018-19 per capita cost to house a person in a state prison is $80,729 annually, with an annual marginal rate per inmate of between $10,000 and $12,000. The average contract-prison rate cost per inmate is over $30,000 annually. The actual costs would depend on how many defendants are sentenced to prison for violating the specified protective orders. (General Fund)
• Court: Unknown, potentially-significant workload cost pressures to the court to adjudicate charges brought against defendants for contempt of court for violating protective orders that are the subject of this measure. While the courts are not funded on a workload basis, an increase in workload could result in delayed court services and would put pressure on the General Fund to fund additional staff and resources. For example, the 2018 Budget Act appropriated $64 million from the General Fund to backfill continued reduction in fine and penalty revenue for trial court operations. (General Fund*)
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs to prosecute and incarcerate those charged with and found in contempt of court for violating a protective order. Costs would be offset, to a degree, by fee and assessment revenue. (Local funds)

*Trial Court Trust Fund

Background:

According to the analysis of this bill by the Senate Committee on Public Safety:

As a general matter, the court can issue a protective order in any criminal proceeding pursuant to Penal Code Section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)

When criminal proceedings have concluded, the court has authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a "no-contact order" as a condition of probation. (Pen. Code, § 1203.097.)

Finally, in some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, gang cases, or any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).) The same is true of stalking cases. (Pen. Code, §646.9, subd. (k).) Similarly, in cases involving a criminal conviction or juvenile adjudication for a sex offense in which the victim was a minor, the court may issue an order "that would prohibit … harassing, intimidating, or threatening the victim or the victim's family members or spouse." (Pen. Code, § 1201.3, subd. (a).) Lastly, the court has authority to issue no-contact orders lasting up to 10 years in cases involving the abuse of an elder or dependent adult. (Pen. Code, § 368, subd. (l).)

Generally, a willful and knowing violation of a protective order is a misdemeanor contempt of court, punishable by incarceration in county jail for up to one year and/or a base fine of up to $1,000. A subsequent violation in less than seven years that involves an act of violence or “a credible threat,” as that term is defined, is an alternate felony-misdemeanor that is punishable by imprisonment in county jail for up to one year or state prison for sixteen months, two years, or three years.

Proposed Law:

This bill would require the court to consider issuing a restraining order for up to ten years in all cases in which the defendant has been convicted of human trafficking, pimping, or pandering.

Related Legislation:

AB 264 (Low, Ch. 270, Stats. 2017) and SB 352 (Block, Ch. 279, Stats. 2015) required the court to consider issuing a restraining order for up to ten years in gang cases and when a defendant is convicted of elder or dependent adult abuse, respectively.

AB 307 (Campos, Ch. 291, Stats. 2013), SB 723 (Pavley, Ch. 155, Stats. 2011), SB 834 (Florez, Ch. 627, Stats. 2010), and AB 289 (Spitzer, Ch. 582, Stats. 2007) allowed the court to issue protective orders for up to ten years when a defendant is convicted of specified sex crimes, domestic violence, sex crimes involving a minor, and stalking, respectively, regardless of the sentence imposed.

Staff Comments:

The fiscal impact of this bill cannot be known with certainty, as the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of the defendant, and the factors unique to each case. To the extent even one additional defendant is committed to state prison as a result of this bill, state incarceration costs would surpass the Suspense File threshold. Additionally, as the crime created by this bill is punishable with the potential for incarceration, certain rights to the defendants are attached to the proceedings, including the right to a jury trial and the right to counsel (at public expense if the defendants are unable to afford the costs of representation) which could lead to lengthier court proceedings.

As stated in the analysis of this bill by the Assembly Committee on Appropriations, the Department of Corrections and Rehabilitation has admitted an average of thirty-seven inmates a year from 2015 to 2017 for repeated violations of restraining orders. This bill likely would increase the issuance of restraining orders for defendants convicted of trafficking, pimping, and pandering and, therefore, could lead to an increase in the state prison population.

California is subject to a federal court order to reduce its in-state adult institution population to 137.5 percent of design capacity.  The state has undertaken efforts to implement a durable remedy to reduce and avoid prison overcrowding.  On July 4, 2018, 115,306 inmates were housed in the state’s thirty-five adult institutions, 6,286 were housed in in-state contract beds, and 2,810 inmates were housed in out-of-state facilities.  The prison population changes daily as new inmates are admitted and others are released, but, on that date, the state’s prison population was approximately 135.5 percent of design capacity. By potentially increasing the inmate population in in-state institutions, this bill could make it more difficult for the state to comply with the court order.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: AB 1735 Hearing Date: June 19, 2018

Subject: Protective Orders: Human Trafficking: Pimping: Pandering

HISTORY

Source: Author

Prior Legislation: AB 264 (Low), Ch. 270, Stats. 2017

AB 352 (Block), Ch. 279, Stats. 2015

AB 307 (Campos), Ch. 291, Stats. 2013

SB 723 (Pavley), Ch. 155, Stats. 2011

SB 834 (Florez), Ch. 627, Stats. 2010

SB 289 (Spitzer), Ch. 582, Stats. 2007

Support: California District Attorneys Association; California Police Chiefs Association; California State Sheriffs’ Association; End Violence Against Women International; Los Angeles County District Attorney; Riverside Sheriffs’ Association; San Diego County District Attorney’s Office; University of San Diego School of Law – Children’s Advocacy Institute

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

Assembly Floor Vote: 76 - 2

PURPOSE

The purpose of this bill is to require the court to consider issuing a protective order in all cases in which a defendant has been convicted of human trafficking, pimping or pandering.

Existing law authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur. (Pen. Code, § 136.2, subd. (a).)

Existing law provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Pen. Code, § 136.2, subd. (b).)

Existing law requires a court to consider issuing a protective order for up to 10 years to protect the victim of the crime when a defendant is convicted of any of the following crimes:

1. A crime involving domestic violence, as specified;
2. Cases of rape, spousal rape, and statutory rape;
3. Gang cases;
4. Any offense requiring sex-offender registration;
5. Stalking cases; and
6. Elder and dependent adult abuse cases. (Pen. Code, §§ 136.2, subd. (i)(1); 646.9, subd. (k); 368, subd. (l).)

This bill would add human trafficking, pimping and pandering to the list of offenses for which a court is required to consider issuing a protective order upon a conviction.

COMMENTS

1. Need for This Bill

Currently, California law only affords the protection of a 10-year criminal protective order for minor victims of pimping and pandering. But victims age 18 and over are in need of the protection as well. Pimping and pandering crimes follow a psychology that is similar to domestic violence. All domestic violence victims are eligible for a 10-year protective order, while adult victims of pimping and pandering are not.

Additionally, human trafficking victims listed in Penal Code section 236.1(a) have been left out of protections of the lengthier stay away orders, as they are not trafficked for sexual purposes and are not specifically listed in PC 136.1(i)(1). These are the victims that are trafficked for forced labor or services. But these human trafficking victims are also vulnerable to the abuse and coercion of their traffickers, and should not be excluded from protection.

1. Protective Orders

As a general matter, the court can issue a protective order in any criminal proceeding pursuant to Penal Code Section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)

When criminal proceedings have concluded, the court has authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a "no-contact order" as a condition of probation. (Pen. Code, § 1203.097.)

Finally, in some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, gang cases, or any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).) The same is true of stalking cases. (Pen. Code, §646.9, subd. (k).) Similarly, in cases involving a criminal conviction or juvenile adjudication for a sex offense in which the victim was a minor, the court may issue an order "that would prohibit … harassing, intimidating, or threatening the victim or the victim's family members or spouse." (Pen. Code, § 1201.3, subd. (a).) Lastly, the court has authority to issue no-contact orders lasting up to 10 years in cases involving the abuse of an elder or dependent adult. (Pen. Code, § 368, subd. (l).)

This bill would extend the court's authority to issue post-conviction protective orders lasting up to 10 years in human trafficking, pimping, and pandering cases. As to all three offenses addressed by this bill, it should be noted that human trafficking for commercial sexual purposes, as well as the pimping or pandering of a minor require sex offender registration. (Pen. Code, § 290, subd. (c).) As noted above, the court is already required to consider issuing a post-conviction restraining order for any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).)

Therefore, the practical effect of this bill is to permit such an order when (1) the victim of pimping or pandering is an adult, and (2) in human trafficking cases involving forced labor or services.

1. Criminal Contempt

Disobedience of a court order may be punished as criminal contempt. The crime of contempt is a general intent crime. It is proven by showing that the defendant intended to commit the prohibited act, without any additional showing that he or she intended "to do some further act or achieve some additional consequence." (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.) A violation must also be willful, which in the case of a court order encompasses both intent to disobey the order, and disregard of the duty to obey the order. (In re Karpf (1970) 10 Cal.App.3d 355, 372.)

Criminal contempt under Penal Code Section 166 is a misdemeanor, and so proceedings under the statute are conducted like any other misdemeanor offense. (In re McKinney (1968) 70 Cal.2d 8, 10; In re Kreitman (1995) 40 Cal.App.4th 750, 755.) Therefore, the criminal contempt power is vested in the prosecution; the trial court has no power to institute criminal contempt proceedings under the Penal Code. (In re McKinney, supra, 70 Cal.2d at p. 13.) A defendant charged with the crime of contempt "is entitled to the full panoply of substantive and due process rights." (People v. Kalnoki (1992) 7 Cal.App.4t Supp. 8, 11.) Therefore, the defendant has the right to a jury trial, regardless of the sentence imposed. (People v. Earley (2004) 122 Cal.App.4th 542, 550.)

1. Effects of Restraining Orders

A restraining order prevents a person from being able to go to certain places or to do certain things. For example, the restraining order may prohibit the defendant from being within a certain distance of the person named in the order, thereby implicating the defendant’s right to travel. Depending on the facts, such an order may implicate an individual’s property interests by forcing him or her to vacate his or her own home.

The restraining order may affect a person’s immigration status. A violation of a protective order is a deportable offense. Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA) states: “Any alien who at any time after entry is enjoined under a protection order issued by a court an whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.”

The restrained person will also generally not be able to own a gun and will have to turn in, sell, or store any guns he or she has, and will not be able to buy a gun while the restraining order is in effect. (Pen. Code, § 29825.)

1. Argument in Support

According to End Violence Against Women International:

Adult victims of pimps and panderers are among the most vulnerable members of our society. They live on the margins, are often products of the foster care system or abusive childhoods, and lack source of love or support. Street-wise pimps and panderers prey upon these individuals, drawing them into a life of prostitution through promises of affection or money, plying them with drugs, or exploiting other vulnerabilities in their situations. Many adult victims of pimps and panderers were introduced to prostitution as child sex trafficking victims. Yet once they turn 18, they face potential criminal consequences for the very actions for which they were victimized as children. Faced with criminal histories and limited job opportunities, many find it nearly impossible to escape their abusive and controlling pimps.

Victims of labor trafficking are similarly vulnerable. Cunning labor traffickers frequently target foreign nationals who are off the radar screen of those who could help them. Many fear immigration consequences, face language barriers, or lack understanding of their rights under US and California laws. According to a 2012 study conducted by researchers from San Diego State University, 30% of undocumented, Spanish-speaking migrant workers in the San Diego area had experienced labor trafficking. Because labor traffickers control their victims through physical restraint, psychological intimidation, threats to family members, and other forms of coercion, they represent a continuing threat to victims even after they are prosecuted and convicted for their crimes.

1. Argument in Opposition

The American Civil Liberties Union of California opposes this bill and writes:

Penal Code section 136.2 (i) gives the court an additional tool to protect victims in specific kinds of cases, such as domestic violence, rape, or cases involving registrable sex offenses including human trafficking to effect certain sex offenses or pimping or pandering a minor. In these cases, the relationship between the victim and the offender is such that the victim may have particular reason to fear further harm from the offender.

AB 1735 would expand the list of crimes that would allow a protective order to be issued to crimes where the same type of relationship between victim and defendant is not at issue, as where the victim was trafficked for forced labor rather than for sexual purposes. This change will increase the number of protective orders issued, often without the same kind of specific need to protection having been shown. In many cases this could be used as a form of additional punishment, regardless of whether there was any reason to believe that the defendant posed a continuing threat to the victim. For up to ten years, potentially far longer than the period of the sentence or term of probation, the defendant would remain subject to the control of the criminal justice system. The terms of the restraining order in many cases would make it much more difficult for the defendant to reintegrate into the community, by keeping the defendant from returning to his former home or even neighborhood. An offender who is unable to reconnect with friends, neighbors and family is more likely to reoffend, not less. The end result in many cases would likely be conviction for violation of the restraining order, and a prolonged cycle of reincarceration.

Moreover, expanding the list of crimes allowing for issuance of a protective order beyond those currently in law will open the door to expansion to still more crimes – turning what is now a tool to protect specific categories of victims into an additional form of punishment applied regardless of the needs of the victim in a particular case.

-- END –

ASSEMBLY THIRD READING

ATR Bill Id:AB 1735

Author:(Cunningham)

As Introduced Ver:January 3, 2018

Majority vote

SUMMARY: Requires the court to consider issuing a protective order in all cases in which a defendant has been convicted of human trafficking, pimping or pandering.

EXISTING LAW:

1. Authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur.
2. Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court.
3. Allows a court to issue a protective order for up to 10 years to protect the victim of the crime when a defendant is convicted of any of the following crimes:
   1. A crime involving domestic violence, as specified;
   2. Cases of rape, spousal rape, and statutory rape;
   3. Gang cases;
   4. Any offense requiring sex-offender registration (including pimping and pandering of a minor);
   5. Stalking cases; and
   6. Elder and dependent adult abuse cases
4. Allows the court to issue civil harassment protective orders and workplace violence protective orders for up to three years upon a showing of clear and convincing evidence.

FISCAL EFFECT: According to the Assembly Appropriations Committee:

1. Unknown, likely significant costs for the California Department of Corrections and Rehabilitation (CDCR) to incarcerate individuals who violate a protective order (as expanded by this bill) more than once and commit an act of violence or a credible threat of violence. For example, if five additional offenders are admitted annually to CDCR with two-year sentences (the mid-term sentence for this crime), costs in the first year will be $150,000 (assuming the out-of-state contract rate of $30,000 annually per offender) and $300,000 in the second year and ongoing.
2. Non-reimbursable local costs for incarceration, to the extent more protective orders are issued and some individuals violate those orders and are sentenced to county jail. These local costs are offset, at least partially, by fine and fee revenue.
3. Minor costs for courts and the Department of Justice.

COMMENTS: According to the author, "Human Trafficking is an epidemic that is plaguing our state. According to the National Human Trafficking Hotline, California alone saw 705 cases reported in 2017. 544 of these cases were the result of sex trafficking; another 95 were the result of labor trafficking. The remainder involved a combination of the two. These victims often are under the complete dominion and control of their trafficker. They should be given the same protections afforded other human trafficking victims. This bill would give California courts the discretion to issue up to 10-year criminal protective orders for the vulnerable victims of these specific offenses.''

Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0003118

Date of Hearing: April 4, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 1735

Author:(Cunningham) – As Introduced Ver:January 3, 2018

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

SUMMARY:

This bill requires courts to consider issuing a protective order (restraining order) in all cases in which a defendant has been convicted of human trafficking, pimping or pandering.

FISCAL EFFECT:

1. Unknown, likely significant GF costs for the California Department of Corrections and Rehabilitation (CDCR) to incarcerate individuals who violate a protective order (as expanded by this bill) more than once and commit an act of violence or a credible threat of violence. This is because while an initial violation of a protective order is a misdemeanor, subsequent violations that include an act of violence or credible threat of violence are “wobblers”—punishable either in county jail or in state prison. Between 2015 and 2017, CDCR admitted to state prison an average of 37 offenders each year for repeated violations of protective orders. By potentially expanding the number of protective orders issued, it is likely that this bill will result in additional offenders receiving sentences to state prison. For example, if five additional offenders are admitted annually to CDCR with two-year sentences (the mid-term sentence for this crime), costs in the first year will be $150,000 (assuming the out-of-state contract rate of $30,000 annually per offender) and $300,000 in the second year and ongoing. The actual costs for CDCR will depend on the number of additional protective orders issued by the courts, the number of individuals who commit repeat violations of those orders, and whether those offenders are sentenced to county jail or state prison.
2. Non-reimbursable local costs for incarceration, to the extent more protective orders are issued and some individuals violate those orders and are sentenced to county jail. These local costs are offset, at least partially, by fine and fee revenue.
3. Minor costs for courts to consider whether to issue a protective order as specified by this bill.

COMMENTS:

1. Background. Under existing law, a court is authorized to issue no-contact protective orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact protective orders lasting up to 10 years in numerous other types of cases, such as a domestic-violence-related offense, rape, spousal rape, statutory rape, gang cases, or any crime requiring sex offender registration.
2. Purpose. According to the author:

Human Trafficking is an epidemic that is plaguing our state. According to the National Human Trafficking Hotline, California alone saw 705 cases reported in 2017. 544 of these cases were the result of sex trafficking; another 95 were the result of labor trafficking. The remainder involved a combination of the two. These victims often are under the complete dominion and control of their trafficker. They should be given the same protections afforded other human trafficking victims. This bill would give California courts the discretion to issue up to 10-year criminal protective orders for the vulnerable victims of these specific offenses.

1. Related legislation.

AB 2036 (Gipson), of the current legislative session, extends a court’s authority to issue criminal protective orders in juvenile delinquency cases. AB 2036 is pending hearing in the Assembly Public Safety Committee.

AB 2290 (Gallagher), of the current legislative session, requires the courts to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a minor who is a witness and requires this order have precedence over a civil court order. AB 2290 is pending hearing in the Assembly Public Safety Committee.

1. Prior legislation.

AB 264 (Low), Chapter 270, Statutes of 2017, requires the court to consider issuing a restraining order for up to 10 years in gang cases.

SB 352 (Block), Chapter 279, Statutes of 2015, requires the court to consider issuing a restraining order for up to 10 years when a defendant is convicted for an offense involving abuse of an elder or a dependent adult, regardless of the sentence imposed.

AB 307 (Campos), Chapter 291, Statutes of 2013, allows a court to issue a protective order for up to 10 years when a defendant is convicted of specified sex crimes, regardless of the sentence imposed.

Analysis Prepared by: Jessica Peters / APPR. / (916) 319-2081

Date of Hearing: March 6, 2018

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Requires the court to consider issuing a protective order in all cases in which a defendant has been convicted of human trafficking, pimping or pandering.

EXISTING LAW:

1. Authorizes the trial court in a criminal case to issue protective orders when there is a good cause belief that harm to, or intimidation or dissuasion of a victim or witness has occurred or is reasonably likely to occur. (Pen. Code, § 136.2, subd. (a).)
   
2. Provides that a person violating a protective order may be punished for any substantive offense described in provisions of law related to intimidation of witnesses or victims, or for contempt of court. (Pen. Code, § 136.2, subd. (b).)
   
3. Allows a court to issue a protective order for up to 10 years to protect the victim of the crime when a defendant is convicted of any of the following crimes:
   
   1. A crime involving domestic violence, as specified;
      
   2. Cases of rape, spousal rape, and statutory rape;
      
   3. Gang cases;
      
   4. Any offense requiring sex-offender registration (including pimping and pandering of a minor);
      
   5. Stalking cases; and
      
   6. Elder and dependent adult abuse cases. (Pen. Code, §§ 136.2, subd. (i)(1); 646.9, subd. (k); 368, subd. (l).)
      
4. Allows the court to issue civil harassment protective orders and workplace violence protective orders for up to three years upon a showing of clear and convincing evidence. (Civ. Pro. Code, §§ 527.6 and 527.8.)
   

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Human Trafficking is an epidemic that is plaguing our state. According to the National Human Trafficking Hotline, California alone saw 705 cases reported in 2017. 544 of these cases were the result of sex trafficking; another 95 were the result of labor trafficking. The remainder involved a combination of the two. These victims often are under the complete dominion and control of their trafficker. They should be given the same protections afforded other human trafficking victims. This bill would give California courts the discretion to issue up to 10-year criminal protective orders for the vulnerable victims of these specific offenses.”
   
2. Protective Orders: As a general matter, the court can issue a protective order in any criminal proceeding pursuant to Penal Code Section 136.2 where it finds good cause belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is reasonably likely to occur. Protective orders issued under this statute are valid only during the pendency of the criminal proceedings. (People v. Ponce (2009) 173 Cal.App.4th 378, 382.)
   

When criminal proceedings have concluded, the court has authority to issue protective orders as a condition of probation. For example, when domestic violence criminal proceedings have concluded, the court can issue a "no-contact order" as a condition of probation. (Pen. Code, § 1203.097.)

Finally, in some cases in which probation has not been granted, the court also has the authority to issue post-conviction protective orders. The court is authorized to issue no-contact orders for up to 10 years when a defendant has been convicted of willful infliction of corporal injury to a spouse, former spouse, cohabitant, former cohabitant, or the mother or father of the defendant's child. The court can also issue no-contact orders lasting up to 10 years in cases involving a domestic-violence-related offense, rape, spousal rape, statutory rape, gang cases, or any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).) The same is true of stalking cases (Pen. Code, §646.9, subd. (k)). Similarly, in cases involving a criminal conviction or juvenile adjudication for a sex offense in which the victim was a minor, the court may issue an order "that would prohibit … harassing, intimidating, or threatening the victim or the victim's family members or spouse." (Pen. Code, § 1201.3, subd. (a).) Lastly, the court has authority to issue no-contact orders lasting up to 10 years in cases involving the abuse of an elder or dependent adult. (Pen. Code, § 368, subd. (l).)

This bill would extend the court's authority to issue post-conviction protective orders lasting up to 10 years in human trafficking, pimping, and pandering cases. As to all three offenses addressed by this bill, it should be noted that human trafficking for commercial sexual purposes, as well as the pimping or pandering of a minor require sex offender registration. (Pen. Code, § 290, subd. (c).) As noted above, the court is already required to consider issuing a post-conviction restraining order for any crime requiring sex offender registration. (Pen. Code, § 136.2, subd. (i)(1).) Therefore, the practical effect of this bill is to permit such an order when (1) the victim of pimping or pandering is an adult, and (2) in human trafficking cases involving other forms of forced labor or services.

1. Criminal Contempt: Disobedience of a court order may be punished as criminal contempt. The crime of contempt is a general intent crime. It is proven by showing that the defendant intended to commit the prohibited act, without any additional showing that he or she intended "to do some further act or achieve some additional consequence." (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4.) Nevertheless, a violation must also be willful, which in the case of a court order encompasses both intent to disobey the order, and disregard of the duty to obey the order." (In re Karpf (1970) 10 Cal.App.3d 355, 372.)
   

Criminal contempt under Penal Code Section 166 is a misdemeanor, and so proceedings under the statute are conducted like any other misdemeanor offense. (In re McKinney (1968) 70 Cal.2d 8, 10; In re Kreitman (1995) 40 Cal.App.4th 750, 755.) Therefore, the criminal contempt power is vested in the prosecution; the trial court has no power to institute criminal contempt proceedings under the Penal Code. (In re McKinney, supra, 70 Cal.2d at p. 13.) A defendant charged with the crime of contempt "is entitled to the full panoply of substantive and due process rights." (People v. Kalnoki (1992) 7 Cal.App.4t Supp. 8, 11.) Therefore, the defendant has the right to a jury trial, regardless of the sentence imposed. (People v. Earley (2004) 122 Cal.App.4th 542, 550.)

1. Effects of Restraining Orders: The consequences of having the court issue a restraining order against a person can be very severe. The person will not be able to go to certain places or to do certain things. For example, the restraining order may prohibit the defendant from being within a certain distance of the person named in the order, thereby implicating the defendant’s right to travel. Depending on the facts, such an order may implicate an individual’s property interests by forcing him or her to vacate his or her own home.
   
   The restraining order may affect a person’s immigration status. A violation of a protective order is a deportable offense. Section 237(a)(2)(E)(ii) of the Immigration and Nationality Act (INA) states: “Any alien who at any time after entry is enjoined under a protection order issued by a court an whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable.”
   
   The restrained person will generally not be able to own a gun and will have to turn in, sell, or store any guns he or she has, and will not be able to buy a gun while the restraining order is in effect. (Pen. Code, § 29825.)
   
2. Argument in Support: According to the California Police Chiefs Association, “AB 1735 creates parity for victims who face comparable psychological and emotional damage that warrant ongoing protective measure to ensure their safety and welfare.”
   
3. Argument in Opposition: According to American Civil Liberties Union of California (ACLU), “Penal Code section 136.2 (i) gives the court an additional tool to protect victims in specific kinds of cases, such as domestic violence, rape, or cases involving registrable sex offenses including human trafficking to effect certain sex offenses or pimping or pandering a minor. In these cases, the relationship between the victim and the offender is such that the victim may have particular reason to fear further harm from the offender.

“AB 1735 would expand the list of crimes that would allow a protective order to be issued to crimes where the same type of relationship between victim and defendant is not at issue, as where the victim was trafficked for forced labor rather than for sexual purposes. This change will increase the number of protective orders issued, often without the same kind of specific need to protection having been shown. In many cases this could be used as a form of additional punishment, regardless of whether there was any reason to believe that the defendant posed a continuing threat to the victim. For up to ten years, potentially far longer than the period of the sentence or term of probation, the defendant would remain subject to the control of the criminal justice system. The terms of the restraining order in many cases would make it much more difficult for the defendant to reintegrate into the community, by keeping the defendant from returning to his former home or even neighborhood. An offender who is unable to reconnect with friends, neighbors and family is more likely to reoffend, not less. The end result in many cases would likely be conviction for violation of the restraining order, and a prolonged cycle of reincarceration.

“Moreover, expanding the list of crimes allowing for issuance of a protective order beyond those currently in law will open the door to expansion to still more crimes – turning what is now a tool to protect specific categories of victims into an additional form of punishment applied regardless of the needs of the victim in a particular case.”

1. Related Legislation:
   
   1. AB 1737 (Cunningham) redefines the crime of pandering. AB 1737 will be heard in this Committee today.
      
   2. AB 2036 (Gipson) would extend a court authority to issue criminal protective orders in juvenile delinquency cases. AB 2036 is pending hearing in this committee.
      
   3. AB 2290 (Gallagher) would require the court to consider issuing an order restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a minor who is a witness and would require this order have precedence over a civil court order. AB 2290 is pending hearing in this committee.
      
   4. SB 1089 (Jackson) would clarify that all protective orders subject to transmittal to the California Law Enforcement Telecommunications System, also known as CLETS, are required to be so transmitted. SB 1089 is pending hearing in the Senate Public Safety Committee.
      
2. Prior Legislation:
   
   1. AB 264 (Low), Chapter 270, Statutes of 2017, requires the court to consider issuing a restraining order for up to 10 years in gang cases.
      
   2. SB 352 (Block), Chapter 279, Statutes of 2015, requires the court to consider issuing a restraining order for up to 10 years when a defendant is convicted for an offense involving abuse of an elder or a dependent adult, regardless of the sentence imposed.
      
   3. AB 307 (Campos), Chapter 291, Statutes of 2013, allows a court to issue a protective order for up to 10 years when a defendant is convicted of specified sex crimes, regardless of the sentence imposed.
      
   4. SB 723 (Pavley), Chapter 155, Statutes of 2011, allows a court to issue a protective order for up to 10 years when a defendant is convicted for an offense involving domestic violence, regardless of the sentence imposed.
      
   5. SB 834 (Florez), Chapter 627, Statutes of 2010, allows a court to issue a protective order for up to 10 years in sex cases involving a minor victim.
      
   6. AB 289 (Spitzer), Chapter 582, Statutes of 2007, allows a court to issue a protective order for 10 years upon a defendant's conviction for stalking.

REGISTERED SUPPORT / OPPOSITION:

Support

California District Attorneys Association

California Police Chiefs Association
California State Sheriffs’ Association
Riverside Sheriffs’ Association

Opposition

American Civil Liberties Union of California

Analysis Prepared by: